Section 6.72.010. Definitions.
Except where the context otherwise requires, the definitions
given in this Section govern the construction of this Chapter.
(a) Billing Address. "Billing Address" shall
mean the mailing address of the service user where the service supplier submits
invoices or bills for payment by the customer.
(b) Cable Television Service. "Cable television
service" shall mean any and all services related to the providing of
television, video or origination programming or services, including any
communications that are ancillary, necessary or common to the use or enjoyment
of the programming or service, provided to premises located in the City through
any cable, or any other similar medium, in part or exclusively, that is used to
transmit television or video signals, regardless of the content of the video
programming or communications. However, cable television service shall not
include services for which a tax is paid under Section 6.72.020 of this Chapter.
(c) Cable Television Supplier. "Cable television
supplier" shall mean any person, company, or service which provides one or
more channels or signals of video or television programming or services,
including any communications that are ancillary, necessary or common to the use
or enjoyment of the programming or services, to or from a business, home,
condominium, or apartment, where some fee is paid, whether directly or
indirectly, whether or not the public rights-of-way are utilized in the delivery
of the video or television programming or communications and regardless of the
content of such video or television programming or communication. A "cable
television supplier" includes, but is not limited to, multichannel video
programming distributors, as defined in 47 U.S.C. Section 522(13), open video
systems (OVS) suppliers, suppliers of cable television, master antenna
television, satellite master antenna television, multichannel multipoint
distribution services, direct broadcast satellite, and other suppliers of video
programming or communications including two way communications, whatever their
technology, to the extent allowed by law.
(d) City. "City" shall mean the City of
Santa Monica.
(e) Electrical Corporation. "Electrical
corporation" shall have the same meaning as it is defined in Section 218 of
the of the California Public Utilities Code. "Electrical corporation"
shall be construed to include any municipality or franchised agency engaged in
the selling or supplying of electrical power to a service user.
(f) Exempt Wholesale Generator. "Exempt wholesale
generator" shall have the same meaning as set forth in the Federal Power
Act (15 U.S.C. Section 79z-5a) and regulations thereunder.
(g) Gas. "Gas" shall mean natural or
manufactured gas or any alternate hydrocarbon fuel, which may be substituted
therefor.
(h) Gas Corporation. "Gas corporation" shall
have the same meaning as it is defined in Section 222 of the California Public
Utilities Code.
(i) Month. "Month" shall mean a calendar
month.
(j) Non-Utility Service Supplier. "Non-utility
service supplier" shall mean:
(1) A service supplier, other than a supplier of electric
distribution services to all or a significant portion of the City, which
generates electricity for sale to others, and shall include, but is not limited
to, any publicly-owned electric utility, investor-owned utility, cogenerator,
exempt wholesale generator, municipal utility district, federal power marketing
agency, electric rural cooperative, or other supplier or seller of electricity;
(2) An electric service provider (ESP), electricity broker,
marketer, aggregator, pool operators, or other electricity supplier other than a
supplier of electric distribution services to all or a significant portion of
the City, which sells or supplies electricity or supplemental services to
electricity users within the City; or
(3) A gas service supplier, aggregator, marketer or broker,
other than a supplier of gas distribution services to all or a significant
portion of the City, which sells or supplies gas or supplemental services to gas
users within the City.
(k) Person. "Person" shall mean, without
limitation, any domestic, nonprofit or foreign corporation, firm, association,
syndicate, joint stock company, partnerships of every kind, limited liability
company, joint venture, club, estate, trust, Massachusetts business or
common-law trust, society, any natural individual, cooperative, receiver,
trustee, guardian or other representative appointed by order of any court,
municipal district, or a municipal corporation other than the City.
(l) Service Address. "Service Address" shall
mean the residential street address or the business street address of the
service user’s primary place of usage.
(m) Service Supplier. "Service supplier"
shall mean any entity or person including the City, that provides telephone
communication, electric, gas, cable, water or wastewater service to a user of
such services within the City. The term shall include an entity or person
required to collect, or self-collect under Section 6.72.045 of this Chapter, and
remit a tax imposed by this Chapter, including its billing agent in the case of
electric, gas, cable, water or wastewater service suppliers.
(n) Service User. "Service user" shall mean
a person required to pay a tax imposed by this Chapter.
(o) Tax Administrator. "Tax Administrator"
shall mean the Director of Finance-City Controller of the City of Santa Monica
or his or her authorized designee.
(p) Telephone Communication Services. "Telephone
Communication Services" shall mean "communication services" as
defined in Sections 4251 and 4252 of the Internal Revenue Code and the
regulations thereunder, and shall include any telephonic quality communication
that is interconnected to a public switched network, and shall include, without
limitation, for the purpose of transmitting messages or information (including,
but not limited to, voice, telegraph, teletypewriter, data, facsimile, video or
text) by electronic, radio, or similar means through "interconnected
service" with the "public switched network," as these terms are
commonly used in the Federal Communications Act, 47 U.S.C.A. Section 332(d), and
the regulations of the Federal Communications Commission, whether such
transmission occurs by wire, cable, fiber-optic, light wave, laser, microwave,
radio wave, including, but not limited to, cellular service, commercial mobile
service, personal communications service (PCS), specialized mobile radio (SMR),
and other types of personal wireless service telecommunications (see 47 U.S.C.A.
Section 332(c)(8)(C)(i)) regardless of radio spectrum used, switching
facilities, satellite or any other similar facilities.
(q) Telephone Corporation. "Telephone
corporation" shall have the same meaning as defined in Section 234 of the
California Public Utilities Code.
Section 6.72.020. Telephone Tax.
(a) There is hereby imposed a tax upon every person using
telephone communication services in the City, other than a telephone
corporation, including intrastate, interstate, and international telephone
communication services. The tax imposed by this Section shall be at the rate of
ten percent (10%) of all charges made for such telephone communication services
and shall be collected from the service user by the telephone communication
services supplier or its billing agent. To the extent allowed by law, the tax on
telephone communication services shall apply to a service user if the billing or
service address of the service user is within the City’s boundaries. If the
billing address of the service user is different from the service address, the
service address of the service user shall be used.
(b) "Telephone communication services" shall not
include "private mobile radio service," as defined in Part 20 of Title
47 of the Code of Federal Regulations, or "private mobile service," as
defined in 47 U.S.C.A. Section 332(d), which is not interconnected to a public
switched network. The tax imposed under this chapter shall not be imposed upon
any person for using telephone communication services to the extent that,
pursuant to Sections 4252 and 4253 of the Internal Revenue Code, the amounts
paid for such communication services are exempt from or are not subject to the
tax imposed under Section 4251 of the Internal Revenue Code. In the event that
the federal excise tax on "communication services" as provided in
Sections 4251, 4252, and 4253 of the Internal Revenue Code is subsequently
repealed, any reference in this Chapter or in any administrative ruling to such
law, including any related federal regulations, private letter rulings, case
law, and other opinions interpreting these Sections, shall refer to that body of
law that existed immediately prior to the date of repeal as well as to any
judicial or administrative decision interpreting such federal excise tax law
which is published or rendered after the date of repeal .
(c) The Tax Administrator may, from time to time, issue and
disseminate to telecommunication service suppliers, which are subject to the tax
collection requirements of this Chapter, an administrative ruling identifying
those telecommunication services that are subject to taxation under this
Chapter. These administrative rulings shall remain in effect unless altered or
amended by the Tax Administrator and these administrative rulings shall continue
to be consistent with applicable legal requirements, including any federal
excise tax rules, regulations, and laws pertaining to "communications
services."
(d) As used in this Section, the term "charges"
shall include the value of any other services, credits, property of every kind
or nature, or other consideration provided by the service user in exchange for
the telephone communication services. If a non-taxable service and a taxable
service are billed together under a single charge, the entire charge shall be
deemed taxable unless the service supplier can reasonably identify charges not
subject to the utility users tax based upon its books and records that are kept
in the regular course of business, which shall be consistent with generally
accepted accounting principles. As used in this Section, the term
"charges" shall not include charges for services paid for by inserting
coins in coin-operated telephones, except that where such coin-operated
telephone service is furnished for a guaranteed amount, the amounts paid under
such guarantee plus any fixed monthly or other periodic charge shall be included
in the base for computing the amount of tax due.
(e) To prevent actual multi-jurisdictional taxation of
telephone communication services subject to tax under this Section, any service
user, upon proof to the Tax Administrator that the service user has previously
paid the same tax in another state or city on such telephone communication
services, shall be allowed a credit against the tax imposed to the extent of the
amount of such tax legally imposed in such other state or city; provided,
however, the amount of credit shall not exceed the tax owed to the City under
this Section. For purposes of establishing a sufficient legal basis for the
imposition and collection of utility users’ tax on charges for telephone
communication services pursuant to this Chapter, "minimum contacts"
shall be construed broadly in favor of the imposition and collection of the
utility users’ tax to the fullest extent permitted by California and federal
law, and as it may change from time to time.
(f) The tax on telephone communication service imposed by
this Section shall be collected from the service user by the service supplier.
The amount of tax collected in one (1) month shall be remitted to the Tax
Administrator, and is due to the Tax Administrator on or before the twentieth
(20th) day of the following month.
Section 6.72.030. Electricity Tax.
(a) There is imposed a tax upon every person using
electricity in the City. The tax imposed by this Section shall be at the rate of
ten percent (10%) of all charges made for such electricity, and for any
supplemental services or other associated activities directly related to or
necessary for the provision of electricity to the service user, which are
provided by a service supplier or non-utility service supplier to a service
user. The tax shall be collected from the service user by the service supplier
or non-utility service supplier, or its billing agent.
(b) The Tax Administrator may, from time to time, survey the
electric service suppliers to identify the various unbundled billing components
of electric retail service that they commonly provide to residential, commercial
and industrial customers in the City, and the charges therefor, including those
items that are mandated by state or federal regulatory agencies as a condition
of providing such electric service. The Tax Administrator may, thereafter, issue
and disseminate to such electric service suppliers an administrative ruling
identifying those components and items which are: (i) necessary or common to the
receipt, use and enjoyment of electric service; or (ii) currently, or
historically have been, included in a single or bundled rate for electric
service by a local distribution company to a class of retail customers.
Unbundled charges for such components and item shall be subject to the tax of
subsection (a) above.
(c) As used in this Section, the term "charges"
shall include the value of any other services, credits, property of every kind
or nature, or other consideration provided by the service user in exchange for
the electricity or services related to the provision of such electricity. If a
non-taxable service and a taxable service are billed together under a single
charge, the entire charge shall be deemed taxable unless the service supplier
can reasonably identify charges not subject to the utility users tax based upon
its books and records that are kept in the regular course of business, which
shall be consistent with generally accepted accounting principles.
(d) As used in this Section, the term "using
electricity" shall not include electricity used in water pumping by water
corporations, nor shall the term include the mere receiving of such electricity
by an electrical corporation at a point within the City for resale.
(e) The tax on electricity provided by self-production or by
a non-utility service supplier not under the jurisdiction of this Chapter shall
be collected and remitted in the manner set forth in Section 6.72.045 of this
Chapter. All other taxes on charges for electricity imposed by this Section
shall be collected from the service user by the electric service supplier or its
billing agent. The amount of tax collected in one (1) month shall be remitted to
the Tax Administrator on or before the twentieth (20th) day of the
following month; or, at the option of the person required to collect or remit
the tax, such person shall remit an estimated amount of tax measured by the tax
billed in the previous month or upon the payment pattern of the service users,
which must be remitted to the Tax Administrator on or before the twentieth (20th)
day of the following month.
Section 6.72.040. Gas Tax.
(a) There is imposed a tax upon every person using gas in the
City which is transported and delivered through any mains, pipes or other
distribution pipeline system. The tax imposed by this Section shall be at the
rate of ten percent (10%) of all charges made for such gas, including all
services related to the storage, transportation and delivery of such gas. The
tax shall be collected from the service user by the service supplier or
non-utility service supplier, or its billing agent.
(b) The Tax Administrator may, from time to time, survey the
gas service suppliers to identify the various billing components of gas retail
service that they commonly provide to residential and commercial/industrial
customers in the City, and the charges therefor, including unbundled components
and those items that are mandated by state or federal regulatory agencies as a
condition of providing such gas service. The Tax Administrator may, thereafter,
issue and disseminate to such gas service suppliers an administrative ruling
identifying those components and items which are: (i) necessary or common to the
receipt, use and enjoyment of gas service; or (ii) currently, or historically
have been, included in a single or bundled rate for gas service by a local
distribution company to a class of retail customers. Unbundled charges for such
components and item shall be subject to the tax of subsection (a) above.
(c) As used in this Section, the term "charges"
shall include the value of any other services, credits, property of every kind
or nature, or other consideration provided by the service user in exchange for
the gas or services related to the provision of such gas. If a non-taxable
service and a taxable service are billed together under a single charge, the
entire charge shall be deemed taxable unless the service supplier can reasonably
identify charges not subject to the utility users tax based upon its books and
records that are kept in the regular course of business, which shall be
consistent with generally accepted accounting principles.
(d) There shall be excluded from the base on which the tax
imposed in this Section is computed: (1) charges made for gas which is to be
resold and delivered through mains, pipes, or any pipeline distribution system;
(2) charges made for gas to be used in the generation of electricity by an
electrical corporation; and (3) charges made by a gas public utility for gas
used and consumed in the conduct of the business of gas public utilities.
(e) The tax on gas provided by self-production or by a
non-utility service supplier not under the jurisdiction of this Chapter shall be
collected and remitted in the manner set forth in Section 6.72.045 of this
Chapter. All other taxes on charges for gas imposed by this Section shall be
collected from the service user by the gas service supplier or its billing
agent. The amount of tax collected in one (1) month shall be remitted to the Tax
Administrator, and is due to the Tax Administrator on or before the twentieth
(20th) day of the following month; or, at the option of the person
required to collect or remit the tax, such person shall remit an estimated
amount of tax measured by the tax billed in the previous month or upon the
payment pattern of the service user, which must be remitted to the Tax
Administrator on or before the twentieth (20th) day of the following
month.
Section 6.72.045. Collection of Tax from Service Users
Receiving Direct Purchase of Gas or Electricity.
(a) Any service user subject to the tax imposed by Section
6.72.030 or by Section 6.72.040 of this Chapter, which produces gas or
electricity for self-use, or which receives gas or electricity, including any
related supplemental services, directly from a non-utility service supplier not
under the jurisdiction of this Chapter, or which, for any other reason, is not
having the full tax collected and remitted by its service supplier, a
non-utility service supplier, or its billing agent on the use of gas or
electricity, including any related supplemental services, in the City, shall
report such facts to the Tax Administrator and shall remit the tax due directly
to the Tax Administrator within thirty (30) days of such use. In lieu of paying
said actual tax, the service user may, at its option, remit to the Tax
Administrator within thirty (30) days of such use an estimated amount of tax
measured by the tax billed in the previous month, or upon the payment pattern of
similar customers of the service supplier using similar amounts of gas or
electricity, provided that the service user shall submit an adjusted payment or
request for credit, as appropriate, within sixty (60) days following each
calendar quarter. The credit, if approved by the Tax Administrator, may be
applied against any subsequent tax bill that becomes due.
(b) The Tax Administrator may require said service user to
identify its non-utility service supplier and provide, subject to audit,
invoices, books of account, or other satisfactory evidence documenting the
quantity of gas or electricity used, including any related supplemental
services, and the cost or price thereof. If the service user is unable to
provide such satisfactory evidence, or, if the administrative cost of
calculating the tax in the opinion of the Tax Administrator is excessive, the
Tax Administrator may determine the tax by applying the tax rate to the
equivalent charges the service user would have incurred if the gas or
electricity used, including any related supplemental services, had been provided
by the service supplier that is the primary supplier of gas or electricity
within the City. Rate schedules for this purpose shall be available from the
City.
Section 6.72.050. Cable Television.
(a) There is imposed a tax upon every person using a cable
television service in the City from a cable television supplier. The tax imposed
by this Section shall be at the rate of ten percent (10%) of all charges made
for such cable television service. The tax shall be collected from the service
user by the cable television service supplier, or its billing agent.
(b) The Tax Administrator may, from time to time, survey the
cable television service suppliers in the City to identify the various
components of cable television service that are being offered to customers
within the City, and the charges therefor. The Tax Administrator may,
thereafter, issue and disseminate to such cable television service suppliers an
administrative ruling identifying those components: (i) that are necessary or
common to the receipt, use and enjoyment of cable television service; or (ii)
which currently are, or historically have been, included in a bundled rate for
cable television service by a local distribution company. Charges for such
components shall be subject to the tax of subsection (a) above.
(c) As used in this Section, the term "charges"
shall include the value of any other services, credits, property of every kind
or nature, or other consideration provided by the service user in exchange for
the cable television services. If a non-taxable service and a taxable service
are billed together under a single charge, the entire charge shall be deemed
taxable unless the service supplier can reasonably identify charges not subject
to the utility users tax based upon its books and records that are kept in the
regular course of business, which shall be consistent with generally accepted
accounting principles.
(d) The tax imposed by this Section shall be collected from
the service user by the cable television supplier, its billing agent, or a
reseller of such services. In the case of cable television service, the service
user shall be deemed to be the purchaser of the bulk cable television service
(e.g., an apartment owner), unless such service is resold to individual users,
in which case the service user shall be the ultimate purchaser of the cable
television service. The amount of tax collected in one (1) month shall be
remitted to the Tax Administrator, and is due to the Tax Administrator on or
before the twentieth (20th) day of the following month.
Section 6.72.055. Water and Wastewater Usage Tax.
(a) There is hereby imposed a tax upon every person in the
City using the City's water and wastewater services. The tax imposed by this
Section shall be at the rate of ten percent (10%) of all charges made for such
water and wastewater services. The tax shall be collected from the service user
by the water and wastewater service supplier, or its billing agent.
(b) As used in this Section, the term "charges"
shall include charges made for: (1) metered and unmetered water usage; (2) waste
water discharge including sewer service charges; and (3) minimum, fixed and
variable charges for service, including all customer charges, service charges,
demand charges, standby charges, and annual, monthly and bimonthly charges.
Section 6.72.060. Constitutional and Statutory Exemptions.
(a) Nothing in this Chapter shall be construed as imposing a
tax upon (1) the City, or (2) any person or service supplier if imposition of
such tax would be in violation of a federal or California statute, the
Constitution of the United States, or the Constitution of the State of
California.
(b) Any service user that is exempt from the tax imposed by
this Chapter pursuant to subsection (a) shall file an application with the Tax
Administrator for an exemption; provided, however, this requirement shall not
apply to a service user that is a state or federal agency or subdivision with a
commonly recognized name, or is a service user of telephone communication
services that has received a federal excise tax exemption certificate for such
service. Said application shall be made upon a form approved by the Tax
Administrator and shall state those facts, declared under penalty of perjury,
which qualify the applicant for an exemption, and shall include the names of all
utility service suppliers serving that service user. If deemed exempt by the Tax
Administrator, such service user shall give the Tax Administrator timely written
notice of any change in utility service suppliers so that the Tax Administrator
can properly notify the new utility service supplier of the service user’s tax
exempt status. A service user that fails to comply with this Section shall not
be entitled to a refund of utility users’ taxes collected and remitted to the
Tax Administrator from such service user as a result of such noncompliance. Upon
request of the Tax Administrator, a service supplier or non-utility service
supplier, or its billing agent, shall provide a list of the names and addresses
of those customers which, according to its billing records, are deemed exempt
from the utility users’ tax. With respect to a service user of telephone
communication services, a service supplier of such telephone communication
services doing business in the City shall, upon the request of the Tax
Administrator, provide a copy of the federal exemption certificate for each
exempt customer within the City that is served by such service supplier.
Section 6.72.070. Collection of Tax.
The duty of service suppliers to collect and remit the taxes
imposed by the provisions of this Chapter shall be performed as follows:
(a) The tax shall be collected insofar as practicable at the
same time as, and along with, the collection of charges made in accordance with
the regular billing practice of the service supplier. Where the amount paid by a
service user to a service supplier is less than the full amount of the charge
and tax which was accrued for the billing period, a proportionate share of both
the charge and the tax shall be deemed to have been paid. In those cases where a
service user has notified the service supplier of refusal to pay the tax imposed
on said charges, Section 6.72.110(b) of this Chapter shall apply.
(b) The duty to collect tax from a service user shall
commence with the beginning of the first regular billing period applicable to
that person which starts on or after the July 1, 1969. Where a person receives
more than one billing, one or more being for different periods than another, the
duty to collect shall arise separately for each billing period.
Section 6.72.080. Reporting and Remitting.
(a) Each person required by this Chapter to remit a tax shall
file a return with the Tax Administrator on forms approved by the Tax
Administrator on or before the due date. At the time the return is filed, the
full amount of the tax owed shall be remitted to the Tax Administrator. The Tax
Administrator is authorized to require such further information as he or she
deems necessary to properly determine if the tax here imposed is being levied,
collected and remitted in accordance with this Chapter. Returns and remittances
are due immediately upon cessation of business for any reason. Pursuant to
Revenue and Tax Code Section 7284.6, the Tax Administrator, and his or her
agents, shall maintain the filed returns as confidential information, and not
subject to disclosure under the Public Records Act. Any person required to remit
a tax may, upon written application to, and with the written consent of, the Tax
Administrator, may make reports and remittances on a quarterly basis.
(b) A tax shall be considered remitted to the Tax
Administrator if it is sent, postage paid, by United States Postal Service first
class mail and postmarked on or before its due date.
(c) Any person who collects or remits a tax under this
Chapter and who is authorized to remit an estimated tax amount, shall remit an
adjusted tax payment or request for credit, as appropriate, within sixty (60)
days following each calendar quarter. The credit, if approved by the Tax
Administrator, may be applied against any subsequent tax bill that becomes due.
(d) A direct deposit, including electronic fund transfers and
other similar methods of electronically exchanging monies between financial
accounts, made by a service supplier in satisfaction of its remitting
obligations under this Chapter, shall be considered timely remitted if the
transfer is initiated on or before the due date, and the transfer settles into
the City’s account by no later than the following business day.
Section 6.72.090. Penalty.
(a) Taxes collected from a service user, or owed by a service user subject to
Section 6.72.045 of this Chapter, which are not remitted to the Tax
Administrator on or before the due dates provided in this Chapter are
delinquent. Should the due date occur on a weekend or legal holiday, the return
must be received by the Tax Administrator on the first regular working day
following the weekend or legal holiday.
(b) If the person required to collect or remit the utility users’ tax fails
to collect the tax, such as by failing to properly assess the tax on one or more
services or charges on the customer’s billing, or fails to remit the tax
collected, or, in the case of a service user that fails to property self-collect
and remit the tax under Section 6.72.045 of this Chapter, the Tax Administrator
shall attach a penalty at the rate of fifteen percent (15%) of the total tax
that is delinquent or deficient in the remittance. Notwithstanding the
foregoing, a person required to collect or remit the utility users’ tax shall
not be subject to the 15% penalty and interest for an "improper
assessment," if such "improper assessment" is voluntarily
disclosed to the Tax Administrator, or its agent, and promptly corrected
thereafter by such person, whether the disclosure occurs in the course of a Tax
Administrator survey under this Chapter or the disclosure is voluntarily
initiated by such person. For purposes of this subsection, the term
"voluntarily disclosed" shall mean information provided by a service
supplier to the City for the purpose of increasing the accuracy of the service
supplier’s tax collection or remittances before the issue has been raised or
an inquiry has been initiated by the City or any other California municipality.
(c) The Tax Administrator shall have power to impose additional penalties
upon persons required to collect or remit taxes under the provisions of this
Chapter for fraud or gross negligence in reporting or remitting at the rate of
fifteen percent (15%) of the amount of the tax collected or required to be
remitted, or as recomputed by the Tax Administrator.
(d) In addition to any other penalties imposed by this Chapter, any person
required to collect or remit any tax imposed under the provisions of this
Chapter who fails to collect the tax or who fails to remit the tax collected,
or, in the case of a service user that fails to properly self-collect and remit
the tax under Section 6.72.045 of this Chapter, shall pay interest at the rate
of three-quarters of one percent (3/4%) per month, or any fraction thereof, on
the amount of the tax from the date on which the remittance first became
delinquent, until paid.
(e) The Tax Administrator shall have the power to reduce or to waive any
penalty upon persons required to collect and remit taxes under the provisions of
this Chapter so long as such reduction or waiver is in writing and complies with
any administrative rules adopted by resolution of the City Council to facilitate
the implementation of this Chapter. Any request for reduction or waiver of any
penalty assessed pursuant to this Section shall be made in writing no later than
thirty (30) days following the assessment of penalty.
Section 6.72.100. Actions to Collect.
Any tax required to be paid by a service user under the provisions of this
Chapter shall be deemed a debt owed by the service user to the City. Any such
tax collected from a service user which has not been remitted to the Tax
Administrator shall be deemed a debt owed to the City by the person required to
collect and remit and shall no longer be a debt of the service user. Any person
owing money to the City under the provisions of this Chapter shall be liable in
an action brought in the name of the City for the recovery of such amount, plus
any collection costs incurred by the City as a result of the person’s
noncompliance with this Chapter including, but not limited to, reasonable
attorneys’ fees.
Section 6.72.110. Failure to Pay Tax - Administrative Remedy.
(a) Whenever the Tax Administrator determines that a service user has
deliberately withheld the amount of the tax owed by him or her from the amounts
remitted to a service supplier required to collect the tax, that a service user
has failed to pay the amount of the tax for a period of two (2) or more billing
periods, or whenever the Tax Administrator deems it in the best interest of the
City, the Tax Administrator, in his or her sole discretion, may relieve the
service supplier of the obligation to collect taxes due under this Chapter from
certain named service users for specified billing periods. The service supplier
shall provide the City with the names and addresses of such service users and
the amounts of taxes owed under the Provisions of this Chapter.
(b) The Tax Administrator shall notify the service user that he or she has
assumed responsibility to collect the taxes due for the stated periods and
demand payment of such taxes. The notice shall be served on the service user
personally or by deposit of the notice in the United States mail, postage
prepaid thereon, addressed to the service user at the address to which billing
was made by the service supplier; or should the service user have changed his or
her address, to his or her last known address. If a service user fails to remit
the tax to the Tax Administrator within fifteen (15) days from the date of the
service of the notice upon him or her, which shall be the date of mailing if
service is not accomplished in person, a penalty of twenty-five percent (25%) of
the amount of the tax set forth in the notice shall be imposed, along with
interest at the rate of three-quarters of one percent (3/4%) per month, or any
fraction thereof, on the amount of the tax, exclusive of penalties, from the
date on which the remittance first became delinquent, until paid, but not less
than Five Dollars ($5.00).
(c) The Tax Administrator may make an assessment for taxes not paid or
remitted by a service user who was required to pay or remit a tax under this
Chapter. The Tax Administrator shall mail a notice of such assessment, which
shall identify the amount of the taxes and other charges, interest or penalties
due or imposed and the time and place where the assessment may be contested, to
the person selling the service and to the service user at least ten (10) days
prior to the date of the hearing and shall conspicuously post such notice for at
least five (5) continuous days prior to the date of the hearing at the Chambers
of the City Council. Any interested party having any objections may appear and
be heard at the hearing provided his or her objection is filed in writing with
the Tax Administrator prior to the time set for the hearing. At the time fixed
for considering said assessment, the Tax Administrator shall hear the assessment
together with any objection filed and thereupon may confirm or modify the
assessment.
Section 6.72.120. Additional Power and Duties of Tax Administrator.
(a) The Tax Administrator shall have the power and duty, and is hereby
directed, to enforce each and all of the provisions of this Chapter.
(b) The Tax Administrator may adopt administrative rules, issue
administrative rulings and regulations consistent with the provisions of this
Chapter for the purpose of carrying out and enforcing the payment, collection
and remittance of the taxes imposed by this Chapter. A copy of the
administrative rules and regulations shall be on file in the Tax Administrator’s
office. In performing his or her duties under this Chapter, the Tax
Administrator shall not impose a new tax or increase an existing tax except as
authorized by law.
(c) Upon a proper showing of good cause, the Tax Administrator may make
administrative agreements, with appropriate conditions, to vary from the strict
requirements of this Chapter and thereby: (i) conform to the billing procedures
of a particular service supplier (or service user subject to Section 6.72.045 of
this Chapter) so long as said agreements result in the collection of the tax in
conformance with the general purpose and scope of this Chapter; or, (ii) to
avoid a hardship where the administrative costs of collection and remittance
greatly outweigh the tax benefit. A copy of each such agreement shall be on file
in the Tax Administrator’s office, and are voidable by the Tax Administrator
or the City at any time.
(d) The Tax Administrator shall be authorized to determine the eligibility of
any person who asserts a right to exemption from or a refund of, the tax imposed
by this Chapter.
Section 6.72.125. Appeals.
(a) If the service user or service supplier is aggrieved by any decision or
administrative ruling of the Tax Administrator, or with the failure to grant a
refund or exemption as provided for under this Chapter, he or she may appeal to
the City Manager, or his or her duly authorized designee, by filing a notice of
appeal with the City Clerk within fourteen (14) days of the decision or
administrative ruling which aggrieved the service user or service supplier. The
City Clerk shall thereupon fix a time and place for a hearing of such appeal
within forty-five (45) days of the date that the notice of appeal is filed with
the City Clerk. The City Clerk shall give notice to such person of the time and
place of hearing as herein provided.
(b) The decision of the City Manager, or his or her duly authorized designee,
shall be final and not appealable to the City Council, but subject to judicial
review pursuant to California Code of Civil Procedure Section 1094.5.
(c) No injunction or writ of mandate or other legal or equitable process
shall issue in any suit, action, or proceeding in any court against the City or
against any office of the City to prevent or enjoin the collection under this
Chapter of any tax or any amount of tax required to be collected or remitted.
Section 6.72.130. Records.
(a) It shall be the duty of every person required to collect or remit to the
City and tax imposed by this Chapter to keep and preserve, for a period of at
least three (3) years, all records as may be necessary to determine the amount
of such tax as he or she may have been liable for the collection of or
remittance to the Tax Administrator, which records the Tax Administrator, or the
Tax Administrator’s designated representative, shall have the right to inspect
at a reasonable time.
(b) The City may issue an administrative subpoena to compel a person to
deliver, to the Tax Administrator, copies of all records deemed necessary by the
Tax Administrator to establish compliance with this Chapter, including the
delivery of records in a common electronic format on readily available media if
such records are kept electronically by the person in the usual and ordinary
course of business. As an alternative to delivering the subpoenaed records to
the Tax Administrator on or before the due date provided in the administrative
subpoena, such person may provide access to such records to the City on or
before the due date, provided that such person shall reimburse the City for all
reasonable travel expenses incurred by the City to inspect those records,
including travel, lodging, meals, and other similar expenses, but excluding the
normal salary or hourly wages of those persons designated by the City to conduct
the inspection.
(c) The Tax Administrator, or the Tax Administrator's designated
representative, is authorized to execute a non-disclosure agreement approved by
the City Attorney to protect the confidentiality of customer information
pursuant to California Revenue and Tax Code Sections 7284.6 and 7284.7. The Tax
Administrator, or the Tax Administrator's designated representative, may request
from a person providing transportation or distribution services of gas or
electricity to service users within the City, a list of the names, billing and
service addresses, quantities of gas or electricity delivered, and other
pertinent information, of its transportation customers within the City pursuant
to Section 6354(e) of the California Public Utilities Code.
(d) If a service supplier uses a billing agent or billing aggregator to bill,
collect, or remit the tax, the service supplier shall: i) provide to the Tax
Administrator the name, address and telephone number of each billing agent and
billing aggregator currently authorized by the service supplier to bill,
collect, and/or remit the tax to the City; and, ii) upon request of the tax
administrator, deliver, or effect the delivery of, any information or records in
the possession of such billing agent or billing aggregator that, in the opinion
of the Tax Administrator, is necessary to verify the proper application,
calculation, collection or remittance of such tax to the City.
(e) If any person subject to record-keeping under this Section unreasonably
denies the Tax Administrator, or the Tax Administrator's designated
representative, access to such records, or fails to produce the information
requested in an administrative subpoena within the time specified, the Tax
Administrator or the Tax Administrator’s designated representative may impose
a penalty of five hundred dollars ($500) on such person for each day following:
i) the initial date that the person refuses to provide such access; or, ii) the
due date for production of records as set forth in the administrative subpoena.
This penalty shall be in addition to any other penalty imposed under this
Chapter.
Section 6.72.140. Refunds.
(a) Whenever the amount of any tax has been overpaid, paid more than once, or
has been erroneously or illegally collected or received by the Tax Administrator
under this Chapter, it may be refunded as provided in this Section.
(b) The Tax Administrator may refund any tax that has been overpaid, paid
more than once, or has been erroneously or illegally collected or received by
the Tax Administrator under this Chapter, provided that no refund shall be paid
under the provisions of this Section unless the claimant or his or her guardian,
conservator, executor or administrator has submitted a written claim to the Tax
Administrator within one (1) year of the overpayment or erroneous or illegal
collection of said tax. The claim must clearly establish claimant’s right to
the refund by written records showing entitlement thereto. Nothing herein shall
permit the filing of a claim on behalf of a class or group of taxpayers.
(c) The submission of a written claim shall be a prerequisite to a suit for a
refund as provided for in Government Code Section 935. The City shall act upon
the refund claim within the time period set forth in Government Code Section
912.4. If the City fails or refuses to act on a refund claim within the time
prescribed by Government Code Section 912.4, the claim shall be deemed to have
been rejected by the City on the last day of the period within which the City
was required to act upon the claim as provided in Government Code Section 912.4.
(d) Notwithstanding other provisions of this Section, whenever a service
supplier, pursuant to an order of the California Public Utilities Commission or
court of competent jurisdiction, makes a refund to service users of charges for
past utility services, the taxes paid pursuant to this Chapter on the amount of
such refunded charges shall also be refunded to the service users, and the
service supplier shall be entitled to claim a credit for such refunded taxes
against the amount of tax which is due upon the next monthly returns. The
service supplier shall provide to the Tax Administrator such documentation
concerning its entitlement to a credit under this subsection as the Tax
Administrator may deem necessary. In the event this Chapter is repealed, the
amounts of any refundable taxes shall be borne by the City.
(e) Notwithstanding subsections (b) and (d) above, a service supplier shall
be entitled to take any overpayment as a credit against an underpayment whenever
such overpayment has been received by the City within three (3) years next
preceding a notice of tax deficiency or assessment by the Tax Administrator, or
during any year for which the service supplier, at the request of the Tax
Administrator, has executed a waiver of the defense of the statute of
limitations with regard to any claim the City may have for a utility users tax.
Under no circumstances shall an overpayment taken as a credit against an
underpayment pursuant to this subsection qualify a Service Supplier for a refund
to which it would not otherwise be entitled under the one-year written claim
requirement of this Section.
(f) Nothing in this section is intended to limit any right to refund that may
be ordered by the California Public Utilities Commission.
Section 6.72.150. Special Exemption.
(a) In addition to the refund procedures set forth in Section 6.72.140, there
is hereby established special exemption procedures for natural persons meeting
the eligibility criteria established by this Section.
(b) To be eligible for the special exemption provided for in this Section, a
person must be sixty-two (62) years of age or older, or such person must meet
the criteria of disability as established by the Social Security
Administration's supplemental security income program for the aged, blind and
disabled (Title XVI of the Social Security Act, as amended). In addition, no
person shall be eligible for the special exemption provided for in this Section
if such person's annual gross household income, as hereinafter defined, exceeds
the maximum dollar amount for the calendar year for which a refund is claimed.
The maximum dollar amount will be established and from time to time amended by
administrative action of the City. For the purposes of this Section, "gross
household income" shall be and include the income of every member of the
household received during the year, including, but not limited to, wages,
salaries, bonuses, tips, gross amounts of pensions and annuities, retirement
benefits, social security payments, disability payments, life insurance
benefits, interest, capital gains and inheritances.
(c) Notwithstanding Subsections (a) and (b), persons who receive taxable
utility service from master meters, or for whom utility charges are included in
house, apartment, or other rental charges shall not be eligible for the special
exemption provided for in this Section. Persons receiving funds from any public
agency specifically for the payment of such utility users taxes shall, likewise,
not be eligible for the rebate provided for herein.
(d) Reserved.
(e) Special Exemption procedures are as follows:
(1) Any person eligible under subsections (a) and (b) may file an application
for an exemption with the Tax Administrator or his or her designee. The
application shall be submitted on the forms provided by the City and all
statements made therein shall be under oath and subject to penalty of perjury.
No application shall be granted unless the applicant establishes his or her
right thereto by written record showing entitlement thereto. The Tax
Administrator or his or her designee may require such additional evidence as he
or she deems necessary or appropriate in determining entitlement.
(2) The Tax Administrator or his or her designee shall review all such
applications and shall certify as exempt those applicants determined to qualify
therefor. The Tax Administrator or his or her designee shall notify all service
suppliers affected that such exemptions have been approved. For each exemption,
the following information shall be transmitted to the service supplier:
(i) Name of exempt applicant.
(ii) Account number shown on utility bill.
(iii) Address to which exempt service is being supplied.
(iv) Any other information as may be necessary for the service supplier to
remove the exempt service user from its tax billing procedure.
(3) Upon receipt of such notification, the service supplier shall not be
required to continue to bill any further tax imposed by this Chapter from such
exempt service user, until further notice by the Tax Administrator or his or her
designee is given. The service supplier shall eliminate such exempt service user
from its tax billing procedure no later than sixty (60) days after receipt of
such notice from the Tax Administrator or his or her designee.
(4) All exemptions shall continue and be renewed automatically by the Tax
Administrator or his or her designee, so long as the prerequisite facts
supporting the initial qualification for exemption shall continue. The exemption
shall automatically terminate with any change in the service address or
residence of the exempt service user, except that such service user may apply
for a new exemption.
(5) The Tax Administrator or his or her designee shall have the right and the
power to demand evidence of continued eligibility of a service user for
exemption. Failure to provide any evidence requested by the Tax Administrator or
his or her designee as is within the control of a service user to so provide
shall be grounds for the immediate discontinuance of the exemption. Evidence
provided to the Tax Administrator or his or her designee upon request may not be
used against such service user as evidence of violation of the provisions of
this Section; such evidence may only be used as grounds for termination of the
exemption.
(6) Any individual exempt from the tax shall notify the Tax Administrator or
his or her designee within ten (10) days of any change in fact or circumstance
which might disqualify the individual from receiving such exemption. No person
shall knowingly receive the benefits of the exemptions provided by this Section,
when the basis for such exemption either does not exist or ceases to exist.
(7) If the Tax Administrator or his or her designee determines that an
application for an exemption is faulty or that the applicant has failed to
truthfully set forth the required facts, the application for exemption shall be
denied in writing to the applicant.
(f) A determination of the Tax Administrator or his or her designee to deny
an application for exemption may be appealed in accordance with prior Municipal
Code Section 6.16.020 within ten (10) days after the date of mailing of the
rejection of the claim or denial of the application. If an appeal by an
aggrieved claimant or applicant is not taken within the ten (10) day period, no
appeal of the decision of the Tax Administrator or his or her designee may
thereafter be taken, and the determination of the Tax Administrator or his or
her designee shall become final.
Section 6.72.160. Severability.
If any section, subsection, subdivision, paragraph, sentence, clause or
phrase of this Chapter or any part thereof is for any reason held to be invalid,
unlawful or unconstitutional, such decision shall not affect the validity of the
remaining portions of this Chapter or any part thereof. The City Council hereby
declares that it would have passed each section, subsection, subdivision,
paragraph, sentence, clause or phrase thereof, irrespective of the fact that any
one or more sections, subsections, subdivisions, paragraphs, sentences, clauses
or phrases be declared unconstitutional.
Section 6.72.170. Notice of Changes to Ordinance.
If a tax under this Chapter is added, repealed, increased, reduced, or the
tax base is changed, the Tax Administrator shall follow the notice requirements
of Public Utilities Code Section 799 or other applicable law. Prior to the
effective date of the ordinance change, the service supplier shall provide the
Tax Administrator with a copy of any written procedures describing the
information that the service supplier needs to implement the ordinance change.
If the service supplier fails to provide such written instructions, the Tax
Administrator, or its agent, shall send, by first class mail, a copy of the
ordinance change to all collectors and remitters of the City’s utility users
taxes according to the latest payment records of the Tax Administrator.
This page was last modified on
06/18/2008
