[1]
Editor's Note: Ordinance No. 2010-03, codified herein as Section
4-11, Utility User's Tax, was approved as Measure O at the election
of November 2, 2010.
[Amended 11-3-2020 by Ord. No. 2020-10[1]]
This Section, 4-11, shall be known as the "Electric, Water,
Gas, and Communication Users' Tax Law" of the City of Albany.
[1]
Editor's Note: This ordinance was approved by a majority of
the qualified voters at an election held 11-3-2020.
[Ord. #2010-03]
The following words and phrases whenever used in this Section,
4-11, shall be construed as defined in this section.
a.
Ancillary telecommunication services shall mean services that are
associated with or incidental to the provision, use or enjoyment of
telecommunications services, including but not limited to the following
services:
1.
Conference bridging service shall mean an ancillary service that
links two (2) or more participants of an audio or video conference
call and may include the provision of a telephone number. Conference
bridging service does not include the telecommunications services
used to reach the conference bridge.
2.
Detailed telecommunications billing service shall mean an ancillary
service of separately stating information pertaining to individual
calls on a customer's billing statement.
3.
Directory assistance shall mean an ancillary service of providing
telephone number information, and/or address information.
4.
Vertical service shall mean an ancillary service that is offered
in connection with one (1) or more telecommunications services, which
offers advanced calling features that allow customers to identify
callers and to manage multiple calls and call connections, including
conference bridging services.
5.
Voice mail service shall mean an ancillary service that enables the
customer to store, send or receive recorded messages. Voice mail service
does not include any vertical services that the customer may be required
to have in order to utilize the voice mail service.
b.
Ancillary video services shall mean services that are associated
with or incidental to the provision or delivery of video services,
including but not limited to electronic program guide services, recording
services, search functions, or other interactive services or communications
that are associated with or incidental to the provision, use or enjoyment
of video services.
c.
Billing address shall mean the mailing address of the service user
where the service supplier submits invoices or bills for payment by
the customer.
d.
City shall mean the City of Albany.
e.
Communication services shall mean telecommunications services, ancillary
telecommunication services, video services and ancillary video services.
f.
Gas shall mean natural or manufactured gas or any alternate hydrocarbon
fuel which may be substituted therefor.
g.
Mobile telecommunications service has the meaning and usage as set
forth in the Mobile Telecommunications Sourcing Act (4 U.S.C. § 124)
and the regulations thereunder.
h.
Month shall mean a calendar month.
i.
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,
distributed generation provider, exempt wholesale generator (15 U.S.C.
§ 79z-5a), 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 operator, 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.
j.
Paging service shall mean a telecommunications service that provides
transmission of coded radio signals for the purpose of activating
specific pagers; such transmissions may include messages and/or sounds.
k.
Person shall mean, without limitation, any natural individual, firm,
trust, common law trust, estate, partnership of any kind, association,
syndicate, club, joint stock company, joint venture, limited liability
company, corporation (including foreign, domestic, and nonprofit),
municipal district or municipal corporation (other than the City)
cooperative, receiver, trustee, guardian, or other representative
appointed by order of any court.
l.
Place of primary use shall mean the street address representative
of where the customer's use of the communications service primary
occurs, which must be the residential street address or the primary
business street address of the customer.
m.
Post-paid telecommunication service shall mean the telecommunication
service obtained by making a payment on a communication-by-communication
basis either through the use of a credit card or a payment mechanism
such as a bank card, travel card, credit card, or debit card or by
charge made to a service number which is not associated with the origination
or termination of the telecommunication service.
n.
Prepaid telecommunication service shall mean the right to access
telecommunication services, which must be paid for in advance and
which enables the origination of communications using an access number
or authorization code, whether manually or electronically dialed,
and that is sold in predetermined units or dollars of which the number
declines with use in a known amount.
o.
Private telecommunication service shall mean a telecommunication
service that entitles the customer to exclusive or priority use of
a communications channel or group of channels between or among termination
points regardless of the manner in which such channel or channels
are connected and includes switching capacity, extension lines, stations,
and any other associated services that are provided in connection
with the use of such channel or channels. A communications channel
is a physical or virtual path of communications over which signals
are transmitted between or among customer channel termination points
(i.e., the location where the customer either inputs or receives the
communications).
p.
Service address shall mean the residential street address or the
business street address of the service user. For a telecommunication
or video service user, "service address" means either:
1.
The location of the service user's communication equipment from which
the communication originates or terminates, regardless of where the
communication is billed or paid; or
2.
If the location in paragraph 1 of this definition is unknown (e.g.,
mobile telecommunications service or VoIP service), the service address
means the location of the service user's place of primary use.
3.
For prepaid telecommunication service, "service address" means the
location associated with the service number or, if not known, the
point of sale of the services.
q.
Service supplier shall mean any entity or person, including the City,
that provides utility service to a user of such service within the
City.
r.
Service user shall mean a person required to pay a tax imposed under
the provisions of this section.
s.
State shall mean the State of California.
t.
Streamlined Sales and Use Tax Agreement shall mean the multi-state
agreement commonly known and referred to as the Streamlined Sales
and Use Tax Agreement, as it is amended from time to time.
u.
Tax Administrator shall mean the Finance Director, or his or her
designee.
v.
Telecommunications service shall mean the transmission conveyance,
or routing of voice, data, audio, video, or any other information
or signals to a point, or between or among points, whatever the technology
used. The term "telecommunications services" includes such transmission,
conveyance, or routing in which computer processing applications are
used to act on the form, code or protocol of the content for purposes
of transmission, conveyance or routing without regard to whether such
services are referred to as voice over internet protocol (VoIP) services
or are classified by the Federal Communications Commission as enhanced
or value added, and includes video and/or data services that is functionally
integrated with "telecommunication services." "Telecommunications
services" include, but are not limited to the following services,
regardless of the manner or basis on which such services are calculated
or billed: ancillary telecommunication services; intrastate, interstate,
and international telecommunication services; mobile telecommunications
service; prepaid telecommunication service; post-paid telecommunication
service; private telecommunication service: paging service; 800 service
(or any other toll-free numbers designated by the Federal Communications
Commission); 900 service (or any other similar numbers designated
by the Federal Communications Commission for services whereby subscribers
who call in to prerecorded or live service)
w.
Video programming shall mean those programming services commonly
provided to subscribers by a video service supplier including but
not limited to basic services, premium services, audio services, video
games, pay-per-view services, video on demand, origination programming,
or any other similar services, regardless of the content of such video
programming, or the technology used to deliver such services, and
regardless of the manner or basis on which such services are calculated
or billed.
x.
Video services shall mean video programming and any and all services
related to the providing, recording, delivering, use or enjoyment
of video programming (including origination programming and programming
using Internet Protocol, e.g., IP-TV and IP-Video) using one (1) or
more channels by a video service supplier, regardless of the technology
used to deliver, store or provide such services, and regardless of
the manner or basis on which such services are calculated or billed,
and includes ancillary video services, data services, telecommunication
services, or interactive communication services that are functionally
integrated with video services.
y.
Video service supplier shall mean any person, company, or service
which provides or sells one (1) or more channels of video programming,
or provides or sells the capability to receive one (1) or more channels
of video programming, including any communications that are ancillary,
necessary or common to the provision, use or enjoyment of the video
programming, to or from a business or residential address in the City,
where some fee is paid, whether directly or included in dues or rental
charges for that service, whether or not public rights-of-way are
utilized in the delivery of the video programming or communications.
A video service supplier includes, but is not limited to, multichannel
video programming distributors (as defined in 47 U.S.C.A. Section
522(13)); open video systems (OVS) suppliers; and suppliers of cable
television; master antenna television; satellite master antenna television;
multichannel multipoint distribution services (MMDS); video services
using internet protocol (e.g., IP-TV and IP-Video, which provide,
among other things, broadcasting and video on demand), direct broadcast
satellite to the extent Federal law permits taxation of its video
services, now or in the future; and other suppliers of video services
(including two-way communications), whatever their technology.
z.
VoIP (Voice Over Internet Protocol) shall mean the digital process
of making and receiving real-time voice transmissions over any Internet
Protocol network.
aa.
800 Service shall mean a telecommunications service that allows a
caller to dial a toll-free number without incurring a charge for the
call. The service is typically marketed under the name "800," "855,"
"866," "877," and "888" toll-free calling, and any subsequent numbers
designated by the Federal Communications Commission.
bb.
900 Service shall mean an inbound toll telecommunications service
purchased by a subscriber that allows the subscriber's customers to
call in to the subscriber's prerecorded announcement or live service.
"900 service" does not include the charge for: collection services
provided by the seller of the telecommunications services to the subscriber,
or service or product sold by the subscriber to the subscriber's customer.
The service is typically marketed under the name "900" service, and
any subsequent numbers designated by the Federal Communications Commission.
[Ord. #2010-03]
a.
Nothing in this section shall be construed as imposing a tax upon
any person or service when the imposition of such tax upon such person
or service would be in violation of a Federal or State statute, the
Constitution of the United States or the Constitution of the State.
b.
Any service user that is exempt from the tax imposed by this section
pursuant to paragraph a of this subsection 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 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 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 service suppliers so that the
Tax Administrator can properly notify the new 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 a users'
tax collected and remitted to the Tax Administrator from such service
user as a result of such noncompliance.
c.
The City Council may, by resolution, establish one or more classes
of persons or one (1) or more classes of utility service otherwise
subject to payment of a tax imposed by this section and provide that
such classes of persons or service shall be exempt, in whole or in
part from such tax for a specified period of time.
d.
The tax imposed under subsections 4-11.5 and 4-11.7 shall not apply to the use of solar or wind energy provided by an eligible customer-generator as defined in Public Utilities Code Section 2827(b)(4): nor shall the tax apply to the use of solar or wind energy provided by a residential service user, who is not interconnected to the electric grid. The tax imposed under subsections 4-11.5 and 4-11.7, however, shall apply to charges for electricity and supplemental service (as described in subsection 4.11.5a and b) which are provided by a service supplier or non-utility service supplier to such customers on a standby or supple-mental basis.
e.
The tax imposed under Subsections 4-11.5, 4-11. 6 and 4-11.7 shall not apply to any household which qualifies for Pacific Gas & Electric's "California Alternate Rates for Energy (CARE)" Program, or any successor program, whereby households meeting certain income criteria may qualify for discounted gas and/or electric service.
[Added 11-3-2020 by Ord. No. 2020-10[1]]
[1]
Editor's Note: This ordinance was approved by a majority of
the qualified voters at an election held 11-3-2020.
f.
The tax imposed under Subsection 4-11.27 shall not apply to any household which qualifies for a discounted rate for water service through the CAP (Customer Assistance Program) established by the East Bay Municipal Utilities District, whereby households meeting certain income criteria may qualify for discounted water service.
[Added 11-3-2020 by Ord. No. 2020-10[2]]
[2]
Editor's Note: This ordinance was approved by a majority of
the qualified voters at an election held 11-3-2020.
g.
Alternative Utility Service Suppliers—Exemptions.
[Added 11-3-2020 by Ord. No. 2020-10[3]]
1.
The tax imposed under Subsections 4-11.5 and 4-11.7 on electric utility service shall not apply to any household which receives electric utility service from an alternative utility service supplier and that household qualifies for discounted electric utility service rates under a program adopted by the alternative service supplier based upon meeting certain income criteria.
2.
The tax imposed under Subsections 4-11.6 and 4-11.7 on gas service shall not apply to any household which receives gas utility service from an alternative utility service supplier and that household qualifies for discounted gas utility service rates under a program adopted by the alternative service supplier based upon meeting certain income criteria.
3.
The tax imposed under Subsection 4-11.27 on water utility service shall not apply to any household which receives water utility service from an alternative water utility service supplier and that household qualifies for discounted water utility service rates under a program adopted by the alternative service supplier based upon meeting certain income criteria.
[3]
Editor's Note: This ordinance was approved by a majority of
the qualified voters at an election held 11-3-2020.
[Ord. #2010-03]
a.
There is hereby imposed a tax upon every person in the City using
communication services. The tax imposed by this section shall be at
the rate of six and one-half (6.5%) percent of the charges made for
such services and shall be collected from the service user by the
communication services supplier or its billing agent. There is a rebuttable
presumption that communication services which are billed to a billing
or service address in the City, are used in whole or in part, within
the City's boundaries, and such services are subject to taxation under
this section. There is also a rebuttable presumption that prepaid
telecommunication services sold within the City are used, in whole
or in part, within the City and are therefore subject to taxation
under this section. If the billing address of the service user is
different from the service address, the service address of the service
user shall be used for purposes of imposing the tax. 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 communication services.
b.
Mobile telecommunications service shall be sourced in accordance
with the sourcing rules set forth in the Mobile Telecommunications
Sourcing Act (4 U.S.C. § 124). The Tax Administrator may
issue and disseminate to communication service suppliers, which are
subject to the tax collection requirements of this section, sourcing
rules for the taxation of other communication services, including
but not limited to post-paid communication services, prepaid communication
services, VoIP, and private communication services, provided that
such rules are based upon custom and common practice that further
administrative efficiency and minimize multi-jurisdictional taxation
(e.g., Streamlined Sales and Use Tax Agreement).
c.
The Tax Administrator may issue and disseminate to communication
service suppliers, which are subject to the tax collection requirements
of this section, an administrative ruling identifying those communication
services, or charges therefor, that are subject to or not subject
to the tax of paragraph a above.
d.
As used in this section, the term telecommunication services shall
include, but is not limited to, charges for: connection, reconnection,
termination, movement, or change of telecommunication services; late
payment fees; detailed billing; central office and custom calling
features (including but not limited to call waiting, call forwarding,
caller identification and three-way calling); voice mail and other
messaging services; directory assistance; access and line charges;
universal service charges; regulatory, administrative and other cost
recovery charges; local number portability charges; and text and instant
messaging. Telecommunication services shall not include digital downloads
that are not ancillary telecommunication services, such as music,
ringtones, games, and similar digital products.
e.
Charges for communication services (video) shall include, but are
not limited to, charges for the following:
1.
Regulatory fees and surcharges, franchise fees and access fees (PEG);
2.
Initial installation of equipment necessary for provision and receipt
of video services;
3.
Late fees, collection fees, bad debt recoveries, and return check
fees;
4.
Activation fees, reactivation fees, and reconnection fees;
5.
Video programming and video services;
6.
Ancillary video services (e.g., electronic program guide services,
recording functions, search functions, or other interactive services
or communications that are ancillary, necessary or common to the use
or enjoyment of video services);
7.
Equipment leases (e.g., remote, recording or search devices, converters,
remote devices); and,
8.
Service calls, service protection plans, name changes, changes of
services, and special services.
f.
To prevent actual multi-jurisdictional taxation of 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 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.
g.
The tax on communication services imposed by this section shall be
collected from the service user by the service supplier. In the case
of video service, the service user shall be deemed to be the purchaser
of the bulk video 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 video service. The amount of tax
collected in one (1) month shall be remitted to the Tax Administrator,
and must be received by the Tax Administrator on or before the twentieth
(20th) day of the following month.
[Ord. #2010-03]
a.
There is hereby imposed a tax upon every person using electricity
in the City. The tax imposed by this section shall be at the maximum
rate of 9.5% of the charges made for such electricity, and for any
supplemental services or other associated activities directly related
to and/or necessary for the provision of electricity to the service
user, which are provided by a service supplier or nonutility service
supplier to a service user. The tax shall be collected from the service
user by the service supplier or nonutility service supplier, or its
billing agent.
[Amended 11-3-2020 by Ord. No. 2020-10[1]]
[1]
Editor's Note: This ordinance was approved by a majority of
the qualified voters at an election held 11-3-2020.
b.
As used in this section, the term "charges" shall apply to all services,
components and items that are: i) necessary for or common to the receipt,
use or enjoyment of electric service; or, ii) currently are 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. The
term "charges" shall include, but is not limited to, the following
charges:
1.
Energy charges;
2.
Distribution or transmission charges;
3.
Metering charges;
4.
Stand-by, reserves, firming, ramping, voltage support, regulation,
emergency, or other similar charges for supplemental services to self-generation
service users:,
5.
Customer charges, late charges, service establishment or reestablishment
charges, demand charges, fuel or other cost adjustments, power exchange
charges, independent system operator (ISO) charges, stranded investment
or competitive transition charges (CTC), public purpose program charges,
nuclear decommissioning charges, trust transfer amounts (bond financing
charges), franchise fees, franchise surcharges, annual and monthly
charges, and other charges, fees or surcharges which are necessary
for or common to the receipt, use or enjoyment of electric service;
and,
6.
Charges, fees, or surcharges for electricity services or programs
which are mandated by the California Public Utilities Commission or
the Federal Energy Regulatory Commission, whether or not such charges,
fees, or surcharges appear on a bundled or line item basis on the
customer billing.
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.
d.
The Tax Administrator, from time to time, may survey the electric
service suppliers to identify the various unbundled billing components
of electric retail service that they commonly provide to residential
and commercial/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, thereafter, may issue and disseminate to such electric
service suppliers an administrative ruling identifying those components
and items which are: i) necessary for or common to the receipt, use
or enjoyment of electric service:, or, ii) currently are 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. Charges
for such components and items shall be subject to the tax of paragraph
a above.
e.
As used in this section, the term "using electricity" shall not include
the mere receiving of such electricity by an electrical corporation
or governmental agency at a point within the City for resale.
f.
The tax on electricity provided by self-production or by a non-utility service supplier not under the jurisdiction of this section shall be collected and remitted in the manner set forth in subsection 4-11.7 of this section. 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, and must be received by the Tax Administrator on or before the twentieth (20th) day of the following month; or, at the option of the person required to collect and/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 received by the Tax Administrator on or before the twentieth (20th) day of the following month, provided that such person 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 remittance that becomes due.
g.
Use of Electricity Users' Tax.
[Added 11-3-2020 by Ord. No. 2020-10[2]]
1.
If this Subsection g is enacted by the voters, the City Council will endeavor to expend at least 1/3 of the additional revenue generated from the increase in the maximum electricity users' tax rate (above 7%) for the following spending priorities:
2.
Notwithstanding anything to the contrary, this Subsection g shall not be construed, and it is not the voters' intent, to convert all or any of the electricity users' tax into a "special tax," as that term is defined in Article XIIIC §1( d) of the California Constitution, California Government Code §§ 053721 and 53724, or any combination thereof. Although this subsection expresses the voters' desire that additional electricity users' tax revenues be expended for certain priorities, this expression is nonbinding on any future or subsequently constituted City Council, and the electricity users' tax shall remain a "general tax" as that term is defined in Article XIIIC § 1(a) of the California Constitution, the revenues from which may be budgeted by the City Council to pay for any valid expense of the City.
[2]
Editor's Note: This ordinance was approved by a majority of
the qualified voters at an election held 11-3-2020.
[Ord. #2010-03]
a.
There is hereby imposed a tax upon every person using gas in the City, which is transported and delivered through a pipeline or by mobile transport. The tax imposed by this subsection shall be at the maximum rate of 9.5 % of the 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 nonutility service supplier, or its billing agent, and shall apply to all uses of gas, including, but not limited to, heating, electricity generation, and the use of gas as a component of a manufactured product. Notwithstanding the foregoing, the charges made for the baseline rate usage approved by the California Public Utilities Commission for gas furnished to a residential service user shall be exempt from the tax levied by this Subsection 4-11.6.
[Amended 11-3-2020 by Ord. No. 2020-10[1]]
[1]
Editor's Note: This ordinance was approved by a majority of
the qualified voters at an election held 11-3-2020.
b.
As used in this section, the term "charges" shall apply to all services,
components and items for gas service that are: i) necessary for or
common to the receipt, use or enjoyment of gas service; or, ii) currently
are 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. The term "charges" shall include, but is not limited to,
the following charges:
1.
The commodity charges for, purchased gas, or the cost of gas owned
by the service user (including the actual costs attributed to drilling,
production, lifting, storage, gathering, trunkline, pipeline, and
other operating costs associated with the production and delivery
of such gas), which is delivered through a gas pipeline distribution
system;
2.
Gas transportation charges (including interstate charges to the extent
not included in commodity charges);
3.
Storage charges, provided, however, that the service supplier shall
not be required to apply the tax to any charges for gas storage services
when the service supplier cannot, as a practical matter, determine
the jurisdiction where such stored gas is ultimately used; but it
shall be the obligation of the service user to self-collect the amount
of tax not applied to any charge for gas storage by the service supplier
and to remit the tax to the appropriate jurisdiction;
4.
Capacity or demand charges, late charges, service establishment or
reestablishment charges, transition charges, customer charges, minimum
charges, annual and monthly charges, and any other charges which are
necessary for or common to the receipt, use or enjoyment of gas service;
and,
5.
Charges, fees, or surcharges for gas services or programs which are
mandated by the California Public Utilities Commission or the Federal
Energy Regulatory Commission, whether or not such charges, fees, or
surcharges appear on a bundled or line item basis on the customer
billing.
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 delivery of such gas.
d.
The Tax Administrator, from time to time, may survey the gas service
suppliers to identify the various unbundled billing components of
gas retail service that they commonly provide to residential and commercial/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 gas service. The Tax Administrator, thereafter,
may issue and disseminate to such gas service suppliers an administrative
ruling identifying those components and items which are: i) necessary
for or common to the receipt, use or enjoyment of gas service; or,
ii) currently are 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. Charges for such components and items shall
be subject to the tax of paragraph a above.
e.
There shall be excluded from the calculation of the tax imposed in
this section, charges made for gas which is to be resold and delivered
through a pipeline distribution system.
f.
The tax on gas provided by self-production or by a non-utility service supplier not under the jurisdiction of this Section 4-11 shall be collected and remitted in the manner set forth in subsection 4-11.7. 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 must be received by the Tax Administrator, on or before the twentieth (20th) day of the following month; or, at the option of the person required to collect and/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 received by the Tax Administrator on or before the twentieth (20th) day of the following month, provided that such person 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 remittance that becomes due.
g.
Use of Gas Users' Tax.
[Added 11-3-2020 by Ord. No. 2020-10[2]]
1.
If this Subsection g is enacted by the voters, the City Council will endeavor to expend at least 1/3 of the additional revenue generated from the increase in the maximum gas users' tax rate (above 7%) for the following spending priorities:
2.
Notwithstanding anything to the contrary, this Subsection g shall not be construed, and it is not the voters' intent, to convert all or any of the gas users' tax into a "special tax," as that tern is defined in Article XIIIC §1(d) of the California Constitution, California Government Code §§ 53721 and 53724, or any combination thereof. Although this subsection expresses the voters' desire that additional gas users' tax revenues be expended for certain priorities, this expression is nonbinding on any future or subsequently constituted City Council, and the gas users' tax shall remain a "general tax" as that term is defined in Article XIIIC §1(a) of the California Constitution, the revenues from which may be budgeted by the City Council to pay for any valid expense of the City.
[2]
Editor's Note: This ordinance was approved by a majority of
the qualified voters at an election held 11-3-2020.
[Ord. #2010-03]
a.
Any service user subject to the tax imposed by subsection 4-11.5 or by subsection 4-11.6 of this section, which produces gas or electricity for self-use except as exempted in subsection 4-11.3; which receives gas or electricity, including any related supplemental services, directly from a non-utility service supplier not under the jurisdiction of this section 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 in the City, including any related supplemental services, shall report said fact to the Tax Administrator and shall remit the tax due directly to the Tax Administrator within thirty (30) days of such use, based on the charges for, or value of, such gas or electricity, or supplemental services, as provided in paragraph b. 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 in writing, 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 otherwise 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.
[Ord. #2010-03]
If any nontaxable charges are combined with and not separately
stated from taxable service charges on the customer bill or invoice
of a service supplier, the combined charge is subject to tax unless
the service supplier identifies, by reasonable and verifiable standards,
the portions of the combined charge that are nontaxable and taxable
through the service supplier's books and records kept in the regular
course of business, and in accordance with generally accepted accounting
principles, and not created and maintained for tax purposes. If the
service supplier offers a combination of taxable and nontaxable services,
and the charges are separately stated, then for taxation purposes,
the values assigned the taxable and non-taxable services shall be
based on its books and records kept in the regular course of business
and in accordance with generally accepted accounting principles, and
not created and maintained for tax purposes. The service supplier
has the burden of proving the proper valuation and apportionment of
taxable and nontaxable charges.
[Ord. #2010-03]
For purposes of imposing a tax or establishing a duty to collect
and remit a tax under this section, "substantial nexus" and "minimum
contacts" shall be construed broadly in favor of the imposition, collection
and/or remittance of the utility users' tax to the fullest extent
permitted by State and Federal law, and as it may change from time
to time by judicial interpretation or by statutory enactment. Any
communication service (including VoIP) used by a person with a service
address in the City, which service is capable of terminating a call
to another person on the general telephone network, shall be subject
to a rebuttable presumption that "substantial nexus/minimum contacts"
exists for purposes of imposing a tax, or establishing a duty to collect
and remit a tax under this section. A service supplier shall be deemed
to have sufficient activity in the City for tax collection and remittance
purposes if its activities include, but are not limited to, any of
the following: maintains or has within the City, directly or through
an agent or subsidiary, a place of business of any nature; solicits
business in the City by employees, independent contractors, resellers,
agents or other representatives; solicits business in the City on
a continuous, regular, seasonal or systematic basis by means of advertising
that is broadcast or relayed from a transmitter with the City or distributed
from a location with the City; or advertises in newspapers or other
periodicals printed and published within the City or through materials
distributed in the City by means other than the United States mail;
or if there are activities performed in the City on behalf of the
service supplier that are significantly associated with the service
supplier's ability to establish and maintain a market in the City
for the provision of utility services that are subject to a tax under
this section.
[Ord. #2010-03]
a.
Collection by Service Suppliers. The duty of service suppliers to
collect and remit the taxes imposed by the provisions of this section
shall be performed as follows:
1.
The tax shall be collected by service suppliers insofar as practicable at the same time as, and along with, the collection of the 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, subsection 4-11.14 shall apply.
2.
The duty of a service supplier to collect the tax from a service
user shall commence with the beginning of the first regular billing
period applicable to the service user where all charges normally included
in such regular billing are subject to the provisions of this section.
Where a service user receives more than one (1) billing, one (1) or
more being for different periods than another, the duty to collect
shall arise separately for each billing period.
b.
Filing Return and Payment. Each person required by this section to
remit a tax shall file a return to the Tax Administrator, on forms
approved by the Tax Administrator, on or before the due date. The
full amount of the tax collected shall be included with the return
and filed with the Tax Administrator. The Tax Administrator is authorized
to require such additional information as he or she deems necessary
to determine if the tax is being levied, collected, and remitted in
accordance with this section. Returns are due immediately upon cessation
of business for any reason. Pursuant to Revenue and Tax Code Section
7284.6, the Tax Administrator, and its agents, shall maintain such
filing returns as confidential information that is exempt from the
disclosure provisions of the Public Records Act.
[Ord. #2010-03]
a.
Taxes collected from a service user are delinquent if not received
by the Tax Administrator on or before the due date. 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. 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 obligations under this subsection shall be considered timely
if the transfer is initiated on or before the due date, and the transfer
settles into the City's account on the following business day.
b.
If the person required to collect and/or remit the utility users'
tax fails to collect the tax (by failing to properly assess the tax
on one (1) or more services or charges on the customer's billing)
or fails to remit the tax collected on or before the due date, the
Tax Administrator shall attach a penalty for such delinquencies or
deficiencies at the rate of fifteen (15%) percent of the total tax
that is delinquent or deficient in the remittance, and shall pay interest
at the rate of seventy-five one-hundredths (0.75%) percent 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.
c.
The Tax Administrator shall have the power to impose additional penalties
upon persons required to collect and remit taxes pursuant to the provisions
of this section for fraud or gross negligence in reporting or remitting
at the rate of fifteen (15%) percent of the amount of the tax collected
and/or required to be remitted, or as recomputed by the Tax Administrator.
d.
For collection purposes only, every penalty imposed and such interest
that is accrued under the provisions of this section shall become
a part of the tax herein required to be paid.
e.
Notwithstanding the foregoing, the Tax Administrator may, in his
or her discretion, modify the due dates of this section to be consistent
with any uniform standards or procedures that are mutually agreed
upon by other public agencies imposing a utility users tax, or otherwise
legally established to create a central payment location or mechanism.
[Ord. #2010-03]
Any tax required to be paid by a service user under the provisions
of this section 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 section shall be liable to an
action brought in the name of the City for the recovery of such amount,
including penalties and interest as provided for in this section,
along with any collection costs incurred by the City as a result of
the person's noncompliance with this section, including, but not limited
to, reasonable attorneys' fees. Any tax required to be collected by
a service supplier or owed by a service user is an unsecured priority
excise tax obligation under 11 U. S. CA. Section 507(a)(8)(C). Service
suppliers who seek to collect charges for service in bankruptcy proceedings
shall also include in any such claim the amount of taxes due the City
for those services, unless the Tax Administrator determines that such
duty is in conflict with any Federal or State law, rule, or regulation
or that such action would be administratively impractical.
[Ord. #2010-03]
a.
The Tax Administrator shall make a deficiency determination if he or she determines that any person required to pay or collect taxes pursuant to the provisions of this section has failed to pay, collect, and/or remit the proper amount of tax by improperly or failing to apply the tax to one (1) or more taxable services or charges. Nothing herein shall require that the Tax Administrator institute proceedings under this subsection 4-11.13 if, in the opinion of the Tax Administrator, the cost of collection or enforcement likely outweighs the tax benefit.
b.
The Tax Administrator shall mail a notice of such deficiency determination
to the person required to pay or remit the tax, which notice shall
refer briefly to the amount of the taxes owed, plus interest at the
rate of seventy-five one-hundredths (0.75%) percent per month, or
any fraction thereof, on the amount of the tax from the date on which
the tax should have been received by the City. Within fourteen (14)
calendar days after the date of service of such notice, the person
may request in writing to the Tax Administrator for a hearing on the
matter.
c.
If the person fails to request a hearing within the prescribed time
period, the amount of the deficiency determination shall become a
final assessment, and shall immediately be due and owing to the City.
If the person requests a hearing, the Tax Administrator shall cause
the matter to be set for hearing, which shall be scheduled within
thirty (30) days after receipt of the written request for hearing.
Notice of the time and place of the hearing shall be mailed by the
Tax Administrator to such person at least ten (10) calendar days prior
to the hearing, and, if the Tax Administrator desires said person
to produce specific records at such hearing, such notice may designate
the records requested to be produced.
d.
At the time fixed for the hearing, the Tax Administrator shall hear all relevant testimony and evidence, including that of any other interested parties. At the discretion of the Tax Administrator, the hearing may be continued from time to time for the purpose of allowing the presentation of additional evidence. Within a reasonable time following the conclusion of the hearing, the Tax Administrator shall issue a final assessment (or non-assessment), thereafter, by confirming, modifying or rejecting the original deficiency determination, and shall mail a copy of such final assessment to person owing the tax. The decision of the Tax Administrator may be appealed pursuant to subsections 4-11.18 and 4-11.15 of this section. Filing an application with the Tax Administrator and appeal to the City Administrator, or designee, pursuant to subsection 4-11.18 of this section is a prerequisite to a suit thereon.
e.
Payment of the final assessment shall become delinquent if not received
by the Tax Administrator on or before the thirtieth (30th) day following
the date of receipt of the notice of final assessment. The penalty
for delinquency shall be fifteen (15%) percent on the total amount
of the assessment, along with interest at the rate of seventy-five
one-hundredths (0.75%) percent per month, or any fraction thereof,
on the amount of the tax, exclusive of penalties, from the date of
delinquency, until paid. The applicable statute of limitations regarding
a claim by the City seeking payment of a tax assessed under this section
shall commence from the date of delinquency as provided in this paragraph
e.
f.
All notices under this section may be sent by regular mail, postage
prepaid, and shall be deemed received on the third calendar day following
the date of mailing, as established by a proof of mailing.
[Ord. #2010-03]
a.
Whenever the Tax Administrator determines that a service user has deliberately withheld the amount of the tax owed by the service user from the amounts remitted to a person required to collect the tax, or whenever the Tax Administrator deems it in the best interest of the City, he or she may relieve such person of the obligation to collect the taxes due under this section from certain named service users for specific billing periods. To the extent the service user has failed to pay the amount of tax owed for a period of two (2) or more billing periods, the service supplier shall be relieved of the obligation to collect taxes due. 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 section. Nothing herein shall require that the Tax Administrator institute proceedings under this subsection 4-11.14 if in the opinion of the Tax Administrator, the cost of collection or enforcement likely outweighs the tax benefit.
b.
In addition to the tax owed, the service user shall pay a delinquency
penalty at the rate of fifteen (15%) percent of the total tax that
is owed, and shall pay interest at the rate of seventy-five one-hundredths
(0.75%) percent per month, or any fraction thereof, on the amount
of the tax, exclusive of penalties, from the due date, until paid.
c.
The Tax Administrator shall notify the nonpaying service user that
the Tax Administrator has assumed the responsibility to collect the
taxes due for the stated periods and demand payment of such taxes,
including penalties and interest. The notice shall be served on the
service user by personal delivery or by deposit of the notice in the
United States mail, postage prepaid, addressed to the service user
at the address to which billing was made by the person required to
collect the tax; or, should the service user have a change of address,
to his or her last known address.
d.
If the service user fails to remit the tax to the Tax Administrator
within thirty (30) days from the date of the service of the notice
upon him or her, the Tax Administrator may impose an additional penalty
of fifteen (15%) percent of the amount of the total tax that is owed.
[Ord. #2010-03]
a.
The Tax Administrator shall have the power and duty, and is hereby
directed, to enforce each and all of the provisions of this section.
b.
The Tax Administrator may adopt administrative rules and regulations
consistent with provisions of this section for the purpose of interpreting,
clarifying, carrying out and enforcing the payment, collection and
remittance of the taxes herein imposed. The administrative ruling
shall not impose a new tax, revise an existing tax methodology as
stated in this section, or increase an existing tax, except as allowed
by California Government Code Section 53750(h)(2). A copy of such
administrative rules and regulations shall be on file in the Tax Administrator's
office. To the extent that the Tax Administrator determines that the
tax imposed under this section shall not be collected in full for
any period of time from any particular service supplier or service
user, that determination shall be considered an exercise of the Tax
Administrator's discretion to settle disputes and shall not constitute
a change in taxing methodology for purposes of Government Code Section
53750 or otherwise. The Tax Administrator is not authorized to amend
the City's methodology for purposes of Government Code Section 53750
and the City does not waive or abrogate its ability to impose the
utility users' tax in full as a result of promulgating administrative
rulings or entering into agreements.
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 section and thereby: (1) conform to
the billing procedures of a particular service supplier so long as
said agreements result in the collection of the tax in conformance
with the general purpose and scope of this section; or, (2) 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 may conduct an audit, to ensure proper compliance with the requirements of this section, of any person required to collect and/or remit a tax pursuant to this section. The Tax Administrator shall notify said person of the initiation of an audit in writing. In the absence of fraud or other intentional misconduct, the audit period of review shall not exceed a period of three (3) years next preceding the date of receipt of the written notice by said person from the Tax Administrator. Upon completion of the audit, the Tax Administrator may make a deficiency determination pursuant to subsection 4-11.13 of this section for all taxes (and applicable penalties and interest) owed and not paid, as evidenced by information provided by such person to the Tax Administrator. If said person is unable or unwilling to provide sufficient records to enable the Tax Administrator to verify compliance with this section, the Tax Administrator is authorized to make a reasonable estimate of the deficiency. Said reasonable estimate shall be entitled to a rebuttable presumption of correctness.
e.
Upon receipt of a written request of a taxpayer, and for good cause,
the Tax Administrator may extend the time for filing any statement
required pursuant to this section for a period of not to exceed forty-five
(45) days, provided that the time for filing the required statement
has not already passed when the request is received. No penalty for
delinquent payment shall accrue by reason of such extension. Interest
shall accrue during said extension at the rate of seventy-five one-hundredths
(0.75%) percent per month, prorated for any portion thereof.
f.
The Tax Administrator shall determine the eligibility of any person
who asserts a right to exemption from, or a refund of, the tax imposed
by this section.
g.
Notwithstanding any provision in this section to the contrary, the
Tax Administrator may waive any penalty or interest imposed upon a
person required to collect and/or remit for failure to collect the
tax imposed by this section if the non-collection occurred in good
faith. In determining whether the non-collection was in good faith,
the Tax Administrator shall take into consideration the uniqueness
of the product or service, industry practice or other precedence.
The Tax Administrator may also participate with other UUT public agencies
in conducting coordinated compliance reviews with the goal of achieving
administrative efficiency and uniform tax application determination's,
where possible. To encourage full disclosure and on-going cooperation
on annual compliance reviews, the Tax Administrator, and its agents,
may enter into agreements with the tax-collecting service providers
and grant prospective only effect on any changes regarding the taxation
of services or charges that were previously deemed by the service
provider, in good faith and without gross negligence, to be nontaxable.
In determining whether the non-collection was in good faith and without
gross negligence, the Tax Administrator shall take into consideration
the uniqueness of the product or service, industry practice or other
precedence.
[Ord. #2010-03]
a.
It shall be the duty of every person required to collect and/or remit
to the City any tax imposed by this section 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/she may have been liable
for the collection of and remittance to the Tax Administrator, which
records the Tax Administrator 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
section, 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 outside 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 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.
d.
If a service supplier uses a billing agent or billing aggregator
to bill, collect, and/or remit the tax, the service supplier shall:
1) 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, 2) 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 and/or remittance of such tax to the City.
e.
If any person subject to record-keeping under this section unreasonably
denies the Tax Administrator access to such records, or fails to produce
the information requested in an administrative subpoena within the
time specified, then the Tax Administrator may impose a penalty of
five hundred ($500.00) dollars on such person for each day following:
1) the initial date that the person refuses to provide such access;
or, 2) 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.
[Ord. #2010-03]
Whenever the amount of any tax has been overpaid or paid more
than once or has been erroneously or illegally collected or received
by the Tax Administrator under this section from a person or service
supplier, it may be refunded as provided in this section as follows:
a.
Written Claim for Refund. The Tax Administrator may refund any tax
that has been overpaid or paid more than once or has been erroneously
or illegally collected or received by the Tax Administrator under
this section from a person or service supplier, 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. Such 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
unless each member of the class has submitted a written claim under
penalty of perjury as provided by this paragraph a. It is the intent
of the City Council that the one-year written claim requirement of
this paragraph a be given retroactive effect; provided, however, that
any claims which arose prior to the commencement of the one-year claims
period of this paragraph a, and which are not otherwise barred by
a then applicable statute of limitations or claims procedure, must
be filed with the Tax Collector as provided in this paragraph a within
ninety (90) days following the effective date of this section. (Section
4-11 was ratified by the electorate at the election of November 2,
2010.)
b.
Compliance with Claims Act. The filing of a written claim pursuant
to Government Code Section 935 is a prerequisite to any suit thereon.
Any action brought against the City pursuant to this section shall
be subject to the provisions of Government Code Sections 945.6 and
946. The Tax Administrator, or the City Council where the claim is
in excess of five thousand ($5,000.00) dollars, shall act upon the
refund claim within the time period set forth in Government Code Section
912.4. If the Tax Administrator/City Council fails or refuses to act
on a refund claim within the time prescribed by Government Section
912.4, the claim shall be deemed to have been rejected by the City
Council on the last day of the period within which the City Council
was required to act upon the claim as provided in Government Code
Section 912.4. The Tax Administrator shall give notice of the action
in a form which substantially complies with that set forth in Government
Code Section 913.
c.
Refunds to Service Suppliers. Notwithstanding the notice provisions
of paragraph c of this subsection, the Tax Administrator may, at his
or her discretion, give written permission to a service supplier,
who has collected and remitted any amount of tax in excess of the
amount of tax imposed by this section to claim credit for such overpayment
against the amount of tax which is due the City upon a subsequent
monthly return(s) to the Tax Administrator, provided that: 1) such
credit is claimed in a return dated no later than one (1) year from
the date of overpayment or erroneous collection of said tax; 2) the
Tax Administrator is satisfied that the underlying basis and amount
of such credit has been reasonably established; and, 3) in the case
of an overpayment by a service user to the service supplier that has
been remitted to the City, the Tax Administrator has received proof,
to his or her satisfaction, that the overpayment has been refunded
by the service supplier to the service user in an amount equal to
the requested credit.
[Ord. #2010-03]
a.
The provisions of this section apply to any decision (other than a decision relating to a refund pursuant to subsection 4-11.17 of this section), deficiency determination, assessment, or administrative ruling of the Tax Administrator. Any person aggrieved by any decision (other than a decision relating to a refund pursuant to subsection 4-11.17 of this section) deficiency determination, assessment, or administrative ruling of the Tax Administrator, shall be required to comply with the appeals procedure of this subsection. Compliance with this subsection shall be a prerequisite to a suit thereon. (See Government Code Section 935(b)). Nothing herein shall permit the filing of a claim or action on behalf of a class or group of taxpayers.
b.
If any person is aggrieved by any decision (other than a decision relating to a refund pursuant to subsection 4-11.17 of this section), deficiency determination, assessment, or administrative ruling of the Tax Administrator; he or she may appeal to the City Administrator, or designee, by filing a notice of appeal with the City Clerk within fourteen (14) days of the date of the decision, deficiency determination, assessment, or administrative ruling of the Tax Administrator which aggrieved the service user or service supplier.
c.
The matter shall be scheduled for hearing before an independent hearing
officer selected by the City Administrator, or designee, no more than
thirty (30) days from the receipt of the appeal. The appellant shall
be served with notice of the time and place of the hearing, as well
as any relevant materials, at least five (5) calendar days prior to
the hearing. The hearing may be continued from time to time upon mutual
consent. At the time of the hearing, the appealing party, the Tax
Administrator, and any other interested person may present such relevant
evidence as he or she may have relating to the determination from
which the appeal is taken.
d.
Based upon the submission of such evidence and the review of the
City's files, the hearing officer shall issue a written notice and
order upholding, modifying or reversing the determination from which
the appeal is taken. The notice shall be given within fourteen (14)
days after the conclusion of the hearing and shall state the reasons
for the decision. The notice shall specify that the decision is final
and that any petition for judicial review shall be filed within ninety
(90) days from the date of the decision in accordance with Code of
Civil Procedure Section 1094.6.
e.
All notices under this subsection may be sent by regular mail, postage
prepaid, and shall be deemed received on the third calendar day following
the date of mailing, as established by a proof of mailing.
[Ord. #2010-03]
No injunction or writ of mandate or other legal or equitable
process shall issue in any suit, action, or proceeding in any court
against this City or against any officer of the City to prevent or
enjoin the collection under this section of any tax or any amount
of tax required to be collected and/or remitted.
[Ord. #2010-03; amended 11-3-2020 by Ord. No. 2020-10[1]]
If a tax under this section is added, repealed, increased, reduced,
or the tax base is changed, the Tax Administrator shall follow the
notice requirements of California Public Utilities Code Section 799.
Service suppliers shall begin to collect the tax imposed by this section
as soon as feasible after the effective date of the section, but in
no event later than permitted by California Public Utilities Code
Section 799.
[1]
Editor's Note: This ordinance was approved by a majority of
the qualified voters at an election held 11-3-2020.
[Ord. #2010-03]
Unless specifically provided otherwise, any reference to a State
or Federal statute in this section shall mean such statute as it may
be amended from time to time, provided that such reference to a statute
herein shall not include any subsequent amendment thereto, or to any
subsequent change of interpretation thereto by a State or Federal
agency or court of law with the duty to interpret such law, to the
extent that such amendment or change of interpretation would require
voter approval under California law, or to the extent that such change
would result in a tax decrease (as a result of excluding all or a
part of a utility service, or charge therefor, from taxation). Only
to the extent voter approval would otherwise be required or a tax
decrease would result, the prior version of the statute (or interpretation)
shall remain applicable; for any application or situation that would
not require voter approval or result in a decrease of a tax, provisions
of the amended statute (or new interpretation) shall be applicable
to the maximum possible extent.
To the extent that the City's authorization to collect or impose
any tax imposed under this section is expanded or limited as a result
of changes in State or Federal law, no amendment or modification of
this section shall be required to conform the tax to those changes,
and the tax shall be imposed and collected to the full extent of the
authorization up to the full amount of the tax imposed under this
section.
[Ord. #2010-03]
a.
Section 4-11 of the Albany Municipal Code may be repealed or amended
by the City Council without a vote of the people. However, as required
by Article XIIIC of the California Constitution, voter approval is
required for any amendment provision that would increase the rate
of any tax levied pursuant to this section. The people of the City
of Albany affirm that the following actions shall not constitute an
increase of the rate of a tax.
1.
The restoration of the rate of the tax to a rate that is no higher
than that set by this section, if the City Council has acted to reduce
the rate of the tax;
2.
An action that interprets or clarifies the methodology of the tax,
or any definition applicable to the tax, so long as such interpretation
or clarification (even if contrary to some prior interpretation or
clarification) is not inconsistent with the language of this section;
and
3.
The establishment a class of persons that is exempt or excepted from
the tax or the discontinuation of any such exemption or exception
(other than the discontinuation of an exemption or exception specifically
set forth in this section); and
4.
The collection of the tax imposed by this section, even if the City
had, for some period of time, failed to collect the tax.
[Ord. #2010-03]
The City shall annually verify that the taxes owed under this
section have been properly applied, exempted, collected, and remitted
in accordance with this section, and properly expended according to
applicable municipal law. The annual verification shall be performed
by a qualified independent third party and the review shall employ
reasonable, cost-effective steps to assure compliance, including,
the use of sampling audits. The verification shall not be required
of tax remitters where the cost of the verification may exceed the
tax revenues to be reviewed.
[Ord. #2010-03]
All remedies and penalties prescribed by this section or which
are available under any other provision of law or equity, including
but not limited to the California False Claims Act (Government Code
Section 12650 et seq.) and the California Unfair Practices Act (Business
and Professions Code Section 17070 et seq.), are cumulative. The use
of one (1) or more remedies by the City shall not bar the use of any
other remedy for the purpose of enforcing the provisions of this section.
[1]
Editor's Note: Former § 4-11.25, Interaction With
Prior Tax, adopted or amended by Ord. #2010-03, and § 4-11.26,
Ratification of Prior Tax, adopted by Ord. #2010-03 § 4,
were repealed 11-3-2020 by Ord. No. 2020-10.
[Added 11-3-2020 by Ord. No. 2020-10[1]]
a.
There is imposed a tax upon every person using water in the City
which is transported and delivered through a pipeline distribution
system. The tax imposed by this section shall be at the maximum rate
of 7.5% of the charges made for such water and shall be collected
from the service user by the water service supplier, or its billing
agent.
b.
As used in this subsection, the term "charges" shall apply to all
services, components and items that are: i) necessary for or common
to the receipt, use or enjoyment of water service; or, ii) currently
are or historically have been included in a single or bundled rate
for water service by a local distribution company to a class of retail
customers. The term "charges" shall include, but is not limited to,
the following charges:
1.
Water commodity charges (potable and nonpotable);
2.
Distribution or transmission charges;
3.
Metering charges;
4.
Customer charges, late charges, service establishment or reestablishment
charges, franchise fees, franchise surcharges, annual and monthly
charges, and other charges, fees and surcharges which are necessary
for or common to the receipt, use or enjoyment of water service; and
5.
Charges, fees, or surcharges for water services or programs, which
are mandated by a water district or a state or federal agency, whether
or not such charges, fees, or surcharges appear on a bundled or line-item
basis on the customer billing.
c.
There shall be excluded from the base on which the tax imposed in
this subsection is computed charges made for water which is to be
resold and delivered through a pipeline distribution system; and charges
made by a municipal water department, public utility or a county or
municipal water district for water used and consumed by such department,
utility or district in the conduct of the business of such department,
utility or district.
d.
The tax on water service imposed by this section shall be collected
from the service user by the water service supplier or its billing
agent. The amount of tax collected in one month shall be remitted
to the Tax Administrator, and must be received by the Tax Administrator
on or before the 20th calendar day of the following month.
e.
Use of Water Users' Tax.
1.
If this Subsection 4-11.27 is enacted by the voters, the City Council will endeavor to expend at least 1/3 of the revenue generated from the water users' tax for the following spending priorities:
2.
Notwithstanding anything to the contrary, this Subsection e shall not be construed, and it is not the voters' intent, to convert all or any of the water users' tax into a "special tax," as that term is defined in Article XIIIC § 1(d) of the California Constitution, California Government Code §§ 53721 and 53724, or any combination thereof. Although this subsection expresses the voters' desire that water users' tax revenues be expended for certain priorities, this expression is nonbinding on any future or subsequently constituted City Council, and the water users' tax shall remain a "general tax" as that term is defined in Article XIIIC § 1(a) of the California Constitution, the revenues from which may be budgeted by the City Council to pay for any valid expense of the City.
[1]
Editor's Note: This ordinance was approved by a majority of
the qualified voters at an election held 11-3-2020.
