[§ 1, Ord. 879-32, eff. December 31, 1992]
There is established and imposed, effective December 31, 1992,
a utility user tax in the manner and at the rates set forth in this
article.
[§ 1, Ord. 879-92, eff. December 31, 1992]
This article is enacted solely to raise revenue for the general
governmental purposes of the City of Avalon. All of the proceeds from
the tax imposed by this Article shall be placed in the City's
general fund and used for the usual current expenses of the City.
[§ 1, Ord. 879-92, eff. December 31, 1992]
The following words and phrases whenever used in this article
shall be construed as defined in this section.
(a) PERSON – Shall mean any domestic or foreign corporation, firm,
association, syndicate, joint stock company, partnership of any kind,
joint venture, club, Massachusetts business or common law trust, society,
or individual.
(b) CITY – Shall mean the City of Avalon.
(c) COUNTY – Shall mean the County of Los Angeles.
(d) ELECTRICAL CORPORATION – Shall have the same meaning as defined
in § 218 of the
Public Utilities Code of the State of California,
as said section existed on January 1, 1975. "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.
(e) TAX ADMINISTRATOR – Shall mean the City Finance Director or
his designee.
(f) SERVICE SUPPLIER – Shall mean a utility company which receives
taxes paid and remits same as imposed by this article.
(g) SERVICE USER – Shall mean a person required to pay a tax imposed
by this article.
(h) MONTH – Shall mean a calendar month.
[§ 1, Ord. 879-92, eff. December 31, 1992]
(a) Nothing in this article shall be construed as imposing a tax upon
any person when imposition of such tax upon that person would be in
violation of the Constitution of the United States, or the Constitution
of the State of California or any California statute.
(b) Persons age 65 or older as of the beginning of a full regular billing
period applicable to the service user and whose annual income is 50%
or less of the County median income shall be exempt from the tax imposed
herein.
(c) Churches; facilities of the City of Avalon, Los Angeles County, Long
Beach Unified School District, 501(c)3 nonprofit organizations and
the Catalina Island Chamber of Commerce shall also be exempt from
the tax imposed herein.
(d) The City Council may, by order or resolution, establish one or more
classes of persons or one or more classes of utility service otherwise
subject to payment of a tax imposed by this article and provide that
such classes of persons or service shall be exempt, in whole or in
part from such tax.
(e) The Tax Administrator shall prepare a list of the persons exempt
from the provisions of this article by virtue of this section and
furnish a copy thereof to each service supplier.
[§ 1, Ord. 879-92, eff. December 31, 1992; as amended by § 4, Ord. 923-95, eff. December 21, 1995]
(a) There is hereby imposed a tax on every person using electrical energy
in the City. The tax imposed by this section shall be at the rate
of 3% of the charges made for such energy and shall be paid by the
person paying for such energy. "Charges", as used in this section,
shall include charges made for metered energy and charges for service,
including customer charges, service charges, standby and monthly charges,
and any other charge authorized by the California Public Utilities
Commission or the Federal Energy Regulatory Commission.
The City Council shall consider reducing or eliminating this
tax in the event of (1) State legislative action and local voter approval
of a 1/2% sales tax; (2) Congressional approval of gaming on cruise
ships that make Avalon a port of call and/or Avalon's designation
as a port of entry, if either action results in additional cruise
ship stops in Avalon.
(b) As used in this section, the term "using electrical energy" shall
not be construed to mean the storage of such energy by a person in
a battery owned or possessed by him/her for use in an automobile or
other machinery or device apart from the premises upon which the energy
was received, provided, however, that the term shall include the receiving
of such energy for the purpose of using it in the charging of batteries;
nor shall the term include the mere receiving of such energy by an
electric public utility or governmental agency at a point within the
City for resale; nor shall the term include the use of such energy
in the production or distribution of water by a public utility for
a governmental agency.
(c) The tax imposed in this section shall be collected from the service
user by the person supplying such energy. The amount of tax collected
in one month shall be remitted to the Tax Administrator on or before
the last day of the following month, unless the due date occurs on
a weekend or a holiday, in which case the due date is the first business
day following. Taxes shall be deemed remitted on the date received
by the Tax Administrator, or on the date postmarked, if remitted by
first class United States mail with postage fully prepaid. With prior
written approval of the Tax Administrator, remittance of tax may be
predicated on a formula based upon the payment pattern of the supplier's
customers.
[§ 1, Ord. 879-92, eff. December 31, 1992]
(a) Taxes collected from a service user which are not remitted to the
Tax Administrator on or before the due dates provided in this article
are delinquent and are subject to penalties and interest.
(b) Any person who fails to remit taxes collected in the time required
by this article shall pay a penalty of 5% of the amount of the tax,
and if not remitted within two working days after the date of delinquency,
shall pay a total penalty of 20% of the amount of tax owed. Such penalty
shall attach to the amount of tax due and shall be paid by the person
required to collect and remit the tax.
(c) When fraud or gross negligence in reporting and remitting tax collections
is discovered, the Tax Administrator shall have power to impose additional
penalties of 20% of taxes owed upon persons required to collect and
remit taxes under the provisions of this article.
(d) Any person required to remit to the Tax Administrator delinquent
taxes as required in this section, shall pay interest at the rate
of 1.5% per month, or portion thereof, on the amount of tax owed exclusive
of penalties, from the date on which the tax first became delinquent
until paid.
(e) Notwithstanding the provisions of subsections
(b) and
(d), no penalty or interest shall be applied if delinquencies are the result of natural disasters or other phenomena beyond the control of the person charged with collecting and remitting the tax, provided the person being delinquent notifies the Tax Administrator as soon as normal communications permit.
[§ 1, Ord. 879-92, eff. December 31, 1992]
Any tax required to be paid by a service user under the provisions
of this article 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 the tax. Any
person owing money to the City under the provisions of this article
shall be liable in an action brought in the name of the City for the
recovery of such amount.
[§ 1, Ord. 879-92, eff. December 31, 1992]
The duty to collect and remit the taxes imposed by this article
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 practices of the service supplier. Except in those
cases where a service user pays the full amount of said charges but
does not apply any portion of a tax imposed by this article, or where
a service user has notified a service supplier that he is refusing
to pay a tax imposed by this article which said service supplier is
required to collect, if the amount paid by a service user is less
than the full amount of the charge and tax which has accrued for the
billing period, such amount and any subsequent payments by a service
user shall be applied to the utility charge first. Any remaining balance
shall be applied to taxes due.
(b) The duty to collect tax from a service user shall commence with the
beginning of the first full regular billing period applicable to the
service user where charges are subject to the provisions of this article.
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.
[§ 1, Ord. 879-92, eff. December 31, 1992]
(a) The Tax Administrator shall have the power and duty, and is hereby
directed, to enforce each and all of the provisions of this article.
(b) The Tax Administrator shall have the power to adopt rules and regulations
not inconsistent with provisions of this article for the purpose of
carrying out and enforcing the payment, collection and remittance
of the taxes herein imposed. A copy of such rules and regulations
shall be on file in the Tax Administrator's office.
(c) The Tax Administrator may make administrative agreements to vary
the strict requirements of this article so that collection of any
tax imposed here may be made in conformance with the billing procedures
of a particular service supplier so long as said agreements result
in collection of the tax in conformance with the general purpose and
scope of this article. A copy of each such agreement shall be on file
in the Tax Administrator's office.
(d) The Tax Administrator shall determine the eligibility of any person
who asserts a right to exemption from the tax imposed by this article.
The Tax Administrator shall provide the service supplier with the
name of any person who the Tax Administrator determines is exempt
from the tax imposed hereby, together with the address and account
number to which service is supplied to any such exempt person. The
Tax Administrator shall notify the service supplier of the termination
of any person's right to exemption hereunder, or the change of
any address to which service is supplied to any exempt person.
[§ 1, Ord. 879-92, eff. December 31, 1992]
(a) The Tax Administrator may assess the service user for taxes not paid
to the service supplier.
(b) Whenever the Tax Administrator determines that a service user has
deliberately withheld the amount of the tax owed by such users from
the amounts remitted to a person required to collect the tax, or that
a service user has refused to pay the amount of tax to such person,
or whenever the Tax Administrator deems it in the best interest of
the City, he may relieve such person of the obligation to collect
taxes due under this article from certain named service users for
specified billing periods.
(c) The service supplier shall provide the City with amounts refused,
along with the names, addresses and reasons of the service users refusing
to pay the tax imposed under provisions of this article. Whenever
the service user has failed to pay the amount of tax for a period
of two or more billing periods, the Tax Administrator may relieve
the service supplier of the obligation to collect taxes due.
(d) The Tax Administrator shall notify the service user that he 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 by handing it to him 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 person
required to collect the tax; or, should the service user have changed
his address, to his last known address. If a service user fails to
remit the tax to the Tax Administrator within 15 days from the date
of the service of the notice upon him, which shall be the date of
mailing if service is not accomplished in person, a penalty of 25%
of the amount of the tax set forth in the notice shall be imposed,
but not less than $5. The penalty shall become part of the tax herein
required to be paid.
[§ 1, Ord. 879-92, eff. December 31, 1992]
It shall be the duty of every person required to collect and
remit to the City any tax imposed by this article to keep and preserve,
for a period of three years, all records as may be necessary to determine
the amount of such tax as he 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 all reasonable times.
[§ 1, Ord. 879-92, eff. December 31, 1992; as amended § 5, Ord. 923-95, eff. December 21, 1995]
(a) 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 article it may be refunded as provided
in this section.
(b) Notwithstanding the provisions of subsection
(a) of this section, a service supplier may, with prior written approval from the Tax Administrator, claim a refund or take as credit against taxes collected and remitted the amount overpaid, paid more than once, or erroneously or illegally collected or received when it is established that the service user from whom the tax has been collected did not owe the tax; provided however, that neither a refund nor a credit shall be allowed unless the amount of the tax so collected has either been refunded to the service user or credited to charges subsequently payable by the service user to the person required to collect and remit. A service supplier that has collected any amount of tax in excess of the amount of tax imposed by this article and actually due from a service user, may refund such amount to the service user and may, with prior written approval of the Tax Administrator, claim credit for such overpayment against the amount of tax which is due upon any other monthly returns, provided such credit is claimed in a return dated no later than three years from the date of overpayment.
(c) Notwithstanding subsection
(b), no person shall be entitled to a refund unless the claimant thereof submits a written claim to the Tax Administrator setting forth the amount of the claim, the dates on which the amount in dispute was collected, and the legal basis for the refund claim no later than 60 days from the date of the service provider's bill which contains the disputed tax.
(d) Notwithstanding other provisions of this section, whenever a service
supplier, pursuant to an order of the California Public Utilities
Commission or a court of competent jurisdiction, makes a refund to
service users of charges for past utility services, the taxes paid
pursuant to this article on the amount of such refunded charges shall
also be refunded to service users, and the service supplier may, with
prior written approval of the Tax Administrator, take a credit for
such refunded taxes against the amount of tax which is due upon the
next monthly returns. In the event this article is repealed, the amounts
of any refundable taxes will be borne by the City.
(e) A service supplier may refund the taxes collected to the service
user in accordance with this section or by the service supplier's
customary practice.
[§ 3, Ord. 879-92, eff. December 31, 1992]
The service supplier shall, upon notification, terminate or
suspend any utility user tax commencing with the first full billing
period which occurs after the effective date of such action by the
City Council.
[§ 4, Ord. 879-92, eff. December 31, 1992; as amended by § 6, Ord. 923-95, eff. December 20, 1995]
This article shall become effective on the first regular billing
period commencing on or after December 31, 1995 and shall be inoperative
as of December 31, 1998, unless voter approval of this tax is required
by law and is not given in the April 1996 election.