Note: Prior history: Prior code §§ 8-12.101—8-12.1004
and Ords. 1478, 1774-75, 2569-97, 2644-00, 2654-01, 2688-01, 2811-06
and 2812-06.
This chapter shall be known as the "Utility Users Tax Ordinance
of the city of Sunnyvale."
(Ord. 3102-16 § 1)
This chapter is adopted pursuant to the powers of the city of
Sunnyvale as a charter city as provided in Article IV of the city
Charter, and as authorized by Section 6 of Article XI of the Constitution
of the state of California.
(Ord. 3102-16 § 1)
Except where the context otherwise requires, the definitions
contained in this section shall govern the construction of this chapter.
The word "may" is always directory and discretionary and not mandatory;
the word "shall" is always mandatory and not directory or discretionary.
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:
"Conference bridging service"
shall mean an ancillary service that links two 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.
"Detailed telecommunications billing service"
shall mean an ancillary service of separately stating information
pertaining to individual calls on a customer's billing statement.
"Directory assistance"
shall mean an ancillary service of providing telephone number
information, and/or address information.
"Vertical service"
shall mean an ancillary service that is offered in connection
with one 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.
"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.
shall mean the mailing address of the service user where
the service provider submits invoices or bills for payment by the
service users.
means the city of Sunnyvale, California, including all of
the territory and jurisdiction thereof as presently constituted, and
any and all of the same which shall later come into existence by any
manner or means whatsoever.
means the director of finance or designee of the city of
Sunnyvale.
means the director of finance of the city of Sunnyvale.
shall mean electric customers who have a maximum peak demand
equal to or greater than twenty kilowatts.
means any natural person, firm, all domestic, nonprofit and
foreign corporation; firm; association; syndicate; joint venture;
joint stock company; club; trust; Massachusetts or common law trust;
estate; partnership of any kind; limited liability company; cooperative;
society; and any officer, agent, receiver, trustee, guardian or other
appointed representative thereof; joint power agency, municipal district
or municipal corporation, other than the city.
shall mean the street address representative of where the
customer's use of the telecommunications or video service primarily
occurs, which must be the residential street address or the primary
business street address of the customer.
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 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.
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 shall include "prepaid mobile
telephony services" as defined in Revenue and Taxation Code Section
42004(k).
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).
shall mean electric customers who have a maximum peak demand
of less than twenty kilowatts.
shall mean the residential street address or the business
street address of the service user. For a telecommunications or video
service user, "service address" means either:
The location of the service user's telecommunication or video
equipment from which the communication originates or terminates, regardless
of where the communication is billed or paid; or
If the location in paragraph a. of this definition is unknown
(e.g., mobile telecommunications service or VoIP service), the service
address shall mean the location of the service user's place of primary
use.
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For prepaid telecommunication service, "service address" means
the point of sale of the services where the point of sale is within
the city, or if unknown, the known address of the service user (e.g.,
billing address or location associated with the service number), which
locations shall be presumed to be the place of primary use.
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means any person including the city, who provides or sells
telecommunication, electric, or gas service to a user of such services
within the city. The term shall include any person required to collect,
or self-collect under this chapter, and remit a tax as imposed by
this chapter, including its billing agent in the case of electric
or gas suppliers.
means a person required to pay a tax imposed under the provisions
of this chapter.
means the director of finance or designee of the city of
Sunnyvale.
means 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, and includes
broadband service (e.g., digital subscriber line (DSL), fiber optic,
coaxial cable, and wireless broadband, including Wi-Fi, WiMAX, and
Wireless MESH) to the extent federal and/or state law permits taxation
of such broadband services, now or in the future. The term "telecommunications
service" 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 service is referred to as
voice over internet protocol (VoIP) services or is classified by the
Federal Communications Commission as enhanced or value added, and
includes video and/or data service 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; all forms of VoIP service; 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).
means the digital process of making and receiving real-time
voice transmissions over any Internet Protocol network.
means 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.
means 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. 3102-16 § 1)
(a)
The
taxes imposed by this chapter shall not apply to:
(b)
Any service user that is exempt from the tax imposed by this chapter pursuant to subsection (a) of this section 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 apply and obtain an exemption pursuant to 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.
(d)
The
city council may, by 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 chapter 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.
(Ord. 3102-16 § 1)
The taxes initially imposed by this chapter at the rate of one
percent became operative as of July 1, 1969. The taxes at the rate
of two percent imposed by this chapter as amended by Ordinance No.
1774-75 became operative as of August 1, 1975. The increases in utility
user tax rates authorized by the voters on November 4, 1997 will become
effective only if there are reductions in the electrical utility rates
charged to customers and if, after public hearings are held, the increases
are subsequently adopted by the city council by ordinance.
(Ord. 3102-16 § 1)
(a)
There
is hereby imposed a tax upon every person in the city using telecommunication
services in the city. The tax imposed by this section shall be at
the rate of two percent of the charges made for such services, and
shall be collected from the service user by the telecommunication
services supplier or its billing agent, or as otherwise provided by
law. There is a rebuttable presumption that telecommunication 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 primarily 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 telecommunication 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. Section 124). The tax administrator may issue and disseminate
to telecommunication service suppliers, which are subject to the tax
collection requirements of this section, sourcing rules for the taxation
of other telecommunication services, including, but not limited to,
post-paid telecommunication services, prepaid telecommunication services,
and private telecommunication services, provided that such rules are
based upon custom and common practice that further administrative
efficiency and minimize multi-jurisdictional taxation.
(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, or charges for such
services, that are subject to taxation under this chapter. These administrative
rulings shall implement the intent of the city council that the telecommunications
users tax be imposed on any person who initiates or receives telecommunications
without regard to the type of technology that exists on the effective
date of this section of which may be developed in the future. The
administrative rules 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).
(d)
As
used in this section, the term "telecommunication services" shall
include, but is not limited to, charges for: connection, reconnection,
termination or early termination charges; 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 or administrative
fees, charges or surcharges, including charges or surcharges for programs
imposed by state or federal law (whether such charges or surcharges
are imposed on the service supplier or the customer); 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)
To
prevent actual multi-jurisdictional taxation of telecommunication
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 telecommunication
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.
(f)
The
tax on telecommunication services imposed by this section shall be
collected from the service user by the service supplier. 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 twentieth
day of the following month.
(Ord. 3102-16 § 1)
There is hereby imposed a tax upon every person in the city, other than an electrical corporation or a gas corporation, using electrical energy in the city. The tax imposed by this section and Sections 3.12.080 and 3.12.090 shall be at the rate of two percent of the charges made for such energy, including minimum charges for service but excluding charges for electrical energy supplied to street lights, and shall be paid by the person paying for such energy unless the city council by ordinance increases the rates to offset decreased charges resulting from electrical rate deregulation to no more than the amounts specified below, with an overall rate cap for all ratepayers of three percent.
For large commercial/agricultural ratepayers:
|
Earliest Effective Date
|
Maximum Rate Increase
|
Maximum Total Tax Rate
|
|---|---|---|
|
January 1, 2002
|
1.00%
|
3.00%
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For residential/small commercial ratepayers:
|
Earliest Effective Date
|
Maximum Rate Increase
|
Maximum Total Tax Rate
|
|---|---|---|
|
January 1, 1998
|
.33
|
2.33%
|
|
April 1, 2002
|
.33
|
2.66%
|
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January 1, 2008
|
.33
|
3.00%
|
(Ord. 3102-16 § 1)
(a)
The
storage of such energy by a person in a battery owned or possessed
by him 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; or
(b)
The
mere receiving of such energy by an electrical corporation or a governmental
agency at a point within the city for resale to service users.
(Ord. 3102-16 § 1)
The tax imposed in this section, Sections 3.12.070 and 3.12.080 shall be collected from the service user by the person selling such electrical energy. The amount of tax collected in one month shall be remitted to the collector on or before the last day of the following month.
(Ord. 3102-16 § 1)
There is hereby imposed a tax upon every person in the city, other than a gas corporation or an electric corporation, using gas in the city which is delivered through mains or pipes. The tax imposed by this section and Sections 3.12.110 and 3.12.120 shall be at the rate of two percent of the charges made for such gas, including minimum charges for service but excluding charges for gas service to street lights, and shall be paid by the person paying for such gas.
(Ord. 3102-16 § 1)
(a)
Include
charges made for gas used in the generation of electrical energy by
a public utility or a governmental agency; or
(b)
Be
construed to mean the mere receiving of such gas by a gas corporation
or governmental agency at a point within the city for resale to service
users.
(Ord. 3102-16 § 1)
The tax imposed in this section, Sections 3.12.100 and 3.12.110 shall be collected from the service user by the person selling the gas. The amount collected in one month shall be remitted to the collector on or before the last day of the following month.
(Ord. 3102-16 § 1)
If any non-taxable service 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 is able to establish reasonable values
for the portions of the combined charge that are nontaxable and taxable.
If the service supplier offers a combination of taxable and non-taxable
services, and the charges are separately stated, the service supplier
shall assign reasonable values for the taxable and non-taxable services.
In assigning reasonable values for taxable and non-taxable services
under this section, the service supplier may use reasonable and verifiable
standards such as: (1) the books and records kept in the regular course
of business and in accordance with generally accepted accounting principles
(not created and maintained for tax purposes); (2) the market value
of such taxable and non-taxable services when offered on a stand-alone
basis by the supplier or its competitors; or (3) other similar evidence
of value. The service supplier has the burden of proving to the satisfaction
of the tax administrator the reasonable valuation and proper apportionment
of taxable and non-taxable charges under this section.
(Ord. 3102-16 § 1)
For purposes of imposing a tax or establishing a duty to collect
and remit a tax under this chapter, "substantial nexus," "substantial
economic presence," 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 telecommunication service (including
VoIP) used by a person with a service address in the city 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 chapter. 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, affiliate or subsidiary, a place of business
of any nature; solicits business in the city by employees, independent
contractors, resellers, agents, affiliates 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 chapter (e.g.,
an affiliated person or independent contractor engaging in activities
in the city that inure to the benefit of the service supplier in its
development or maintenance of a market for its services in the city,
including by directly or indirectly referring potential customers,
whether by a link on an Internet website or otherwise, to the service
supplier).
(Ord. 3102-16 § 1)
(a)
Collection
by Service Suppliers. The duty of service suppliers to collect and
remit the taxes imposed by the provisions of this chapter 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 that 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 3.12.190 (Administrative remedy— Nonpaying service users) 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 chapter.
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.
(b)
Filing
Return and Payment. Each person required by this chapter 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 chapter. 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 California Public Records Act.
(Ord. 3102-16 § 1)
(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 section 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 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 up to fifteen percent of the total tax that is delinquent
or deficient in the remittance and interest at the rate of up to seventy-five
one hundredths 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 chapter for fraud or gross negligence in reporting or remitting
at the rate of up to fifteen 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 and/or penalty and interest provisions of this
section to be consistent with any uniform standards or procedures
that are mutually agreed upon by UUT public agencies, or otherwise
legally established, to create a UUT central payment location or mechanism.
(Ord. 3102-16 § 1)
(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 and regulations consistent
with provisions of this chapter 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 chapter,
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 chapter 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 chapter 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 chapter; 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 chapter, of any person required to collect and/or remit a tax pursuant to this chapter. 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 or review shall not exceed a period of three 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 Section 3.12.180 (Deficiency determination and assessment—Tax application errors) 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 chapter, the tax administrator is authorized to make a reasonable estimate of the deficiency. Said reasonable estimate shall be entitled to be 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 chapter for a period of not to exceed forty-five
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 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 chapter.
(g)
The
tax administrator, with the written approval of the city attorney,
may compromise a claim pursuant to this chapter where the portion
of the claim proposed to be released is equal to or less than four
thousand nine hundred ninety-nine dollars; and, with the approval
of the city attorney and the city council, may compromise such a claim
where the portion proposed to be released is greater than four thousand
nine hundred ninety-nine dollars.
(h)
Notwithstanding
any provision in this chapter 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
chapter 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, or whether the person offers
to voluntarily disclose its tax liability. The tax administrator may
also participate with other utility users tax public agencies in conducting
coordinated compliance reviews with the goal of achieving administrative
efficiency and uniform tax application determinations, where possible.
To encourage voluntary full disclosure and on-going cooperation on
tax collection and remittance, 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 non-taxable.
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, and whether the disclosure was voluntarily made by the
service provider or its agent.
(Ord. 3102-16 § 1)
(a)
The
tax administrator may make a deficiency determination if he or she
determines that any person required to pay or collect taxes pursuant
to the provisions of this chapter has failed to pay, collect, and/or
remit the proper amount of tax by improperly or failing to apply the
tax to one or more taxable services or charges. Nothing herein shall
require that the tax administrator institute proceedings under this
section 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 up to seventy-five one hundredths 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 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 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 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 Section 3.12.210 (Appeals). Filing an application with the tax administrator and appeal to the city manager, or designee, pursuant to Section 3.12.210 (Appeals) 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 day following the date of receipt of the notice of final assessment. The penalty for delinquency shall be up to fifteen percent on the total amount of the assessment, along with interest at the rate of up to seventy-five one hundredths 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 chapter shall commence from the date of delinquency as provided in this subsection (e).
(f)
All
notices under this chapter 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. 3102-16 § 1)
(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. Whenever the service user has failed to pay the amount
of tax owed for a period of two 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 section 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 up to fifteen percent of the total tax that
is owed, and shall pay interest at the rate of up to seventy-five
one hundredths 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 days from the date of the service of the notice upon him or
her, the tax administrator may impose an additional penalty of fifteen
percent of the amount of the total tax that is owed.
(Ord. 3102-16 § 1)
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 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 chapter,
along with any collection costs incurred by the city as a result of
the person's noncompliance with this chapter, including, but not limited
to, reasonable attorney's fees. In the event that a service user or
service supplier owing a tax under this chapter files bankruptcy,
then such debt to the city shall be deemed an unsecured priority excise
tax obligation under 11 U.S.C.A. 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. 3102-16 § 1)
(a)
The provisions of this section apply to any decision (other than a decision relating to a refund pursuant to Section 3.12.230 (Refunds/credits)), 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 Section 3.12.230), deficiency determination, assessment, or administrative ruling of the tax administrator, shall be required to comply with the appeals procedure of this section. Compliance with this section shall be a prerequisite to a suit thereon. (See Government Code Section 935(b)). To the extent allowed by law, 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 Section 3.12.230), deficiency determination, assessment, or administrative ruling of the tax administrator; he or she may appeal to the city manager by filing a notice of appeal with the city clerk within fourteen 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 manager, or designee, no more than thirty
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 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, the city
manager, 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 independent 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
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
days from the date of the decision in accordance with Code of Civil
Procedure Section 1094.6.
(e)
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. 3102-16 § 1)
(a)
It
shall be the duty of every person required to collect and/or remit
to the city any tax imposed by this chapter to keep and preserve,
for a period of at least three years, all records as may be necessary
to determine the amount of such tax that such person 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
tax administrator 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 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 nondisclosure 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 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, 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 chapter 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 may impose a penalty of five hundred 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. 3102-16 § 1)
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 chapter, it may be refunded or
credited as provided in this section:
(a)
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 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 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. To the extent allowed
by law, 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 section.
(b)
The
submission of a written claim, which is acted upon by the city council,
shall be a prerequisite to a suit thereon. (See Section 935 of the
California Government Code). The tax administrator, or the city council
where the claim is in excess of four thousand nine hundred ninety-five
dollars shall act upon the refund claim within the time period set
forth in Government Code Section 912.4. If the 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 that substantially complies with that set forth in
Government Code Section 913.
(c)
Notwithstanding the notice provisions of subsection (a) of this section, 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 chapter, 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, prior to taking such credit by the service supplier: (1) such credit is claimed in a return dated no later than one 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. 3102-16 § 1)
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 chapter of any tax or any amount
of tax required to be collected and/or remitted.
(Ord. 3102-16 § 1)
All remedies and penalties prescribed by this chapter 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 or more remedies by the city shall not bar the use of any other
remedy for the purpose of enforcing the provisions of this chapter.
(Ord. 3102-16 § 1)
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.
(Ord. 3102-16 § 1)
Unless specifically provided otherwise, any reference to a state
or federal statute in this chapter shall mean such statute as it may
be amended from time to time. To the extent that the city's authorization
to collect or impose any tax imposed under this chapter is expanded
or limited as a result of an amendment or new enactment of a state
or federal law, no amendment or modification of this chapter 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 chapter.
(Ord. 3102-16 § 1)
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. 3102-16 § 1)
This chapter of the Sunnyvale Municipal Code may be repealed
or amended by the city council without a vote of the People. However,
as required by Chapter 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 chapter; provided, however,
the following actions shall not constitute an increase of the rate
of a tax:
(a)
The
restoration of the rate of the tax to a rate that is no higher than
that set by this chapter, if the city council has acted to reduce
the rate of the tax;
(b)
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 chapter;
(c)
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 chapter); and
(d)
The
collection of the tax imposed by this chapter, even if the city had,
for some period of time, failed to collect the tax.
(Ord. 3102-16 § 1)
