Chapter 3-32 UTILITY USERS TAX

There is imposed a tax upon every person in the City, other than a telephone corporation, using intrastate and international telephone communication services in the City. The tax as imposed by this section shall be at the rate of five percent of all charges made for such services and shall be paid by the person paying for such services. The tax shall not be based on network usage-related charges for cellular telephone services and other similar mobile services, for which the service provide cannot, as a practical matter, determine the origination or termination of the telecommunication. The Tax Administrator may adopt administrative rules for assuring a reasonable and consistent allocation of the monthly cellular billing between network usage-related charges and non-usage related charges. "Charges" shall also 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.

As used in this section, the term "charges" does not mean charges for services paid for by inserting coins in coin-operated telephones except that where such coin-operated telephone service is furnished for a guaranteed amount, the amounts paid under such guarantee plus any fixed monthly or other periodic charge shall be included in the base for computing the amount of tax due; nor shall the term "telecommunication services" include land mobile services or maritime mobile services as defined in Section 2.1 of Title 4.7 of the Code of Federal Regulations, as such section existed on July 21, 1970.

Notwithstanding the provision of subsection (A) of this section, the tax imposed under this section shall not be imposed upon any person for using intrastate, interstate, international telecommunication services to the extent that the amount paid for such services are exempt from or are not subject to tax imposed by Section 4251 of Title 26 of the United States Code, as such section existed on July 21, 1970, without regard to subsection (b) thereof.

Upon proof being furnished to the City by a taxpayer of the payment of a tax paid in another state or city on the same service charges for which the taxpayer also paid a tax pursuant to this section, the taxpayer shall receive a tax credit in the amount of the tax paid in another state or city up to, but not exceeding, the amount of tax paid on such charges under this section. This subsection shall apply only to charges for a telecommunication received at, and charged to, an address in this City, when the telephone communication did not originate in this City.

(Prior code § 8.352; Ord. 3211 § 2, 1995)

§ 3-32.060 Electricity users tax.

There is imposed a tax upon every person in the City using electrical energy in the City. The tax imposed by this section shall be at the rate of five percent 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: (1) metered energy, and (2) minimum charges for service, including customer charges, service charges, demand charges, standby charges and annual and monthly charges.

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 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.

There shall be excluded from the base on which the tax imposed in this section is computed, charges made by a municipal light or power department, or electric public utility for electrical energy used and consumed by such department or utility for electrical power used and consumed by such department or utility for in the conduct of the business of such department or utility.

Qualified persons who participate in Pacific Gas and Electric's (PG&E) "CARE" program (California alternate rates for energy) or a substantially similar successor program for that same purpose, are exempt from the electricity users tax.

(Prior code § 8.353; Ord. 3211 § 3, 1995; Ord. 3564 § 4, 2002)

§ 3-32.070 Gas users tax.

There is imposed a tax upon every person in the City using in the City gas which is delivered through mains or pipes. The tax imposed by this section shall be at the rate of five percent of the charges made for such gas and shall be paid by the person paying for such gas.

There shall be excluded from the base on which the tax imposed in this chapter is computed:

(1)

Charges made for gas to be used in the generation of electrical energy by an electrical corporation; and

(2)

Charges made by a gas public utility for gas used and consumed in the conduct of the business of gas public utilities.

Qualified persons who participate in PG&E's "CARE" program (California alternate rates for energy) or a substantially similar successor program for that same purpose, are exempt from the gas users tax.

(Prior code § 8.354; Ord. 3211 § 4, 1995; Ord. 3564 § 5, 2001)

§ 3-32.080 Video users tax.

There is imposed a tax upon every person in the City using video services from a video provider. The tax imposed by this section shall be at the rate of five percent of the charges made for such service and shall be paid by the person paying for such service. "Charges" shall include charges for leased access channels and origination programming, which are transmitted to video users in the City, and shall also 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 video services.

(Prior code § 8.355; Ord. 3211 § 5, 1995)

§ 3-32.090 Exemptions.

Nothing in this chapter shall be construed as imposing a tax upon any person if 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.

(Prior code § 8.356)

§ 3-32.100 Collection of tax.

Every person receiving payment of charges from a service user shall collect the amount of tax imposed by this chapter from the service user.

The tax shall be collected insofar as practicable at the same time as and along with the collection of charges made in accordance with the regular billing practice of the service supplier. Except in those cases where a service user pays the full amount of said charges but does not pay any portion of a tax imposed by this chapter, or where a service user has notified a service supplier that he is refusing to pay a tax imposed by this chapter 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, a proportionate share of both the charge and the tax shall be deemed to have been paid.

§ 3-32.120 Assessment—Administrative remedy.

The duty to collect the tax from a service user shall commence with the beginning of the first regular billing period applicable to that person which starts on or after the operative date 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.

(Prior code § 8.357)

§ 3-32.110 Reporting and remitting.

Each service supplier shall, on or before the last day of each month, make a return to the Tax Administrator, on forms provided by him, stating the amount of taxes billed by the service supplier during the preceding month. At the time the return is filed, the full amount of the tax collected shall be remitted to the Tax Administrator. The Tax Administrator is authorized to require such further information as he deems necessary to properly determine if the tax imposed in this chapter is being levied and collected in accordance with this chapter. Returns and remittances are due immediately upon cessation of business for any reason. The Tax Administrator shall deposit all taxes received under the provisions of this chapter in the City's general fund.

(Prior code § 8.358; Ord. 3211 § 6, 1995)

§ 3-32.121 Maximum amount of tax and advance payment.

The Tax Administrator may make an assessment for taxes not paid or remitted by a person required to pay or remit. He shall prepare a notice of the assessment which shall refer briefly to the amount of the taxes and penalties imposed and the time and place where such assessment is payable which shall be submitted to the City Council for confirmation or modification. The Tax Administrator shall mail a copy of such notice to the person selling the service and to the service user at least 10 days prior to the date of the hearing and shall post such notice for at least five continuous days prior to the date of the hearing on the official bulletin board of the City. Any interested party having any objections may appear and be heard at the hearing provided his objection is filed in writing with the Tax Administrator prior to the time set for the hearing. At the time fixed for considering said assessment, the City Council shall hear the same together with any objection filed as aforesaid the thereupon may confirm or modify said assessment by motion.

(Prior code § 8.363)

The taxes levied in this chapter shall be limited to $1,000.00 for each utility, for each service user, at each contiguous location for a 12-month period beginning September 1st through August 31st of the following year.

Persons using a particular utility service at a single contiguous location having more than one meter, or service connection, may combine service usage from each individual utility at that location to compute the maximum tax. Such persons shall apply to the Tax Administrator for treatment in accordance with this section.

Persons determining that their tax liability for a particular utility will exceed $1,000.00 may prepay the maximum tax to the Tax Administrator within the first 60 days of the prescribed 12-month period. Upon payment, the Tax Administrator shall receive the service supplier(s) the duty to collect the tax from the service user and thereafter will bill the person responsible for paying the tax imposed by this article directly on an annual basis for the maximum tax imposed by this article.

§ 3-32.122 Authorization to temporarily suspend collection of a portion of tax for limited periods of time.

It shall be the responsibility of the person responsible for paying the tax imposed by this article to present to the Tax Administrator sufficient evidence to prove that taxes levied under this article reach or exceeded $1,000.00 during the prescribed period for a particular service user. Sufficient evidence includes billing receipts or other proof as determined appropriate by the Tax Administrator.

(E)

It is the responsibility of the person responsible for paying the tax imposed by this article to notify the Tax Administrator if service usage for a particular service user drops below such levels that the maximum tax limitation imposed in this section no longer applies.

(Ord. 3211 § 7, 1995)

The Tax Administrator may determine to collect less than the five percent tax imposed by Sections 3-32.060 and 3-32.070 from gas and electric service providers and may temporarily suspend a portion of the five percent tax imposed by Sections 3-32.060 and 3-32.070 if the Tax Administrator finds that the total utility users tax collected from all sources increased in a given fiscal year at a rate higher than the CPI, after accounting for the City's gas and electric expenses. For purposes of this subsection, "City's gas and electric expenses" shall mean the total payments by the City of Santa Rosa to its gas and electric providers for gas and electric services provided to the City.

The portion of the five percent UUT rate to be temporarily suspended shall be equal to the increase in total utility users tax, as adjusted in subsection (A) of this section. If the newly calculated rate is equal to 4.94% or lower, then a rate reduction may occur. If the calculated rate is 4.95% or greater, then no adjustment will take place.

Pursuant to Section 3-32.030, the Tax Administrator may adopt an administrative rule(s) implementing Section 3-32.122 in a reasonable manner consistent with the intent of this section.

The Tax Administrator may determine, following the end of the fiscal year, whether a temporary suspension should be made in accordance with this section and any administrative rule(s). If the Tax Administrator determines that a temporary suspension of a portion of the five percent tax rate for gas and/or electric UUT will take place, the Tax Administrator shall instruct the affected gas and electric service providers to implement the temporary suspension on January 1st of the next year. The duration of the temporary suspension shall be one year.

Upon expiration of the temporary suspension of a portion of the gas and electric utility users tax, the original provisions of this chapter shall have the same force and effect as if the temporary suspension had not been enacted. Nothing herein is intended to constitute a decrease in a tax, or an increase in a tax, requiring election approval under California Constitution Article XIIIC; and to the extent that any aspect of a temporary suspension resolution is found to invoke such a requirement, the entire temporary suspension resolution shall be deemed null and void ab initio, and there shall be no entitlement to a suspension for any service user.

(Ord. 3564 § 6, 2002)

§ 3-32.130 Refunds.

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 as provided in this section.

A person required to collect and remit taxes imposed under this chapter may 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 in a manner prescribed by the Tax Administrator 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.

No refund shall be paid under the provisions of this section unless the claimant establishes his right thereto by written records showing entitlement thereto. No refund shall be paid unless a claim therefor is made within one year of the date of accrual of the refund.

If the amount of any tax paid is in excess of the maximum amount payable as provided in this chapter, the Tax Administrator shall refund the amount overpaid to the service user within 60 days after the service user has established his entitlement to such refund; provided that no refunds under this subsection need be made more frequently than quarter-annually.

(Prior code § 8.365)

§ 3-32.150 Penalties.

Taxes collected from a service user which are not remitted to the Tax Administrator on or before the due dates provided in this chapter are delinquent.

Penalties for delinquency in remittance of any tax collected or any deficiency determination, shall attach and be paid by the person required to collect and remit at the rate of 15 percent of the total tax collected or imposed herein.

The Tax Administrator shall have power to impose additional penalties upon person required to collect and remit taxes under the provisions of this chapter for fraud or negligence in reporting or remitting at the rate of 15 percent of the amount of the tax collected or as recomputed by the Tax Administrator.