Note: Chapter 3.32 was reinstated by Ord. 1454. The operative date of 9/30/93 was established by Ord. 1476.
Except where the context otherwise requires, the definitions
contained in this Section shall govern the construction of this Chapter.
shall mean services associated with or incidental to the
provision, use or enjoyment of telephone communications services,
including but not limited to:
"Conference bridging service"
means 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"
means an ancillary service of separately stating information
pertaining to individual calls on a customer's billing statement.
"Directory assistance"
means an ancillary service of providing telephone number
information and/or address information.
"Vertical service"
means 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"
means 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 to which a telephone communications
service supplier submits invoices or bills for payment by a service
user.
means the City of Palm Springs.
means any corporation or person employing cogeneration technology
(as defined in Section 281.5 of the California Public Utilities Code)
for producing power from other than a conventional power source for
the generation of electricity for self use or sale to others.
means natural or manufactured gas or any alternate hydrocarbon
fuel which may be substituted therefor.
shall have the same meanings as defined in Sections 218,
222 and 234, respectively, of the Public Utilities Code of the State
of California, as may be amended from time to time.
has the meaning and usage as set forth in the Mobile Telecommunications
Sourcing Act (4 U.S.C. Section 124) and the regulations thereunder.
means a calendar month.
means: (1) a service supplier, other than an electrical corporation
franchised to serve the city, which generates electrical energy in
capacities of at least fifty kilowatts for its own use or for sale
to others, including those using cogeneration or fuel cell technologies;
or (2) a gas supplier other than a gas corporation, that sells or
supplies gas to other users within the city.
shall mean a telephone communications service that provides
transmission of coded radio signals for the purpose of activating
specific pagers; such transmissions may include messages and/or sounds.
means, 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 non-profit),
municipal district or municipal corporation (other than the City)
cooperative, receiver, trustee, guardian, or other representative
appointed by order of any court.
means the street address representative of where the customer's
use of the communications service primarily occurs, which must be
the residential street address or the primary business street address
of the customer.
means 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.
means 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.
means 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).
means either:
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,
If the location in subsection (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.
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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.
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shall mean a person required to pay a tax imposed under the
provisions of this Chapter.
means 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.
means the City Manager of the City, or the City Manager's
designee.
includes telecommunications services," "ancillary telecommunication
services", and "communication services,"
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. 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 pre-recorded or live service).
means the digital process of making and receiving real-time
voice transmissions over any Internet Protocol network.
shall mean a telephone communications service that allows
a caller to dial a toll-free number without incurring a charge for
the call, "800 service" includes without limitation services marketed
as "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. 1268 § 1, 1986; Ord. 1272 § 1, 1986; Ord. 1454 § 2, 1993; Ord. 1765 § 2, 2009)
(a)
Nothing
in this Chapter 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 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 communication 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 communication service suppliers so that the Tax Administrator can properly notify the new communication 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 communication 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 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. 1268 § 1, 1986; Ord. 1765 § 3, 2009)
(a)
There
is hereby imposed a tax upon every person in the City using telephone
communications services. The tax imposed by this section shall be
at the rate of four and one-half percent (4.5%) of the charges made
for such services and shall be collected from the service user by
the telephone communications services supplier or its billing agent.
There is a rebuttable presumption that telephone communications 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 Chapter. 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 Chapter. 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 telephone communications 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 communication service suppliers, which are subject to the tax collection
requirements of this Chapter, sourcing rules for the taxation of other
telephone communications services, including but not limited to post-paid
telephone communications services, prepaid telephone communications
services, VoIP and private telephone communications 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 Chapter, an administrative ruling identifying those telephone communications services, or charges therefor, that are subject to or not subject to the tax of subsection (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; all regulatory and administrative fees
and surcharges, 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)
To
prevent actual multi-jurisdictional taxation of telephone communications
services subject to tax under this Section, any service user, upon
proof to the Tax Administrator that the service user has previously
paid the same tax in another state or city on such telephone communications
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 telephone communications 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
(20th) day of the following month.
(Ord. 1268 § 1, 1986; Ord. 1272 § 2, 1986; Ord. 1454 § 3, 1993; Ord. 1765 § 4, 2009)
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. The service
supplier has the burden of proving the proper valuation and apportionment
of taxable and non-taxable charges. If the service supplier offers
a combination of taxable and non-taxable 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 of the taxable and non-taxable services.
(Ord. 1765 § 5, 2009)
For purposes of imposing a tax or establishing a duty to collect
and remit a tax under this Chapter, "substantial nexus" and "minimum
contacts" shall be construed broadly in favor of the imposition, collection
and/or remittance of the communication 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 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 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 telephone communications services
that are subject to a tax under this Chapter.
(Ord. 1765 § 6, 2009)
(a)
There
is hereby imposed a tax upon every person using electrical energy
in the city. The tax imposed by this section shall be 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:
(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 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 electricity used and consumed by an electric utility supplier in the conduct of its business as an electric public utility; 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 electrical energy for the pumping of water by a public utility, mutual water company or governmental agency for distribution to consumers through mains or pipes, if such public utility, mutual water company or governmental agency is a "service supplier" as defined in Section 3.32.010(4), and as service supplier does collect from its customers and remit to the tax administrator the water users tax imposed by Section 3.32.060.
(c)
The
tax imposed by 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; or, at the option of the person
required to collect and remit the tax, an estimated amount of tax,
measured by the tax bill in the previous month, shall be remitted
to the tax administrator on or before the last day of each month.
Remittance of tax may be predicated on a formula based upon the payment
pattern of the supplier's customers.
(Ord. 1268 § 1, 1986; Ord. 1272 § 3, 1986; Ord. 1278 § 1, 1986; Ord. 1454 § 4, 1993)
(a)
There
is hereby imposed a tax upon every person using gas in the city, gas
which is transported through a pipeline distribution system or by
mobile transport. 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 using the gas. The tax applicable to gas provided
by nonutility suppliers shall be determined by applying the tax rate
to the actual charges the service user incurred. "Charges," as used
in this section, shall include: (1) the charge for gas which is delivered
through a gas pipeline distribution system or by mobile transport;
(2) gas transportation charges; and (3) demand charges, service charges,
customer charges, minimum charges, annual and monthly charges, and
any other charges authorized by the California Public Utilities Commission
or the Federal Energy Regulatory Commission.
(b)
There
shall be excluded from the base on which the tax imposed in this section
is computed:
(1)
Charges made for gas which is to be resold and delivered through
mains or pipes;
(2)
Charges made for gas sold for use in the generation of electrical
energy;
(3)
Charges made by a gas public utility for gas used and consumed in
the conduct of the business of gas public utilities;
(4)
Charges made for gas used in the propulsion of a motor vehicle, as
that phrase is defined in the Vehicle Code of the state utilizing
natural gas; and
(5)
Charges related to late payments and returned checks.
(c)
The
tax imposed in this section shall be collected from the service user
by the person selling the gas. The person selling the gas shall, on
or before the twentieth of each calendar month, commencing on the
twentieth day of the calendar month after the effective date of the
ordinance codified in this chapter, make a return to the tax administrator
stating the amount billed during the preceding calendar month. At
the time such returns are filed, the person selling the gas shall
remit payments to the tax administrator in accordance with schedules
established or approved by the tax administrator. The tax administrator
is authorized to require such further information as he deems necessary
to properly determine if the tax here imposed is being levied and
collected in accordance with this chapter. Returns and remittances
are due from the person selling the gas immediately upon cessation
of business for any reason.
(Ord. 1268 § 1, 1986; Ord. 1454 § 5, 1993)
(a)
Notwithstanding the rate provisions in Section 3.32.040 of this chapter, the tax imposed on every person using cogenerated electrical energy in the city shall be at the rate of five percent of the value of the cogenerated electrical energy consumed in the city. Cogenerated electricity shall be valued at the electric utility supplier's combined "Avoided Cost Energy Pricing and Avoided Cost Capacity Pricing" which is filed with the California Public Utilities Commission.
(b)
The
cogenerator shall install and maintain an appropriate metering system
which will enable compliance with this section.
(c)
The tax shall be collected and paid by the cogenerator under Section 3.32.065 if the cogenerator consumes the energy. If the cogenerator sells the energy for consumption in the city, the tax will be imposed on the charges made for such service and shall be collected and paid by the person to whom the energy is sold.
(Ord. 1454 § 6, 1993)
(a)
Any service user subjected to the tax imposed by Sections 3.32.040, 3.32.050 or 3.32.060 hereof, who produce electricity or gas for self use or who will receive electricity or gas directly from a non-utility supplier, shall report such fact to the tax administrator and remit the tax due directly to the city within thirty days of such use.
(b)
The
tax administrator may require the service user to identify its non-utility
supplier and to provide, subject to audit, filed tax returns or other
satisfactory evidence documenting the quantity of electricity or gas
used and the price thereof.
(Ord. 1454 § 7, 1993)
The duty to collect and remit the taxes imposed by this chapter
shall be performed as follows:
(a)
Notwithstanding
any other provision of this chapter, the tax shall be collected insofar
as practicable at the same time as and along with the charges made
in accordance with regular billing practice of the service supplier.
If the amount paid by a service user is less than the full amount
of the energy charge and tax which has accrued for the billing period,
such amount and any subsequent payments by a service user may be applied
to the energy charge first until such charge has been fully satisfied.
Any remaining balance shall be applied to the taxes due.
(b)
The
duty to collect tax from a service user shall commence with the beginning
of the first regular billing period applicable to that person which
starts on or after the operative date of the ordinance codified in
this chapter. Where a service user is billed for more than one billing
period, the duty to collect shall arise separately for each separate
billing period.
(Ord. 1268 § 1, 1986; Ord. 1272 § 4, 1986)
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.
(Ord. 1268 § 1, 1986)
In addition to remitting the amount of the tax, any service
supplier who fails to remit any tax collected under this chapter within
the time required and upon 10 days' written notice to the service
supplier of its failure to remit, shall pay a penalty of ten percent
on the amount of tax, which shall be added on the last day of each
month following the date on which remittance was due until the tax
and penalties are remitted.
(Ord. 1268 § 1, 1986; Ord. 1272 § 5, 1986)
If the tax administrator determines that the nonpayment by any service supplier of any remittance due under this chapter is due to fraud, a penalty of twenty-five percent of the amount of the tax shall be added to the penalty imposed by Section 3.32.090 above.
(Ord. 1268 § 1, 1986)
In addition to the penalty imposed by Section 3.32.090 of this chapter, any service supplier who fails to remit any tax collected under this chapter shall pay interest at the rate of one percent per month, or fraction thereof, on the amount of the tax, exclusive of penalties, from the date on which the remittance first became delinquent until paid.
(Ord. 1268 § 1, 1986; Ord. 1272 § 6, 1986)
Every penalty imposed upon a service supplier, and such interest as accrues under the provisions of Sections 3.32.090 through 3.32.110, shall become a part of the tax required to be remitted.
(Ord. 1268 § 1, 1986)
In addition to paying the amount of the tax, any service user
who fails to pay any tax imposed by this chapter within sixty days
of the date of the notice of the amount of tax due from the service
supplier, shall pay a penalty of ten percent of the amount of the
tax, which shall be added on the last day of each month following
the date on which payment was due until the tax and penalties are
paid.
(Ord. 1268 § 1, 1986)
If the tax administrator or the service supplier determines that the nonpayment by any service user of any tax imposed by this chapter is due to fraud, a penalty of twenty-five percent of the amount of the tax shall be added thereto in addition to the penalty imposed by Section 3.32.130 above.
(Ord. 1268 § 1, 1986; Ord. 1272 § 7, 1986)
In addition to the penalties imposed by Sections 3.32.130 and 3.32.140 of this chapter, any service user who fails to pay any tax imposed by this chapter shall pay interest at the rate of one percent per month, or fraction thereof, exclusive of penalties from the date on which the remittance first became delinquent, until paid, and a collection charge of ten dollars for each delinquent account.
(Ord. 1268 § 1, 1986)
Every penalty imposed upon a service user, and such interest as accrued under the provisions of Sections 3.32.130 through 3.32.150, shall become a part of the tax required to be paid.
(Ord. 1268 § 1, 1986; Ord. 1272 § 8, 1986)
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 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.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. 1268 § 1, 1986; Ord. 1765 § 7, 2009)
(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 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 3.32.171 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 75/100ths (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 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 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 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 Section 3.32.215 of this Chapter. Filing an application with the Tax Administrator and appeal to the City Manager pursuant to Section 3.32.215 of this Chapter 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 15% on the total amount of the assessment, along with interest at the rate of 75/100ths (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 Chapter shall commence from the date of delinquency as provided in this subsection (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. 1765 § 8, 2009)
(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 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 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 communication 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 of 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 3.32.171 of this Chapter 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 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 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 75/100ths percent (0.75%) 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)
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, or require prospective application of the tax, 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 industry practice or other precedence.
(Ord. 1268 § 1, 1986; Ord. 1765 § 9, 2009)
(a)
The
tax administrator may make an assessment for taxes not remitted by
a person required to remit.
(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 chapter from certain named service users for specified billing
periods.
(c)
The
service supplier shall provide the tax administrator with amounts
refused, along with the names, addresses and reasons given by service
users refusing to pay the tax imposed under provisions of this chapter.
Whenever the service user has failed to pay the amount of tax for
a period of two or more billing periods, the service supplier shall
be relieved of the obligation to collect taxes due, provided the service
supplier has given notice to the tax administrator of such failure
to pay.
(d)
The
tax administrator shall notify the service user that he has assumed
responsibility to collect the taxes due for the stated period, 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 taxes, or, should the service user have changed
his address, to his last known address. If a service user fails to
remit the taxes to the tax administrator within fifteen 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 twenty-five percent of the amount of the tax set forth in the notice
shall be imposed, but not less than five dollars. The penalty shall
become part of the taxes herein required to be paid.
(e)
Nothing
in this section shall relieve the service supplier of any duty to
collect and remit any tax penalty or interest due under the provisions
of this chapter.
(Ord. 1268 § 1, 1986; Ord. 1272 § 9, 1986)
(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 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 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 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: i) provide
to the Tax Administrator the name, address and telephone number of
each billing agent and billing aggregator currently authorized by
the service supplier to bill, collect, and/or remit the tax to the
City; and, ii) upon request of the Tax Administrator, deliver, or
effect the delivery of, any information or records in the possession
of such billing agent or billing aggregator that, in the opinion of
the Tax Administrator, is necessary to verify the proper application,
calculation, collection 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
$500 on such person for each day following: i) the initial date that
the person refuses to provide such access; or, ii) the due date for
production of records as set forth in the administrative subpoena.
This penalty shall be in addition to any other penalty imposed under
this Chapter.
(Ord. 1268 § 1, 1986; Ord. 1764 § 10, 2009)
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 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 Chapter
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, execute, 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. 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 subsection. It is the intent of the City Council that the
one year written claim requirement of this subsection be given retroactive
effect; provided, however, that any claims which arose prior to the
commencement of the one year claims period of this subsection, 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 subsection within ninety days following the effective date
of this ordinance.
(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 $5,000, 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 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: i) such credit is claimed in a return dated no later than one year from the date of overpayment or erroneous collection of said tax; ii) the Tax Administrator is satisfied that the underlying basis and amount of such credit has been reasonably established; and, iii) 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. 1268 § 1, 1986; Ord. 1272 § 10, 1986; Ord. 1617 § 5, 2002; Ord. 1764 § 11, 2009)
(a)
The provisions of this Section apply to any decision (other than a decision relating to a refund pursuant to Section 3.32.210 of this Chapter), 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 3.32.210 of this Chapter), 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. 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 3.32.210 of this Chapter), 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 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 Manager, no more than 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 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 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 90 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. 1765 § 12, 2009)
(a)
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 California Public Utilities Code Section 799.
(b)
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, 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 communication
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.
(c)
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 changes in 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. 1765 § 14, 2009)
The City shall annually verify that the taxes owed under this
Chapter have been properly applied, exempted, collected, and remitted
in accordance with this Chapter, 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. 1765 § 15, 2009)
Service providers shall begin to collect the tax imposed by
this Chapter as soon as feasible after the effective date of the Chapter,
but in no event later than permitted by Section 799 of the California
Public Utilities Code.
(Ord. 1765 § 16, 2009)
Any person violating any provision of this chapter, or any person
wilfully refusing to pay any tax required by this chapter, shall be
guilty of a misdemeanor and shall be punishable therefor by a fine
of not more than five hundred dollars or by imprisonment in the county
jail for a period of not more than six months, or by both such fine
and imprisonment.
(Ord. 1268 § 1, 1986)
Nothing contained in this chapter is intended to conflict with
the applicable rules, regulations and tariffs of any service supplier
subject to the jurisdiction of the Public Utilities Commission of
the state. In the event of any conflict, the provisions of such rules,
regulations and tariffs shall control.
(Ord. 1268 § 1, 1986)
All of the proceeds of the taxes levied under this chapter shall
be placed in the general fund of the city and shall be utilized for
general governmental purposes.
(Ord. 1268 § 1, 1986)
The City Council is authorized to create appropriate tax incentives
and rebates to encourage the reduction of gas and electricity in the
City through energy efficiency and energy conservation, and to encourage
the reduction or mitigation of greenhouse gases. In creating such
tax incentives and rebates, the City shall consult with the electric
and gas service providers and local conservation organizations to
achieve effective programs that are easily administered. The City
may adopt, modify, discontinue, and create new tax incentives and
rebates from time to time, without obtaining voter approval. The Tax
Administrator may adopt rules and forms for implementing such tax
incentives and rebates.
(Ord. 1765 § 17, 2009)
