For the purposes of this chapter, the following words and phrases
shall have the meanings ascribed to them unless otherwise noted:
means services that are associated with or incidental to
the provision, use or enjoyment of telecommunication services, including,
but not limited to, the following services:
"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 telecommunication services used to reach the conference bridge.
"Detailed telecommunication billing service"
means an ancillary service of separately stated 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 telecommunication 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.
means services that are associated with, or incidental to,
the provision or delivery of video services, including, but not limited
to, electronic program guide services, recording services, search
functions, or other interactive services or communications that are
associated with or incidental to the provision, use or enjoyment of
video services.
means the mailing address of the service user where the service
supplier submits invoices or bills for payment by the customer.
shall mean the city of Glendale.
means telecommunication services, ancillary telecommunication
services, video services and ancillary video services.
means as defined in Section 218 of the Public Utilities Code
and shall be construed to include any municipality engaged in the
selling or supplying of electricity to a service user.
shall have the same meaning as set forth in the Federal Power
Act (15 U.S.C. Section 79z-5a) and the regulations thereunder.
means natural or manufactured gas or any alternate hydrocarbon
fuel, which may be substituted therefor.
means and includes all sources of income including, but not
limited to, social security payments, pensions, welfare payments,
interest on tax exempt securities and all income subject to federal
and state income tax laws.
means and includes all persons, both minors and adults, whether
related or unrelated by blood or marriage, residing together at the
same dwelling unit.
shall have the same 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:
A service supplier, other than a supplier of electric distribution
services to all or a significant portion of the city, which generates
electricity for sale to others, and shall include, but is not limited
to, any publicly owned electric utility, investor-owned utility, cogenerator,
distributed generation provider, exempt wholesale generator, municipal
utility district, federal power marketing agency, electric rural cooperative,
or other supplier or seller of electricity; or
An electric service provider (ESP), electricity broker, marketer,
aggregator, pool operator, or other electricity supplier other than
a supplier of electric distribution services to all or a significant
portion of the city, which sells or supplies electricity or supplemental
services to electricity users within the city; or
A gas service supplier, aggregator, marketer or broker, other
than a supplier of gas distribution services to all or a significant
portion of the city, which sells or supplies gas or supplemental services
to gas users within the city.
means a telecommunication 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 nonprofit),
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:
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.
For prepaid telecommunication service, "service address" means
the location associated with the service number.
means any person, including the city, that provides communication,
electric, gas, water, or video services to a user of such services
within the city. The term shall include any person required to collect
and remit a tax as imposed by this chapter, including its billing
agent in the case of electric and gas service suppliers.
means a person required to pay a tax imposed by this chapter.
means the state of California.
means the multistate agreement commonly known and referred
to as the Streamlined Sales and Use Tax Agreement, as it is amended
from time to time.
means the director of administrative services of the city
of Glendale, or his or her authorized representative.
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
"telecommunication 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". "Telecommunication services"
include, but are not limited to, the following services, regardless
of the manner or basis on which such services are calculated or billed:
intrastate, interstate, and international telecommunication services;
ancillary telecommunication services; mobile telecommunications service;
prepaid telecommunication service; post-paid telecommunication service;
private telecommunication service; paging service; 800 service (or
any other toll-free numbers designated by the Federal Communications
Commission); 900 service (or any other similar numbers designated
by the Federal Communications Commission for services whereby subscribers
who call in to prerecorded or live service).
means those programming services commonly provided to subscribers
by a video service supplier including, but not limited to, basic services,
premium services, audio services, video games, pay-per-view services,
video on demand, origination programming, or any other similar services,
regardless of the content of such video programming, or the technology
used to deliver such services, and regardless of the manner or basis
on which such services are calculated or billed.
means video programming and any and all services related
to the providing, recording, delivering, use or enjoyment of "video
programming" (including origination programming and programming using
Internet Protocol, e.g., IP-TV and IP-Video) using one or more channels
by a "video service supplier", regardless of the technology used to
deliver, store or provide such services, and regardless of the manner
or basis on which such services are calculated or billed, and includes
ancillary video services, data services, telecommunication services,
or interactive communication services that are functionally integrated
with video services.
means any person, company, or service which provides or sells
one or more channels of video programming, or provides or sells the
capability to receive one or more channels of video programming, including
any communications that are ancillary, necessary or common to the
provision, use or enjoyment of the video programming, to or from a
business or residential address in the city, including to or from
a business, home, condominium, or apartment, where some fee is paid,
whether directly or included in dues or rental charges for that service,
whether or not public rights-of-way are utilized in the delivery of
the video programming or communications. A video service supplier
includes, but is not limited to: multi-channel video programming distributors
(as defined in 47 U.S.C.A. Section 522(13)); open video systems (OVS)
suppliers; suppliers of cable television; master antenna television;
satellite master antenna television; multichannel multipoint distribution
services (MMDS); video services using internet protocol (e.g., IP-TV
and IP-Video, which provide, among other things, broadcasting and
video on demand), direct broadcast satellite to the extent federal
law permits taxation of its video services, now or in the future;
and other suppliers of video services (including two-way communications),
whatever their technology.
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. 5649, § 1, 4-20-2009)
A.
Telecommunication
Services.
1.
There
is imposed a tax upon every person in the city, using telecommunication
services. The tax imposed by this section shall be at the rate of
six and one-half (6.5) percent of all charges made for such services
and shall be collected from the service user by the telecommunication
services supplier or its billing agent. 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 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 telecommunication
services.
2.
As
used in this section, the term "telecommunication services" shall
include, but is not limited to, charges for: connection, reconnection,
termination, movement, or change of telecommunication services; late
payment fees; detailed billing; central office and custom calling
features (including, but not limited to, call waiting, call forwarding,
caller identification and three-way calling); voice mail and other
messaging services; directory assistance; access and line charges;
universal service charges; regulatory, administrative and other cost
recovery charges; local number portability charges; and text and instant
messaging. "Telecommunication services" shall not include digital
downloads that are not "ancillary telecommunication services", such
as music, ringtones, games and similar digital products.
B.
Video
Services.
1.
There
is imposed a tax upon every person using video services in the city
from a video service supplier. The tax imposed by this section shall
be at the rate of six and one-half (6.5) percent of the charges made
for such video services, and shall be collected from the service user
by the video service supplier, or its billing agent.
2.
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
video services. Charges for video services shall also include, but
are not limited to, charges for the following:
a.
Regulatory fees and surcharges, franchise fees and access fees (PEG);
b.
Initial installation of equipment necessary for provision and receipt
of video services;
c.
Late fees, collection fees, bad debt recoveries, and return check
fees;
d.
Activation fees, reactivation fees, and reconnection fees;
e.
Video programming and video services;
f.
Ancillary video services (e.g., electronic program guide services,
recording functions, search functions, or other interactive services
or communications that are ancillary, necessary or common to the use
or enjoyment of video services);
g.
Equipment leases (e.g., remote, recording or search devices, converters,
remote devices); and
h.
Service calls, service protection plans, name changes, changes of
services, and special services;
i.
Leasing of channel access.
C.
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
communication services, including, but not limited to, post-paid communication
services, prepaid communication services, and private communication
services, provided that such rules are based upon custom and common
practice that further administrative efficiency and minimize multijurisdictional
taxation (e.g., Streamlined Sales and Use Tax Agreement).
D.
The tax administrator, from time to time, may issue and disseminate to communication service suppliers which are subject to the tax collection requirements of this chapter, an administrative ruling identifying those communication services that are subject to the tax of subsection A. above. Further, the tax administrator, from time to time, may survey the video service suppliers in the city to identify the various components of video service that are being offered to customers within the city, and the charges therefor. The tax administrator, thereafter, may issue and disseminate to such video service suppliers an administrative ruling identifying those components:
1.
That
are necessary for or common to the receipt, use or enjoyment of video
service; or
E.
To prevent
actual multijurisdictional taxation of communication services subject
to tax under this section, any service user, upon proof to the tax
administrator that the service user has previously paid the same tax
in another state or city on such communication services, shall be
allowed a credit against the tax imposed to the extent of the amount
of such tax legally imposed in such other state or city; provided,
however, the amount of credit shall not exceed the tax owed to the
city under this section.
F.
The
tax on communication services imposed by this section shall be collected
from the service user by the service supplier or its billing agent.
In the case of video service, the service user shall be deemed to
be the purchaser of the bulk video service (e.g., an apartment owner),
unless such service is resold to individual users, in which case the
service user shall be the ultimate purchaser of the video service.
The amount of tax collected in one month shall be remitted to the
tax administrator, and must be received by the tax administrator on
or before the twenty-fifth day of the following month.
H.
Proceeds of the tax imposed by this section shall be deposited
in the general fund of the city and be available for any legal purpose.
(Ord. 5649, § 1, 4-20-2009)
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 apportionment of taxable
and nontaxable charges. If the service supplier offers a combination
of taxable and nontaxable services, and the charges are separately
stated, then for taxation purposes, the values assigned the taxable
and nontaxable 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 nontaxable services.
(Ord. 5649, § 1, 4-20-2009)
A.
Low
Income Senior and Disability Exemptions.
1.
Eligibility.
a.
Low Income Senior Exemption. For any household in which a senior
aged 62 years or older resides, the service user shall be eligible
for an exemption from the taxes imposed by this chapter on service
supplied to the service user's residential living quarters if the
gross annual income of the household in which such senior resides
is less than $13,950 per calendar year.
b.
Low Income Disability Exemption. For any household in which a person
with a disability and aged 55 years or older resides, the service
user shall be eligible for an exemption from the taxes imposed by
this chapter on electricity and water service supplied by the city
to the service user's residential living quarters if the gross annual
income of the household in which such person with a disability resides
is less than the annual income limits established by resolution of
the city council for the Glendale Water and Power Senior Care Program.
For purposes of this exemption, a "person with a disability"
means a person who has verifiable permanent disability income such
as supplemental security income (SSI) or social security disability,
or disability retirement income, as determined by the tax administrator.
2.
Application.
Applications for exemptions shall be filed with the tax administrator
on such forms as the tax administrator may provide.
3.
Time
to File. Applications may be filed at any time.
4.
Contents
of Application. Applications shall be verified by declaration under
penalty of perjury and shall contain such information as may be required
by the tax administrator.
5.
Review
and Certification. The tax administrator shall review each application
and shall certify the service user as exempt if the eligibility requirements
of subsection A.1. of this section are met, except that no exemption
shall be granted to a service user who is receiving service from a
service supplier through a master meter and no exemption shall be
granted with respect to any tax imposed by this chapter which is or
has been paid by a public agency or where the service user receives
funds from a public agency specifically for the payment of such tax.
6.
Notice
to Service Supplier. If a service user is certified as exempt, the
tax administrator shall promptly notify service user's service suppliers,
stating the name of the service user, the address to which such exempt
service is being supplied, the account number, if any, and such other
information as may be necessary for the service supplier to remove
the exempt service user from its tax billing procedure.
7.
Discontinuance
of Billing. Upon receipt of such notice, the service supplier shall
within 60 days discontinue billing service user for taxes imposed
by this chapter, except as otherwise provided in subsection A.8. of
this section.
8.
Prior
Taxes to be Collected. Taxes billed by the service supplier to the
service user prior to removing the service user from its tax billing
procedure, shall be collected from the service user and the service
user shall pay such taxes to the service supplier. Taxes billed to
and paid by the service user between the time that the application
for exemption is filed and the service supplier removes the service
user from its taxing procedure will not be refunded to the service
user.
9.
Duration
of Exemption. Exemptions certified by the tax administrator shall
continue as long as the facts supporting the qualification for exemption
shall exist; provided, however, that the exemption shall automatically
terminate with any change in the service address or residence of the
exempt individual; and provided further, that such individual may
nevertheless apply for a new exemption with each change of address
or residence.
10.
Duty to Disclose Disqualification.
a.
Any service user who has been exempted under this section shall notify
the tax administrator within 10 days of any change in fact or circumstance
which might disqualify such individual from receiving such exemption.
It shall be a misdemeanor for any person to knowingly receive the
benefits of the exemption provided by this section when the basis
for such exemption does not exist or ceases to exist.
b.
Any service supplier, who determines by any means that a new or nonexempt
service user is receiving service through a meter or connection exempt
user of the same meter or connection, shall immediately notify the
tax administrator of such fact and the tax administrator shall conduct
an investigation to ascertain whether or not the provisions of this
section have been complied with, and where appropriate, order the
service supplier to commence collecting the tax from the nonexempt
service user.
11.
Audit by Tax Administrator. The tax administrator shall have the
power and right to demand evidence of continued eligibility of a service
user for exemption under the provisions of this section. Such evidence
may include, but need not be limited to, copies of business records,
letters or statements from the Social Security Administration and
state, county, city and private pension administrators or unemployment
and welfare agencies, copies of income tax returns, and such other
evidence concerning the service user or other members of the service
user's household as may tend to prove or disprove such eligibility.
Failure to provide such evidence as is within the control of a service
user to so provide, either directly by the service user or by the
service user's consent or the consent of a member of the service user's
household when such evidence is requested of the service user in writing
by the tax administrator, shall be grounds for the immediate discontinuance
of the service user's eligibility for exemption under the provisions
of the section. Evidence provided to the tax administrator at the
tax administrator's request, or voluntarily provided to the tax administrator
by the service user without the tax administrator's request, may not
be used against such service user as evidence of violation of the
provisions of this section. Such evidence may only be used as grounds
for termination of the exemption provided by this section.
(Ord. 5649, § 1, 4-20-2009)
A.
Constitutionality.
Nothing in this chapter shall be construed as imposing a tax upon:
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 utility 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 utility service suppliers so that the tax administrator can properly notify the new utility 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 utility users' taxes collected and remitted to the tax administrator from such service user as a result of such noncompliance. Upon request of the tax administrator, a service supplier or nonutility service supplier, or its billing agent, shall provide a list of the names and addresses of those customers which, according to its billing records, are deemed exempt from the utility users' tax.
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. 5649, § 1, 4-20-2009)
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 utility users tax to the fullest extent permitted
by state and federal law, and as it may change from time to time by
judicial interpretation or by statutory enactment. Any communication
service (including VoIP) used by a person with a service address in
the city, which service is capable of terminating a call to another
person on the general telephone network, shall be subject to a rebuttable
presumption that "substantial nexus/minimum contacts" exists for purposes
of imposing a tax, or establishing a duty to collect and remit a tax,
under this 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 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 communication services that are subject to a
tax under this chapter.
(Ord. 5649, § 1, 4-20-2009)
The duty of service suppliers to collect and remit the taxes
imposed by the provisions of this chapter shall be performed as follows:
A.
The tax shall be collected insofar as practicable at the same time as, and along with, the collection of the charges made in accordance with the regular billing practice of the service supplier. Where the amount paid by a service user to a service supplier is less than the full amount of the charge and tax which was accrued for the billing period, a proportionate share of both the charge and the tax shall be deemed to have been paid. In those cases where a service user has notified the service supplier of refusal to pay the tax imposed on said charges, Section 4.38.120 of this chapter shall apply.
B.
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.
(Ord. 5649, § 1, 4-20-2009)
Each person required by this chapter to remit a tax shall file
a return with 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 California Revenue and Tax Code Section
7284.6, the tax administrator, and its agents, shall maintain such
filing returns as confidential information.
(Ord. 5649, § 1, 4-20-2009)
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 or before the first regular working day following
the weekend or legal holiday. A direct deposit, including electronic
fund transfers and other similar methods of electronically exchanging
monies between financial accounts, made by a service supplier in satisfaction
of its obligations under this subsection shall be considered timely
if the transfer is initiated on or before the due date, and the transfer
settles into the city's account on or before the following business
day.
B.
If a
service supplier 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 any tax collected, on or before the due
date, the tax administrator shall attach a penalty for such delinquencies
at the rate of 15% of the total tax that is delinquent or deficient
in the remittance, and shall pay interest at the rate of three-quarters
of one (.75) percent per month, or any fraction thereof, on the amount
of the tax, exclusive of penalties, from the date on which the remittance
first became delinquent, until paid.
C.
The
tax administrator shall have the power to impose additional penalties
upon persons required to collect and/or remit taxes pursuant to the
provisions of this chapter for fraud or gross negligence in reporting
or remitting at the rate of 15% 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 required to be paid.
E.
Notwithstanding
the foregoing, the tax administrator may, in his or her discretion,
modify the due dates of this chapter to be consistent with any uniform
standards or procedures that are mutually agreed upon by other public
agencies imposing a utility users tax, or otherwise legally established,
to create a central payment location or mechanism.
(Ord. 5649, § 1, 4-20-2009)
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).
(Ord. 5649, § 1, 4-20-2009)
A.
The
tax administrator shall make a deficiency determination if he or she
determines that any person required to collect taxes pursuant to the
provisions of this chapter has failed to pay, collect and/or remit
the proper amount of tax by improperly applying 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 three-quarters of one (.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. 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.
C.
If the
person requests a hearing, the tax administrator shall cause the matter
to be set for hearing not later than 14 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 nonassessment), thereafter, by confirming, modifying or rejecting the original deficiency determination, and shall mail a copy of such final assessment to the person owing the tax. The decision of the tax administrator may be appealed pursuant to Section 4.38.160 of this chapter. Filing an application with the tax administrator and appeal to the city manager pursuant to Section 4.38.160 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 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 three-quarters of one (.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 Section 4.38.020 of this chapter shall commence from the date of delinquency as provided in this subsection E. of this section.
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. 5649, § 1, 4-20-2009)
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 chapter from certain named service users for specific
billing periods. To the extent the service user has failed to pay
the amount of tax owed for a period of two 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 chapter. 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 15% of the total tax that is owed, and shall pay interest
at the rate of three-quarters of one (.75) percent per month, or any
fraction thereof, on the amount of the tax, exclusive of penalties,
from the due date, until paid.
C.
The
tax administrator shall notify the nonpaying service user that the
tax administrator has assumed the responsibility to collect the taxes
due for the stated periods and demand payment of such taxes, including
penalties and interest. The notice shall be served on the service
user by personal delivery or by deposit of the notice in the United
States mail, postage prepaid, addressed to the service user at the
address to which billing was made by the person required to collect
the tax or, should the service user have a change of address, to his
or her last known address.
D.
If the
service user fails to remit the tax to the tax administrator within
30 days from the date of the service of the notice upon him or her,
the tax administrator may impose an additional penalty of 15% of the
amount of the total tax that is owed.
(Ord. 5649, § 1, 4-20-2009)
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 not
inconsistent 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 manager
at any time.
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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 4.38.110 of this chapter for all taxes, 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 three-quarters of one (.75) percent per month,
prorated for any portion thereof.
F.
The
tax administrator shall determine the eligibility of any person who
asserts a right to exemption from, or a refund of, the tax imposed
by this 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 less than $5,000, 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 equal to
or greater than $5,000.
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 noncollection occurred in good faith. In determining
whether the noncollection was in good faith, the tax administrator
shall take into consideration industry practice or other precedence.
(Ord. 5649, § 1, 4-20-2009)
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 all reasonable
times.
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 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 affect 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 recordkeeping under this section 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 $500 on such person for each day following:
(Ord. 5649, § 1, 4-20-2009)
A.
Whenever
the amount of any tax has been overpaid, 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.
B.
The
tax administrator may refund any tax that has been overpaid, 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, under penalty of perjury, 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 refund 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. Where the amount of any individual refund claim is
in excess of $5,000, city council approval shall be required.
C.
It is
the intent of the city that the one year written claim requirement
of this section be given retroactive effect; provided, however, that
any claims which arose prior to the enactment of the one year claims
period of this section, and which are not otherwise barred by a then
applicable statute of limitations or claims procedure, must be filed
with the tax administrator as provided in this subsection within 90
days following the effective date of this chapter.
D.
The
tax administrator, or the city council where the claim is in excess
of $5,000, shall act upon the refund claim within 45 days of the initial
receipt of the refund claim. Said decision shall be final. If the
tax administrator/city council fails or refuses to act on a refund
claim within the forty-five-day period, the claim shall be deemed
to have been rejected by the tax administrator/city council on the
forty-fifth day. The tax administrator shall give notice of the action
in a form which substantially complies with that set forth in Government
Code Section 913.
E.
The
filing of a written claim 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.
F.
Notwithstanding
other provisions of this section, whenever a service supplier, pursuant
to an order of the California Public Utilities Commission, makes a
refund to service users of charges for past utility services, the
taxes paid pursuant to this chapter on the amount of such refunded
charges shall also be refunded to service users, and the service supplier
shall be entitled to claim a credit for such refunded taxes against
the amount of tax which is due upon the next monthly return. In the
event this chapter is repealed, the amounts of any refundable taxes
shall be borne by the city.
G.
Notwithstanding subsections B. and C. above, a service supplier shall be entitled to take any overpayment as a credit against an underpayment whenever such overpayment has been received by the city within the three years next preceding a deficiency determination or assessment by the tax administrator, or during any year for which the service supplier, at the request of the tax administrator, has executed a waiver of the defense of the statute of limitations with regard to any claim the city may have for a utility users tax. A service supplier shall not be entitled to said credit unless it clearly establishes, to the satisfaction of the tax administrator, the right to the credit by written records showing entitlement thereto. Under no circumstances shall an overpayment taken as a credit against an underpayment pursuant to this subsection qualify a service supplier for a refund to which it would not otherwise be entitled under the one year written claim requirement of this section.
H.
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:
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. 5649, § 1, 4-20-2009)
A.
The provisions of this section apply to any decision (other than a decision relating to a refund pursuant to Section 4.38.150 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 4.38.150 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 4.38.150 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 set for hearing 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, 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 city manager 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.
If the city manager fails or refuses to act on a refund claim within
the fourteen-day period, the claim shall be deemed to have been rejected
by the city manager on the fourteenth day.
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. 5649, § 1, 4-20-2009)
The utility [communications] users tax collected under and pursuant
to the provisions of this chapter shall be deposited and paid into
the general fund of the city.
(Ord. 5649, § 1, 4-20-2009)
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 employee or 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. 5649, § 1, 4-20-2009)
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. 5649, § 1, 4-20-2009)
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. 5649, § 1, 4-20-2009)
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.
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. 5649, § 1, 4-20-2009)
The city may annually verify that the taxes owed under this
chapter have been properly applied, 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. 5649, § 1, 4-20-2009)
A.
Satisfaction of Tax Obligation by Service Users. Any person who pays the tax levied pursuant to Section 4.38.020 of this code with respect to any charge for a communication service shall be deemed to have satisfied his or her obligation to pay the tax levied pursuant to Sections 4.36.020 and 4.36.060 of this code with respect to that charge. Likewise, prior to September 1, 2009, any person who pays the tax levied pursuant to Section 4.36.020 and 4.36.060 of this code with respect to any charge for a service subject to taxation pursuant to this chapter shall be deemed to have satisfied his or her obligation to pay the tax levied pursuant to Section 4.38.020 of this code with respect to that charge. The intent of this paragraph is to prevent the imposition of multiple taxes upon a single utility charge during the transition period from the prior telephone users tax and cable television users tax to the new communication users tax (which transition period ends September 1, 2009) and to permit communications service providers, during that transition period, to satisfy their collection obligations by collecting either tax.
B.
Collection
of Tax by Service Providers. 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.
C.
Judicial Determinations. In the event that a final court order should determine that the election enacting this Chapter 4.38 is invalid for whatever reason, or that any tax imposed under this Chapter 4.38 is invalid in whole or in part, then the taxes imposed under Sections 4.36.020 and 4.36.060 (unless repealed) shall automatically continue to apply with respect to any service for which the tax levied pursuant to this chapter has been determined to be invalid. Such automatic continuation shall be effective beginning as of the first date of service (or billing date) for which the tax imposed by this chapter is not valid. However, in the event of an invalidation, any tax (other than a tax that is ordered refunded by the court or is otherwise refunded by the city) paid by a person with respect to a service and calculated pursuant to this chapter shall be deemed to satisfy the tax imposed under Sections 4.36.020 and 4.36.060 on that service, so long as the tax is paid with respect to a service provided no later than six months subsequent to the date on which the final court order is published.
(Ord. 5649, § 1, 4-20-2009)
