Except where the context otherwise requires, the definitions
given in this section govern the construction of this chapter:
"Billing address"
means the mailing address of the service user where the service
supplier submits invoices or bills for payment by the customer.
"City"
means the City of Huntington Beach.
"City Manager"
means the City Manager, or his or her authorized representative.
"Exempt wholesale generator"
has the same meaning as set forth in the Federal Power Act
(15 U.S.C. Section 79z-5a) and regulations thereunder.
"Gas"
means natural or manufactured gas or any alternate hydrocarbon
fuel, which may be substituted therefor.
"Mobile telecommunications service"
has the same meaning and usage as set forth in the Mobile
Telecommunications Sourcing Act (4 U.S.C. Section 124) and the regulations
thereunder.
"Non-utility service supplier"
means:
1.
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;
2.
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; and
3.
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.
"Person"
means, without limitation, any domestic, non-profit or foreign
corporation, firm, association, syndicate, joint stock company, partnership
of any kind, limited liability company, joint venture, club, trust,
Massachusetts business or common law trust, estate, society, cooperative,
receiver, trustee, guardian or other representative appointed by order
of any court, any natural individual, municipal district or municipal
corporation (other than the City).
"Place of primary use"
has the same meaning and usage as set forth in the Mobile
Telecommunications Sourcing Act (4 U.S.C. Section 116 et seq.) and
the regulations thereunder.
"Received"
as that term is used in connection with receipt of taxes
by the treasurer means actual receipt by the treasurer. A tax is not
received when it has been postmarked and/or mailed.
"Service address"
means the residential street address or the business street
address of the service user, and in the case of mobile telecommunications
service, the service user's place of primary use.
"Service supplier"
means any person, including the City, that provides telephone communication, electric, gas, water or video service to a user of such services within the City. The term shall include any person required to collect, or self-collect under Section
3.36.050 of this chapter, and remit a tax as imposed by this chapter, including its billing agent in the case of electric, gas, water or video service suppliers.
"Service user"
means a person required to pay a tax imposed by this chapter.
"State"
means the State of California.
"Tax administrator"
means the Finance Officer of the City, or his or her authorized
representative.
"Telephone communication services"
means "communications services" as defined in Sections 4251
and 4252 of the Internal Revenue Code, and the regulations thereunder,
and shall include any service that is capable of transmitting telephonic
quality communications (including the use of Internet Protocol (IP)
or other similar means of digitization and/or packetization of telephonic
quality communications for transmission over digital networks) by
analog, digital, electronic, radio or similar means through "interconnected
service" with the "public switched network" (as these terms are commonly
used in the Federal Communications Act and the regulations of the
Federal Communications Commission see 47 U.S.C.A. Section 332(d)),
whether such transmission occurs by wire, cable, cable modem or digital
subscriber line (DSL), internet, fiber-optic, light wave, laser, microwave,
radio wave (including, but not limited to, mobile telecommunications
service, cellular service, commercial mobile service, and commercial
mobile radio service (see 47 U.S.C. Section 332(d)(1) and Part 20.3
of Title 47 of the Code of Federal Regulations), personal communications
service (PCS), specialized mobile radio (SMR), and other similar services
regardless of radio spectrum used), or other similar facilities.
"Telephone corporation,"
"electrical corporation," and "water corporation" have the
same meanings as defined in Sections 234, 218, and 241 respectively,
of the
Public Utilities Code of the State of California, as said sections
existed on January 1, 1970. "Electrical corporation" and "water corporation"
include any organization, municipality or agency engaged in the selling
or supplying of electricity or water to a service user; however, as
specified by
Public Utilities Code Section 218, does not include a
corporation or person employing cogeneration technology or producing
power from other than a conventional power source for the generation
of electricity.
"Treasurer"
means the City Treasurer of Huntington Beach or his or her
authorized representative.
"Video service supplier"
means any person, company, or service which provides one
or more channels of video programming, including any communications
that are ancillary, necessary or common to the use or enjoyment of
the video programming, to or from an 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, multichannel 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), direct broadcast satellite
(to the extent federal law permits taxation of its video services,
now or in the future), and other suppliers of video programming or
communications (including two-way communications), whatever their
technology.
"Video services"
means any and all services related to the providing of video programming (including origination programming), including any communications that are ancillary, necessary or common to the use or enjoyment of the video programming, regardless of the content of such video programming or communications. "Video services" does not include services for which a tax is paid under Section
3.36.020 of this chapter.
(1598-10/70, 2933-8/88, 3610-8/03)
A. There
is hereby imposed a tax upon every person, other than a telephone
corporation, using international, interstate, and intrastate telephone
communication services. The tax imposed by this section shall be at
the rate of five percent of all charges made for such services, and
shall be collected from the service user by the telephone communication
services supplier or its billing agent. There is a rebuttable presumption
that telephone communication 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. Charges for mobile
telecommunications services are subject to taxation under this article
if the customer's place of primary use is in the City, regardless
of where the mobile telecommunications service may originate, terminate,
or pass through.
B. 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
communication services. As used in this section, the term "charges"
shall not include charges for services paid for by inserting coins
in coin-operated telephones; provided that, where such coin-operated
telephone service is furnished for a guaranteed amount, the amounts
paid under such guarantee plus any fixed monthly or other periodic
charge shall be included in the base for computing the amount of tax
due.
C. The tax administrator, from time to time, may issue and disseminate to service suppliers which are subject to the tax collection requirements of this chapter, an administrative ruling identifying those telephone communication services that are subject to the tax of Section
3.36.020. This administrative ruling shall not impose a new tax, revise an existing tax methodology, or increase an existing tax. An administrative ruling shall not constitute a new tax, a revision of an existing tax methodology, or an increase in an existing tax if such administrative ruling is:
1. Consistent
with the existing ordinance language; and
2. Merely
reflects a change in, clarification to, or new rendition of:
a. The definition, interpretation, or application of substantial nexus
by a court of competent jurisdiction or by preemptive state or federal
law, for purposes of taxation, or
b. The definition, interpretation, or application of the federal excise
tax rules, regulations, and laws pertaining to "communications services"
(Sections 4251, 4252 and 4253 of the Internal Revenue Code) by the
Internal Revenue Service, or by a state or local agency that assumes
an interpretative role of those rules, regulations, and laws in the
event that the federal excise tax on telecommunications is repealed.
D. As used in this section, the term "telephone communication services" shall not include "private mobile radio service" (as defined in Part 20.3 of Title 47 of the Code of Federal Regulations) or "private mobile service" (as defined in 47 U.S.C.A. Section 332 (d)(3)) which is not interconnected to the public switched network. The tax imposed under subsection
A of this section, shall not be imposed upon any person for using telephone communication services to the extent that, pursuant to Sections 4252 and 4253 of the Internal Revenue Code, the amounts paid for such communication services are not subject to or are exempt from the tax imposed under Section 4251 of the Internal Revenue Code. In the event that the federal excise tax on "communication services" as provided in Sections 4251, 4252 and 4253 of the Internal Revenue Code is subsequently repealed, any reference in this section and in Section
3.36.010 (Telephone communication services) to such law, including any related federal regulations, private letter rulings, case law, and other opinions interpreting these sections, shall refer to that body of law that existed immediately prior to the date of repeal, as well as to any judicial or administrative decision interpreting such federal excise tax law which is published or rendered after the date of repeal.
E. To prevent
actual multi-jurisdictional taxation of telephone 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 telephone communication
services, shall be allowed a credit against the tax imposed to 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 communication 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 treasurer,
and must be received by the treasurer on or before the 20th day of
the following month.
(1598-10/70, 3096-4/91, 3162-9/92, 3610-8/03)
A. There
is hereby imposed a tax upon every person using electricity in the
City. The tax imposed by this section shall be at the rate of five
percent of the charges made for such electricity, and for any supplemental
services or other associated activities directly related to and/or
necessary for the provision of electricity to the service user, which
are provided by a service supplier or non-utility service supplier
to a service user. The tax shall be collected from the service user
by the service supplier or non-utility service supplier, or its billing
agent.
B. As used
in this section, the term "charges" shall apply to all services, components
and items that are: (1) necessary or common to the receipt, use and
enjoyment of electric service; or (2) currently, or historically have
been, included in a single or bundled rate for electric service by
a local distribution company to a class of retail customers. The term
"charges" shall include, but is not limited to, the following charges:
2. Distribution
or transmission charges;
4. Stand-by,
reserves, firming, ramping, voltage support, regulation, emergency,
or other similar charges for supplemental services to self-generation
service users;
5. Customer
charges, late charges, service establishment or reestablishment charges,
demand charges, fuel or other cost adjustments, power exchange charges,
independent system operator (ISO) charges, stranded investment or
competitive transition charges (CTC), public purpose program charges,
nuclear decommissioning charges, trust transfer amounts (bond financing
charges), franchise fees, franchise surcharges, annual and monthly
charges, and other charges, fees and surcharges which are necessary
to or common for the receipt, use and enjoyment of electric service;
and
6. Charges,
fees, or surcharges for electricity services or programs, which are
mandated by the California Public Utilities Commission or the Federal
Energy Regulatory Commission, whether or not such charges, fees, or
surcharges appear on a bundled or line items basis on the customer
billing.
C. 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 electricity
or services related to the provision of such electricity.
D. The tax administrator, from time to time, may survey the electric service suppliers to identify the various unbundled billing components of electric retail service that they commonly provide to residential and commercial/industrial customers in the City, and the charges therefor, including those items that are mandated by state or federal regulatory agencies as a condition of providing such electric service. The tax administrator, thereafter, may issue and disseminate to such electric service suppliers an administrative ruling identifying those components and items which are: (1) necessary or common to the receipt, use or enjoyment of electric service; or (2) currently, or historically have been, included in a single or bundled rate for electric service by a local distribution company to a class of retail customers. Unbundled charges for such components and items shall be subject to the tax of subsection
A of this section.
E. As used
in this section, the term "using electricity" shall not be construed
to include electricity used in water pumping by water corporations;
nor shall the term include the mere receiving of such electricity
by an electrical corporation or governmental agency at a point within
the City for resale.
F. The tax on electricity provided by self-production or by a non-utility service supplier not under the jurisdiction of this chapter shall be collected and remitted in the manner set forth in Section
3.36.050 of this chapter. All other taxes on charges for electricity imposed by this section shall be collected from the service user by the electric service supplier or its billing agent. The amount of tax collected in one month shall be remitted to the treasurer, and must be received during normal business hours by the treasurer on or before the 20th day of the following month; or, at the option of the person required to collect and/or remit the tax, such person shall remit an estimated amount of tax measured by the tax billed in the previous month or upon the payment pattern of the service user, which must be received by the treasurer on or before the 20th day of the following month, provided that the service user shall submit an adjusted payment or request for credit, as appropriate, within 60 days following each calendar quarter. The credit, if approved by the tax administrator, may be applied against any subsequent tax bill that becomes due.
(1598-10/70, 2933-8/88, 3610-8/03)
If one or more non-taxable items are bundled or billed together
with one or more taxable items (as provided for by this chapter) under
a single charge on a service user's bill, the entire single charge
shall be deemed taxable.
(3610-8/03)
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.
(3610-8/03)
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 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
3.36.160 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.
(3610-8/03)
Each person required by this chapter to remit a tax shall file
a return with the treasurer, on forms approved by the tax administrator,
on or before the due date. The full amount of the tax owed shall be
included with the return and remitted to the treasurer, who will forward
the return to the tax administrator. The tax administrator is authorized
to require such further information as he or she deems necessary to
properly determine if the tax herein imposed is being levied, collected
and remitted in accordance with this chapter. Returns and tax remittances
are due immediately upon cessation of business for any reason. Pursuant
to Revenue and Tax Code Section 7284.6, the tax administrator, and
its agents, shall maintain such filing returns as confidential information,
and not subject to the Public Records Act.
(1598-10/70, 2211-8/77, 3390-5/98, 3610-8/03)
A. 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 treasurer shall be deemed a debt owed to the City
by the persons required to collect and pay 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.
B. The treasurer may compromise a collection action and any penalty or interest imposed pursuant to Section
2.16.030(E) of the Municipal Code.
(1598-10/70, 2211-8/77, 3390-5/98, 3610-8/03)
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 three years, all records as may be necessary to determine the amount
of such tax as he or she may have been liable for the collection of
and remittance to the treasurer, 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, or the tax administrator's designated representative,
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 address and service addresses,
quantities of gas or electricity delivered, and other pertinent information,
of its transportation customers within the City pursuant to Section
6354(e) of the California
Public Utilities Code.
D. If a
service supplier uses a billing agent or billing aggregator to bill,
collect, and/or remit the tax, the service supplier shall: (1) provide
to the tax administrator the name, address and telephone number of
each billing agent and billing aggregator currently authorized by
the service supplier to bill, collect, and/or remit the tax to the
City; and, (2) upon request of the tax administrator, deliver, or
effect the delivery of, any information or records in the possession
of such billing agent or billing aggregator that, in the opinion of
the tax administrator, is necessary to verify the proper application,
calculation, collection and/or remittance of such tax to the City.
E. If any
person subject to record-keeping under this 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
or the tax administrator's designated representative may impose a
penalty of $500.00 on such person for each day following: (1) the
initial date that the person refuses to provide such access; or (2)
the due date for production of records as set forth in the administrative
subpoena. This penalty shall be in addition to any other penalty imposed
under this chapter.
(1598-10/70, 3390-5/98, 3610-8/03)
A. Whenever
the amount of any tax has been overpaid or paid more than once or
has been erroneously or illegally collected or received by the treasurer
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. Where the amount of any individual
refund claim is in excess of $5,000.00, 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 the ordinance codified in this chapter.
D. The
tax administrator, or the City Council where the claim is in excess
of $5,000.00 and the tax administrator has approved the claim, 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 45-day
period, the claim shall be deemed to have been rejected by the tax
administrator/City Council on the 45th 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 or a court
of competent jurisdiction, 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 such
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 returns.
G. Notwithstanding subsections
B and
C of this section, 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 notice of tax deficiency 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 utilities tax. A service supplier shall not be entitled to said credit unless it clearly establishes the right to the credit by written record 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.
(1598-10/70, 3390-5/98, 3610-8/03)
No injunction or writ of mandate or other legal or equitable
process shall issue in any suit, action, or proceeding in any court
against this City or against any officer of the City to prevent or
enjoin the collection under this chapter of any tax or any amount
of tax required to be collected and/or remitted.
(3610-8/03)
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.
(3610-8/03)
If a tax under this chapter is added, repealed, increased, reduced,
changes the tax base or makes any other charges or interpretation
to the tax that would effect the collection or remittance of the tax,
(such as administrative rulings from the tax administrator), the tax
administrator shall follow the notice requirements of Public Utilities
Code Section 799. Prior to the effective date of the ordinance change,
the service supplier shall provide the tax administrator with a copy
of any written procedures describing the information that the service
supplier needs to implement the ordinance change. If the service supplier
fails to provide such written instructions, the tax administrator,
or its agent, shall send, by first class mail, a copy of the ordinance
change to all collectors and remitters of the City's utilities taxes
according to the latest payment records of the tax administrator.
(1598-10/70, 3610-8/03)
A. The
tax imposed by this chapter shall not apply to any individual service
user 62 years of age or older who uses telephone, electric, water
or gas services, in or upon any premises occupied by such individual,
provided the combined adjusted gross income as used for federal income
tax reporting purposes of all members of the household in which such
service user resides does not exceed the "HUD Income Guidelines -Very
Low Income Category" currently on file at the City's Office of the
Housing Rehabilitation Administrator, for the calendar year prior
to the fiscal year (July 1st through June 30th) for which the exemption
provided by this chapter is applied.
B. Any
service user, meeting the requirements for the senior citizen's exemption,
may file a verified application with the tax administrator on a form
furnished by him or her. The tax administrator shall review all applications
and certify those service users as exempt who meet the requirements
for the exemption provided by this chapter.
C. The
tax administrator shall compile a list of all service users entitled
to the senior citizen's exemption, together with the addresses, account
numbers, if any, of such service users, and such other information
as may be necessary for service suppliers to remove exempt service
users from their tax billings.
D. No service
supplier shall be required to bill any exempt senior citizen for any
tax imposed by this chapter after receipt of notice from the tax administrator
that such service user has met the requirements for exempt status
established by the provisions of this chapter.
E. The
senior citizen's exemption provided for in this chapter shall continue
and be renewed automatically from year to year except as hereinafter
provided. An exempt service user shall notify the tax administrator
within 10 days of a change of address, or of any other fact or circumstance
which might disqualify him or her or otherwise affect his or her exempt
status. All exempt service users shall file with the tax administrator
new verified applications in order to receive exempt service at a
new address or location.
F. All
service suppliers shall remove exempt service users from their tax
billings for the first regular full billings dated on or before October
15, 1980, and thereafter within 60 days after notice from the tax
administrator to do so.
G. It is
unlawful and a misdemeanor for any person knowingly to receive, the
exemption provided by this chapter when such person has not met the
requirements on which such exemption is based, or when such person
can no longer meet the requirements on which such exemption is based,
and upon conviction thereof shall be subject to a fine of $500.00
or imprisonment in the county jail for a period not to exceed six
months, or by both such fine and imprisonment. Each such person shall
be guilty of a separate offense for each and every day or portion
thereof during which a violation is committed or continued.
(2452-10/80, 2470-2/81, 2886-12/86, 3095-4/91, 3610-8/03)