This chapter shall be known as the "Communication Users' Tax
Law" of the City of Huntington Beach.
(3883-12/10)
The following words and phrases whenever used in this chapter
shall be construed as defined in this section.
means services that are associated with or incidental to
the provision, use or enjoyment of telecommunications services, including
but not limited to the following services:
"Conference bridging service"
means an ancillary service that links two or more participants
of an audio or video conference call and may include the provision
of a telephone number. Conference bridging service does not include
the telecommunications services used to reach the conference bridge.
"Detailed telecommunications billing service"
means an ancillary service of separately stating information
pertaining to individual calls on a customer's billing statement.
"Directory assistance"
means an ancillary service of providing telephone number
information and/or address information.
"Vertical service"
means an ancillary service that is offered in connection
with one or more telecommunications services, which offers advanced
calling features that allow customers to identify callers and to manage
multiple calls and call connections, including conference bridging
services.
"Voice mail service"
means an ancillary service that enables the customer to store,
send or receive recorded messages. Voice mail service does not include
any vertical services that the customer may be required to have in
order to utilize the voice mail service.
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.
means the City of Huntington Beach.
means: "telecommunications services," "ancillary telecommunication
services," "video services" and "ancillary video services."
has the meaning and usage as set forth in the Mobile Telecommunications
Sourcing Act (4 U.S.C. Section 124) and the regulations thereunder.
means a calendar month.
means a "telecommunications service" that provides transmission
of coded radio signals for the purpose of activating specific pagers;
such transmissions may include messages and/or sounds.
means, without limitation, any natural individual, firm,
trust, common law trust, estate, partnership of any kind, association,
syndicate, club, joint stock company, joint venture, limited liability
company, corporation (including foreign, domestic, and non-profit),
municipal district or municipal corporation (other than the City),
cooperative, receiver, trustee, guardian, or other representative
appointed by order of any court.
means the street address representative of where the customer's
use of the communications service primarily occurs, which must be
the residential street address or the primary business street address
of the customer.
means the telecommunication service obtained by making a
payment on a communication-by-communication basis either through the
use of a credit card or payment mechanism such as a bank card, travel
card, credit card, or debit card, or by charge made to a service number
which is not associated with the origination or termination of the
telecommunication service.
means the right to access telecommunication services, which
must be paid for in advance and which enables the origination of communications
using an access number or authorization code, whether manually or
electronically dialed, and that is sold in predetermined units or
dollars of which the number declines with use in a known amount.
means a telecommunication service that entitles the customer
to exclusive or priority use of a communications channel or group
of channels between or among termination points, regardless of the
manner in which such channel or channels are connected, and includes
switching capacity, extension lines, stations, and any other associated
services that are provided in connection with the use of such channel
or channels. A communications channel is a physical or virtual path
of communications over which signals are transmitted between or among
customer channel termination points (i.e., the location where the
customer either inputs or receives the communications).
means either:
The location of the service user's communication equipment from
which the communication originates or terminates, regardless of where
the communication is billed or paid; or
If the location in paragraph 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 or, if not known,
the point of sale of the services.
means any entity or person, including the City, that provides
communication service to a user of such service within the City.
means a person required to pay a tax imposed under the provisions
of this chapter.
means the State of California.
means the multi-state agreement commonly known and referred
to as the Streamlined Sales and Use Tax Agreement, as it is amended
from time to time.
means the Finance Director, or his or her designee.
means the transmission, conveyance, or routing of voice,
data, audio, video, or any other information or signals to a point,
or between or among points, whatever the technology used. The term
"telecommunications services" includes such transmission, conveyance,
or routing in which computer processing applications are used to act
on the form, code or protocol of the content for purposes of transmission,
conveyance or routing without regard to whether such services are
referred to as voice over Internet Protocol (VoIP) services or are
classified by the Federal Communications Commission as enhanced or
value added, and includes video and/or data services that is functionally
integrated with "telecommunication services." "Telecommunications
services" include, but are not limited to the following services,
regardless of the manner or basis on which such services are calculated
or billed: ancillary telecommunication services; intrastate, interstate,
and international telecommunication services; mobile telecommunications
service; prepaid telecommunication service; post-paid telecommunication
service; private telecommunication service; paging service; 800 service
(or any other toll-free numbers designated by the Federal Communications
Commission); 900 service (or any other similar numbers designated
by the Federal Communications Commission for services whereby subscribers
call in to pre-recorded 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, 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; and 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.
(3883-12/10)
A.
Nothing
in this chapter shall be construed as imposing a tax upon any person
or service when the imposition of such tax upon such person or service
would be in violation of a federal or state statute, the Constitution
of the United States or the Constitution of the State.
B.
Any service user that is exempt from the tax imposed by this chapter pursuant to subsection A of this section shall file an application with the tax administrator for an exemption; provided, however, this requirement shall not apply to a service user that is a state or federal agency or subdivision with a commonly recognized name for such service. Said application shall be made upon a form approved by the tax administrator and shall state those facts, declared under penalty of perjury, which qualify the applicant for an exemption, and shall include the names of all communication service suppliers serving that service user. If deemed exempt by the tax administrator, such service user shall give the tax administrator timely written notice of any change in communication service suppliers so that the tax administrator can properly notify the new communication service supplier of the service user's tax exempt status. A service user that fails to comply with this section shall not be entitled to a refund of a communication users' tax collected and remitted to the tax administrator from such service user as a result of such noncompliance.
C.
The
City Council may, by resolution, establish one or more classes of
persons or one or more classes of utility service otherwise subject
to payment of a tax imposed by this chapter and provide that such
classes of persons or service shall be exempt, in whole or in part
from such tax for a specified period of time.
(3883-12/10)
A.
There
is hereby imposed a tax upon every person in the City using communication
services. The tax imposed by this section shall be at the rate of
four and nine-tenths percent of the charges made for such services
and shall be collected from the service user by the communication
services supplier or its billing agent. There is a rebuttable presumption
that 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.
There is also a rebuttable presumption that prepaid telecommunication
services sold within the City are used, in whole or in part, within
the City and are therefore subject to taxation under this chapter.
If the billing address of the service user is different from the service
address, the service address of the service user shall be used for
purposes of imposing the tax. As used in this section, the term "charges"
shall include the value of any other services, credits, property of
every kind or nature, or other consideration provided by the service
user in exchange for the communication services.
B.
"Mobile
telecommunications service" shall be sourced in accordance with the
sourcing rules set forth in the Mobile Telecommunications Sourcing
Act (4 U.S.C. Section 124). The tax administrator may issue and disseminate
to communication service suppliers, which are subject to the tax collection
requirements of this chapter, sourcing rules for the taxation of other
communication services, including but not limited to post-paid communication
services, prepaid communication services, VoIP and private communication
services, provided that such rules are based upon custom and common
practice that further administrative efficiency and minimize multi-jurisdictional
taxation (e.g., Streamlined Sales and Use Tax Agreement).
C.
The tax administrator may issue and disseminate to communication service suppliers, which are subject to the tax collection requirements of this chapter, an administrative ruling identifying those communication services, or charges therefor, that are subject to or not subject to the tax of subsection A of this section.
D.
As used
in this section, the term "telecommunication services" shall include,
but is not limited to, charges for: connection, reconnection, termination,
movement, or change of telecommunication services; late payment fees;
detailed billing; central office and custom calling features (including
but not limited to call waiting, call forwarding, caller identification
and three-way calling); voice mail and other messaging services; directory
assistance; access and line charges; universal service charges; 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.
E.
Charges
for communication services (video) shall include, but are not limited
to, charges for the following:
1.
Regulatory
fees and surcharges, franchise fees and access fees (PEG);
2.
Initial
installation of equipment necessary for provision and receipt of video
services;
3.
Late
fees, collection fees, bad debt recoveries, and return check fees;
4.
Activation
fees, reactivation fees, and reconnection fees;
5.
Video
programming and video services;
6.
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);
7.
Equipment
leases (e.g., remote, recording or search devices, converters, remote
devices); and,
8.
Service
calls, service protection plans, name changes, changes of services,
and special services.
F.
To prevent
actual multi-jurisdictional 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.
G.
The
tax on communication services imposed by this section shall be collected
from the service user by the service supplier. 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 20th
day of the following month.
(3883-12/10)
If any nontaxable charges are combined with and not separately
stated from taxable service charges on the customer bill or invoice
of a service supplier, the combined charge is subject to tax unless
the service supplier identifies, by reasonable and verifiable standards,
the portions of the combined charge that are nontaxable and taxable
through the service supplier's books and records kept in the regular
course of business, and in accordance with generally accepted accounting
principles, and not created and maintained for tax purposes. The service
supplier has the burden of proving the proper valuation and apportionment
of taxable and non-taxable charges. If the service supplier offers
a combination of taxable and non-taxable services, and the charges
are separately stated, then for taxation purposes, the values assigned
the taxable and non-taxable services shall be based on its books and
records kept in the regular course of business and in accordance with
generally accepted accounting principles, and not created and maintained
for tax purposes. The service supplier has the burden of proving the
proper valuation of the taxable and non-taxable services.
(3883-12/10)
For purposes of imposing a tax or establishing a duty to collect
and remit a tax under this chapter, "substantial nexus" and "minimum
contacts" shall be construed broadly in favor of the imposition, collection
and/or remittance of the communication users' tax to the fullest extent
permitted by state and federal law, and as it may change from time
to time by judicial interpretation or by statutory enactment. Any
communication service (including VoIP) used by a person with a service
address in the City, which service is capable of terminating a call
to another person on the general telephone network, shall be subject
to a rebuttable presumption that "substantial nexus/minimum contacts"
exists for purposes of imposing a tax, or establishing a duty to collect
and remit a tax, under this chapter. A service supplier shall be deemed
to have sufficient activity in the City for tax collection and remittance
purposes if its activities include, but are not limited to, any of
the following: maintains or has within the City, directly or through
an agent 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.
(3883-12/10)
A.
Collection by Service Suppliers. The duty of service suppliers
to collect and remit the taxes imposed by the provisions of this chapter
shall be performed as follows:
1.
The tax shall be collected by service suppliers insofar as practicable at the same time as, and along with, the collection of the charges made in accordance with the regular billing practice of the service supplier. Where the amount paid by a service user to a service supplier is less than the full amount of the charge and tax 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 3.38.110 shall apply.
2.
The
duty of a service supplier to collect the tax from a service user
shall commence with the beginning of the first regular billing period
applicable to the service user where all charges normally included
in such regular billing are subject to the provisions of this chapter.
Where a service user receives more than one billing, one or more being
for different periods than another, the duty to collect shall arise
separately for each billing period.
B.
Filing Return and Payment. Each person required by this chapter
to remit a tax shall file a return to the tax administrator, on forms
approved by the tax administrator, on or before the due date. The
full amount of the tax collected shall be included with the return
and filed with the tax administrator. The tax administrator is authorized
to require such additional information as he or she deems necessary
to determine if the tax is being levied, collected, and remitted in
accordance with this chapter. Returns are due immediately upon cessation
of business for any reason. Pursuant to Revenue and Tax Code Section
7284.6, the tax administrator, and its agents, shall maintain such
filing returns as confidential information that is exempt from the
disclosure provisions of the Public Records Act.
(3883-12/10)
A.
Taxes
collected from a service user are delinquent if not received by the
tax administrator on or before the due date. Should the due date occur
on a weekend or legal holiday, the return must be received by the
tax administrator on the first regular working day following the weekend
or legal holiday. A direct deposit, including electronic fund transfers
and other similar methods of electronically exchanging monies between
financial accounts, made by a service supplier in satisfaction of
its obligations under this 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 the following business day.
B.
If the
person required to collect and/or remit the communication users' tax
fails to collect the tax (by failing to properly assess the tax on
one or more services or charges on the customer's billing) or fails
to remit the tax collected on or before the due date, the tax administrator
shall attach a penalty for such delinquencies or deficiencies at the
rate of 15% of the total tax that is delinquent or deficient in the
remittance, and interest at the rate of 75/100ths percent (0.75%)
per month, or any fraction thereof, on the amount of the tax, exclusive
of penalties, from the date on which the remittance first became delinquent,
until paid.
C.
The
tax administrator shall have the power to impose additional penalties
upon persons required to collect and remit taxes pursuant to the provisions
of this chapter for fraud or gross negligence in reporting or remitting
at the rate of 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 herein 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.
(3883-12/10)
Any tax required to be paid by a service user under the provisions
of this chapter shall be deemed a debt owed by the service user to
the City. Any such tax collected from a service user which has not
been remitted to the tax administrator shall be deemed a debt owed
to the City by the person required to collect and remit and shall
no longer be a debt of the service user. Any person owing money to
the City under the provisions of this chapter shall be liable to an
action brought in the name of the City for the recovery of such amount,
including penalties and interest as provided for in this chapter,
along with any collection costs incurred by the City as a result of
the person's noncompliance with this chapter, including, but not limited
to, reasonable attorneys fees. Any tax required to be collected by
a service supplier or owed by a service user is an unsecured priority
excise tax obligation under 11 U.S.C.A. Section 507(a)(8)(C). Service
suppliers who seek to collect charges for service in bankruptcy proceedings
shall also include in any such claim the amount of taxes due the City
for those services, unless the tax administrator determines that such
duty is in conflict with any federal or state law, rule, or regulation
or that such action would be administratively impractical.
(3883-12/10)
A.
The tax administrator shall make a deficiency determination if he or she determines that any person required to pay or collect taxes pursuant to the provisions of this chapter has failed to pay, collect, and/or remit the proper amount of tax by improperly or failing to apply the tax to one or more taxable services or charges. Nothing herein shall require that the tax administrator institute proceedings under this Section 3.38.100 if, in the opinion of the tax administrator, the cost of collection or enforcement likely outweighs the tax benefit.
B.
The
tax administrator shall mail a notice of such deficiency determination
to the person required to pay or remit the tax, which notice shall
refer briefly to the amount of the taxes owed, plus interest at the
rate of 75/100ths percent (0.75%) per month, or any fraction thereof,
on the amount of the tax from the date on which the tax should have
been received by the City. Within 14 calendar days after the date
of service of such notice, the person may request in writing to the
tax administrator for a hearing on the matter.
C.
If the
person fails to request a hearing within the prescribed time period,
the amount of the deficiency determination shall become a final assessment,
and shall immediately be due and owing to the City. If the person
requests a hearing, the tax administrator shall cause the matter to
be set for hearing, which shall be scheduled within 30 days after
receipt of the written request for hearing. Notice of the time and
place of the hearing shall be mailed by the tax administrator to such
person at least 10 calendar days prior to the hearing, and, if the
tax administrator desires said person to produce specific records
at such hearing, such notice may designate the records requested to
be produced.
D.
At the time fixed for the hearing, the tax administrator shall hear all relevant testimony and evidence, including that of any other interested parties. At the discretion of the tax administrator, the hearing may be continued from time to time for the purpose of allowing the presentation of additional evidence. Within a reasonable time following the conclusion of the hearing, the tax administrator shall issue a final assessment (or non-assessment), thereafter, by confirming, modifying or rejecting the original deficiency determination, and shall mail a copy of such final assessment to person owing the tax. The decision of the tax administrator may be appealed pursuant to Section 3.38.150 of this chapter. Filing an application with the tax administrator and appeal to the City Manager pursuant to Section 3.38.150 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 30th day following the date
of receipt of the notice of final assessment. The penalty for delinquency
shall be 15% on the total amount of the assessment, along with interest
at the rate of 75/100ths percent (0.75%) per month, or any fraction
thereof, on the amount of the tax, exclusive of penalties, from the
date of delinquency, until paid. The applicable statute of limitations
regarding a claim by the City seeking payment of a tax assessed under
this chapter shall commence from the date of delinquency as provided
in this subsection.
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.
(3883-12/10)
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 75/100ths percent (0.75%) 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 non-paying 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.
(3883-12/10)
A.
The
tax administrator shall have the power and duty, and is hereby directed,
to enforce each and all of the provisions of this chapter.
B.
The
tax administrator may adopt administrative rules and regulations consistent
with provisions of this chapter for the purpose of interpreting, clarifying,
carrying out and enforcing the payment, collection and remittance
of the taxes herein imposed. The administrative ruling shall not impose
a new tax, revise an existing tax methodology as stated in this section,
or increase an existing tax, except as allowed by California Government
Code Section 53750(h)(2). A copy of such administrative rules and
regulations shall be on file in the tax administrator's office. To
the extent that the tax administrator determines that the tax imposed
under this chapter shall not be collected in full for any period of
time from any particular service supplier or service user, that determination
shall be considered an exercise of the tax administrator's discretion
to settle disputes and shall not constitute a change in taxing methodology
for purposes of Government Code Section 53750 or otherwise. The tax
administrator is not authorized to amend the City's methodology for
purposes of Government Code Section 53750 and the City does not waive
or abrogate its ability to impose the communication users' tax in
full as a result of promulgating administrative rulings or entering
into agreements.
C.
Upon
a proper showing of good cause, the tax administrator may make administrative
agreements, with appropriate conditions, to vary from the strict requirements
of this chapter and thereby: (1) conform to the billing procedures
of a particular service supplier so long as said agreements result
in the collection of the tax in conformance with the general purpose
and scope of this chapter; or, (2) to avoid a hardship where the administrative
costs of collection and remittance greatly outweigh the tax benefit.
A copy of each such agreement shall be on file in the tax administrator's
office, and are voidable by the tax administrator or the City at any
time.
D.
The tax administrator may conduct an audit, to ensure proper compliance with the requirements of this chapter, of any person required to collect and/or remit a tax pursuant to this chapter. The tax administrator shall notify said person of the initiation of an audit in writing. In the absence of fraud or other intentional misconduct, the audit period of review shall not exceed a period of three years next preceding the date of receipt of the written notice by said person from the tax administrator. Upon completion of the audit, the tax administrator may make a deficiency determination pursuant to Section 3.38.100 of this chapter for all taxes (and applicable penalties and interest) owed and not paid, as evidenced by information provided by such person to the tax administrator. If said person is unable or unwilling to provide sufficient records to enable the tax administrator to verify compliance with this chapter, the tax administrator is authorized to make a reasonable estimate of the deficiency. Said reasonable estimate shall be entitled to a rebuttable presumption of correctness.
E.
Upon
receipt of a written request of a taxpayer, and for good cause, the
tax administrator may extend the time for filing any statement required
pursuant to this chapter for a period not to exceed 45 days, provided
that the time for filing the required statement has not already passed
when the request is received. No penalty for delinquent payment shall
accrue by reason of such extension. Interest shall accrue during said
extension at the rate of 75/100ths percent (0.75%) per month, prorated
for any portion thereof.
F.
The
tax administrator shall determine the eligibility of any person who
asserts a right to exemption from, or a refund of, the tax imposed
by this chapter.
G.
Notwithstanding
any provision in this chapter to the contrary, the tax administrator
may waive any penalty or interest imposed upon a person required to
collect and/or remit for failure to collect the tax imposed by this
chapter if the non-collection occurred in good faith. In determining
whether the non-collection was in good faith, the tax administrator
shall take into consideration the uniqueness of the product or service,
industry practice or other precedence. The tax administrator may also
participate with other UUT public agencies in conducting coordinated
compliance reviews with the goal of achieving administrative efficiency
and uniform tax application determinations, where possible. To encourage
full disclosure and on-going cooperation on annual compliance reviews,
the tax administrator, and its agents, may enter into agreements with
the tax-collecting service providers and grant prospective only effect
on any changes regarding the taxation of services or charges that
were previously deemed by the service provider, in good faith and
without gross negligence, to be non-taxable. In determining whether
the noncollection was in good faith and without gross negligence,
the tax administrator shall take into consideration the uniqueness
of the product or service, industry practice or other precedence.
(3883-12/10)
A.
It shall
be the duty of every person required to collect and/or remit to the
City any tax imposed by this chapter to keep and preserve, for a period
of at least three years, all records as may be necessary to determine
the amount of such tax as he or she may have been liable for the collection
of and remittance to the tax administrator, which records the tax
administrator shall have the right to inspect at a reasonable time.
B.
The
City may issue an administrative subpoena to compel a person to deliver,
to the tax administrator, copies of all records deemed necessary by
the tax administrator to establish compliance with this chapter, including
the delivery of records in a common electronic format on readily available
media if such records are kept electronically by the person in the
usual and ordinary course of business. As an alternative to delivering
the subpoenaed records to the tax administrator on or before the due
date provided in the administrative subpoena, such person may provide
access to such records outside the City on or before the due date,
provided that such person shall reimburse the City for all reasonable
travel expenses incurred by the City to inspect those records, including
travel, lodging, meals, and other similar expenses, but excluding
the normal salary or hourly wages of those persons designated by the
City to conduct the inspection.
C.
The
tax administrator is authorized to execute a non-disclosure agreement
approved by the City Attorney to protect the confidentiality of customer
information pursuant to California Revenue and Tax Code Sections 7284.6
and 7284.7.
D.
If a
service supplier uses a billing agent or billing aggregator to bill,
collect, and/or remit the tax, the service supplier shall: (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 access to such records, or fails to produce
the information requested in an administrative subpoena within the
time specified, then the tax administrator may impose a penalty of
$500.00 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.
(3883-12/10)
Whenever the amount of any tax has been overpaid or paid more
than once or has been erroneously or illegally collected or received
by the tax administrator under this chapter from a person or service
supplier, it may be refunded as provided in this section as follows:
A.
Written Claim for Refund. The tax administrator may refund
any tax that has been overpaid or paid more than once or has been
erroneously or illegally collected or received by the tax administrator
under this chapter from a person or service supplier, provided that
no refund shall be paid under the provisions of this section unless
the claimant or his or her guardian, conservator, executor, or administrator
has submitted a written claim to the tax administrator within one
year of the overpayment or erroneous or illegal collection of said
tax. Such claim must clearly establish claimant's right to the refund
by written records showing entitlement thereto. Nothing herein shall
permit the filing of a claim on behalf of a class or group of taxpayers
unless each member of the class has submitted a written claim under
penalty of perjury as provided by this subsection.
B.
Compliance with Claims Act. The filing of a written claim
pursuant to Government Code Section 935 is a prerequisite to any suit
thereon. Any action brought against the City pursuant to this section
shall be subject to the provisions of Government Code Sections 945.6
and 946. The tax administrator, or the City Council where the claim
is in excess of $5,000.00, shall act upon the refund claim within
the time period set forth in Government Code Section 912.4. If the
tax administrator/City Council fails or refuses to act on a refund
claim within the time prescribed by Government Section 912.4, the
claim shall be deemed to have been rejected by the City Council on
the last day of the period within which the City Council was required
to act upon the claim as provided in Government Code Section 912.4.
The tax administrator shall give notice of the action in a form which
substantially complies with that set forth in Government Code Section
913.
C.
Refunds to Service Suppliers. Notwithstanding the notice provisions of subsection A of this section, the tax administrator may, at his or her discretion, give written permission to a service supplier, who has collected and remitted any amount of tax in excess of the amount of tax imposed by this chapter, to claim credit for such overpayment against the amount of tax which is due the City upon a subsequent monthly return(s) to the tax administrator, provided that: (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.
(3883-12/10)
A.
The provisions of this section apply to any decision (other than a decision relating to a refund pursuant to Section 3.38.140 of this chapter), deficiency determination, assessment, or administrative ruling of the tax administrator. Any person aggrieved by any decision (other than a decision relating to a refund pursuant to Section 3.38.140 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. [See Government Code Section 935(b)]. Nothing herein shall permit the filing of a claim or action on behalf of a class or group of taxpayers.
B.
If any person is aggrieved by any decision (other than a decision relating to a refund pursuant to Section 3.38.140 of this chapter), deficiency determination, assessment, or administrative ruling of the tax administrator, he or she may appeal to the City Manager by filing a notice of appeal with the City Clerk within 14 days of the date of the decision, deficiency determination, assessment, or administrative ruling of the tax administrator which aggrieved the service user or service supplier.
C.
The
matter shall be scheduled for hearing before an independent hearing
officer selected by the City Manager, no more than 30 days from the
receipt of the appeal. The appellant shall be served with notice of
the time and place of the hearing, as well as any relevant materials,
at least five calendar days prior to the hearing. The hearing may
be continued from time to time upon mutual consent. At the time of
the hearing, the appealing party, the tax administrator, and any other
interested person may present such relevant evidence as he or she
may have relating to the determination from which the appeal is taken.
D.
Based
upon the submission of such evidence and the review of the City's
files, the hearing officer shall issue a written notice and order
upholding, modifying or reversing the determination from which the
appeal is taken. The notice shall be given within 14 days after the
conclusion of the hearing and shall state the reasons for the decision.
The notice shall specify that the decision is final and that any petition
for judicial review shall be filed within 90 days from the date of
the decision in accordance with Code of Civil Procedure Section 1094.6.
E.
All
notices under this section may be sent by regular mail, postage prepaid,
and shall be deemed received on the third calendar day following the
date of mailing, as established by a proof of mailing.
(3883-12/10)
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.
(3883-12/10)
If a tax under this chapter is added, repealed, increased, reduced,
or the tax base is changed, the tax administrator shall follow the
notice requirements of California Public Utilities Code Section 799.
(3883-12/10)
A.
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.
B.
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.
(3883-12/10)
The City shall annually verify that the taxes owed under this
chapter have been properly applied, exempted, collected, and remitted
in accordance with this chapter, and properly expended according to
applicable municipal law. The annual verification shall be performed
by a qualified independent third party and the review shall employ
reasonable, cost-effective steps to ensure 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.
(3883-12/10)
A.
Satisfaction of Tax Obligation by Service Users. Any person who pays the tax levied pursuant to Section 3.38.040 of this chapter 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 3.36.020 and 3.36.070 of this Code with respect to that charge. Likewise, prior to April 1, 2011, any person who pays the tax levied pursuant to Sections 3.36.020 and 3.36.070 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 3.38.040 of this chapter 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 April 1, 2011) 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 ordinance codified in this
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 is invalid for whatever reason, or that any tax imposed under this chapter is invalid in whole or in part, then the taxes imposed under Sections 3.36.020 and 3.36.070 (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 invalid. 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 3.36.020 and 3.36.070 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.
(3883-12/10)
