Chapter 3.38 UTILITY USERS TAX

There is imposed a tax upon every person in the city, other than an electrical corporation, using electrical energy in the city. The tax imposed by this section shall be a rate established by resolution levied against charges made for such energy for each service user, and shall be paid by the person paying for such energy.

As used in this section, the words "using electrical energy" shall not be construed to mean the use of such energy from a storage battery; provided, however, that the term shall include the receiving of such energy for the purpose of using it in the charging of storage batteries.

As used in this section, the words "using electrical energy" shall not be construed to mean the receiving of such energy by an electrical corporation or a governmental agency at a point within the city for resale.

The tax imposed in this section shall be collected from the service user by the person selling such electrical energy. The amount of tax collected in one month shall be remitted to the tax administrator on or before the last day of the following month.

(Ord. 1595 § 1, 1983)

§ 3.38.050 Gas users tax.

There is imposed a tax upon every person in the city, other than a gas corporation or electrical corporation, using in the city gas which is delivered through mains or pipes. The tax imposed by this section shall be made at a rate established by resolution levied against charges made for such gas for each service user, and shall be paid by the person paying for such gas. "Charges," as used in this section, shall mean: (1) gas which is delivered through mains or pipes; and (2) minimum charges for such services, including customer charges, service charges, and annual and monthly charges.

The following shall be excluded from the base on which the tax is imposed:

(1)

Charges made for gas which is to be resold and delivered through mains or pipes;

(2)

Charges made for gas sold for use in the generation of electrical energy or for the production or distribution of water by a public utility or governmental agency;

(3)

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

(4)

Charges made for gas used in the propulsion of a motor vehicle, as that phrase is defined in the Vehicle Code of the state, utilizing natural gas; and

(5)

Charges related to late payments and returned checks.

§ 3.38.060 Communication services user tax.

The tax imposed in this section shall be collected from the service user by the person selling the gas. The person selling the gas shall, on or before the twentieth day of each calendar month, commencing on the twentieth day of the calendar month after the effective date of the ordinance codified in this section, make a return to the tax administrator stating the amount of taxes billed during the preceding calendar month. At the time such returns are filed, the person selling the gas shall remit tax payments to the tax administrator in accordance with schedules established or approved by the tax administrator.

(Ord. 1595 § 1, 1983; Ord. 1605 § 1, 1983)

There is a tax imposed upon every person in the city using communication services. The tax imposed by this section is at a rate of three percent of the communication service charges for residential service users and a rate of five and one-half percent of the communication service charges for commercial service users. There is a rebuttable presumption that communication services 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 taxable under this chapter. If the billing address of the service user is different from the service address, the service address of the service user is used for purposes of imposing the tax.

Mobile telecommunications service is sourced in accordance with the sourcing rules set forth in the Mobile Telecommunications Sourcing Act (4 U.S.C. Section 116), regulations promulgated thereto, and any successor statute or regulation. The tax administrator may issue and disseminate to communication service providers subject to the tax collection requirements of this chapter sourcing rules for the taxation of other communication services including, without limitation, post-paid communication services, prepaid communication services, and private communication services, provided that such rules are based upon industry custom and common practice that further administrative efficiency and minimize multi-jurisdictional taxation.

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 previously paid the same tax in another state or city on such communication services, is 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 cannot exceed the tax owed to the city under this section.

Except as otherwise provided by applicable federal or state law, 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 non-taxable charges.

(e)

For purposes of imposing a tax or establishing a duty to collect and remit a tax under this section, "substantial nexus" and "minimum contacts" are construed broadly in favor of the imposition, collection and remittance of the 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 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, is subject to a rebuttable presumption that "substantial nexus/minimum contacts" exist for purposes of imposing a tax, or establishing a duty to collect and remit a tax, under this chapter. A service supplier is deemed to have sufficient activity in the city for tax collection and remittance purposes if its activities include, without limitation, any of the following: a place of business of any nature; solicitation of business in the city by employees, independent contractors, resellers, agents, or other representatives; solicitation of business in the city on a continuous, regular, seasonal or systematic basis by means of advertising that is broadcast or relayed from a transmitter within the city or distributed from a location within 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. Upon request, the city must make available an accurate description of its jurisdictional boundaries based on street addresses or ZIP Plus Four, in electronic format. If a service supplier relies upon such information provided by the city, the city is not responsible for any errors in taxation that may result.

(Ord. 1595 § 1, 1983; Ord. 1605 § 2, 1983; Ord. 1779 § 3, 1989; Ord. 1890 § 1, 1995; Ord. 2095 § 2, 2013)

§ 3.38.070 Annual review.

Each year in conjunction with the city's annual budget hearings, the city council shall reconsider the provisions and rate of the utility users tax. Following the hearings, the city council may modify the provisions and rate of the tax, and may provide no tax on one or more utilities for the utility tax year. The tax imposed shall continue to be levied for each utility tax year under the provisions of this chapter unless modified by the city council.

(Ord. 1595 § 1, 1983)

§ 3.38.080 Actions to collect.

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. 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.

(Ord. 1595 § 1, 1983)

§ 3.38.090 Collection procedures.

The duty to collect and remit the taxes imposed by this chapter shall be performed as follows:

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

§ 3.38.130 Interest and penalties—Supplier.

The duty to collect tax from a service user shall commence with the beginning of the first regular full billing period applicable to that person which starts on or after the operative date of the ordinance codified in 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. 1595 § 1, 1983)

§ 3.38.100 Tax administrator.

The tax administrator shall have the power and duty, and is directed to enforce each and all of the provisions of this chapter. The tax administrator shall have the power to adopt rules and regulations not inconsistent with the provisions of this chapter for the purpose of carrying out and enforcing the payment, collection and remittance of the taxes herein imposed.

(Ord. 1595 § 1, 1983)

§ 3.38.110 Administrative agreements.

The tax administrator may make administrative agreements to vary the strict requirements of this chapter so that collection and remittance of any tax imposed herein may be made in conformance with the billing procedures of a particular service supplier as long as the overall result of said agreements results in collection of the tax in conformance with the general purpose and scope of this chapter.

(Ord. 1595 § 1, 1983)

§ 3.38.120 Delinquency.

Taxes collected from a service user which are not remitted to the tax administrator on or before the due date provided in this chapter are delinquent.

(Ord. 1595 § 1, 1983)

Interest and penalties for delinquency in remittance of any tax collected by a service supplier and not remitted shall be assessed as follows:

Any service supplier who fails to remit any tax collected under this chapter within ten days after receipt of written notice from the city of such failure shall pay a penalty of ten percent of the amount of the tax.

If the tax administrator determines that the nonpayment of any remittance due under this chapter is due to fraud, a penalty of twenty-five percent of the amount of the tax shall be added thereto in addition to the penalty stated in subsection (a) of this section.

In addition to the penalties imposed in this section, any service supplier who fails to remit any tax collected under this chapter shall pay interest at the rate of one percent per month on the amount of the tax, exclusive of penalties, from the date on which the remittance first became delinquent until paid.

§ 3.38.140 Interest and penalties—User.

Every penalty imposed upon a service supplier, and such interest as accrued, under the provisions of this section shall become a part of the tax required to be remitted.

(Ord. 1595 § 1, 1983; Ord. 1605 § 3, 1983)

Any service user who fails to pay any tax imposed by this chapter within ninety days of the date of notification of the amount of the tax due from the service supplier shall pay a penalty of ten percent of the amount of the tax, or one dollar, whichever is greater, and shall pay interest at the rate of one percent per month or fraction thereof on the amount of tax, exclusive of penalties, from the date on which the payment is ninety days delinquent.

Whenever the tax administrator determines that a service user has deliberately withheld the amount of any tax imposed by the provisions of this chapter from the amounts remitted to a service supplier required to collect the tax, or that a service user has failed to pay the amount of the tax to such service supplier for a period of three or more billing periods, or whenever the tax administrator deems it in the best interest of the city, he or she shall relieve such service supplier of the obligation to collect taxes due under this chapter from certain named service users for specified billing periods. The tax administrator shall notify the service user that he or she has assumed responsibility to collect the taxes and penalty due for the stated period and demand payment of such taxes. The notice shall be served on the service user by handing it to him or her personally or by deposit of the notice in the United States mail, postage prepaid thereon, addressed to the service user at the address to which billing was made by the service supplier required to collect the tax; or, should the service user have changed his or her address, to his or her last known address. If a service user fails to remit the tax and penalty to the tax administrator within fifteen days from the date of the service of the notice upon him or her, which shall be the date of mailing if service is not accomplished in person, an additional penalty of twenty-five percent of the amount of the tax and penalty set forth in the notice shall be imposed, but not less than ten dollars.

Every penalty imposed upon a service user, and such interest as accrues, under the provisions of subsections (a) and (b) of this section shall become a part of the tax required to be paid.

(Ord. 1595 § 1, 1983)

§ 3.38.150 Records.

It shall be the duty of every service supplier required to collect and remit to the city the 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 such service supplier may have been required to collect and remit to the city, which records the tax administrator shall have the right to inspect at all reasonable times.

(Ord. 1595 § 1, 1983)

§ 3.38.160 Refunds.

Whenever the amount of any tax, interest, or penalty has been overpaid or paid more than once or has been erroneously collected or received by the city under this chapter, it may be refunded as provided in this section, provided a claim in writing therefor, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the tax administrator within one year of the date of payment. The claim must be on forms furnished by the tax administrator. No refund is paid unless the claimant establishes his or her right thereto by written records showing entitlement thereto. Nothing herein permits the filing of a claim on behalf of a class or group of taxpayers. Where the amount of any individual refund claim is in excess of twenty-five thousand dollars, city council approval is required in addition to approval by the tax administrator.

Notwithstanding the provisions of subsection (a) of this section, a service supplier may claim a refund or take as credit against taxes collected and remitted the amount overpaid, paid more than once, or erroneously collected or received when it is established that the service user from whom the tax has been collected did not owe the tax; provided, however, that neither a refund nor a credit is allowed unless the amount of the tax so collected has either been refunded to the service user or credited to charges subsequently payable by the service user or the person required to collect and remit. A service supplier that has collected any amount of tax in excess of the amount of tax imposed by this chapter and actually due from a service user may refund such amount to the service user and claim credit for such overpayment against the amount of tax which is due upon any other monthly returns, provided such credit is claimed in a return dated no later than one year from the date of overpayment.

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 must also be refunded to service users by the service supplier, and the service supplier is entitled to claim a credit for such refunded tax against the amount of tax which is due upon the next monthly return. If this chapter is repealed, amounts of any refundable taxes will be borne by the city.

The tax administrator, or the city council (where the claim is in excess of twenty-five thousand dollars), must act upon the refund claim within forty-five days of the initial receipt of the refund claim. Said decision is the city's final decision. If the tax administrator or city council fails or refuses to act on a refund claim within the forty-five-day period, the claim is deemed to have been rejected. The tax administrator will give notice of its decision 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 lawsuit. Any action brought against the city pursuant to this chapter is subject to the provisions of Government Code Sections 945.6 and 946.

(Ord. 1595 § 1, 1983; Ord. 1605 §§ 4 and 5, 1983; Ord. 2095 § 3, 2013)

§ 3.38.170 Exemptions.

The taxes imposed by this chapter do not apply to the city or any person or service when imposition of the tax upon that person or service would violate a federal or state statute, the Constitution of the United States, or the Constitution of the state of California.

(Ord. 1595 § 1, 1983; Ord. 1620 § 1, 1984; Ord. 1840 § 1, 1992; Ord. 2095 § 4, 2013)

§ 3.38.180 Exemption application.

Any service user that is exempt from the taxes imposed by this chapter must file an application with the tax administrator for an exemption. Any application for an exemption must be upon forms supplied by the tax administrator. Statements made therein must be under oath and subject to the penalties of perjury and state those facts which qualify the applicant for an exemption, and include the names of all utility service providers serving that service user. If deemed exempt by the tax administrator, such service user must give the tax administrator timely written notice of any change in utility service providers so that the tax administrator can properly notify the new utility service provider of the service user's tax exempt status.

Persons must file applications for exemptions at least sixty days before the commencement date of the respective billing period for which the exemption is to commence.