Except where the context otherwise requires, the definitions
given in this section govern the construction of this chapter:
"Billing address"
shall mean the mailing address of the service user where
the service supplier submits invoices or bills for payment by the
customer.
"City"
shall mean the city of Pico Rivera.
"City manager"
means the city manager of the city, or his or her authorized
representative.
"Cogenerator"
shall mean any corporation or person employing cogeneration
(as defined in Section 218.5 of the California
Public Utilities Code)
for producing power for the generation of electricity for self-use
or sale to others from a qualified cogeneration facility (as defined
in the Federal Public Utility Regulatory Policies Act of 1978 and
regulations thereunder).
"Electrical corporation,"
"gas corporation," "water corporation," "telephone corporation"
and "video provider" shall have the same meanings as defined in California
Public Utilities Code Sections 218, 222, 241, and 234 respectively,
and
Business and Professions Code Section 22770(b), except "electrical
corporation," "gas corporation" and "water corporation" shall also
be construed to include any municipality, public agency, broker/marketer
or person engaged in the selling or supplying of electrical power
or gas or water to a service user.
"Exempt wholesale generator"
shall have the same meaning as set forth in the Federal Power
Act (15 U.S.C.S. 79z-5a) and regulations thereunder.
"Gas"
shall mean 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.
"Month"
shall mean a calendar month.
"Nonutility supplier"
shall mean:
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,
municipal utility district, federal power marketing authority, exempt
wholesale generator, 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 to users within the
city.
"Person"
shall mean, without limitation, any natural individual, firm,
trust, common law trust, estate, partnership of any kind, association,
syndicate, club, joint stock company, joint venture, limited liability
company, corporation (including foreign, domestic, and nonprofit),
receiver, trustee, guardian, or other representative appointed by
order of any court.
"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.
"Service address"
means the residential street address or the business street
address of the service user. For a telephone communication service
user, "service address" means either:
1.
The location of the telecommunications equipment to which a
service user's call is charged and from which the call originates
or terminates, regardless of where the call is billed or paid; or
2.
If the location in subsection 1 of this definition is unknown
(e.g., mobile telecommunications or VoIP service), the service address
means the location of the service user's place of primary use.
"Service supplier"
shall mean any entity or person, including the city, that provides telephone communication, electric, or gas service to a user of such services within the city, and includes an entity or person required to collect, or self-collect under Section
3.52.030 of this chapter, and remit a tax as imposed by this chapter, including its billing agent in the case of electric, gas, and video services.
"Service user"
shall mean a person required to pay a tax imposed under the
provisions of this chapter.
"State"
shall mean the state of California.
"Telephone communication services"
shall include any service that is capable of transmitting
telephonic quality communications with the general telephone public
[including the use of internet protocol (IP) or other protocol], whether
provided 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)] or over digital networks by which communications with
the general telephone public is available (e.g., voice using internet
protocol or VoIP), and whether such transmission occurs by wire, typewriter,
cable, cable modem or digital subscriber line (DSL), internet, fiber-optic,
WiFi, light wave, laser, microwave, switching facilities, satellite,
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.A. 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 any other similar facilities
and whether charges for such services are based on time, distance,
or on any other basis. "Telecommunication services" shall also include,
but is not limited to, "communication services" as defined in Sections
4251 and 4252 of the Internal Revenue Code, and the regulations thereunder.
"Video service supplier"
shall mean 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: a multichannel
video programming distributor [as defined in 47 U.S.C.A. Section 522(13)];
a supplier of: open video systems (OVS), 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), or 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"
shall mean 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, or the technology used to deliver such services, and shall include the leasing of channel access. "Video services" shall not include services for which a tax is paid under Section
3.52.020.
(Ord. 1016 § 1, 2005)
A. There
is hereby imposed a tax upon every person, other than an electric
corporation, using electricity in the city. The tax imposed by this
section shall be at a rate of four and one-half percent of the charges
made for such electricity, and for any supplemental services or other
associated activities directly related and/or necessary for the provision
of electricity to the end-user, which are provided by a service supplier
or nonutility supplier to a service user. The tax shall be collected
from the service user by the service supplier or nonutility 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
and transmission charges;
4. Standby, reserves, firming, ramping, voltage support, regulation, emergency, or other similar minimum charges for supplemental services to an electric service user that produces electricity for self-use and is subject to Section
3.52.050 of this chapter;
5. Customer
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 fee, franchise surcharge, 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 item 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. 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 include electricity
used and consumed by an electric service supplier in the conduct of
its business as an electric public utility; nor shall the term include
the mere receiving of such energy by an electric public utility at
a point within the city for resale.
F. The tax on electricity provided by self-production or by a nonutility supplier or an electric utility not under the jurisdiction of this chapter shall be collected and remitted in the manner set forth in Section
3.52.050. 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 the tax collected in one month shall be remitted to the tax administrator on or before the twentieth day of the following month or, at the option of the person required to collect or remit the tax, such person shall remit an estimated amount of the 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 tax administrator on or before the twentieth day of the following month, provided that the service user shall submit an adjusted payment or request for credit, as appropriate, within sixty days following each calendar quarter. The credit, if approved by the tax administrator, may be applied against any subsequent tax bill that becomes due.
(Ord. 1016 § 1, 2005; Ord. 1060 § 1, 2010)
A. There
is hereby imposed a tax upon every person, other than a gas corporation,
using gas in the city, which is transported through a pipeline distribution
system. The tax imposed by this section shall be at the rate of four
and one-half percent of the charges made for such gas, including all
services related to the storage, transportation, and delivery of such
gas.
B. As used
in this section, the term "charges" shall apply to all services, components
and items for gas service that are: (1) necessary or common to the
receipt, use and enjoyment of gas service; or (2) currently, or historically
have been, included in a single or bundled rate for gas 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:
1. The
commodity charges for purchased gas, or the cost of gas owned by the
service user (including the actual costs attributed to drilling, production,
lifting, storage, gathering, trunkline, pipeline, and other operating
costs associated with the production and delivery of such gas), which
is delivered through a gas pipeline distribution system;
2. Gas
transportation charges (including interstate charges to the extent
not included in commodity charges);
3. Storage
charges; provided, however, that the service supplier shall not be
required to apply the tax to any charges for gas storage services
when the service supplier cannot, as a practical matter, determine
the jurisdiction where such stored gas is ultimately used; but it
shall be the obligation of the service user to self-collect the amount
of tax not applied to any charge for gas storage by the service supplier
and to remit the tax to the appropriate jurisdiction;
4. Capacity
or demand charges, service establishment or reestablishment charges,
transition charges, customer charges, administrative charges, marketing
fees, broker's fees, minimum charges, annual and monthly charges,
and any other charges which are necessary or common to the receipt,
use and enjoyment of gas service; and
5. Charges,
fees, or surcharges for gas 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 item 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 gas
or services related to the delivery of such gas.
D. The tax administrator, from time to time, may survey the gas service suppliers to identify the various unbundled billing components of gas 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 gas service. The tax administrator, thereafter, may issue and disseminate to such gas service suppliers an administrative ruling identifying those components and items which are: (1) necessary or common to the receipt, use or enjoyment of gas service; or (2) currently, or historically have been, included in a single or bundled rate for gas service by a local distribution company to a class of retail customers. Charges for such components and items shall be subject to the tax of subsection
A of this section.
E. The
following shall be excluded from the base on which the tax imposed
in this section is computed:
1. Charges
made for gas which is to be resold and delivered through a pipeline
distribution system;
2. Charges
made for gas used in the propulsion of a motor vehicle, as that phrase
is defined in the
Vehicle Code of the state of California, utilizing
natural gas.
F. The tax on gas provided by self-production or by a nonutility supplier not under the jurisdiction of this chapter shall be collected and remitted in the manner set forth in Section
3.52.050 of this chapter. All other taxes on charges for gas imposed by this section shall be collected from the service user by the gas service supplier or its billing agent. The amount of tax collected in one month shall be remitted to the tax administrator, and must be received by the tax administrator on or before the twentieth day of the following month; or, at the option of the person required to collect 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 tax administrator on or before the twentieth day of the following month, provided that the service user shall submit an adjusted payment or request for credit, as appropriate, within sixty days following each calendar quarter. The credit, if approved by the tax administrator, may be applied against any subsequent tax bill that becomes due.
(Ord. 1016 § 1, 2005; Ord. 1060 § 2, 2010)
Except as otherwise provided by federal or state law, if one
or more nontaxable items are bundled or billed together with one or
more taxable items (as provided for by this chapter) under a single
charge on a customer's bill, the entire single charge shall be deemed
taxable.
(Ord. 1016 § 1, 2005)
For purposes of imposing a tax or establishing a duty to collect
and remit a tax under this section, "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.
(Ord. 1016 § 1, 2005)
The duty of service suppliers to collect and remit the taxes
imposed by the provisions of this chapter shall be performed as follows:
A. The tax shall be collected insofar as practicable at the same time as, and along with, the collection of the charges made in accordance with the regular billing practice of the service supplier. Where the amount paid by a service user to a service supplier is less than the full amount of the charge and tax which was accrued for the billing period, a proportionate share of both the charge and the tax shall be deemed to have been paid. The tax administrator shall have the power to make an assessment for delinquent taxes as provided for in Section
3.52.150 of this chapter thereby relieving the service supplier from the obligation to collect these delinquent taxes.
B. The
duty of a service supplier to collect the tax from a service user
shall commence with the beginning of the first regular billing period
applicable to the service user where all charges normally included
in such regular billing are subject to the provisions of this chapter.
Where a person receives more than one billing, one or more being for
different periods than another, the duty to collect shall arise separately
for each billing period.
(Ord. 1016 § 1, 2005)
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/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
exempt from disclosure provisions of the Public Records Act.
(Ord. 1016 § 1, 2005)
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 in 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 attorney's fees.
In the event that a service user or service supplier owing a
tax under this chapter files bankruptcy, then such debt to the city
shall be deemed an unsecured priority excise tax obligation under
11 U.S.C.A. Section 507(a)(8)(C).
(Ord. 1016 § 1, 2005)
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, it may be refunded as
provided in this section:
A. 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, 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.
B. The submission of a written claim, which is acted upon by the city council, shall be a prerequisite to a suit thereon. (See Section 935 of the California
Government Code.) The city council shall act upon the refund claim within the time period set forth in
Government Code Section 912.4. If the 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. It is the intent of the city council that the one year written claim requirement of this subsection b
e given retroactive effect; provided, however, that any claims which arose prior to the commencement of the one-year claim period of this subsection, and which are not otherwise barred by a then applicable statute of limitations or claims procedure, must be filed with the tax administrator as provided in this subsection within ninety days following the effective date of the ordinance codified in this chapter.
C. Notwithstanding the notice provisions of subsection
A of this section, 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 (whether due to overpayment or to erroneous or illegal collection of said tax), may refund such amount to the service user, or credit to charges subsequently payable by the service user to the service supplier, and claim credit for such overpayment against the amount of tax which is due upon any other monthly returns to the tax administrator, provided such credit is claimed in a return dated no later than one year from the date of overpayment or erroneous or illegal collection of said tax. The tax administrator shall determine the validity of the service user's claim of credit, and the underlying basis for such claim.
D. Notwithstanding the notice provisions of subsection
A of this section, in the event that a service supplier, or a service user subject to Section
3.52.050 of this chapter, remits a tax to city in excess of the amount of tax imposed by this chapter, said service supplier, or service user subject to Section
3.52.050 of this chapter, may claim credit for such overpayment against the amount of tax which is due upon any other monthly returns to the tax administrator, provided such credit is claimed in a return dated no later than one year from the date of overpayment of said tax. The tax administrator shall determine the validity of the service user's claim of credit, and the underlying basis for such claim.
E. Notwithstanding
other provisions of this section, whenever a service supplier, pursuant
to an order of the California Public Utilities Commission, makes a
refund to service users of charges for past utility services, the
taxes paid pursuant to this chapter on the amount of such refunded
charges shall also be refunded to service users, and the service supplier
shall be entitled to claim a credit for such refunded taxes against
the amount of tax which is due upon the next monthly returns. In the
event this chapter is repealed, the amounts of any refundable taxes
will be borne by the city.
(Ord. 1016 § 1, 2005)
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.
(Ord. 1016 § 1, 2005)
All remedies and penalties prescribed by this chapter or which
are available under any other provision of law or equity, including,
but not limited to, the California False Claims Act (
Government Code
Section 12650 et seq.) and the California Unfair Practices Act (Business
and Professions Code Section 17070 et seq.), are cumulative. The use
of one or more remedies by the city shall not bar the use of any other
remedy for the purpose of enforcing the provisions of this chapter.
(Ord. 1016 § 1, 2005)
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.
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 his or her agent,
shall send, by first class mail, a copy of the ordinance change to
all administrators and remitters of the city's utility users taxes
according to the latest payment records of the tax administrator.
(Ord. 1016 § 1, 2005)
If any section, subsection, subdivision, paragraph, sentence,
clause or phrase of this chapter or any part thereof is for any reason
held to be invalid, unlawful or unconstitutional, such decision, and
the decision not to enforce such, shall not affect the validity of
the remaining portion of this chapter or any part thereof. The city
council hereby declares that it would have passed each section, subsection,
subdivision, paragraph, sentence, clause or phrase thereof, irrespective
of the fact that any one or more sections, subsections, subdivisions,
paragraphs, sentences, clauses or phrases be declared invalid, unlawful
or unconstitutional.
(Ord. 1016 § 1, 2005)
Any person violating any of the provisions of this chapter shall
be deemed guilty of a misdemeanor, or an infraction at the discretion
of the city attorney.
(Ord. 1016 § 1, 2005)
Unless specifically provided otherwise, any reference to a state
or federal statute or regulation in this chapter shall mean such statute
as it may be amended or recodified from time to time.
(Ord. 1016 § 1, 2005)
The city council shall review the tax imposed by this chapter
on each anniversary date of the ordinance codified in this chapter,
or at such earlier time as the council may desire, to determine if
the revenues produced by this chapter are necessary for the current
and necessary operations of the city.
(Ord. 1016 § 1, 2005)