This chapter shall be known as the "Utility User Tax Ordinance."
(Prior code § 6500)
There is established and imposed, as of March 28, 1991, a utility user tax in the manner and at the rates set forth in this chapter.
(Prior code § 6501)
This chapter is enacted solely to raise revenue for the general governmental purposes of the city. All of the proceeds from the tax imposed by this chapter shall be placed in the city's general fund and used for the usual current expenses of the city. The provisions of this chapter shall be construed as a restatement and continuation of Los Angeles County Ordinance No. 91-0015.
(Prior code § 6502)
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 telecommunication services, including, but not limited to, the following services:
"Conference bridging service"
means an ancillary service that links two or more participants of an audio or video conference call and may include the provision of a telephone number. Conference bridging service does not include the telecommunication services used to reach the conference bridge.
"Detailed telecommunication billing service"
means an ancillary service of separately 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 telecommunication services, which offers advanced calling features that allow customers to identify callers and to manage multiple calls and call connections, including conference bridging services.
"Voice mail service"
means an ancillary service that enables the customer to store, send or receive recorded messages. Voice mail service does not include any vertical services that the customer may be required to have in order to utilize the voice mail service.
means the mailing address of the service user where the service supplier submits invoices or bills for payment by the customer.
means the city of Malibu.
means: "telecommunication services" and "ancillary telecommunication services."
"gas corporation" and "water corporation" have the same meaning, except as hereinafter provided, as defined in Sections 218, 222, 241, respectively, of the Public Utilities Code of the state of California, or any successor statute. "Water corporation" shall be construed to include any organization or municipality, including, but not limited to, a mutual water company, engaged in the selling or supplying of water to a service user.
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 or any successor statutes or regulations.
means a calendar month.
means, without limitation, any natural individual, firm, trust, common law trust, estate, partnership of any kind, association, syndicate, club, joint stock company, joint venture, limited liability company, corporation (including foreign, domestic, and nonprofit), municipal district or municipal corporation (other than the city) cooperative, receiver, trustee, guardian, or other representative appointed by order of any court.
means the street address representative of where the service user's use of a communication service primarily occurs, which must be the residential street address or the primary business street address of the customer.
means a 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 subsection 1 of this definition is unknown (e.g., mobile telecommunications service or VoIP service), the service address means the location of the service user's place of primary use;
For prepaid telecommunication service, "service address" means the location associated with the service number.
means any entity or person, including the city, providing communication, electric, gas or water service to a user of such services within the city.
means a person required to pay a tax imposed under the provisions of this chapter.
means the city manager or his or her designee.
means:
The transmission, conveyance, or routing of voice, data, audio, or any other information or signals to a point, or between or among points, whatever the technology used, and includes broadband services (e.g., T-1, digital subscriber line (eDSL), fiber optic, coaxial cable, and wireless broadband, including Wi-Fi, Wi-MAX, and Wireless MESH) to the extent federal and/or state law permits taxation of such broadband services, now or in the future. The term "telecommunication services" includes such transmission, conveyance, or routing in which computer processing applications are used to act on the form, code or protocol of the content for purposes of transmission, conveyance or routing without regard to whether such services are referred to as voice over internet protocol (VoIP) services or are classified by the Federal Communications Commission as enhanced or value added, and includes video and/or data services that are functionally integrated with telecommunication services.
Telecommunication services include, without limitation, the following services, regardless of the manner or basis on which such services are calculated or billed: ancillary telecommunication services; broadband service (to the extent federal and/or state law permits taxation of such service); mobile telecommunication service; prepaid telecommunication service (to the extent that it is practicable for the service supplier to collect the correct tax imposed under this chapter from the service supplier); post-paid telecommunication service; private telecommunication service; paging service; 800 service (or any other toll-free numbers designated by the Federal Communications Commission); and 900 service (or any other similar numbers designated by the Federal Communications Commission for services whereby subscribers who call in to prerecorded or live service).
Telecommunication services shall also include, without limitation, charges for: connection, reconnection, termination, movement, or change of telecommunication services; late payment fees; detailed billing; central office and custom calling features (including, without limitation, 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. Telecommunication services shall not include digital downloads that are not ancillary telecommunication services, such as video programming, music, ringtones, games, and similar digital products.
(Prior code § 6503; Ord. 198 § 1, 1999; Ord. 319 § 1, 2008)
Nothing in this chapter shall be construed as imposing a tax upon any person when imposition of such tax upon that person would be in violation of the Constitution of the United States, or the Constitution of the state of California or any California statute.
(Prior code § 6504)
B.
To qualify for the exemption set forth in this section, the person shall file an application in the form, time and manner prescribed by the tax administrator.
C.
The tax administrator shall, within 60 days of receipt of an application for exemption, determine whether the exemption is granted, and if so, notify the service supplier.
D.
The exemption granted to a person pursuant to this section shall become effective on the beginning of the first regular billing period which commences after the tax administrator has notified the service supplier that an exemption has been granted.
(Prior code § 6505)
A.
There is imposed a tax upon every person in the city using communication services. The maximum tax imposed by this section shall be at the rate of four and one-half 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. 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) or any successor statute or regulation. The tax administrator may issue and disseminate to communication service suppliers, which are subject to the tax collection requirements of this chapter, sourcing rules for the taxation of other communication services, including, but not limited to, post-paid communication services, prepaid communication services, and private communication services, provided that such rules are based upon industry custom and common practice that further administrative efficiency and minimize multijurisdictional taxation.
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.
To prevent actual multijurisdictional taxation of communication services subject to tax under this section, any service user, upon proof to the tax administrator that the service user has previously paid the same tax in another state or city on such communication services, shall be allowed a credit against the tax imposed to the extent of the amount of such tax legally imposed in such other state or city; provided, however, the amount of credit shall not exceed the tax owed to the city under this section.
E.
The tax on communication services imposed by this section shall be collected from the service user by the service supplier or person receiving payment for the services. The amount of the tax collected in one month shall be remitted to the tax administrator, and must be received by the tax administrator, on or before the last day of the following month.
F.
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 nontaxable charges.
G.
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 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. The city shall make available, upon request, an accurate description of its jurisdictional boundaries based on street addresses and/or ZIP Plus Four, in an electronic format. If a service supplier relies upon such information provided by the city, it shall not be responsible for any errors in taxation that may result.
H.
Satisfaction of Tax Obligation by Service Users. Any person who pays the tax levied pursuant to this section 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 former Section 3.28.070 as codified immediately prior to adoption of the ordinance codified in this section with respect to that charge. Likewise, prior to October 1, 2008, any person who pays the tax levied pursuant to former Section 3.28.070 as codified immediately prior to adoption of the ordinance codified in this section shall be deemed to have satisfied his or her obligation to pay the tax levied pursuant to this section with respect to that charge. The intent of this subsection is to prevent the imposition of multiple taxes upon a single utility charge during the transition period from the prior telephone tax to the new communication services tax (which transition period ends October 1, 2008) and to permit communication service providers, during that transition period to satisfy their collection obligations by collecting either tax.
(Prior code § 6506; Ord. 319 § 2, 2008)
A.
There is imposed a tax on every person other than a telephone corporation, or gas corporation, using electrical energy in the city. The tax imposed by this section shall be at the rate of five percent of the charges made for such energy and shall be paid by the person paying for such energy. The tax applicable to electrical energy provided by a nonutility supplier shall be determined by applying the tax rate to the equivalent charge the service user would have incurred if the energy used had been provided by the electrical corporation franchised by the city. Rate schedules for this purpose shall be available from the city. Nonutility suppliers shall install, maintain and use an appropriate utility-type metering system which will enable compliance with this section. "Charges," as used in this section, shall include charges made for metered energy and charges for service, including customer charges, service charges, standby charges, charges for temporary services, demand charges, annual and monthly charges, and any other charge whether authorized by the California Public Utilities Commission or the Federal Energy Regulatory Commission or otherwise.
B.
As used in this section, the term "using electrical energy" shall not be construed to mean the storage of such energy by a person in a battery owned or possessed by him or her for use in an automobile or other machinery or device apart from the premises upon which the energy was received; provided, however, that the term shall include the receiving of such energy for the purpose of using it in the charging of batteries; nor shall the term include the mere receiving of such energy by an electric public utility or governmental agency at a point within the city for resale; nor shall the term include the use of such energy in the production or distribution of water by a public utility or a governmental agency; nor shall the term include the use of electrical energy used in the conduct of business by a telephone corporation, electrical corporation, or gas corporation.
C.
The tax imposed in this section shall be collected from the service user by the person supplying such energy, or by the person receiving payment for such 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, unless the due date occurs on a weekend or a holiday, in which case the due date is the first business day following. Taxes shall be deemed remitted on the date received by the tax administrator, or on the date postmarked, if remitted by first class United States mail with postage fully prepaid. With prior written approval of the tax administrator, remittance of tax may be predicated on a formula based upon the payment pattern of the service users.
(Prior code § 6507; Ord. 198 §§ 2, 3, 1999)
A.
There is imposed a tax on every person other than a telephone corporation, electrical corporation, or gas corporation, using, in the city, gas which is delivered through mains or pipes. The tax imposed by this section shall be at the rate of five percent of the charges made for such gas and shall be paid by the person paying for such gas. "Charges," as used in this section, shall include charges made for metered gas and charges for service, including customer charges, service charges, and annual and monthly charges and any other charge whether authorized by the California Public Utilities Commission or the Federal Energy Regulatory Commission or otherwise.
B.
There 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 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 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; and (4) charges made for gas used by a non-utility supplier to generate electrical energy for its own use, or for sale to others, provided the electricity so generated is subject to the tax in accordance with Section 6507.
C.
The tax imposed in this section shall be collected from the service user by the person supplying the gas or collecting payment for the gas. 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, unless the due date occurs on a weekend or a holiday, in which case the due date is the first business day following. Taxes shall be deemed remitted on the date received by the tax administrator, or on the date postmarked, if remitted by first class United States mail with postage fully prepaid. With prior written approval of the tax administrator, remittance of tax may be predicted on a formula based upon the payment pattern of the service users.
(Prior code § 6508; Ord. 198 §§ 4, 5, 1999)
A.
Taxes collected from a service user which are not remitted to the tax administrator on or before the due dates provided in this chapter are delinquent and are subject to penalties and interest.
B.
Any person who fails to remit taxes collected in the time required by this chapter shall pay a penalty of five percent of the amount of the tax, and if not remitted within two working days after the date of delinquency, shall pay a total penalty of 20% of the amount of tax owed. Such penalty shall attach to the amount of tax due and shall be paid by the person required to collect and remit the tax.
C.
When fraud or gross negligence in reporting and remitting tax collections is discovered, the tax administrator shall have power to impose additional penalties of 20% of taxes owed upon persons required to collect and remit taxes under the provisions of this chapter.
D.
Any person required to remit to the tax administrator delinquent taxes as required in this section, shall pay interest at the rate of one and one-half percent per month, or portion thereof, on the amount of tax owed exclusive of penalties, from the date on which the tax first became delinquent until paid.
E.
Notwithstanding the provisions of subsections B and D of this section, no penalty or interest shall be applied if delinquencies are the result of natural disasters or other phenomena beyond the control of the person charged with collecting and remitting the tax, provided the person being delinquent notifies the tax administrator as soon as normal communications permit.
(Prior code § 6509)
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 the tax. 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.
(Prior code § 6510)
The duty to collect and remit the taxes imposed by 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 charges made in accordance with the regular billing practices of the service supplier. Except in those cases where a service user pays the full amount of the 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 or she is refusing to pay a tax imposed by this chapter which 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, such amount and any subsequent payments by a service user shall be applied to the utility charge first. Any remaining balance shall be applied to taxes due.
B.
The duty to collect tax from a service user shall commence with the beginning of the first full regular billing period applicable to the service user where charges 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.
(Prior code § 6511)
A.
The tax administrator shall have the power and duty, and is directed, to enforce each and all of the provisions of this chapter.
B.
The tax administrator shall have the power to adopt rules and regulations not inconsistent with provisions of this chapter for the purpose of carrying out and enforcing the payment, collection and remittance of the taxes herein imposed. A copy of such rules and regulations shall be on file in the tax administrator's office.
C.
The tax administrator may make administrative agreements to vary the strict requirements of this chapter so that collection of any tax imposed here may be made in conformance with the billing procedures of a particular service supplier so long as the agreements result in collection of the tax in conformance with the general purpose and scope of this chapter. A copy of each such agreement shall be on file in the tax administrator's office.
D.
The tax administrator shall determine the eligibility of any person who asserts a right to exemption from the tax imposed by this chapter. The tax administrator shall provide the service supplier with the name of any person who the tax administrator determines is exempt from the tax imposed hereby, together with the address and account number to which service is supplied to any such exempt person. The tax administrator shall notify the service supplier of the termination of any person's right to exemption hereunder, or the change of any address to which service is supplied to any exempt person.
(Prior code § 6512)
A.
The tax administrator may assess the service user for taxes not paid to the service supplier.
B.
Whenever the tax administrator determines that a service user has deliberately withheld the amount of the tax owed by such users from the amounts remitted to a person required to collect the tax, or that a service user has refused to pay the amount of tax to such person, 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 taxes due under this chapter from certain named service users for specified billing periods.
C.
The service supplier shall provide the city with amounts refused, along with the names, addresses and reasons of the service users refusing to pay the tax imposed under provisions of this chapter. Whenever the service user has failed to pay the amount of tax for a period of two or more billing periods, the tax administrator may relieve the service supplier of the obligation to collect taxes due.
D.
The tax administrator shall notify the service user that he or she has assumed responsibility to collect the taxes due for the stated periods 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 person 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 to the tax administrator within 15 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, a penalty of 25% of the amount of the tax set forth in the notice shall be imposed, but not less than $5. The penalty shall become part of the tax herein required to be paid.
(Prior code § 6513)
It shall be the duty of every person required to collect and remit to the city any tax imposed by this chapter to keep and preserve, for a period of three years, all records as may be necessary to determine the amount of such tax as he or she may have been liable for the collection of and remittance to the tax administrator, which records the tax administrator shall have the right to inspect at all reasonable times.
(Prior code § 6514)
A.
Whenever the amount of any tax has been overpaid or paid more than once or has been erroneously or illegally collected or received by the city, it may be refunded as provided in this section, provided a claim in writing therefor is timely filed in accordance with the requirements of Section 3.08.010.
B.
No refund shall be paid under the provisions of this section unless the claimant establishes his or her right thereto by written records showing entitlement thereto.
C.
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 or for any other reason makes a refund to service users of charges for past 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 may, with prior written approval of the tax administrator, take 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.
(Prior code § 6515; Ord. 162 § 5, 1997; Ord. 198 § 6, 1999; Ord. 314 §§ 2, 3, 2007)
A.
Each service supplier shall immediately implement collection procedures in accordance with the effective dates contained in this chapter.
B.
Notwithstanding the provisions of subsection A of this section, the tax administrator may grant a service supplier not presently franchised by the city an extension in the time to implement tax collection procedures to a date not later than July 1, 1991, provided within 10 days of the effective date of this chapter the service supplier certifies in writing to the tax administrator that operational limitations prevent the service supplier from implementing tax collection procedures in accordance with the effective dates contained in this chapter.
C.
Notwithstanding anything in this chapter to the contrary, if a service supplier has been granted an extension in the time to implement tax collection procedures, taxes accrued for the period of time prior to implementation shall be due and collected in the first regular billing following the incorporation of tax collection procedures, or in accordance with a collection schedule authorized by the tax administrator pursuant to subsection E of this section.
D.
The tax administrator may enter into an agreement with any service supplier not presently franchised by the city to provide for reimbursement, within the limits set forth herein, of the service supplier's actual costs incurred in implementing procedures to collect the tax accrued from the time the tax became effective to the time the service supplier implements tax collection procedures in accordance with the requirements of this section. Any agreement entered into pursuant to this subsection shall permit the service supplier to be reimbursed by retaining up to 10% of such accrued taxes collected, but not to exceed (i) $200,000 if all or a part of the previously accrued tax is included in all customer billings issued not later than April 30, 1991; (ii) $150,000 if all or a part of the previously accrued tax is included in all customer billings issued after April 30, 1991 but on or before May 31, 1991; or (iii) $100,000 if all or a part of the previously accrued tax is included in all customer billings issued after May 31, 1991, but on or before June 30, 1991.
E.
In any agreement entered into pursuant to subsection D of this section, the tax administrator may authorize the service supplier to collect previously accrued taxes over a period of two or more months; provided; that all such taxes are collected and remitted to the tax administrator no later than November 30, 1991.
(Prior code § 6516)
The service supplier shall, upon notification, terminate or suspend any utility user tax commencing with the first full billing period which occurs after the effective day of such action by the city council.
(Prior code §6517)