Atwater Municipal Code Ch. 3.45 2022 Atwater Public Safety Transactions and Use Tax

Footnotes:

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Editor's note— Ord. CS 1050, § 1(Att. 1), adopted Nov. 8, 2022, amended Ch. 3.45 in its entirety to read as herein set out. Former Ch. 3.45, §§ 3.45.010—3.45.180, pertained to similar subject matter, and derived from Ord. CS 937, § 1, adopted Dec. 10, 2012; Ord. CS 949, § 1, adopted March 10, 2014.

This chapter shall be known as the 2022 Atwater Police, Fire and 911 Emergency Response Transactions and Use Tax Ordinance. The City of Atwater hereinafter shall be called "City." This chapter shall be applicable in the incorporated territory of the City.

(Ord. CS 1050, § 1(Att. 1), 11-8-2022)

This chapter is adopted to achieve the following, among other purposes, and directs that the provisions hereof be interpreted in order to accomplish those purposes:

A. To impose a retail transactions and use tax in accordance with the provisions of Part 1.6 (commencing with Section 7251) of Division 2 of the Revenue and Taxation Code and Section 7285.9 of Part 1.7 of Division 2 which authorizes the City to adopt this tax ordinance which shall be operative if a majority of the electors voting on the measure vote to approve the imposition of the tax at an election called for that purpose.

B. To adopt a retail transactions and use tax ordinance that incorporates provisions identical to those of the Sales and Use Tax Law of the State of California insofar as those provisions are not inconsistent with the requirements and limitations contained in Part 1.6 of Division 2 of the Revenue and Taxation Code.

C. To adopt a retail transactions and use tax ordinance that imposes a tax and provides a measure therefore that can be administered and collected by the California Department of Tax and Fee Administration in a manner that adapts itself as fully as practicable to, and requires the least possible deviation from, the existing statutory and administrative procedures followed by the California Department of Tax and Fee Administration in administering and collecting the California State Sales and Use Taxes.

D. To adopt a retail transactions and use tax ordinance that can be administered in a manner that will be, to the greatest degree possible, consistent with the provisions of Part 1.6 of Division 2 of the Revenue and Taxation Code, minimize the cost of collecting the transactions and use taxes, and at the same time, minimize the burden of record-keeping upon persons subject to taxation under the provisions of this chapter.

(Ord. CS 1050, § 1(Att. 1), 11-8-2022)

Prior to the operative date, the City shall contract with the California Department of Tax and Fee Administration to perform all functions incident to the administration and operation of this transactions and use tax ordinance; provided, that if the City shall not have contracted with the California Department of Tax and Fee Administration prior to the operative date, it shall nevertheless so contract and in such a case the operative date shall be the first day of the first calendar quarter following the execution of such a contract.

(Ord. CS 1050, § 1(Att. 1), 11-8-2022)

For the privilege of selling tangible personal property at retail, a tax is hereby imposed upon all retailers in the incorporated territory of the City at the rate of one percent of the gross receipts of any retailer from the sale of all tangible personal property sold at retail in said territory on and after the operative date of this chapter. Such tax shall be in addition to any other transactions taxes imposed by this Code or applicable State law.

(Ord. CS 1050, § 1(Att. 1), 11-8-2022)

For the purposes of this chapter, all retail sales are consummated at the place of business of the retailer unless the tangible personal property sold is delivered by the retailer or his agent to an out-of-state destination or to a common carrier for delivery to an out-of-state destination. The gross receipts from such sales shall include delivery charges, when such charges are subject to the state sales and use tax, regardless of the place to which delivery is made. In the event a retailer has no permanent place of business in the State or has more than one place of business, the place or places at which the retail sales are consummated shall be determined under rules and regulations to be prescribed and adopted by the California Department of Tax and Fee Administration.

(Ord. CS 1050, § 1(Att. 1), 11-8-2022)

An excise tax is hereby imposed on the storage, use or other consumption in the City of tangible personal property purchased from any retailer on and aft the operative date of this chapter for storage, use or other consumption in said territory at the rate of one percent of the sales price of the property. The sales price shall include delivery charges when such charges are subject to state sales or use tax regardless of the place to which delivery is made.

(Ord. CS 1050, § 1(Att. 1), 11-8-2022)

Except as otherwise provided in this chapter and except insofar as they are inconsistent with the provisions of Part 1.6 of Division 2 of the Revenue and Taxation Code, all of the provisions of Part 1 (commencing with Section 6001) of Division 2 of the Revenue and Taxation Code are hereby adopted and made a part of this chapter as though fully set forth herein.

(Ord. CS 1050, § 1(Att. 1), 11-8-2022)

In adopting the provisions of Part 1 of Division 2 of the Revenue and Taxation Code:

A. Wherever the State of California is named or referred to as the taxing agency, the name of this City shall be substituted therefor. However, the substitution shall not be made when:

1. The word "State" is used as a part of the title of the State Controller, State Treasurer, California Victim Compensation Board, California Department of Tax and Fee Administration, State Treasury, or the Constitution of the State of California;

2. The result of that substitution would require action to be taken by or against this City or any agency, officer, or employee thereof rather than by or against the California Department of Tax and Fee Administration, in performing the functions incident to the administration or operation of this Ordinance.

3. In those sections, including, but not necessarily limited to sections referring to the exterior boundaries of the State of California, where the result of the substitution would be to:

a. Provide an exemption from this tax with respect to certain sales, storage, use or other consumption of tangible personal property which would not otherwise be exempt from this tax while such sales, storage, use or other consumption remain subject to tax by the State under the provisions of Part 1 of Division 2 of the Revenue and Taxation Code, or;

b. Impose this tax with respect to certain sales, storage, use or other consumption of tangible personal property which would not be subject to tax by the state under the said provision of that code.

4. In reference to Sections 6701, 6702 (except in the last sentence thereof), 6711, 6715, 6737, 6797 or 6828 of the Revenue and Taxation Code.

B. The word "city" shall be substituted for the word "state" in the phrase "retailer engaged in business in this state" in Section 6203 of the Revenue and Taxation Code and in the definition of that phrase in Section 6203.

1. "A retailer engaged in business in the District" shall also include any retailer that, in the preceding calendar year or the current calendar year, has total combined sales of tangible personal property in this state or for delivery in the State by the retailer and all persons related to the retailer that exceeds $500,000.00. For purposes of this section, a person is related to another person if both persons are related to each other pursuant to Section 267(b) of Title 26 of the United States Code and the regulations thereunder.

(Ord. CS 1050, § 1(Att. 1), 11-8-2022)

If a seller's permit has been issued to a retailer under Section 6067 of the Revenue and Taxation Code, an additional transactor's permit shall not be required by this chapter.

(Ord. CS 1050, § 1(Att. 1), 11-8-2022)

A. There shall be excluded from the measure of the transactions tax and the use tax the amount of any sales tax or use tax imposed by the State of California or by any city, city and county, or county pursuant to the Bradley-Burns Uniform Local Sales and Use Tax Law or the amount of any state-administered transactions or use tax.

B. There are exempted from the computation of the amount of transactions tax the gross receipts from:

1. Sales of tangible personal property, other than fuel or petroleum products, to operators of aircraft to be used or consumed principally outside the county in which the sale is made and directly and exclusively in the use of such aircraft as common carriers of persons or property under the authority of the laws of this State, the United States, or any foreign government.

2. Sales of property to be used outside the City which is shipped to a point outside the City, pursuant to the contract of sale, by delivery to such point by the retailer or his agent, or by delivery by the retailer to a carrier for shipment to a consignee at such point. For the purposes of this paragraph, delivery to a point outside the City shall be satisfied:

a. With respect to vehicles (other than commercial vehicles) subject to registration pursuant to Chapter 1 (commencing with Section 4000) of Division 3 of the Vehicle Code, aircraft licensed in compliance with Section 21411 of the Public Utilities Code, and undocumented vessels registered under Division 3.5 (commencing with Section 9840) of the Vehicle Code by registration to an out-of-City address and by a declaration under penalty of perjury, signed by the buyer, stating that such address is, in fact, his or her principal place of residence; and

b. With respect to commercial vehicles, by registration to a place of business out-of-City and declaration under penalty of perjury, signed by the buyer, that the vehicle will be operated from that address.

3. The sale of tangible personal property if the seller is obligated to furnish the property for a fixed price pursuant to a contract entered into prior to the operative date of this chapter.

4. A lease of tangible personal property which is a continuing sale of such property, for any period of time for which the lessor is obligated to lease the property for an amount fixed by the lease prior to the operative date of this chapter.

5. For the purposes of subparagraphs (3) and (4) of this subsection, the sale or lease of tangible personal property shall be deemed not to be obligated pursuant to a contract or lease for any period of time for which any party to the contract or lease has the unconditional right to terminate the contract or lease upon notice, whether or not such right is exercised.

C. There are exempted from the use tax imposed by this chapter, the storage, use or other consumption in this City of tangible personal property:

1. The gross receipts from the sale of which have been subject to a transactions tax under any state-administered transactions and use tax ordinance.

2. Other than fuel or petroleum products purchased by operators of aircraft and used or consumed by such operators directly and exclusively in the use of such aircraft as common carriers of persons or property for hire or compensation under a certificate of public convenience and necessity issued pursuant to the laws of this State, the United States, or any foreign government. This exemption is in addition to the exemptions provided in Sections 6366 and 6366.1 of the Revenue and Taxation Code of the State of California.

3. If the purchaser is obligated to purchase the property for a fixed price pursuant to a contract entered into prior to the operative date of this chapter.

4. If the possession of, or the exercise of any right or power over, the tangible personal property arises under a lease which is a continuing purchase of such property for any period of time for which the lessee is obligated to lease the property for an amount fixed by a lease prior to the operative date of this chapter.

5. For the purposes of subparagraphs (3) and (4) of this subsection, storage, use, or other consumption, or possession of, or exercise of any right or power over, tangible personal property shall be deemed not to be obligated pursuant to a contract or lease for any period of time for which any party to the contract or lease has the unconditional right to terminate the contract or lease upon notice, whether or not such right is exercised.

6. Except as provided in subparagraph (7), a retailer engaged in business in the City shall not be required to collect use tax from the purchaser of tangible personal property, unless the retailer ships or delivers the property into the City or participates within the City in making the sale of the property, including, but not limited to, soliciting or receiving the order, either directly or indirectly, at a place of business of the retailer in the City or through any representative, agent, canvasser, solicitor, subsidiary, or person in the City under the authority of the retailer.

7. "A retailer engaged in business in the City" shall also include any retailer of any of the following: vehicles subject to registration pursuant to Chapter 1 (commencing with Section 4000) of Division 3 of the Vehicle Code, aircraft licensed in compliance with Section 21411 of the Public Utilities Code, or undocumented vessels registered under Division 3.5 (commencing with Section 9840) of the Vehicle Code. That retailer shall be required to collect use tax from any purchaser who registers or licenses the vehicle, vessel, or aircraft at an address in the City.

D. Any person subject to use tax under this chapter may credit against that tax any transactions tax or reimbursement for transactions tax paid to a district imposing, or retailer liable for, a transactions tax pursuant to Part 1.6 of Division 2 of the Revenue and Taxation Code with respect to the sale to the person of the property the storage, use or other consumption of which is subject to the use tax.

(Ord. CS 1050, § 1(Att. 1), 11-8-2022)

All amendments subsequent to the eff date of this chapter to Part 1 of Division 2 of the Revenue and Taxation Code relating to sales and use taxes and which are not inconsistent with Part 1.6 and Part 1.7 of Division 2 of the Revenue and Taxation Code, and all amendments to Part 1.6 and Part 1.7 of Division 2 of the Revenue and Taxation Code, shall automatically become a part of this chapter, provided, however, that no such amendment shall operate so as to affect the rate of tax imposed by this chapter.

(Ord. CS 1050, § 1(Att. 1), 11-8-2022)

No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action or proceeding in any court against the State or the City, or against any officer of the State or the City, to prevent or enjoin the collection under this chapter, or Part 1.6 of Division 2 of the Revenue and Taxation Code, of any tax or any amount of tax required to be collected.

(Ord. CS 1050, § 1(Att. 1), 11-8-2022)

All proceeds of the tax levied and imposed hereunder shall be accounted for and paid into a special fund or account designated for use by the City only for the public safety serv set forth in a Program Guidelines and Public Safety Expenditure Plan for the administration and expenditure of the tax proceeds. Such public safety expenditure plan may be amended from time to time by a majority vote of the City Council, so long as the funds are utilized for public safety, police, and fire protection services.

For the purposes of this part, "public safety services" means:

A. Obtaining, furnishing, operating, and/or maintaining police protection equipment or apparatus, paying the salaries and benefits of police protection personnel, and such other police protection service expenses as are deemed necessary by the City Council for the benefit of the residents of the City;

B. Obtaining, furnishing, operating, and/or maintaining fire protection equipment or apparatus, paying the salaries and benefits of fire protection personnel, and such other fire protection service expenses, including capital expenses, as are deemed necessary by the City Council for the benefit of the residents of the City.

No revenues collected pursuant to the tax levied hereby may be spent on department administrators' salaries general fund operating expenses in effect at the time the ordinance codified herein becomes effective, or projects not a part of the public safety measure police and fire expenditure plan. It is the intent of the people that revenues collected hereunder shall supplement, rather than supplant, existing City expenditures for public safety.

(Ord. CS 1050, § 1(Att. 1), 11-8-2022)

A. Committee Established. There is hereby established in the City a citizen's oversight committee to monitor the expenditures of revenue collected pursuant to this chapter only and report to the people and the City Council.

B. Selection of Members. Members of the citizens' oversight committee shall be appointed by the City Manager. The committee shall consist of five members. The citizens' oversight committee members shall not be current City employees, officials, contractors, or vendors of the City. Past employees, officials or vendors shall be eligible to serve on the committee, provided that there are no conflicts of interest as determined by the City Attorney.

As used herein, the term "official" is not synonymous with the term "public official" as defined in the California Political Reform Act. The term "official" shall not include members or appointees serving on existing boards or commissions of the City of Atwater, including, but not limited to, the Planning and Zoning Commission and the Parks and Recreation Commission. The term "official" shall mean any person who is not an employee but performs the duties or functions of an employee of the City of Atwater for compensation under an outsourcing arrangement, including, but not limited to, the Fire Chief, the Finance Officer and any other positions which may be outsourced subsequent to the enactment of this Ordinance.

Of the members of the committee first appointed, three shall be appointed for terms of three years and two for terms of two years. Their successors shall be appointed for terms of three years. No member may serve more than two consecutive terms.

The City Manager shall solicit citizens' oversight committee members through an open application process that is promoted through the City's adopted recruiting process. Any Atwater resident is eligible to apply for committee membership, subject to the appointment categories specified above. All applications will be reviewed by the City Manager, who will have the authority to make all final decisions on committee representation, subject to these guidelines.

C. Purpose and Jurisdiction. The citizens' oversight committee shall review expenditures of revenue collected pursuant to this chapter only to determine whether such funds are expended for the purposes specified in the then-current public safety measure police and fire expenditure plan and issuing reports on their findings to the City Council and public at least annually. Committee members may also review the annual financial or performance audits performed by an independent auditor. The committee shall confine its oversight specifically to revenues generated under this chapter. Revenue generated through other sources shall be outside the jurisdiction of the public safety measure citizens' oversight committee.

In order to preserve the integrity and independence of the oversight process, committee members will not play a formal role in contracting, project management, or any other aspect of the public safety measure funding.

The committee is not charged with decision-making on spending priorities, schedules, project details, funding source decisions (e.g., leveraged funds, developer fees, etc.), financing plans, or tax rate assumptions. The committee shall serve in an advisory-only role to the City Manager. The committee shall have no jurisdiction other than that delegated to it by the people pursuant to this chapter.

The City Manager or designee shall provide any reasonable administrative or technical assistance required by the committee to fulfill its responsibilities or publicize its findings.

D. Meetings. The citizens' oversight committee shall meet quarterly (or as otherwise provided for in approved or amended bylaws) with specific meeting dates to be determined by committee members. Citizens' oversight committee meetings are subject to the Brown Act. Meetings must be agendized and open to the public. Committee minutes and reports are a matter of public record and must be posted on a web site provided by the City. Additional meetings may be scheduled by the committee as necessary. All committee members shall attend a training and orientation session prior to attending their first regular committee meeting.

Committee members are expected to attend all regular meetings. Failure to attend two consecutive meetings may result in removal from the committee at the discretion of the City Manager.

E. Committee Operations. The citizens' oversight committee will select members to serve as chair and vice chair of the committee. A City staff person will be appointed by the City Manager or designee to serve as secretary. The secretary will be responsible for preparing, posting, and distributing agendas and taking minutes at each meeting. Approved minutes shall be made available to the public. Committee decisions, positions, findings, and procedures shall require a simple majority vote of those members in attendance. The quorum requirement for any meeting shall be a minimum of three members.

F. Vacancies. Committee members may be removed from the committee only by the City Manager for repeated absence (see Section D of this section), for malfeasance, for failing to meet the qualifications set forth in this section or for inability or unwillingness to fulfill the duties of a member. In the event of removal, resignation, or death, the City Manager shall appoint a person to fill the vacant seat.

G. Miscellaneous. With the exception of those items specifically addressed in these guiding principles, the committee may draft and adopt its own standard procedures and bylaws by majority vote. All citizens' oversight committee procedures and bylaws remain subject to review and approval by the City Council. Citizens' oversight committee reports and audits are subject to review and approval of the City Council.

(Ord. CS 1050, § 1(Att. 1), 11-8-2022; Ord. CS 1061, § 1, 5-8-2023)

The amount generated by this special purpose revenue source and how it was used shall be included in the annual audit of the City's financial operations by an independent certified public accountant.

(Ord. CS 1050, § 1(Att. 1), 11-8-2022)

The authority to levy the tax imposed by this chapter shall continue until this chapter is repealed.

(Ord. CS 1050, § 1(Att. 1), 11-8-2022)