Chapter 7.48 — PARKING SPACE RENTAL TAX

Sections: 7.48.010 Title. 7.48.020 Purpose. 7.48.030 Definitions. 7.48.040 Imposed. 7.48.050 Charges subject to tax. 7.48.060 Business license required for operator. 7.48.070 Liability and collection of tax. 7.48.080 Exemptions. 7.48.090 Return filing. 7.48.100 Deficiency determinations. 7.48.110 Determination if no return made. 7.48.120 Penalties and interest for failure to pay tax. 7.48.130 Jeopardy determinations. 7.48.140 Redeterminations. 7.48.150 Consideration of petition. 7.48.160 Determination of petition. 7.48.170 Finality of determination. 7.48.180 Collection. 7.48.190 Administration. 7.48.200 Tax a debt to City. 7.48.210 Interpretation and validity. 7.48.220 Violation--Penalty.

The ordinance codified in this chapter may be cited as the "parking tax ordinance of the City of Berkeley." (Ord. 5060-NS § 1 (part), 1978)

The tax imposed under this chapter is solely for the purpose of raising income and revenue which is necessary to pay the usual and current expenses of conducting the municipal government of the City. (Ord. 5060-NS § 1 (part), 1978)

When used in this chapter, the following terms shall mean or include:

A. "Motor vehicle" includes every self-propelled vehicle, operated or suitable for operation on the highway.

B. "Occupancy" means the use or possession or the right to the use or possession of any space for the parking of a motor vehicle in a parking station.

C. "Occupant" means a person who, for a consideration, uses, possesses, or has the right to use or possess any space for the parking of a motor vehicle in a parking station under any lease, concession, permit, right of access, license to use or other agreement or otherwise.

D. "Operator" means any person operating a parking station in the City, including but not limited to, the owner or proprietor of such premises, lessee, sublessee, mortgagee in possession, licensee or any other person otherwise operating such parking station. A person who otherwise qualifies as an operator as herein defined shall not, by reason of the fact that they were exempt from the tax herein imposed, be exempted from the obligations of an operator hereunder.

E. "Parking meter" means any device which, when the recording device thereof is set in motion, or immediately following the deposit of any coin, shall register the period of time that any motor vehicle may be parked adjacent thereto.

F. "Parking station" includes, but is not limited to:

1. Any outdoor space or uncovered plot, place, lot, parcel, yard or enclosure, or any portion thereof, where motor vehicles may be parked, stored, housed or kept, for which any charge is made;

2. Any building or structure, or any portion thereof in which motor vehicles may be parked, stored, housed or kept, for which any charge is made.

G. "Person" means a natural person, receiver, administrator, executor, assignee, trustee in bankruptcy, trust, estate, firm, copartnership, joint venture, club, company, joint stock company, business trust, municipal corporation, the state of California, any political subdivision of the state of California, the United States, any instrumentality of the United States, domestic or foreign corporation, association, syndicate, society, or any group of individuals acting as a unit, whether mutual, cooperative, social, nonprofit or otherwise. Whenever the term person is used in any clause prescribing and imposing a penalty, the term, as applied to corporations and business entities shall mean the officers thereof.

H. "Rent" means the consideration received for occupancy valued in money, whether received in money or otherwise, including all receipts, cash, credits and property or services of any kind or nature, and also the amount for which credit is allowed by the operator to the occupant, without any deduction therefrom whatsoever.

I. "Return" means any return, filed or required to be filed as herein provided.

J. "Tax" means the tax imposed by this chapter.

K. "Tax collector" means the Director of Finance of the City. (Ord. 5060-NS § 2, 1978)

Subject to the provisions of this chapter, there is imposed a tax of ten percent for the rent of every occupancy of parking space in a parking station in the City.

The tax imposed by this chapter shall be paid upon any occupancy on and after August 1, 1979, although such occupancy may be pursuant to a contract, leasing or other arrangement made prior to such date. Where the rent is paid, or charged or billed, or falls due on either a weekly, monthly or other term basis, the rent so paid, charged, billed or fallen due shall be subject to the tax herein imposed to the extent that it covers any portion of the period from August 1, 1979, and such payment, bill, charge or rent due shall be apportioned on the basis of the ratio of number of days covered thereby. Where any tax has been paid hereunder upon any rent without any right of occupancy therefor, the tax collector may, by regulation, provide for credit or refund of the amount of such tax upon application therefor. (Ord. 5060-NS § 3, 1978)

The term rent, as defined in subsection H of Section 7.48.030, shall be deemed to include the total charges required to be paid by an occupant (including but not limited to, any valet or service labor charge) in connection with the use or occupancy of parking space; provided, that nothing herein shall require the payment of parking tax on the sale of petroleum products, automobile parts, or the like, or the rendering of services (including carwash services) totally unconnected with the use or occupancy of parking space. (Ord. 5060-NS § 4, 1978)

Every person engaging in or about to engage in business as an operator of a parking station in this City must have a City business license as prescribed in City Ordinance No. 5017. (Ord. 5060-NS § 7, 1978)

A. For the privilege of occupancy of any space for the parking of a motor vehicle in a parking station, each occupant is subject to and shall pay a tax in the amount of ten percent of the rent charged by the operator of the parking station. The occupant shall pay the tax to the operator of the parking station at the time the rent is paid. If the rent is paid in installments, a proportionate share of the tax shall be paid with each installment. Any unpaid tax shall be due when the occupant ceases occupancy.

B. Each operator shall collect the tax imposed by this chapter to the same extent and at the same time as the rent is collected from each occupant. (Ord. 5587-NS § 1, 1984; Ord. 5060-NS § 5, 1978)

No tax shall be imposed hereunder:

A. On the rent for any occupancy or parking space in parking stations wherein the rent for such occupancy is paid by the deposit of a coin or coins in a parking meter owned or operated by the City and located adjacent to said parking space;

B. On the rent for any occupancy of parking space in parking stations which are part of residential or hotel premises, provided the occupant of said parking space is a resident or a registered guest of said premises; and

C. On the rent for any occupancy of parking space by registered hotel guests in parking stations not located on the hotel premises if no charge is made to the registered guest or if such charge is added to the room bill of the registered guest and paid by them to the hotel, provided that proper records are maintained both by the hotel and the operator which accurately reflect such exempt parking activity. (Ord. 5060-NS § 6, 1978)

A. Due Date of Taxes. The tax imposed by this chapter shall become due and payable from the operator to the tax collector on or before the last day of the month next succeeding each respective monthly period.

B. Monthly Payment. On or before the last day of the month, a return for the preceding monthly period shall be filed with the tax collector, in such form as they may prescribe, by every operator and by every person liable to payment of tax hereunder during such monthly period who has not paid such tax, and made return in regard to the related occupancy which is the subject of tax.

C. Contents of Return. Returns shall show the amount of tax collected or otherwise due for the related period and such other information as is required by the tax collector. The tax collector may require returns to show the total rentals upon which tax was collected or otherwise due, the gross receipts of an operator returnee for such period and the explanation in detail of any discrepancy between such amounts.

D. Delivery of Return and Remittance. The person required to file the return shall deliver the return, together with the remittance of the amount of the tax due, to the tax collector at their office.

E. Extension of Time for Filing a Return and Paying Tax. For good cause, the tax collector may extend for not to exceed one month the time for making any return or payment of tax. Any person to whom an extension is granted, who makes return and pays the tax within the period of such extension shall pay, in addition to the tax, interest on the amount thereof at the rate of one percent per month, or fraction thereof, for the period of such extension to the time of return and payment. (Ord. 6103-NS § 1, 1991; Ord. 5971-NS § 1, 1990; Ord. 5060-NS § 8, 1978)

A. Recomputation of Tax. If the tax collector is not satisfied with the return or returns of the tax or the amount of the tax required to be paid to the City by any person, they may compute and determine the amount required to be paid upon the basis of the facts contained in the return or returns or upon the basis of any information within their possession or that may come into their possession. One or more deficiency determinations may be made of the amount due for one or for more than one period.

B. Interest on Deficiency. The amount of the determination exclusive of penalties, shall bear interest at the rate of one percent per month from the last day of the month following the close of the period for which the amount or any portion thereof should have been returned until the date of payment.

C. Offsetting of Overpayments. In making a determination, the tax collector may offset overpayments for a period or periods together with interest on the overpayments for a period or periods together with interest on the overpayments, against underpayments for another period or periods, against penalties, and against the interest on the underpayments. The interest on underpayments and overpayments shall be computed in the manner set forth in Section 7.48.120.

D. Penalty for Negligence or Disregard of Rules and Regulations. If any part of the deficiency for which a deficiency determination is made is due to negligence or intentional disregard of this chapter or authorized rules and regulations, a penalty of ten percent of the amount of the determination shall be added thereto.

E. Penalty for Fraud or Intent to Evade. If any part of the deficiency for which a deficiency determination is made is due to fraud or an intent to evade this chapter or authorized rules and regulations, a penalty of twenty-five percent of the amount of the determination shall be added thereto.

F. Notice and Service of Tax Collector’s Determination. The tax collector shall give to the operator written notice of their determination. The notice may be served personally or by mail. If by mail service, it shall be addressed to the operator at their address as it appears in the records of the tax collector. In case of service by mail of any notice required by this chapter, the service is complete at the time of deposit in the United States Post Office.

G. Time Within Which Notice of Deficiency Determination to be Mailed. Except in the case of fraud, intent to evade this chapter or authorized rules and regulations, or failure to make a return, every notice of a deficiency determination shall be mailed within three years after the fifteenth day of the calendar month following the period for which the amount is proposed to be determined or within three years after the return is filed, whichever period expires the later.

The limitation specified in this section does not apply in case of a tax proposed to be determined with respect to occupancies of which notice of a deficiency determination has been or is given. (Ord. 6103-NS § 1, 1991; Ord. 5971-NS § 1, 1990; Ord. 5884-NS § 1, 1988; Ord. 5060-NS § 9, 1978)

A. Estimate of Gross Receipts and Computation of Tax Penalty. If any person fails to make a return, the tax collector shall make an estimate of the amount of the gross receipts of the person, or, as the case may be, of the amount of the total rentals in this City which are subject to the tax. The estimate shall be made for the period or periods in respect to which the person failed to make a return and shall be based upon any information which is in the tax collector’s possession or may come into their possession. Upon the basis of this estimate the tax collector shall compute and determine the amount required to be paid to the City, adding to the sum thus arrived at a penalty equal to ten percent thereof. One or more determinations may be made for one or for more than one period.

B. Manner of Computation. In making a determination, the tax collector may offset over-payments for a period or periods, together with interest on the overpayments, against underpayments for another period or periods, against penalties, and against the interest on the underpayments. The interest on underpayments and overpayments shall be computed in the manner set forth in Section 7.48.120.

C. Interest on Amount Found Due. The amount of the determinations, exclusive of penalties, shall bear interest at the rate of one percent per month from the last day of the month following the close of the period for which the amount or any portion hereof should have been returned until the date of payment.

D. Penalty for Fraud or Intent to Evade. If the failure of any person to file a return is due to fraud or an intent to evade this chapter or rules and regulations, a penalty of twenty-five percent of the amount required to be paid by the person, exclusive of penalties, shall be added hereto in addition to the ten percent penally provided in subsection A.

E. Notice Serving. Promptly after making their determination the tax collector shall give to the person written notice of the estimate, determination and penalty, the notice to be served personally or by mail in the manner prescribed for service of notice of a deficiency determination. (Ord. 6103-NS § 1, 1991; Ord. 5971-NS § 1, 1990; Ord. 5884-NS § 1, 1988; Ord. 5060-NS § 10, 1978)

Any person who fails to pay any tax to the City or any amount of tax required to be collected and paid to the City, except amounts of determinations made by the tax collector under Sections 7.48.090A, 7.48.100A and 7.48.110A of this chapter, within the time required shall pay a penalty of ten percent of the tax or amount of the tax, in addition to the tax or amount of tax, plus interest at the rate of one percent per month from the date on which the tax or the amount of tax required to be collected became due and payable to the City until the date of payment. (Ord. 5884-NS § 1, 1988; Ord. 5060-NS § 13, 1978)

A. If the tax collector believes that the collection of any tax or any amount of tax required to be collected and paid to the City or of any determination will be jeopardized by delay, the tax collector shall thereupon make a determination of the tax or amount of tax required to be collected, noting that fact upon the determination. The amount determined is immediately due and payable.

B. If the amount specified in the determination is not paid within ten days after service of notice thereof upon the person against whom the determination is made, the amount becomes final at the expiration of the ten days, unless a petition for redetermination is filed within the ten days, and the delinquency penalty and the interest provided in Section 7.48.120 shall attach to the amount of the tax or the amount of the tax required to be collected.

C. Any person against whom a jeopardy determination is made may petition for the redetermination thereof pursuant to Section 7.48.140. The person shall, however, file the petition for redetermination with the tax collector within ten days after the service upon them of notice of determination. The person shall also within the ten-day period deposit with the tax collector such security as they may deem necessary to insure compliance with this chapter. The security may be sold by the tax collector in the manner prescribed by subsection A of Section 7.48.180. (Ord. 5060-NS § 11, 1978)

A. Right to Petition. Any person against whom a determination is made under this chapter or any person directly interested may petition for a redetermination within thirty days after service upon the person of notice thereof. If a petition for redetermination is not filed within the thirty-day period, the determination becomes final at the expiration of the period.

B. Grant of Oral Hearing. If a petition for re-determination is filed within the thirty-day period, the tax collector shall reconsider the determination and, if the person has so requested in their petition, shall grant the person an oral hearing and shall give them ten days’ notice of the time and place of the hearing. The tax collector may continue the hearing from time to time as may be necessary.

C. Alteration of Determination. The tax collector may decrease or increase the amount of the determination before it becomes final but the amount may be increased only if a claim for the increase is asserted by the tax collector at or before the hearing.

D. Finality of Order on Petition. The order or decision of the tax collector upon a petition for redetermination becomes final thirty days after service upon the petitioner of notice thereof.

E. Time for Payment of Amounts Found Due. All determinations made by the tax collector under subsection A of Sections 7.48.110 and 7.48.130 of this chapter are due and payable at the time they become final. If they are not paid when due and payable, a penalty of ten percent of the amount of the determination, exclusive of interest and penalties, shall be added thereto.

F. Manner of Serving Notices. Any notice relating to redetermination proceedings shall be served personally or by mail in the manner prescribed for service of notice of a deficiency determination. (Ord. 5060-NS § 12, 1978)

If a petition for redetermination is filed within the sixty-day period, the tax collector shall reconsider the determination and, if the person has so requested in their petition, shall grant the person an oral hearing, and shall give the person ten days’ notice of the time and place of hearing. The tax collector may designate one or more deputies for the purpose of conducting hearings and may continue a hearing from time to time as may be necessary. (Ord. 5060-NS § 16, 1978)

The tax collector may decrease or increase the amount of the determination before it becomes final, but the amount may be increased only if a claim for the increase is asserted by the tax collector at or before the hearing. (Ord. 5060-NS § 17, 1978)

The order or decision of the tax collector upon a petition for redetermination becomes final thirty days after service upon the petitioner of notice thereof. (Ord. 5060-NS §§ 15, 18, 1978)

A. Security May Be Required. The tax collector, whenever they deem it necessary to insure compliance with this chapter, may require any person subject thereto to deposit with them such security as the tax collector may determine. The amount of the security shall be fixed by the tax collector but shall not be greater than twice the person’s estimated average liability for the period for which they file returns, determined in such manner as the tax collector deems proper, or ten thousand dollars, whichever amount is the lesser. The amount of the security may be increased or decreased by the tax collector subject to the limitations herein provided. The tax collector may sell the security at public auction if it becomes necessary to do so in order to recover any tax or any amount required to be collected, interest, or penalty due. Notice of the sale may be served upon the person who deposited the security personally or by mail; if by mail, service shall be made in the manner prescribed for service of a notice of a deficiency determination and shall be addressed to the person at their address as it appears in the records of the tax collector. Upon any sale any surplus above the amounts due shall be returned to the person who deposited the security.

B. Notice of Delinquency to Persons Holding Credits or Property of Delinquent Taxpayer. If any person is delinquent in the payment of the amount required to be paid or in the event a determination has been made which remains unpaid, the tax collector may, not later than three years after the payment became delinquent, give notice thereof by registered mail to all persons having in their possession or under their control any credits or other personal property belonging to the delinquent, or owing any debts to the delinquent. After receiving the notice the persons so notified shall neither transfer nor make any other disposition of the credits, other personal property or debts in their possession or under their control at the time they receive the notice until the tax collector consents to a transfer or disposition or until twenty days elapse after the receipt of the notice. All persons so notified shall within five days after receipt of the notice advise the tax collector of all such credits, other personal property, or debts in their possession, under their control, or owing by them.

C. Action for Tax. At any time within three years after any tax or any amount of tax required to be collected becomes due and payable and at any time within three years after the delinquency of any tax or any amount of tax required to be collected, the tax collector may bring an action in the courts of this state, of any other state, or of the United States in the name of the City to collect the amount delinquent together with penalties and interest.

D. Duty of Successors or Assignees of Operator to Withhold Tax from Purchase Money. If any operator liable for any amount under this chapter sells out their business or quits the business, their successors or assigns shall withhold sufficient of the purchase price to cover such amount until the former owner produces a receipt from the tax collector showing that they have been paid or a certificate stating that no amount is due.

E. Liability of Successor for Failure to Withhold Tax. If the purchaser of a business fails to withhold from the purchase price as required, they become personally liable for the payment of the amount required to be withheld by them to the extent of the purchase price, valued in money. Within thirty days after receiving a written request from the purchaser for a certificate, the tax collector shall either issue the certificate or mail notice to the purchaser at their address as it appears on the records of the tax collector of the amount that must be paid as a condition of issuing the certificate. Failure of the tax collector to mail the notice will release the purchaser from any further obligation to withhold purchase price as above provided. The time within which the obligation of a successor may be enforced shall start to run at the time the operator sells out their business or at the time that the determination against the operator becomes final, whichever event occurs the later.

F. Refund of Tax, Penalty or Interest Paid More than Once or Erroneously or Illegally Collected. Whenever the amount of any tax, penalty or interest has been paid more than once or has been erroneously or illegally collected or received by the City under this chapter, it may be refunded provided a verified claim in writing therefor, stating the specific ground upon which the claim is founded, is filed with the department which collected said tax within three years from the date of payment. The claim shall be audited in the manner provided for in the Charter and shall be made on forms provided by the office or department which collected said tax. If the claim is approved by the department which collected said tax and by the controller, the excess amount collected or paid may be refunded or may be credited or any amounts then due and payable, from the person from whom it was collected or by whom paid and the balance may be refunded to such person, their administrators or executors. (Ord. 5060-NS § 14, 1978)

A. Authority of Tax Collector Generally. The tax collector shall enforce the provisions of this chapter and may prescribe, adopt, and enforce rules and regulations relating to the administration and enforcement of this chapter.

The tax collector shall transmit all moneys collected pursuant to this chapter to the treasurer for deposit to the credit of the general fund.

B. Records Required from Operators. Every operator renting parking space in this City shall keep such records, receipts, invoices, and other pertinent papers in such form as the tax collector may require.

C. Examination of Records and Equipment. The tax collector and/or the City Auditor or any person authorized in writing by them and/or the City Auditor may examine the books, papers, records and equipment of any person renting parking space and any person liable for the tax and may investigate the character of the business of the person in order to verify the accuracy of any return made, or, if no return is made by the person, to ascertain and determine the amount required to be paid.

D. Reports May Be Required. In administration of the tax the tax collector may require the filing of reports by any person or class of persons having in their possession or custody information relating to rentals of parking spaces which are subject to the tax. The reports shall be filed when the tax collector requires, and shall set forth the rental charged for each occupancy, the date or dates of occupancy, and such other information as the tax collector may require.

E. Limitation on Disclosure of Business of Operators. It is unlawful for the tax collector or any person having an administrative duty under this chapter to make known in any manner whatever the business affairs, operations, or information obtained by an investigation of records and equipment of any operator or any other person visited or examined in the discharge of official duty, or the amount or source of income, profits, losses, expenditures, or any particular thereof, set forth or disclosed in any return, or to permit any return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person. Successors, receivers, trustees, executors, administrators, assignees and guarantors, if directly interested, may be given information as to the items included in the measure and amount of any unpaid tax or amounts of tax required to be collected, interest and penalties. (Ord. 5060-NS § 19, 1978)

The amount of any tax, penalty, and interest imposed under the provisions of this chapter shall be deemed a debt to the City. 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. 5060-NS § 22, 1978)

Nothing in this chapter shall be construed as requiring the payment of any tax prohibited by the Constitution of the United States or by the Constitution of the state of California.

If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this chapter or any part thereof is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions of this chapter or any part thereof. (Ord. 5060-NS § 20, 1978)

Any person violating any provision or failing to comply with any of the requirements of this chapter shall be deemed guilty of an infraction as set forth in Chapter 1.20 of this code. (Ord. 5591-NS § 1 (part), 1984; Ord. 5060-NS § 21, 1978)