Burbank Municipal Code Art. 4 Use Tax

As used in this article, unless the context otherwise clearly indicates:

A. USE: Shall mean the exercise of any right or power over tangible personal property incident to the ownership of that property, subject, however, to the following exemptions:

1. It does not include the sale of that property in the regular course of business;

2. It does not include the keeping, retaining or exercising of any right or power over tangible personal property shipped or brought into this City and which is thereafter transported outside the City for principal use or consumption outside the City, and which property is actually so used or consumed;

3. It does not include the use of such property for the purpose of being processed, fabricated, or manufactured into, attached to or incorporated into, other tangible personal property which is to be transported outside the City and thereafter used principally outside the City, or which is to be subsequently sold or resold in the regular course of business;

4. It does not include the exercise of any right or power over tangible personal property incident to ownership of that property if such property was purchased for principal use or consumption outside the City and is so used or consumed. [Formerly numbered Section 14-46; renumbered by Ord. No. 3058, eff. 2/21/87.]

This ordinance may be cited and shall be known as the USE TAX ORDINANCE OF THE CITY OF BURBANK or the BURBANK USE TAX ORDINANCE. [Formerly numbered Section 14-47; renumbered by Ord. No. 3058, eff. 2/21/87.]

An excise tax is hereby imposed on the use or other consumption in the City of tangible personal property purchased from any retailer on or after January 1, 1955, for use or other consumption in the City at the rate of one percent (1%) of the sales price of the property. [Formerly numbered Section 14-48; renumbered by Ord. No. 3058, eff. 2/21/87.]

The tax hereby levied, except as otherwise herein provided, is levied in the same manner, to the same extent and under the same conditions as use taxes are levied pursuant to Part 1, Division 2, of the Revenue and Taxation Code of the State known as the “Sales and Use Tax Law” as amended and in force and effect on January 1, 1950. [Formerly numbered Section 14-49; renumbered by Ord. No. 3058, eff. 2/21/87.]

All of the provisions of Part 1, Division 2, of the Revenue and Taxation Code of the State known as the “Sales and Use Tax Law” as amended and in force and effect on September 9, 1953, except the provisions thereof pertaining solely to the “Sales Tax” and Sections 6008, 6201 to 6204, inclusive, 6207, 6226, 6241 to 6246, inclusive, 6403, 6453, 7052, 7057, 7101, 7102, 7151, 7152, and 7153, are hereby adopted by reference and made a part of this article as though fully set forth herein; and all provisions of this code or any other ordinance in conflict therewith are inapplicable to this article and the tax hereby imposed; provided, however, that:

A. The City shall be substituted for the State whenever the State is referred to in said law;

B. The County shall be substituted for the County of Sacramento whenever the latter county is referred to in said law;

C. The Mayor shall be substituted for the Governor whenever the Governor is referred to in said law;

D. The City Attorney shall be substituted for the Attorney General whenever the Attorney General is referred to in said law;

E. The Finance Director shall be substituted for the State Controller and State Board of Control whenever referred to in said law;

F. The Council shall be substituted for the State Board of Equalization insofar as said Board is empowered by said law to adopt rules and regulations pertaining to the interpretation, administration and enforcement of said law;

G. The City Manager shall be substituted for the State Board of Equalization in the application of Section 6459 of said law to Section 2-4-404 of this article;

H. The City Tax Collector shall be substituted for the State Board of Equalization in said law in all instances not otherwise provided for in this article;

I. The term “gross receipts” as used therein shall not include the amount of any tax imposed by the State, whether imposed upon the retailer or upon the consumer;

J. The term “sales price” shall not include the amount of any State sales tax or use tax; and

K. The word “storage” shall for the purpose of the article be deemed deleted from those provisions of said law, it being the intent of the Council that the tax imposed by this article shall not apply to the storage of tangible personal property. [Formerly numbered Section 14-50; renumbered by Ord. No. 3058, eff. 2/21/87.]

A. State Rules and Regulations: The rules and regulations of the State Board of Equalization pertaining to the interpretation, administration and enforcement of the “Sales and Use Tax Law”, insofar as applicable, and as amended and in effect on July 1, 1951, shall apply to the interpretation of this article until specifically repealed or abandoned by said Board or superseded by the rules and regulations of the Council.

B. Rules and Regulations of the Council: The Council may adopt, by resolution, such reasonable rules and regulations for the purpose of administering and enforcing this article as the City Manager shall prescribe and recommend. Such rules and regulations may, among other things, require each person affected by this article to keep such records, receipts, invoices and other pertinent papers as may be deemed necessary for the purpose of administering and enforcing this article.

C. Local Regulations to Prevail: The provisions of this article and the rules and regulations adopted by the Council shall prevail over the State “Sales and Use Tax Law” and the rules and regulations of the State Board of Equalization in case of conflict. [Formerly numbered Section 14-51; renumbered by Ord. No. 3058, eff. 2/21/87.]

The inclusion of any clause, portion or part of the “Sales and Use Tax Law”, Part 1, Division 2 of the Revenue and Taxation Code of the State, verbatim in this article shall not in or of itself be deemed to exclude any of the remaining provisions of said “Sales and Use Tax Law” that are made a part hereof by reference only. [Formerly numbered Section 14-52; renumbered by Ord. No. 3058, eff. 2/21/87.]

Every retailer maintaining a place of business in this City shall apply to the City Tax Collector for authorization to collect the tax imposed by this article. Any retailer not maintaining a place of business in this city may apply to the City Tax Collector for authorization to collect the tax hereby imposed. Upon receipt of any application in such form as required by them, the City Tax Collector, in the case of a retailer maintaining a place of business in the City, shall authorize, and in the case of a retailer not maintaining a place of business in the City, may authorize the applicant to make such collections and to forward the same to the City Tax Collector. [Formerly numbered Section 14-53; renumbered by Ord. No. 3058, eff. 2/21/87.]

Every person using or otherwise consuming in this City tangible personal property purchased from a retailer, is liable for the tax; provided, however, that no tax shall be due hereunder if the tax imposed by Article 3 of this chapter has been paid on the sale of such property. The liability of such person is not extinguished until the tax has been paid to the City except that a receipt from a retailer authorized pursuant to Section 2-4-408 of this article to collect the tax, given to the purchaser pursuant to Section 2-4-410 of this article, is sufficient to relieve the purchaser from further liability for the tax to which the receipt refers.

[Formerly numbered Section 14-54; renumbered by Ord. No. 3058, eff. 2/21/87.]

Every retailer who is authorized by the City Tax Collector to collect the tax imposed by this article and who makes sales of tangible personal property for use or other consumption in this City, not exempted under the provisions of this article, shall collect the tax from the purchaser at the time of making the sale, or, if the use of other consumption of the tangible personal property is not then taxable hereunder, at the time the use or other consumption becomes taxable. Upon collecting the tax, the retailer, on demand, shall give to the purchaser a receipt therefor in the manner and form prescribed by the City Tax Collector. The tax so collected by the retailer shall be held in trust by them for the City and shall be paid to the City by the retailer in the manner and at the times elsewhere provided in this article. [Formerly numbered Section 14-55; renumbered by Ord. No. 3058, eff. 2/21/87.]

The tax so collected by the retailer from the purchaser shall be displayed separately from the list price, the price advertised in the premises, the marked price or other price on the sales check or other proof of sale. [Formerly numbered Section 14-56; renumbered by Ord. No. 3058, eff. 2/21/87.]

Except as otherwise specifically exempted, the tax hereby imposed applies to all tangible personal property located in the City and purchased from a retailer; provided, however, that if the retailer in good faith takes from the purchaser a certificate that the property was purchased prior to the effective date of this article or was not purchased for use or consumption in the City and has not been nor will be so used or consumed, they shall be relieved of liability to collect and pay the tax. The certificate shall be signed by and bear the name of the purchaser, shall indicate the address of the purchaser and the place where such tangible personal property will be used or consumed, the date of the purchase, and shall be substantially in such form as the City Tax Collector may prescribe. [Formerly numbered Section 14-57; renumbered by Ord. No. 3058, eff. 2/21/87.]

In addition to those exemptions contained in Part 1 of Division 2 of the Revenue and Taxation Code of the State which are incorporated into this article by reference, there shall be excluded from the computation of the tax the sales price of:

A. Purchases made by the State or by any agency, department, political subdivision, district or municipal corporation thereof, provided there exists a reciprocal exemption to this City;

B. Purchases of tangible personal property to be used in connection with the erection, construction, repair or alteration of either public works or buildings belonging to or being constructed by or on behalf of or for the use of the United States Government; and the State or any agency, department, political subdivision, district or public or municipal corporation of the State, provided there exists a reciprocal exemption to this City;

C. Purchases made pursuant to contracts actually executed in good faith prior to midnight August 31, 1951;

D. Purchases of property upon which a sales tax, purchase tax, use tax, purchase and use tax, or any of them, has been legally imposed by and paid on the same transaction to any City of the State having a similar reciprocal exemption;

E. Purchases made by the Burbank Unified School District; and

F. Purchases of lubricating oil, combustible fluids, such as gasoline and fuel oil, made by operators of common carriers by air, to be used or consumed in the operation of such common carriers by air, principally outside the City. [Formerly numbered Section 14-58; renumbered by Ord. No. 3058, eff. 2/21/87.]

Every retailer selling tangible personal property for use or other consumption in the City and which retailer maintains a place of business in the City or acts through agents located in the City and which retailer is not a permittee under the provisions of Article 3 of this chapter, shall register with the City Tax Collector and give the name and address of such agent or agents and office or other place of business in the City. [Formerly numbered Section 14-59; renumbered by Ord. No. 3058, eff. 2/21/87.]

Taxes imposed by this article are due and payable to the City Tax Collector on or before the last day of the month next succeeding each quarterly period, the first quarterly payment to be due and payable under this article on or before October 31, 1951. The City Tax Collector may require returns and payment of the amount of taxes for quarterly periods other than calendar quarters depending upon the principal place of or the nature of the business of the seller or retailer or may require returns and payment of the amount of taxes for other than quarterly periods. [Formerly numbered Section 14-60; renumbered by Ord. No. 3058, eff. 2/21/87.]

Each return filed by a retailer shall show the total sale price of the property sold by them during the reporting period in respect of which they collected the tax hereby imposed. Each return filed by a purchaser shall show the total sale price of the property purchased by them during the reporting period, in respect of which a tax is due under this article. All returns shall also show the amount of the taxes for the period covered by the return and such other information as the City Tax Collector deems necessary to the proper administration of this article. [Formerly numbered Section 14-61; renumbered by Ord. No. 3058, eff. 2/21/87.]

Every person who transports or transmits persons, property, gas, electricity, or communications in the City under a franchise from the City may offset any taxes paid to City for such franchise against any taxes for which such person is liable under this article, provided the franchise tax has accrued during the same annual period as the use tax against which it is applied. Persons intending to avail themselves of an offset under this section shall notify the City Tax Collector thereof in writing at or prior to the commencement of the annual period, or portion thereof, for which the offset will be claimed and, upon doing so, may withhold compliance with Sections 2-4-415 and 2-4-416 of this article until such time as the franchise tax is due and payable. In filing their use tax return, such person, or an officer thereof if a corporation, may file, in lieu of any and all returns required to be filed under this article, an affidavit stating that the amount of the use tax does not exceed the amount of the franchise tax. If use taxes have been paid to any other city for all or part of the period covered by such affidavit, the amount of each such payment shall be stated together with any other information necessary to satisfy the City Tax Collector that the amount of the use tax does not exceed the franchise tax. [Formerly numbered Section 14-62; renumbered by Ord. No. 3058, eff. 2/21/87.]

The Council, by resolution, shall adopt rules prescribing methods and schedules for the collection and payment of the tax. Such schedules shall be so determined as to facilitate collection of this tax at the same time that the retailer collects the tax imposed under the State Sales and Use Tax Law and so as to produce an average tax return of one percent (1%) on all purchases subject to the use tax. [Formerly numbered Section 14-63; renumbered by Ord. No. 3058, eff. 2/21/87.]

All taxes hereby levied shall be payable to the City Tax Collector and any civil suit for the collection thereof may be filed in any court of competent jurisdiction in the State and the City Attorney shall prosecute the action. [Formerly numbered Section 14-64; renumbered by Ord. No. 3058, eff. 2/21/87.]

The City Tax Collector may at their option accept a State Resale Certificate as evidence that any sale is not a sale for use or consumption in the City, or they may in their discretion require an affidavit from the seller setting forth such information respecting such sale as they deem necessary to determine the nature of such sale. [Formerly numbered Section 14-65; renumbered by Ord. No. 3058, eff. 2/21/87.]

All monies collected under and pursuant to the provisions of this article, after deducting therefrom the cost and expense of administering this article, shall be deposited and paid into the following funds of the City as indicated: forty percent (40%) into the General Fund; sixty percent (60%) into the created and established “Capital Outlay Fund” to be expended solely for capital outlays and public works of the City. [Formerly numbered Section 14-66; renumbered by Ord. No. 3058, eff. 2/21/87.]

No officer or employee of the City having an administrative duty under this article shall make known in any manner whatever the business affairs, operations, or information obtained by an investigation of records and equipment of any retailer 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 permit any return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person. However, the Council may, by resolution, authorize examination of the returns by Federal or State officers or employees or by the tax officers of this or any other city if a reciprocal arrangement exists. Successors, receivers, trustees, executors, administrators, assignees, and guarantors, if directly interested, may be given information as to the items included in the measure and amounts of any unpaid tax or amounts of tax required to be collected, interest and penalties. This section shall not apply to any court proceedings or actions to determine or collect taxes as provided in this article, nor to any officer or employee of the City acting in response to any process of the court. [Formerly numbered Section 14-67; renumbered by Ord. No. 3058, eff. 2/21/87.]

No person required to make, render, sign or verify any report under the provisions of this article, shall make any false or fraudulent return, with intent to defeat or evade the determination of an amount due and required to be paid hereunder. [Formerly numbered Section 14-68; renumbered by Ord. No. 3058, eff. 2/21/87.]

No retailer or other person shall fail or refuse to furnish any return required to be made or fail or refuse to furnish a supplemental return or other data required by the City Tax Collector, or render a false or fraudulent return. [Formerly numbered Section 14-69; renumbered by Ord. No. 3058, eff. 2/21/87.]

If the failure of any person to file a return, or if any part of the deficiency for which a deficiency determination is made, is due to fraud or an intent to evade this article or the authorized rules and regulations, a penalty of twenty five percent (25%) of the amount of the determination shall be added thereto in addition to all other penalties provided in this article. [Formerly numbered Section 14-70; renumbered by Ord. No. 3058, eff. 2/21/87.]

All taxes payable under this article shall be deemed delinquent if not paid when due and payable. Whenever the tax becomes delinquent, a penalty of ten percent (10%) of the amount thereof shall be imposed and added thereto. At the close of business of the last day of each calendar month thereafter, an additional penalty of five percent (5%) of the original tax shall be imposed and added. Every penalty shall become a part of the tax imposed by this article. In no case, however, shall the total penalty exceed fifty percent (50%) of the original tax. [Formerly numbered Section 14-71; renumbered by Ord. No. 3058, eff. 2/21/87.]

In making a determination, the City Tax Collector may offset any funds due to the retailer from the City including any overpayments, against payments due to the City, including any underpayments and penalties. [Formerly numbered Section 14-72; renumbered by Ord. No. 3058, eff. 2/21/87.]

Refunds of any amount, penalty, or interest, which have been paid more than once or have been erroneously or illegally collected or computed, may be allowed by the City Tax Collector with the approval of the Finance Director; provided a written claim stating the specific ground upon which the claim is founded has been filed with the City Tax Collector within three (3) months after the overpayment was made. Failure to file a claim within the time prescribed constitutes a waiver of any demand against the City on account of overpayment. If a refund is approved, the overpayment shall be credited on any amount then due from the payor under this article, and the balance shall be refunded to the payor or their successors, administrators or executors. If disallowed, notice of disallowance shall be served by the City Tax Collector upon the claimant by mailing such notice postage prepaid. [Formerly numbered Section 14-73; renumbered by Ord. No. 3058, eff. 2/21/87.]

No suit or proceedings shall be maintained in any court for the recovery of any amount alleged to have been erroneously or illegally determined or collected unless a claim for refund or credit has been duly filed pursuant to this section. Within three (3) months after the service of the notice of disallowance of a claim filed pursuant to this section, the claimant may bring an action against the City on the grounds set forth in the claim in a court of competent jurisdiction in the County for the recovery of the whole or any part of the amount with respect to which the claim has been disallowed. If the City Tax Collector fails to serve notice of action on a claim within three (3) months after the claim is filed, the claimant may consider the claim disallowed and within three (3) months thereafter may bring an action against the City on grounds set forth in the claim for the recovery of the whole or any part of the amount claimed as an overpayment. Failure to bring action within said three (3) month period constitutes a waiver of any demand against the City on account of such alleged overpayment. [Formerly numbered Section 14-74; renumbered by Ord. No. 3058, eff. 2/21/87.]

The City Manager shall enforce the provisions of this article. [Formerly numbered Section 14-75; renumbered by Ord. No. 3058, eff. 2/21/87.]