Burbank Municipal Code Art. 7 Cigarette Tax

This article shall be known as the BURBANK CIGARETTE TAX ORDINANCE. [Formerly numbered Section 14-105; renumbered by Ord. No. 3058, eff. 2/21/87.]

The following words and phrases, wherever used in this article, shall be construed as herein defined:

CIGARETTE: Any roll for smoking made wholly or in part of tobacco, irrespective of size or shape and irrespective of whether the tobacco is flavored, adulterated or mixed with any other ingredient, where such roll has a wrapper or cover made of paper or any other material, unless such wrapper is wholly or in the greater part made of tobacco and weighs over three (3) pounds per thousand.

RETAILER: Any domestic or foreign corporation, association, syndicate, joint venture, joint stock company, partnership of any kind, club, Massachusetts business or common law trust, society or individual who sells cigarettes for any purpose other than resale. Where cigarettes are offered for sale through the means of a vending machine, the person holding title to the cigarettes in the machine shall be deemed the retailer.

USE OR CONSUMPTION: Includes the exercise of any right or power over cigarettes incident to the ownership thereof other than the sale of the cigarettes or the keeping or retention thereof for the purpose of sale. [Formerly numbered Section 14-106; renumbered by Ord. No. 3058, eff. 2/21/87.]

An excise tax is hereby imposed upon the use or consumption in the City of Burbank of cigarettes purchased from a retailer for use or consumption within the City of Burbank at the rate of one mill ($0.001) per cigarette. [Formerly numbered Section 14-107; renumbered by Ord. No. 3058, eff. 2/21/87.]

The tax constitutes a debt owed by the purchaser to the City which is extinguished only by payment of the tax to the Community Development Director or to the retailer. When a purchase from a retailer is made within the City, the tax shall be paid to the retailer at the time the purchase price is paid. The tax collected or required to be collected by the retailer constitutes a debt owed by the retailer to the City. Should any remittance of tax be made by a retailer prior to sale of cigarettes to consumer, such remittance shall be considered as an advance payment to be reimbursed by adding the amount of the tax to the price of the cigarettes at the time of sale to the user or consumer. [Formerly numbered Section 14-108; renumbered by Ord. No. 3058, eff. 2/21/87; Amended by Ord. No. 3828, eff. 8/24/12.]

Each retailer selling cigarettes within the City of Burbank shall collect the tax imposed under this article, and on or before the last day of the month following the close of a calendar quarter remit the total amount so collected to the Community Development Director, together with a statement on a form provided by the Community Development Director showing the number of cigarettes sold to purchasers, the amount of tax collected, and such other information as the Community Development Director shall require. Where the Community Development Director determines that efficiency in the administration of the tax would be promoted, they may establish reporting periods greater than quarterly, but not to exceed one year. The Community Development Director may establish shorter reporting periods for any retailer if they deem it necessary in order to insure collection of the tax. Statements and payments are due immediately upon cessation of the business of selling cigarettes for any reason. All taxes collected by retailers pursuant to this article shall be held in trust for the account of the City until payment thereof is made to the Community Development Director. [Formerly numbered Section 14-109; renumbered by Ord. No. 3058, eff. 2/21/87; Amended by Ord. No. 3828, eff. 8/24/12.]

A. Obtaining Certificate: Within thirty (30) days after the operative date of this article, or within thirty (30) days after commencing business, whichever is later, each retailer shall register with the Community Development Director and obtain from them a “Cigarette Tax Registration Certificate” to be at all times posted in a conspicuous place on the premises; provided, however, each retailer who does not operate from a fixed place of business shall keep the registration certificate upon their person at all times while engaging in the business of being a retailer. No person shall engage in the business of being a retailer without obtaining a registration certificate therefor. Said certificate shall, among other things, state the following:

1. The name of the operator.

2. The address of the retailer’s place of business;

3. The date upon which the certificate was issued; and

4. “This Cigarette Tax Registration Certificate signifies that the person named on the face hereof has fulfilled the requirements of the Cigarette Tax Ordinance by registering with the Community Development Director for the purpose of collecting the Cigarette Tax from purchasers of cigarettes and remitting said tax to the Community Development Director. This certificate does not authorize any person to conduct any lawful business in an unlawful manner, nor to operate a cigarette retailing business without complying with all state and local applicable laws, including, but not limited to, those requiring a permit from any board, commission, department or office of this City. This certificate does not constitute a permit”.

B. Certificate To Be Countersigned: All cigarette tax Registration Certificates shall be countersigned by the Community Development Director.

C. Separate Certificate For Each Place Of Business: A retailer having more than one place of business within the City at which cigarettes are sold, other than a vending machine operator, shall be required to obtain a separate registration for each such place of business.

[Formerly numbered Section 14-110; renumbered by Ord. No. 3058, eff. 2/21/87; Amended by Ord. No. 3828, eff. 8/24/12.]

A. Failure to Remit; Delinquencies: Taxes collected by a retailer which are not remitted to the Community Development Director on or before the due date fixed in Section 2-4-705 of this article, or fixed by the Community Development Director as provided herein, are delinquent.

B. Ten (10) Percent Penalty for Delinquencies: Any retailer who fails to remit any tax imposed by this article within the time required shall pay a penalty of ten percent (10%) of the amount of the tax in addition to the amount of the tax.

C. Additional Ten (10) Percent Penalty for Further Delinquencies: Any retailer who fails to remit any delinquent remittance on or before a period of thirty (30) days following the date on which the remittance first became delinquent shall pay a second delinquency penalty of ten percent (10%) of the amount of the tax in addition to the amount of the tax and the ten percent (10%) penalty first imposed.

D. Twenty Five Percent Penalty for Fraud: If the Community Development Director determines that the nonpayment of any remittance due under this article is due to fraud, a penalty of twenty five percent (25%) of the amount of the tax shall be added thereto in addition to the penalties stated in subsections B and C of this section.

E. One-Half of One Percent Penalty Per Month: In addition to the penalties imposed, any retailer who fails to remit any tax imposed by this article shall pay interest at the rate of one-half of one percent (0.5%) per month or fraction thereof on the amount of the tax, exclusive of penalties, from the date on which the remittance first became delinquent until paid.

F. Penalty and Interest Part of Tax: Every penalty imposed and such interest as accrues under the provisions of this section shall become a part of the tax herein required to be paid. [Formerly numbered Section 14-111; renumbered by Ord. No. 3058, eff. 2/21/87; Amended by Ord. No. 3828, eff. 8/24/12.]

If any retailer shall fail or refuse to collect said tax and to make, within the time provided in this article, any report and remittance of said tax or any portion thereof required by the article, the Community Development Director shall proceed in such manner as they may deem best to obtain facts and information on which to base their estimate of the tax due. As soon as the Community Development Director shall procure such facts and information as they are able to obtain upon which to base the assessment of any tax imposed by this article and payable by any retailer who has failed or refused to collect the same and to make such report and remittance, they shall proceed to determine and assess against such retailer the tax, interest and penalties provided for by this article. In case such determination is made, the Community Development Director shall give a notice of the amount so assessed by serving it personally or by depositing it in the United States mail, postage prepaid, addressed to the retailer so assessed at their last known place of address. Such retailer may within ten (10) days after the serving or mailing of such notice make application in writing to the Community Development Director for a hearing on the amount assessed. If application by the retailer for a hearing is not made within the time prescribed, the tax, interest and penalties if any, determined by the Community Development Director shall become final and conclusive and immediately due and payable. If such application is made, the Community Development Director shall give not less than five (5) days’ written notice in the manner prescribed herein to the retailer to show cause at a time and place fixed in said notice why said amount specified therein should not be fixed for such tax, interest and penalties. At such hearing, the retailer may appear and offer evidence why such specified tax, interest and penalties should not be so fixed. After such hearing the Community Development Director shall determine the proper tax to be remitted and shall thereafter give written notice to the retailer in the manner prescribed herein of such determination and the amount of such tax, interest and penalties. The amount determined to be due shall be payable after fifteen (15) days unless an appeal is taken as provided in Section 2-4-113 of this chapter. [Formerly numbered Section 14-112; renumbered by Ord. No. 3058, eff. 2/21/87; Amended by Ord. No. 3828, eff. 8/24/12.]

It shall be the duty of every retailer liable for the collection and payment to the City of any tax imposed by this article to keep and preserve, for a period of three (3) years, all records as may be necessary to determine the amount of such tax as they may have been liable for the collection of and payment to the City, which records the Community Development Director shall have the right to inspect at all reasonable times. [Formerly numbered Section 14-114; renumbered by Ord. No. 3058, eff. 2/21/87; Amended by Ord. No. 3828, eff. 8/24/12.]

A. Claim in Writing: Whenever the amount of any tax, interest or penalty has been overpaid or paid more than once or has been erroneously or illegally collected or received by the City under this article, it may be refunded as provided in subsection B and C of this section provided a claim in writing therefor, stating under penalty of perjury the specific ground upon which the claim is founded, is filed with the Community Development Director within three (3) years of the date of payment. The claim shall be on forms furnished by the Community Development Director.

B. Choice of Refund Or Credit: A retailer may claim a refund or take as credit against taxes collected and remitted the amount overpaid, paid more than once or erroneously or illegally collected or received when it is established in a manner prescribed by the Community Development Director that a person from whom the tax has been collected was not a user or consumer as the term is defined in subsection 2- 4-702B of this article; provided, however, that neither a refund nor a credit shall be allowed unless the amount of the tax so collected has either been refunded to the purchaser erroneously required to pay the tax or otherwise credited to them.

C. Claim to Be Established By Written Records: No refund shall be paid under the provisions of this section unless the claimant establishes their right thereto by written records showing entitlement thereto. [Formerly numbered Section 14-115; renumbered by Ord. No. 3058, eff. 2/21/87; Amended by Ord. No. 3828, eff. 8/24/12.]

Any person using or consuming cigarettes within the City who has not paid the tax required by the provisions of this article, and any retailer who has failed to collect or who has collected but not remitted any tax required to be paid by the provisions of this article, shall be liable to an action brought in the name of the City for the recovery of such amount. [Formerly numbered Section 14-116; renumbered by Ord. No. 3058, eff. 2/21/87.]

Any retailer or other person who fails or refuses to register as required herein or to furnish any return required to be made, or who fails or refuses to furnish a supplemental return or other data required by the Community Development Director, or who renders a false or fraudulent return or claim, and any person required to make, render, sign or verify any report or claim who makes any false or fraudulent report or claim with intent to defeat or evade the determination of any amount due required by this article to be made, is guilty of a misdemeanor. [Formerly numbered Section 14-117; renumbered by Ord. No. 3058, eff. 2/21/87; Amended by Ord. No. 3828, eff. 8/24/12.]

The tax imposed by this article shall become operative and be imposed on October 15, 1964, and shall not apply prior to said date. [Formerly numbered Section 14-118; renumbered by Ord. No. 3058, eff. 2/21/87.]

The provisions of this article are suspended as of October 1, 1967, and shall remain suspended and be of no force and effect while the State imposes and collects a cigarette tax and allocates a portion of such tax to counties, cities and cities and counties pursuant to Section 30462(e) of the Revenue and Taxation Code as amended by Chapter 963 of the Statutes of 1967. Should Section 30462(e) as amended by Chapter 963 of the Statutes of 1967, pursuant to which the City is entitled to receive an allocation of State Cigarette tax revenues, be declared invalid for any reason, then and in that event the provisions of this article shall be deemed not to have been suspended but to have been in full force and effect continuously from and after October 1, 1967. Nothing in this section shall be construed as relieving any person of the obligation to pay to the City any cigarette tax accrued and owing under this article before October 1, 1967. [Formerly numbered Section 14-119; renumbered by Ord. No. 3058, eff. 2/21/87.]