Ceres Municipal Code Ch. 09 Utility Users' Excise Tax

This chapter shall be known as the "Utility Users' Excise Tax" of the City of Ceres.

(Ord. No. 2020-1058, § 4, 3-23-2020)

Except where the context otherwise requires, the definitions set forth in this Section govern the construction of this chapter.

Gas includes natural gas and any other gas used for light, heat and power.

Month means a calendar month.

Nonutility supplier means a service supplier, other than an electrical corporation serving within the City, which generates electrical energy in capacities of at least 100 kilowatts monthly for its own use or for sale to others.

Person means any domestic or foreign corporation, firm, association, syndicate, joint stock company, partnership of any kind, joint venture, club, Massachusetts business or common law trust, society, or individual.

Service supplier means any entity required to collect or self-impose and remit a tax as imposed by this chapter.

Service user means a person required to pay a tax imposed by this chapter.

Tax Administrator means the City Manager of the City or designee.

Telephone corporation, electrical corporation, gas corporation, water corporation, and cable television corporation shall have the same meanings as defined in Public Utilities Code sections 234, 218, 222, 241, and 215.5 (as said sections existed on April 1, 1991), except that "water corporation" shall also be construed to include any municipality or governmental agency engaged in the selling or supplying of water to a service user, and "electrical corporation" shall also be construed to include any municipality or person engaged in the selling or supplying of electrical power to a service user.

(Ord. No. 2020-1058, § 4, 3-23-2020)

This chapter is adopted pursuant to the provisions of Government Code section 37100.5 and other applicable laws for the purpose of providing general municipal revenues to be used for general municipal purposes. Revenues from the tax imposed by this chapter shall be placed in the City's General Fund.

(Ord. No. 2020-1058, § 4, 3-23-2020)

A. 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.

B. Households that do not exceed the very low income limits for Stanislaus County as set forth in the most recent edition of the Section 6932 Income Limits issued annually by the U.S. Department of Housing and Urban Development shall be exempt from the payment of the taxes imposed by this chapter.

(Ord. No. 2020-1058, § 4, 3-23-2020)

A. There is imposed a tax on the amounts paid for any intrastate, interstate, and international telephone communications services, including any teletypewriter or facsimile exchange services, by every person in the City using such services, other than a telephone corporation. The tax imposed by this section shall be at the rate specified by resolution of the City Council as provided for in section 3.40.100 of this chapter on the charges made for such services and shall be paid by the person paying for such services. This tax is intended to and does apply to all charges billed to a telephone account having a situs in the City, irrespective of whether a particular communication service originates and/or terminates within the City.

B. As used in this section, the term "charges" shall not include charges for services paid for by inserting coins in coin-operated telephones except where such coin-operated service is furnished for a guaranteed amount, the amounts paid under such guarantee plus any fixed monthly or other period charge shall be included in the base for computing the amount of tax due; nor shall the term "charges" include charges for any type of service or equipment furnished by a service supplier which is subject to public utility regulations during any period in which the same or similar services or equipment are also available for sale or lease from persons other than a service supplier subject to public utility regulation.

C. The term "telephone communication services" refers to that service which provides access to a telephone system and the privilege of telephone quality communication with substantially all persons having telephone stations which are part of such telephone system. The words "telephone communication services" do not include land mobile service or maritime mobile services as defined in section 2.1. of title 47 of the Code of Federal Regulations, as said sections existed on January 1, 1983.

D. The tax imposed by this section shall be billed and collected from the service users by the person providing the telephone communications services, or the persons receiving payment for such services. The amount of the tax collected in one month shall be remitted to the Tax Administrator on or before the last day of the following month; or, at the option of the person required to collect and remit the tax, an estimated amount of tax collected which shall be measured by the tax billed in the previous month, shall be remitted to the Tax Administrator on or before the last day of each month. If estimated tax payments are remitted to the Tax Administrator, the person required to collect and remit the tax shall reconcile the difference between the amount of the tax actually due and the amount of the estimated tax paid to the Tax Administrator every third month after the date that the tax is first imposed. Any additional tax due to the City shall immediately be paid to the Tax Administrator. The amount of any overpaid tax may be deducted from the next payment due to the City. In the event of a tax overpayment, documentation establishing such overpayment shall be provided to the City along with the tax payment for the month in which the overpayment is claimed.

E. Notwithstanding the provisions of subsection A of this section, the tax imposed under this section shall not be imposed upon any person for using the following intrastate, interstate, or international telephone communications services:

1. Service paid for by inserting coins in coin-operated telephones available with respect to local telephone service, or with respect to toll telephone service, except that where such coin-operated telephone service is furnished for a guaranteed amount, the amounts paid under such guarantee plus any fixed monthly or other periodic charge shall be subject to the tax.

2. Except with respect to local telephone service, services used in collection of news for the public press, or a news ticker service furnishing a general news service similar to that of the public press, or radio broadcasting, or in the dissemination of news through the public press, or a news ticker service furnishing a general news service similar to that of the public press, or by means of radio broadcasting, if the charge for such service is billed in writing to such person.

3. Services furnished to an international organization, or to the American National Red Cross.

4. Any toll telephone service which originates within a combat zone and is from a member of the Armed Forces of the United States performing service in such combat zone; provided a certificate, setting forth such facts as the secretary may by regulations prescribe, is furnished to the person receiving such payment.

5. Any toll telephone service which entitles the subscriber, upon payment of a periodic charge (determined as a flat amount or upon the basis of total elapsed transmission time), to the privilege of an unlimited number of telephonic communications to or from all or a substantial portion of the persons having telephone or radio telephone stations in a specified area which is outside the local telephone system area in which the station provided with this service is located, that is for use by a common carrier, telephone or telegraph company, or radio broadcasting station or network in the conduct of its business as such.

6. The installation of any instrument, wire, pole, switchboard, apparatus, or equipment as is properly attributable to such installation.

7. Amounts paid by a nonprofit hospital for services furnished to such organization.

8. Services or facilities furnished to the government of any state, or any political subdivision thereof, or the District of Columbia.

9. Services or facilities paid for by a nonprofit educational organization and furnished to such organization. For purposes of this subsection, the term "nonprofit organization" means an educational organization described in section 170(b)(1)(A)(ii) of the Internal Revenue Code which is exempt from income tax under section 501(a) of the same code. The term also includes a school operated as an activity of an organization described in section 501(c)(3) of the Internal Revenue Code which is exempt from income tax under section 501(a) of the same code, if such school normally maintains a regular faculty and curriculum and normally has a regularly enrolled body of pupils or students in attendance at the place where its educational activities are regularly carried on.

F. Upon proof by any taxpayer of payment of a tax in another state on the same interstate telephone communication services taxed and paid for pursuant to this section, that taxpayer shall be eligible for a tax credit in the amount previously paid to the other jurisdiction.

(Ord. No. 2020-1058, § 4, 3-23-2020)

A. There is imposed a tax upon every person in the city using electrical energy in the City, other than an electrical corporation or a gas corporation. The tax imposed by this section shall be at the rate specified by resolution of the City Council as provided for in section 3.40.100 of this chapter on the charges made for such energy by an electrical corporation franchised to serve the City and shall be billed to and paid by the person using the energy. The tax applicable to electrical energy provided by a nonutility supplier shall be based on the specified tax rate and the sale price of that electrical energy if there is an arms-length transaction for the sale of the electrical energy between the nonutility supplier and the service user. If there is not an arms-length sale from a nonutility supplier, the tax shall be determined by applying the tax rate to the equivalent charges the service user would have incurred if the energy used had been provided by the electrical corporation franchised to serve the City. Nonutility suppliers shall install, maintain and use an appropriate utility-type metering system which shall verify compliance with this section. "Charges," as used in this section, shall include charges made for: 1) metered energy; and 2) minimum charges for service, including customer charges, service charges, demand charges, standby charges and all other annual and monthly charges, fuel or other cost adjustments, authorized by the California Public Utilities Commission or the Federal Energy Regulatory Commission.

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 that person for use in an automobile or other machinery 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 electrical 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 of water by a public utility or a governmental agency.

C. The tax imposed by this section shall be billed and collected from the service user by the service supplier or nonutility supplier. The tax imposed by this section on use supplied by self-generation or cogeneration or from a nonutility supplier not subject to the jurisdiction of this chapter, shall be collected and remitted to the Tax Administrator in the manner set forth below. The amount of tax collected by a service supplier or a nonutility supplier in one month shall be remitted by U.S. mail to the Tax Administrator, postmarked on or before the last day of the following month; or, at the option of the person required to collect and remit the tax, an estimated amount of tax, measured by the tax billed in the previous month, shall be remitted by U.S. mail, to the Tax Administrator, postmarked on or before the last day of each month. If estimated tax payments are remitted to the Tax Administrator, the person required to collect and remit the tax shall reconcile the difference between the amount of the tax actually due and the amount of the estimated tax paid to the Tax Administrator every third month after the date that the tax is first imposed. Any additional tax due to the City shall immediately be paid to the Tax Administrator. The amount of any overpaid tax may be deducted from the next tax payment due to the City. In the event of a tax overpayment, documentation establishing such overpayment shall be provided to the City along with the tax payment for the month in which the overpayment is claimed.

D. Notwithstanding any other provision of this chapter, a service user receiving electricity directly from a nonutility supplier, or a nonutility supplier not under the jurisdiction of this chapter, or otherwise not having the full tax due, billed and collected by the service supplier, shall report said fact to the Tax Administrator within 30 days of said use; and shall remit directly to the Tax Administrator the amount of said tax due.

E. The Tax Administrator may require from said service user the filing of tax returns or other satisfactory evidence documenting the sale price, or fair market value in the absence of a sales price, and quantity of electricity used.

(Ord. No. 2020-1058, § 4, 3-23-2020)

A. There is imposed a tax upon every person in the City, other than a gas corporation or an electrical corporation, using, in the City, gas which is delivered through mains or pipes or by motor vehicle or by rail. The tax imposed by this section shall be at the rate specified by resolution of the City Council as provided for in section 3.40.100 of this chapter on the charges made for such gas and shall be paid by the person paying for such gas. The tax applicable to gas or gas transportation provided by nonutility suppliers shall be based on the sale price of the gas or gas transportation if that is derived from an arms-length transaction between a nonaffiliated nonutility supplier and the service user. If there is not an arms-length transaction, the tax shall be determined by applying the tax rate to the equivalent charges the service user would have incurred if the gas or gas transportation had been provided by the gas corporation franchised to serve the City. "Charges," as used in this section, shall include:

1. Those billed for gas which is delivered through mains or pipes or by motor vehicle or by rail;

2. Gas transportation charges; and

3. Demand charges, service charges, customer charges, minimum charges, annual and monthly charges, and any other charge authorized by the California Public Utilities Commission or the Federal Energy Regulatory Commission.

B. The tax imposed by this section is not applicable to:

1. Charges made for gas which is to be resold and delivered through mains and pipes or by motor vehicle or by rail;

2. Charges made for gas sold by a public utility or governmental agency for use in the generation of electrical energy or for the production or distribution of water;

3. Charges made by a gas public utility for gas used and consumed in the course of its public utility business; and

4. Charges made for gas used in the propulsion of a motor vehicle, as authorized in the Vehicle Code of the State.

C. The tax imposed in this section shall be billed and collected from the service user by the person selling or transporting the gas. A person selling only transportation services to a user for delivery of gas through mains or pipes or by motor vehicle or by rail shall collect the tax from the service user based on the transportation charges. The amount of tax collected by the person selling or transporting the gas shall be remitted by U.S. mail to the Tax Administrator, postmarked on or before the last day of the following month; or, at the option of the person required to collect and remit the tax, an estimated amount of tax, measured by the tax billed in the previous month, shall be remitted by U.S. mail, to the Tax Administrator, postmarked on or before the last day of each month. If estimated tax payments are remitted to the Tax Administrator, the person required to collect and remit the tax shall reconcile the difference between the amount of the tax actually due and the amount of the estimated tax paid to the Tax Administrator every third month after the date that the tax is first imposed. Any additional tax due to the City shall immediately be paid to the Tax Administrator. The amount of any overpaid tax may be deducted from the next tax payment due to the City. In the event of a tax overpayment, documentation establishing such overpayment shall be provided to the City along with the tax payment for the month in which the overpayment is claimed.

D. Notwithstanding any other provision of this chapter, a service user receiving gas directly from a nonutility supplier, or a nonutility supplier not under the jurisdiction of this chapter, or otherwise not having the full tax due, billed and collected by the service supplier, shall report said fact to the Tax Administrator within 30 days of said use; and shall remit directly to the Tax Administrator the amount of said tax due.

E. The Tax Administrator may require from said service user the filing of tax returns or other satisfactory evidence documenting the sale price, or fair market value in the absence of a sales price, and quantity of gas used.

(Ord. No. 2020-1058, § 4, 3-23-2020)

A. There is imposed a tax upon every person in the City using cable television service in the City. The tax imposed by this section shall be at the rate specified by resolution of the City Council as provided for in section 3.40.100 of this chapter on the gross charges made for such service and shall be paid by the person paying for such service.

B. The tax imposed by this section shall be billed and collected from the service user by the person providing such cable television service. The amount of tax collected shall be remitted by U.S. mail to the Tax Administrator, postmarked on or before the last day of the following month; or, at the option of the person required to collect and remit the tax, an estimated amount of tax measured by the tax billed in the previous month, shall be remitted by U.S. mail, to the Tax Administrator, postmarked on or before the last day of each month. If estimated tax payments are remitted to the Tax Administrator, the person required to collect and remit the tax shall reconcile the difference between the amount of tax actually due and the amount of estimated tax paid to the Tax Administrator every third month after the date that the tax is first imposed. Any additional tax due to the City shall immediately be paid to the Tax Administrator. The amount of any overpaid tax may be deducted from the next tax payment due to the City. In the event of a tax overpayment, documentation establishing such overpayment shall be provided to the City along with tax payment for the month in which the overpayment is claimed.

(Ord. No. 2020-1058, § 4, 3-23-2020)

The taxes authorized by this chapter shall be set by resolution of the City Council following a public hearing held for that purpose. From the effective date of the ordinance from which this chapter derives and until August 1, 1998, the tax rate shall not exceed five percent of the charges for utility services as defined in this chapter. After August 1, 1998, the tax rate shall not exceed three percent of the charges for such utility services.

(Ord. No. 2020-1058, § 4, 3-23-2020)

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. Should the due date occur on a weekend or legal holiday, the return may be postmarked on the first regular working day following a Saturday, Sunday, or legal holiday.

B. Penalties for delinquency in remittance of any tax collected or any deficiency determination shall attach and be paid by the person required to collect and remit the tax at the rate of 15 percent of the total tax collected or imposed herein.

C. Every penalty imposed under the provisions of this chapter shall become part of the tax required to be remitted.

(Ord. No. 2020-1058, § 4, 3-23-2020)

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 tax collected from a service user by a service supplier or nonutility supplier which has not been paid to the Tax Administrator shall be deemed a debt owed to the City by the person required to collect and remit. Any person owing money to the City under the provisions of this chapter shall be liable to the City for the amounts owed, including penalties, as well as for the costs and expenses incurred by the City, including collection fees, attorney fees and court costs, resulting from the failure to pay said amounts.

(Ord. No. 2020-1058, § 4, 3-23-2020)

The duty to collect and remit the taxes imposed by this chapter shall be performed as follows:

A. Notwithstanding any other provision of this chapter, the tax shall be collected at the same time as, and along with, the charges made in accordance with the regular billing practice of the service supplier. Where the amount paid by a service user to a service supplier is less than the full amount of the charge and tax which accrued for the billing period, a proportionate share of both the charge and the tax shall be deemed to have been paid except in those cases where a service user pays the full amount of the charges but notifies the service supplier of his/her refusal to pay the tax imposed on said charges. The Tax Administrator shall have the power to make an assessment for delinquent taxes as provided for in Section 3.40.150 of this chapter thereby relieving the service supplier from the obligation to collect these delinquent taxes.

B. The duty to collect the tax from a service user shall commence with the beginning of the first regular billing period applicable to that person which starts on or after the operative date of the ordinance codified in this chapter and the resolution of the City Council establishing the applicable tax rate. 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.

(Ord. No. 2020-1058, § 4, 3-23-2020)

A. The Tax Administrator has the power and duty to enforce each and all of the provisions of this chapter.

B. The Tax Administrator has the power to adopt rules and regulations not inconsistent with the provisions of this chapter for the purpose of carrying out and enforcing the payment, collection, and remittance of the taxes herein imposed.

C. The Tax Administrator may make administrative agreements to vary the strict requirements of this chapter so that collection of any tax imposed herein may be made in conformance with the billing procedures of a particular service supplier so long as said agreements result in collection of the tax in conformance with the general purpose and scope of this chapter.

(Ord. No. 2020-1058, § 4, 3-23-2020)

A. The Tax Administrator may make an assessment for taxes not remitted by a person required to remit such taxes.

B. The service supplier shall provide the City with the names and addresses of the service users neglecting to pay the tax imposed under the provisions of this chapter, and the amounts of any delinquent taxes due and owing to the City.

C. Whenever the Tax Administrator determines that a service user has failed to pay the tax due and owing under this chapter, and the Tax Administrator deems it in the best interests of the City, the service supplier or nonutility supplier may be relieved of the obligation to collect taxes due under this chapter for the specified billing periods in which the taxes are delinquent.

D. The Tax Administrator shall notify the service user that the Tax Administrator has assumed responsibility to collect the delinquent taxes due for the stated periods and demand payment of such taxes. The notice shall be served on the service user personally or by deposit of the notice in the United States mail, postage prepaid, addressed to the service user at the address to which billing was made by the person required to collect the tax. If the service user fails to remit the tax to the Tax Administrator within 15 days from the date of the mailing or personal service of the notice, a penalty of 15 percent of the amount of the tax set forth in the notice shall be imposed. The penalty shall become a part of the tax herein required to be paid. In the event the City commences a collection action as provided for in Section 3.40.120 of this chapter, the service user shall also be responsible for the payment of the City's collection fees, attorney fees and court costs.

(Ord. No. 2020-1058, § 4, 3-23-2020)

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 such person may have been liable for according to this chapter. The Tax Administrator shall have the right to inspect these records at all reasonable times.

(Ord. No. 2020-1058, § 4, 3-23-2020)

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 Tax Administrator, it may be refunded as provided in this section.

B. Notwithstanding the provisions of subsection A of this section, a service supplier may claim a refund; or take as a credit against taxes remitted, the amount overpaid, paid more than once, or erroneously or illegally collected or received, when it is established that the service user from whom the tax has been collected did not owe the tax; 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 service user or credited to charges subsequently payable by the service user to the person required to collect and remit. A service supplier that has collected and paid to the Tax Administrator any amount of tax in excess of the amount of tax imposed by this chapter and actually due from a service user, may refund such amount to the service user and claim credit for such overpayment against the amount of tax which is due upon any other monthly returns, provided such credit is claimed in a return dated no later than three years from the date of overpayment.

C. No refund shall be paid under the provisions of this section unless the claimant establishes the right thereto by written records showing entitlement thereto.

D. 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, makes a refund to service users of charges for past utility 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 shall be entitled to claim a credit for such refunded taxes against the amount of tax which is due upon the next monthly returns. In the event the ordinance codified in this chapter is repealed, the amounts of any refundable taxes will be borne by the City.

E. A service supplier may refund the taxes collected from the service user as required by this section in accordance with this section or by the service supplier's customary practice.

(Ord. No. 2020-1058, § 4, 3-23-2020)

The validity of this chapter or of any tax levied pursuant to this chapter shall not be contested in any action or proceeding or defense unless such action or proceeding or defense shall have been brought or raised in a court of competent jurisdiction within 60 days from the date of the adoption of the ordinance codified in this chapter. Unless an action or proceeding is commenced or such defense raised within said period, this chapter and any tax levied pursuant to this chapter shall be held valid and, in every respect, legal and incontestable.

(Ord. No. 2020-1058, § 4, 3-23-2020)

The service supplier shall, upon notification, terminate or suspend any utility users' excise tax commencing with the first full billing period which occurs after the effective date of such action by the City Council.

(Ord. No. 2020-1058, § 4, 3-23-2020)

The ordinance from which this chapter derives became operative on January 1, 1993.

(Ord. No. 2020-1058, § 4, 3-23-2020)