City of Industry Municipal Code Ch. 3.28 Utilities Tax

This chapter shall be known as the "Utility Tax law of the city of Industry."

(Ord. 424 Exhibit C § 1, 1978)

Except where the context otherwise requires, the definitions set forth in this section shall govern the construction of this chapter:

"City"

means the city of Industry.

"Month"

means a calendar month.

"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, individual or municipal corporation.

"Service supplier"

means a person required to collect and remit a tax imposed by this chapter.

"Service user"

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

"Tax administrator"

means the city clerk.

"Telephone corporation," "electric corporation," "gas corporation," "water corporation," and "cable television corporation"

shall, except as hereafter provided, have the same meaning as defined in Sections 234, 218, 222, 241 and 215.5, respectively, of the Public Utilities Code of the state, as said sections existed on January 1, 1978. "Water corporation," shall be construed to include any organization or municipality, including but not limited to a mutual water company, engaged in the selling or supplying of water to a service user.

(Ord. 424 Exhibit C § 1, 1978)

A. There is imposed and levied a tax upon every person in the city, other than a telephone corporation, using intrastate telephone communication services in the city. The tax imposed by this section shall be at the rate of five percent of all charges made for such services and shall be paid by the person paying for such services.

B. As used in this section, the term "charges" shall not include charges for telephone communication services which services are paid for by inserting coins in coin-operated telephones; provided, that where such coin-operated telephone service is furnished to a person for a guaranteed amount, the amounts paid under such guarantee plus any fixed monthly or other periodic charge shall be included within the term "charges." The term "telephone communications services" shall not include land or maritime mobile services as defined in Section 2.1 of Title 47 of the Code of Federal Regulations as such section existed on January 1, 1978.

C. Notwithstanding the provisions of subsection A, the tax imposed under this section shall not be imposed upon any person for using intrastate telephone communication services to the extent that the amounts paid for such services are exempt from, or not subject to, the tax imposed by Section 4251 of Title 26 of the United States Code, as such section existed on January 1, 1978, without regard to subsection (b) thereof.

(Ord. 424 Exhibit C § 1, 1978)

A. There is imposed and levied a tax upon every person in the city using electrical energy in the city. The tax imposed by this section shall be at the rate of five percent of the charges made for such energy and shall be paid by the person paying for such energy. "Charges," as used in this section, shall include charges made for: (1) metered energy; and (2) minimum charges for such service, including customer charges, service charges, demand charges, standby charges, and annual and monthly charges.

B. As used in this section, the term "using electrical energy" shall not be construed to include the storage of such energy by a person in a battery owned or possessed by him or her for use in an automobile or other machinery or device; provided, however, that the term shall include the receiving of such energy for the purpose of using it in the charging of batteries. The term shall not include electricity used in water pumping by water corporations; nor shall the term include the mere receiving of such energy by an electrical corporation at a point within the city for resale.

(Ord. 424 Exhibit C § 1, 1978)

A. There is imposed and levied a tax upon every person using, in the city, gas which is delivered through mains or pipes. The tax imposed by this section shall be at the rate of five percent of the charges made for such gas and shall be paid by the person paying for such gas.

B. There shall be excluded from the base on which the tax imposed by this section is computed:

1. Charges made for gas which is to be resold, and delivered through mains or pipes;

2. Charges made for gas used in the generation of electrical energy by an electrical corporation; or

3. Charges made for gas used in water pumping by water corporations;

4. Charges made by a gas corporation for gas used and consumed in the conduct of its business; and

5. Charges made for gas used in the propulsion of a motor vehicle, as that phrase is defined in the Vehicle Code of the state, utilizing natural gas.

(Ord. 424 Exhibit C § 1, 1978)

A. There is imposed and levied a tax upon every person using, in the city, water which is delivered through mains or pipes. The tax imposed by this section shall be at the rate of five percent of the charges made for such water and shall be paid by the person paying for such water. "Charges," as used in this section, shall include charges made for: (1) metered water; and (2) minimum charges for services, including customer charges, ready to serve charges, standby charges, and annual and monthly charges

B. There shall be excluded from the base on which the tax imposed by this section is computed, charges for water which is to be resold and delivered through mains or pipes; and charges made by a water corporation for water used and consumed by such water corporation in the conduct of its business.

(Ord. 424 Exhibit C § 1, 1978)

There is imposed and levied a tax upon every person in the city using cable television service. The tax imposed by this section shall be at the rate of five percent of the charges made for such service and shall be paid by the person paying for such service.

(Ord. 424 Exhibit C § 1, 1978)

Nothing in this chapter shall be construed as imposing a tax upon any person if the imposition of such tax upon that person would be in violation of the Constitution of the United States or the Constitution of the state.

(Ord. 424 Exhibit C § 1, 1978)

A. Every service supplier who receives, or is entitled to receive, the payment of charges from a service user.

B. The tax shall be collected at the same time, and in the same manner, as the collection of charges made in accordance with the regular billing practice of the service supplier.

C. The duty to collect 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 effective date of this chapter.

(Ord. 424 Exhibit C § 1, 1978)

Each service suppler shall, on or before the twentieth day of each calendar month, commencing on the twentieth day of the calendar month after the effective date of this chapter, make a return to the tax administrator, on forms provided by said administrator, stating the amount of taxes billed by the service supplier during the preceding calendar month. At the time such returns are filed, the full amount of the tax collected shall be remitted contemporaneously to the tax administrator. The tax administrator is authorized to require such further information as he or she deems necessary to properly determine if the tax here imposed is being levied and collected in accordance with this chapter. Returns and remittances are due from a service supplier immediately upon cessation of, business, by such supplier, for any reason.

(Ord. 424 Exhibit C § 1, 1978)

A. Taxes collected by a service supplier which are not remitted to the tax administrator on or before the due dates provided in this chapter are delinquent, and shall be subject to the imposition of penalties as herein provided.

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 same, in an amount equal to fifteen percent of the total tax collected or imposed herein.

C. The tax administrator shall have power to impose additional penalties upon persons required to collect and remit taxes under the provisions of this chapter for fraud or negligence in reporting or remitting in the sum of fifteen percent of the amount of the tax collected as recomputed by the tax administrator.

D. Every penalty imposed under the provisions of this section shall be deemed, for all purposes, a part of the tax required to be remitted and paid to the city.

(Ord. 424 Exhibit C § 1, 1978)

Any tax required to be paid by a service user pursuant to the provisions of this chapter shall be deemed a civil debt owed by the service user to the city. Any such tax collected from a service user which has not been remitted to the tax administrator shall be deemed a civil debt owed to the city by the person required to collect and remit the same. Any service supplier or service user who has failed to remit or pay taxes to the city, pursuant to the provisions of this chapter, shall be liable therefor in an action brought in the name of the city for the recovery of such amount.

(Ord. 424 Exhibit C § 1, 1978)

Whenever the tax administrator determines that a service user has deliberately withheld the amount of the tax owed by him or her from the amounts remitted to a service supplier, or that a service user has failed to pay the amount of the tax for a period of two or more billing periods, or whenever the tax administrator shall otherwise deem it in the best interest of the city, he or she shall relieve the affected service supplier of the obligation to collect taxes due under this chapter from such specific service users for one or more specified billing periods. The tax administrator shall notify the service user that he or she has assumed responsibility to collect the taxes due for the stated periods and demand payment of such taxes. The notice shall be served on the service user by handing it to him or her personally or by deposit of the notice in the United States mail, postage prepaid thereon, addressed to the service user at his or her last known address. If a service user fails to pay the tax to the tax administrator within fifteen days from the date of the service of the notice upon him, which shall be the date of mailing if service is not accomplished in person, a penalty of twenty-five percent of the amount of the tax set forth in the notice shall be imposed, but in no event less than five dollars. The penalty shall become, for all purposes, a part of the tax required to be paid pursuant to the provisions of this chapter.

(Ord. 424 Exhibit C § 1, 1978)

It shall be the duty of every service supplier who is required to collect and remit to the city a tax imposed by this chapter to keep and preserve, for a period of not less than three years, all records as may be necessary to determine the amount of such taxes due to the city from service users supplied by such service supplier, which records the tax administrator shall have the right to inspect at all reasonable times.

(Ord. 424 Exhibit C § 1, 1978)

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 under this chapter, it may be refunded as provided in this section.

B. A person required to collect and remit taxes imposed under this chapter may claim a refund or take as credit against taxes collected but not yet remitted to the city, the amount overpaid, paid more than once or erroneously or illegally collected or received, when it is established, in a manner prescribed by the tax administrator, that a refund, as described in subsection A is justified; provided, however, that no refund shall be allowed unless the amount thereof has been collected from a service user, and has either been refunded to the service user or credited to charges subsequently payable by the service user to the person required to so collect and remit.

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

(Ord. 424 Exhibit C § 1, 1978)

A. The tax imposed by this chapter shall riot apply to any person who is: (1) sixty-two years of age or older; or (2) who is "disabled" within the meaning of Section 416 (i)(A) of Title 42 United States Code, who uses telephone, electric, gas, cable television or water service in or upon any premises occupied and resided in by such individual; provided, the combined gross income of all members of the household in which such individual resided was less than ten thousand dollars for the calendar year prior to the fiscal year (July 1st through June 30th) for which the exemption provided in this chapter is applied for, and whose net worth is less than one hundred thousand dollars, exclusive of the value of a home in which they reside.

The exemptions granted by this section shall not eliminate the duty of the service supplier from collecting taxes from such exempt individuals or the duty of such exempt individual from paying such taxes to the service supplier unless an exemption is applied for by the service user and granted in accordance with the provisions of subsection B hereof.

B. Any service user exempt from the taxes imposed by this chapter because of the provisions of subsection A, may file an application with the city clerk for an exemption.

Such application shall be made upon forms supplied by the city clerk and shall recite facts under oath which qualify the applicant for an exemption. The city clerk shall review all such applications and certify as exempt those applicants determined to qualify therefor and shall notify all service suppliers affected that such exemption has been approved, stating the name of the applicant, the address to which such exempt service is being supplied, the account number, if any, and such other information as may be necessary for the service supplier to remove the exempt service user from its tax billing procedure. Upon receipt of such notice, the service supplier shall not be required to continue to bill any further tax imposed by this chapter from such exempt service user until further notice by the city clerk is given. The service supplier shall eliminate such exempt service user from its tax billing procedure no later than sixty days after receipt of such notice from the city clerk.

All exemptions shall continue and be renewed automatically by the city clerk so long as the prerequisite facts supporting the initial qualification for exemption shall continue; provided, however, that the exemption shall automatically terminate with any change in the service address or residence of the exempt individual; further provided, such individual may nevertheless apply for a new exemption with each change of address or residence. Any individual exempt from, the tax shall notify the city clerk within ten days of any change in fact or circumstance which might disqualify said individual from receiving such exemption. It shall be a misdemeanor for any person to knowingly receive the benefits of the exemptions provided by this section when the basis for such exemption either does not exist or ceases to exist.

Notwithstanding any of the provisions of this subsection, however, any service supplier who determines by any means that a new or nonexempt service user is receiving service through a meter or connection exempt by virtue of an exemption issued to a previous user or exempt user of the same meter or connection, such service supplier shall immediately notify the city clerk of such fact and the city clerk shall conduct an investigation to ascertain whether or not the provisions of this section have been complied with, and, where appropriate, order the service supplier to commence collecting the tax from the nonexempt service user.

(Ord. 424 Exhibit C § 1, 1978)

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. The city council declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases be declared unconstitutional.

(Ord. 424 Exhibit C § 1, 1978)

The various utility taxes imposed by this chapter shall be levied upon utility services furnished on or after July 1, 1979.

(Ord. 424 Exhibit C § 1, 1978; Ord. 428 § 3, 1978)