Cudahy Municipal Code Ch. 3.36 Utility User Tax

This chapter shall be known as the “utility user tax ordinance of the city of Cudahy.” (Ord. 593-P § 1, 2004; Ord. 441 § 1. 2002 Code § 7-5.1).

This chapter is enacted solely to raise revenue for the general governmental purposes of the city of Cudahy. All of the proceeds from the tax imposed by this chapter shall be placed in the city’s general fund and used for the usual and current expenses of the city. (Ord. 593-P § 1, 2004; Ord. 441 § 1. 2002 Code § 7-5.2).

Whenever used in this chapter, the following words and phrases shall be construed as defined in this section.

(1) “Person” shall mean 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.

(2) “City” shall mean the city of Cudahy.

(3) “Electrical corporation,” “gas corporation,” “telephone corporation,” and “water corporation” shall have the same meanings as are defined in Sections 218, 222, 234, and 241, respectively, of the Public Utilities Code of the state of California, as said sections existed on January 1, 1975. “Waste hauler” shall mean any person who provides waste collection and hauling services for which a franchise or license is required pursuant to CMC 5.08.720 or Chapter 8.12 CMC. “Electrical corporation,” “gas corporation,” and “water corporation” shall also be construed to include any municipality or government agency engaged in the selling or supplying of electrical power, gas, or water to a service user.

(4) “Tax administrator” shall mean the city manager or his or her designee.

(5) “Service supplier” shall mean any entity required to collect or self-impose and remit a tax imposed by this chapter.

(6) “Service user” shall mean any person required to pay a tax imposed by this chapter.

(7) “Month” shall mean a calendar month.

(8) “Telephone services” shall mean services which provide the privilege of telephone communication with substantially all persons having telephone stations which are part of such telephone system.

(9) “Nonutility supplier” shall mean a service supplier, other than an electrical corporation providing service within the city, which generates electrical energy for its own use or for sale to others. (Ord. 593-P § 1, 2004; Ord. 441 § 1. 2002 Code § 7-5.3).

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, the Constitution of the state of California, or any California statute. (Ord. 593-P § 1, 2004; Ord. 441 § 1. 2002 Code § 7-5.4).

(1) The taxes imposed by this chapter shall not apply to any service user who is the head of a household and both:

(a) At least 62 years of age or older; and

(b) The primary resident of the property.

(2) The taxes imposed by this chapter shall not apply to any “health facility” within the meaning of California Government Code Section 15432, as that section read on January 1, 1990, or to any facility operated by a nonprofit entity which provides outpatient services under the authority granted pursuant to Section 1275 or 1275.6 of the California Health and Safety Code.

(3) To qualify for an exemption set forth in this chapter, a service user shall file an application in the form, time and manner prescribed by the tax administrator.

(4) The tax administrator shall, within 60 days of receipt of an application for exemption, determine whether the applicant is entitled to an exemption, and if so, notify the service supplier.

(5) An exemption granted pursuant to this chapter shall become effective at the beginning of the first regular billing period which commences after the tax administrator has notified the service supplier that an exemption has been granted.

(6) The tax administrator shall notify the service supplier of the termination of any person’s right to exemption hereunder, or the change of any address to which service is supplied to any exempt person. (Ord. 593-P § 1, 2004; Ord. 441 § 1. 2002 Code § 7-5.5).

(1) There is hereby imposed on every person other than a telephone corporation, electrical corporation, gas corporation, water corporation, or waste hauler a tax for use of intrastate, interstate and international telephone services in the city of Cudahy. The tax imposed by this section shall be at the rate of eight percent of the charges made for such services for persons or businesses using such services for industrial, commercial or any use other than service to the person’s residence, and at the rate of four percent of the charges made for such services for persons using such services for service to the person’s residence. Said tax shall apply to all charges billed to a telephone account having a situs in the city, irrespective of whether a particular telephone service originates or terminates within the city.

(2) As used in this section, the term “charges” shall not include charges for services paid for by inserting coins into coin-operated telephones except that, where such coin-operated service is furnished for a guaranteed amount, the amounts paid under such guarantee plus any fixed monthly or other periodic 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 subject to public utility regulation 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; nor shall the words “telephone services” include land mobile services or maritime mobile services as defined in Section 2.1 of Title 47 of the Code of Federal Regulations as said section existed on January 1, 1970.

(3) The tax imposed by this section shall be collected from the service user by the person providing the telephone services, or the person 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, unless the due date occurs on a weekend or a holiday, in which case the tax shall be remitted on or before the next business day thereafter. Taxes shall be deemed remitted on the date received by the tax administrator, or on the date postmarked if remitted by first class United States mail with postage fully prepaid. With prior written approval of the tax administrator, remittance of tax may be predicated on a formula based upon the payment pattern of the supplier’s customers; or, at the option of the person required to collect and remit the tax, an estimated amount of tax collected, measured by the tax bill in the previous month.

(4) Notwithstanding the provisions of subsection (1) of this section, the tax imposed under this section shall not be imposed upon any person for using telephone services to the extent that the amounts paid for such services are not subject to the tax imposed under Section 4251 of the Internal Revenue Code (26 U.S.C. Section 4251). (Ord. 593-P § 1, 2004; Ord. 441 § 1. 2002 Code § 7-5.6).

(1) There is hereby imposed a tax on every person other than a telephone corporation, electrical corporation, gas corporation, water corporation, or waste hauler using electrical energy in the city. The tax imposed by this section shall be at the rate of eight percent of the charges made for such energy for persons or businesses using such services for industrial, commercial or any use other than service to the person’s residence, and at the rate of four percent of the charges made for such energy for persons using such services for service to the person’s residence. The tax applicable to electrical energy provided by a nonutility supplier shall be determined by applying the tax rate to the equivalent charge the service user would have incurred if the energy had been provided by the electrical corporation franchised by the city. Rate schedules for this purpose shall be available from the city. Nonutility suppliers shall install, maintain and use an appropriate metering system which will enable compliance with this section. “Charges,” as used in this section, shall include charges made for metered energy and charges for service, including customer charges, service charges, standby charges, charges for temporary services, demand charges, annual and monthly charges, and any other charge authorized by the California Public Utilities Commission or the Federal Energy Regulatory Commission.

(2) 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 him or her for use in an automobile or other machinery or 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 electric 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 or distribution of water by a public utility or a governmental agency.

(3) The tax imposed in this section shall be collected from the service user by the person supplying such energy. The amount of tax collected in one month shall be remitted to the tax administrator on or before the last day of the following month, unless the due date occurs on a weekend or a holiday, in which case the tax shall be remitted on or before the next business day thereafter. Taxes shall be deemed remitted on the date received by the tax administrator, or on the date postmarked, if remitted by first class United States mail with postage fully prepaid. With prior written approval of the tax administrator, remittance of tax may be predicated on a formula based upon the payment pattern of the supplier’s customers. (Ord. 593-P § 1, 2004; Ord. 441 § 1. 2002 Code § 7-5.7).

(1) There is hereby imposed a tax on every person other than a telephone corporation, electrical corporation, gas corporation, water corporation, or waste hauler using in the city gas which is delivered through mains or pipes. The tax imposed by this section shall be at the rate of eight percent of the charges made for such gas for persons or businesses using such services for industrial, commercial or any use other than service to the person’s residence, and at the rate of four percent of the charges made for such gas for persons using such services for service to the person’s residence. “Charges,” as used in this section, shall include charges made for metered gas and charges for service, including customer charges, service charges, and annual and monthly charges and any other charge authorized by the California Public Utilities Commission or the Federal Energy Regulatory Commission.

(2) There shall be excluded from the base on which the tax imposed in this section is computed: (a) charges made for gas which is to be resold and delivered through mains or pipes; (b) charges made for gas sold for use in the generation of electrical energy or for the production or distribution of water by a public utility or governmental agency; (c) charges made for natural gas used in the propulsion of a motor vehicle, as that phrase is defined in the Vehicle Code of the state of California; and (d) charges made for gas used by a nonutility supplier to generate electrical energy for its own use or for sale to others, provided the electricity so generated is subject to tax under CMC 3.36.070.

(3) The tax imposed by this section shall be collected from the service user by the person providing the gas. The amount of tax collected in one month shall be remitted to the tax administrator on or before the last day of the following month, unless the due date occurs on a weekend or a holiday, in which case the tax shall be remitted on or before the next business day thereafter. Taxes shall be deemed remitted on the date received by the tax administrator, or on the date postmarked, if remitted by first class United States mail with postage fully prepaid. With prior written approval of the tax administrator, remittance of tax may be predicated on a formula based upon the payment pattern of the supplier’s customers. (Ord. 593-P § 1, 2004; Ord. 441 § 1. 2002 Code § 7-5.8).

(1) There is hereby imposed a tax on every person other than a telephone corporation, electrical corporation, gas corporation, water corporation, or waste hauler using in the city the services of a waste hauler for the removal of trash or refuse. The tax imposed by this section shall be at the rate of eight percent of the charges made for such services for persons or businesses using such services for industrial, commercial or any use other than service to the person’s residence, and at the rate of four percent of the charges made for such services for persons using such services for service to the person’s residence. “Charges,” as used in this section, shall include charges for service, including customer charges, service charges, and annual and monthly charges and any other charge authorized by the Cudahy Municipal Code, a franchise granted pursuant to that code, or the law of the state of California.

(2) The tax imposed by this section shall be collected from the service user by the person providing the services. The amount of tax collected in one month shall be remitted to the tax administrator on or before the last day of the following month, unless the due date occurs on a weekend or a holiday, in which case the tax shall be remitted on or before the next business day thereafter. Taxes shall be deemed remitted on the date received by the tax administrator, or on the date postmarked, if remitted by first class United States mail with postage fully prepaid. With prior written approval of the tax administrator, remittance of tax may be predicated on a formula based upon the payment pattern of the supplier’s customers. (Ord. 593-P § 1, 2004; Ord. 441 § 1. 2002 Code § 7-5.9).

(1) There is hereby imposed a tax on every person other than a telephone corporation, electrical corporation, gas corporation, water corporation, or waste hauler using water which is delivered through mains or pipes. The tax imposed by this section shall be at the rate of eight percent of the charges made for such water for persons or businesses using such services for industrial, commercial or any use other than service to the person’s residence, and at the rate of four percent of the charges made for such water for persons using such services for service to the person’s residence. “Charges,” as used in this section, shall include charges made for metered water and charges for service, including customer charges, service charges, and annual and monthly charges and any other charge authorized by law.

(2) Charges made for water which is to be resold and delivered through mains or pipes shall be excluded from the base on which the tax imposed by this section is computed.

(3) The tax imposed by this section shall be collected from the service user by the person supplying the water. The amount of tax collected in one month shall be remitted to the tax administrator on or before the last day of the following month, unless the due date occurs on a weekend or a holiday, in which case the tax shall be remitted on or before the next business day thereafter. Taxes shall be deemed remitted on the date received by the tax administrator, or on the date postmarked, if remitted by first class United States mail with postage fully prepaid. With prior written approval of the tax administrator, remittance of tax may be predicated on a formula based upon the payment pattern of the supplier’s customers. (Ord. 593-P § 1, 2004; Ord. 441 § 1. 2002 Code § 7-5.10).

(1) 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 and are subject to penalties and interest.

(2) Any person who fails to remit taxes collected in the time required by this chapter shall pay a penalty of five percent of the amount of the tax owed, and if not remitted within two working days after the date of delinquency, shall pay a penalty of 20 percent of the amount of tax owed. Such penalty shall attach to the amount of tax due and shall be paid by the person required to collect and remit the tax.

(3) When fraud or gross negligence in reporting and remitting tax collections is discovered, the tax administrator shall have power to impose additional penalties of 20 percent of taxes owed upon persons required to collect and remit taxes under the provisions of this chapter.

(4) Any person required to remit to the tax administrator delinquent taxes as required in this section shall pay interest at the rate of one and one-half percent per month or portion thereof, on the amount of tax owed exclusive of penalties, from the date on which the tax first became delinquent until paid.

(5) Notwithstanding the provisions of subsections (2) and (4) of this section, no penalty or interest shall be applied if delinquencies are the result of natural disasters or other phenomena beyond the control of the person charged with collecting and remitting the tax, provided the person obliged to remit tax notifies the tax administrator as soon as normal communications permit. (Ord. 593-P § 1, 2004; Ord. 441 § 1. 2002 Code § 7-5.11).

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 such tax collected from a service user which has not been remitted to the tax administrator shall be deemed a debt owed to the city by the person who collected the tax. Any person owing money to the city under the provisions of this chapter shall be liable in an action brought in the name of the city for the recovery of such amount. (Ord. 593-P § 1, 2004; Ord. 441 § 1. 2002 Code § 7-5.12).

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

(1) The tax shall be collected insofar as practicable at the same time as, and along with, the collection of charges made in accordance with the regular billing practices of the service supplier. Where the amount paid by a service user is less than the full amount of the charge and tax which has accrued for a billing period, such payment and any subsequent payments may be first applied to the charge until such charge has been fully satisfied. Any remaining balance shall be applied to the taxes due, except where a service user pays the full amount of the charges but notifies the service supplier of a refusal to pay the tax imposed on such charges, in which case the service supplier may be relieved of the duty to collect the tax pursuant to CMC 3.36.150.

(2) The duty to collect tax from a service user shall commence with the beginning of the first regular billing period applicable to that service user which begins on or after August 1, 1991. Where a person is billed separately for distinct periods, the duty to collect shall arise separately for each billing period. (Ord. 593-P § 1, 2004; Ord. 441 § 1. 2002 Code § 7-5.13).

(1) The tax administrator shall have the power and duty, and is hereby directed, to enforce each and all of the provisions of this chapter.

(2) The tax administrator shall have the power to adopt rules and regulations not inconsistent with provisions of this chapter for the purpose of carrying out and enforcing the payment, collection and remittance of the taxes herein imposed. A copy of such rules and regulations shall be on file in the tax administrator’s office.

(3) The tax administrator may make administrative agreements to vary the strict requirements of this chapter so that collection of any tax imposed hereby 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. A copy of each such agreement shall be on file in the tax administrator’s office. (Ord. 593-P § 1, 2004; Ord. 441 § 1. 2002 Code § 7-5.14).

(1) The tax administrator may assess the service user for taxes not paid to the service supplier.

(2) Whenever the tax administrator determines that a service user has deliberately withheld the amount of the tax owed from the amounts remitted to a service supplier, or that a service user has refused to pay the amount of tax to a service supplier, or whenever the tax administrator deems it in the best interest of the city, he or she may relieve a service supplier of the obligation to collect taxes due under this chapter from certain named service users for specified billing periods.

(3) Service suppliers shall inform the city of amounts which service users have failed to pay, along with the names, service and mailing addresses, and any reasons of the service users refusing to pay the tax imposed under this chapter of which the service supplier has knowledge. Whenever a service user has failed to pay tax for two or more consecutive billing periods, the tax administrator may relieve the service supplier of the obligation to collect taxes due pursuant to subsection (2) of this section.

(4) The tax administrator shall notify the service user that he or she has assumed responsibility to collect the taxes due for stated periods and shall demand payment of such taxes. The notice shall be served on the service user by personal delivery or by deposit in the United States mail, postage prepaid, addressed to the service user at the address to which billing was made by the service supplier or to his or her last known address. If a service user fails to remit the tax to the tax administrator within 15 days from the date of the service of the notice, which shall be deemed to be the date of mailing if personal service is not accomplished, a penalty of 25 percent of the amount of the tax set forth in the notice shall be imposed, but shall in no event be less than $5.00. The penalty shall become part of the tax herein required to be paid. (Ord. 593-P § 1, 2004; Ord. 441 § 1. 2002 Code § 7-5.15).

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 necessary to determine the amount of tax that person was obliged to collect and remit to the city. The tax administrator shall have the right to inspect such records at all reasonable times. (Ord. 593-P § 1, 2004; Ord. 441 § 1. 2002 Code § 7-5.16).

(1) Any tax that has been overpaid, paid more than once, or erroneously or illegally collected or received by the tax administrator under this chapter may be refunded as provided in this section.

(2) A service supplier may, with prior written approval from the tax administrator, claim a refund or take as credit against taxes collected and remitted an 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 or credited to the service user. A service supplier that has collected any amount of tax in excess of the amount of tax imposed by this section may refund such amount to the service user and may, with prior written approval of the tax administrator, claim credit for such overpayment against the amount of tax which is due to the city, provided such credit is claimed no later than three years from the date of overpayment.

(3) No refund shall be paid unless the claimant produces written records which establish the right to the claimed refund.

(4) Notwithstanding any other provision of this chapter, 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 may, with prior written approval of the tax administrator, take a credit for such refunded taxes against the amount of tax which is due upon the next monthly returns. In the event this chapter is repealed, the amounts of any refundable taxes will be borne by the city. (Ord. 593-P § 1, 2004; Ord. 511 § 6; Ord. 441 § 1. 2002 Code § 7-5.17).

(1) Each service supplier shall immediately implement collection procedures in accordance with the effective dates contained in this chapter.

(2) Notwithstanding the provisions of subsection (1) of this section, the tax administrator may grant a service supplier an extension of time to implement tax collection procedures to a date not later than October 1, 1991; provided, that within 10 days of the effective date of the ordinance codified in this chapter the service supplier certifies in writing to the tax administrator that operational limitations prevent the service supplier from implementing tax collection procedures in accordance with the effective dates contained in this chapter.

(3) Notwithstanding anything in this chapter to the contrary, if a service supplier has been granted an extension of time to implement tax collection procedures, taxes accrued for the period of time prior to implementation shall be due and collected in the first regular billing following the implementation of tax collection procedures, or in accordance with a collection schedule authorized by the tax administrator pursuant to subsection (4) of this section.

(4) The tax administrator may enter into an agreement with any service supplier to provide for reimbursement, within the limits set forth herein, of the service supplier’s actual costs incurred in implementing procedures to collect the tax accrued from the time the tax became effective to the time the service supplier implements tax collection procedures in accordance with the requirements of this chapter. Any agreement entered into pursuant to this subsection (4) shall provide that the service supplier will be reimbursed by retaining up to 10 percent of such accrued taxes collected, but not to exceed (a) $200,000 if all or a part of the previously accrued tax is included in all customer billings issued not later than August 31, 1991; (b) $150,000 if all or a part of the previously accrued tax is included in all customer billings issued after August 31, 1991, but on or before September 30, 1991; or (c) $100,000 if all or a part of the previously accrued tax is included in all customer billings issued after September 30, 1991, but on or before October 31, 1991.

(5) In any agreement entered into pursuant to subsection (4) of this section, the tax administrator may authorize the service supplier to collect previously accrued taxes over a period of two or more months; provided, that all such taxes are collected and remitted to the tax administrator no later than March 31, 1992. (Ord. 593-P § 1, 2004; Ord. 441 § 1. 2002 Code § 7-5.18).

The service supplier shall, upon notification by the city, terminate or suspend any utility user tax as to each service user commencing with the first full billing period applicable to such user which occurs after the effective day of such action by the city council. (Ord. 593-P § 1, 2004; Ord. 441 § 1. 2002 Code § 7-5.19).

Nothing contained in this chapter is intended to conflict with tariffs of any service supplier subject to the jurisdiction of the California Public Utilities Commission or with any applicable rules or regulations of that Commission. In the event any such conflict arises, the provisions of said rules, regulations, and tariffs shall control. (Ord. 593-P § 1, 2004; Ord. 441 § 1. 2002 Code § 7-5.20).

If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this chapter or any part thereof is for any reason held to be invalid, such invalidity shall not affect the validity of the remaining portions of this chapter or any part thereof. The city council of the city of Cudahy hereby 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 invalid. (Ord. 593-P § 1, 2004; Ord. 441 § 1. 2002 Code § 7-5.21).