Exeter Municipal Code Ch. 3.32 General Tax Upon Users of Certain Utility Services

To provide funds to pay the expenses incurred by the city and chargeable to its general fund, the city council finds and determines that a general utility users tax should be imposed upon users of utility servicers within the city limits.

(Ord. 536 §1(part), 1994)

The following words and phrases whenever used in this chapter shall be construed as defined in this section:

"Agent of the city" means the electrical corporation franchised to serve the city, energy service provider and/or billing agent administering utility user tax on behalf of and at the instruction of this chapter, defined as being one and the same as the city.

"Billing agent" means any person or corporation providing monthly charges for electric utility products and services rendered to be paid for by the service user. Such billing agents may include, but are not limited to, the utility distribution company franchised to operate within the city, the energy service provider providing electrical energy and/or services to the service user, or both, or any entity working as an agent of the aforementioned.

"City" means the city of Exeter.

"Energy service provider (ESP)" means any person or entity including direct access provider and cogenerated electricity provider, other than the electrical corporation franchised to serve the city, providing electrical energy or related products and services to service users. The "energy service provider" is required to calculate, bill, collect and remit a tax as imposed by this chapter.

"Month" means a calendar year month.

"Nonutility supplier" means a service supplier, other than an electrical corporation franchised to serve the city, which generates electrical energy in capacities of at least fifty Kilowatts 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, individual, energy service provider (ESP), or public entity or municipal corporation within the city of Exeter.

"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 administrator of the city of Exeter.

"Telephone corporation," "electrical corporation," "gas corporation" and "cable television corporation" shall have the same meanings as defined in Sections 234, 218, 222 and 215-5, respectively, of the California Public Utilities Code except, "electrical corporation" shall be construed to include any municipality, city-franchise organization, or agency engaged in the selling or supplying of electrical power to a service user; however, as specified by Section 218 of such code, does not include a corporation or person employing cogeneration technology or producing power from other than a conventional power source for the generation of electricity within the city of Exeter.

(Ord. 536 §1(part), 1994; Ord. 568 §1, 1997)

A. There is imposed a tax on the amounts paid for any intrastate telephone services by every person in the city using such services. The tax imposed by this section shall be at the rate of five percent of 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 services paid for by inserting coins in 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 supplied 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 communication services" 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 section existed January 1, 1989. The term "telephone communication services" refers to that service which provides access to a telephone system and the privilege of telephone quality communications with substantially all persons having telephone stations which are part of such telephone system. The telephone users 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.

C. The tax imposed by this section shall be collected from the service user by the person providing the intrastate telephone communication 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; 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, shall be remitted to the tax administrator on or before the last day of each month.

D. Notwithstanding the provisions of subsection A of this section, 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 under Division 2, part 20 of the California Revenue and Taxation Code, or the tax imposed under section 4251 of the Internal Revenue Code.

(Ord. 536 §1(part), 1994)

A. There is imposed 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, products and services by an electrical corporation franchised to serve the city or energy service provider and shall be paid by the person using the energy. The tax applicable to electrical energy provided by a nonutility supplier 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 by the city. Rate schedules for this purpose shall be available from the city. Nonutility suppliers shall install and maintain an appropriate utility-type metering system which will enable 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 annual and monthly charges, fuel, cost adjustments and the like.

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 him 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 electricity used and consumed by an electric utility supplier in the conduct of its business as an electric public utility; nor shall the term include the mere receiving of such energy by a public utility or other governmental agency at a point within the city for resale; or the use of such energy in the production or distribution of water by a public utility or other governmental agency.

C. The tax imposed in this section shall be collected from the service user by the energy billing agent, based on charges made for such energy. The tax shall be self-imposed by nonutility suppliers as to their own use. The amount of tax collected or self-imposed 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. Remittance of tax may be predicated on a formula based upon the payment pattern of the supplier's customers.

D. When a service user receives a bill from both the energy service provider and the electric utility franchised to serve the city, the energy service provider and the electric utility franchised to serve the city shall calculate and remit only the nongeneration portions of the customer bill. It will be the responsibility of the ESP to calculate, collect and remit the appropriate utility user tax on their respective applicable charges. It shall not be the responsibility of either the energy service provider nor the electric utility franchised to serve the city to calculate or remit the tax on charges not originating from that individual service provider, regardless of the service user's billing agent. The local jurisdiction may require the service to identify its nonutility supplier and provide, subject to audit, filed tax returns or other satisfactory evidence documenting the energy use and cost.

(Ord. 536 §1(part), 1994; Ord. 568 §2, 1997)

A. There is imposed a tax upon every person in the city, 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. "Charges" as used in this section shall include:

1. Gas which is delivered through mains or pipes;

2. Minimum charges for such services, including customer charges, service charges and annual and monthly charges.

B. There shall be excluded from the base on which the tax imposed in 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 sold for use in the generation of electrical energy or for the production or distribution of water by a public utility or governmental agency;

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

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

5. Charges related to late payments and returned checks.

C. The tax imposed in this section shall be 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 shall collect the tax from the service user based on the transportation charges. The person selling or transporting the gas shall remit by U.S. mail to the tax administrator postmarked on or before the last day of the following month, the amount of tax collected. 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. Remittance of tax may be predicated on a formula based upon the payment pattern of the supplier's customers.

(Ord. 536 §1(part), 1994)

A. There is imposed 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.

B. The tax imposed in this section shall be collected from the service user by the person furnishing the cable television service. The amount collected in one month shall be remitted to the tax administrator on or before the last day of the following month.

(Ord. 536 §1(part), 1994)

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 that of the state of California.

B. Nothing in this chapter shall be construed to impose a tax upon the city.

C. The city council may, by ordinance adopted from time to time, establish one or more classes of persons or one or more classes of utility service otherwise subject to payment of a tax imposed by this chapter and provide that such classes or persons or service shall be exempt, in whole or in part from such tax.

D. The tax administrator shall prepare a list of the persons exempt from the provisions of this chapter by virtue of this section and furnish a copy thereof to each service supplier.

(Ord. 536 §1(part), 1994)

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

A. Every person receiving payment of charges from a service user subject to a tax imposed by this chapter shall collect the amount of tax imposed by this chapter from the service user.

B. 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 practice of the service supplier.

C. The duty to collect tax from a service user shall commence with the beginning of the first full regular billing period applicable to the service user where all charges normally included in such regular billing are subject to the provisions of this chapter. 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.

(Ord. 536 §1(part), 1994)

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 to and be paid by the person required to collect and remit at the rate of fifteen percent of the total tax collected or imposed which were not timely remitted.

C. Should the tax administrator determine that a person having the duty to collect and remit a tax imposed by this chapter has been guilty of fraud or negligence in collecting, reporting or remitting the tax, he may after making such finding after an evidentiary hearing, assess a charge against the person committing the fraud or negligence in the amount not less than twenty-five percent of the amount of the tax in question.

D. Every penalty imposed under the provisions of this section shall become a part of the tax required to be remitted.

(Ord. 536 §1(part), 1994)

A. The tax administrator may make an assessment for taxes not paid or remitted by a person required to pay or remit. A notice of the assessment which shall refer briefly to the amount of the taxes and penalties imposed and the time and place when such assessment shall be submitted to the city council for confirmation or modification. The tax administrator shall mail a copy of such notice to the person selling the service and the service user at least ten days prior to the date of the hearing and shall post such notice for at least five continuous days prior to the date of the hearing at a public place in the city hall of the city. Any interested party having any objections may appear and be heard at the hearing provided his objection is filed in writing with the tax administrator prior to the time set for the hearing.

At the time fixed for considering said assessment, the city council shall hear the same together with any objection filed as aforesaid and there upon may confirm or modify said assessment by motion.

B. Whenever the tax administrator determines that a service user has deliberately withheld the amount of tax owed by him from the amount 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 deems it in the best interests of the city, he may relieve the service supplier of the obligation to collect taxes due under this chapter from certain named service users for specified billing periods. The tax administrator shall notify the service user that he 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 personally or by deposit of the notice in the United States mail, postage prepaid thereon, addressed to the service user at the address to which the billing was made by the service supplier; or should the service user have changed his address, to his last known address. If a service user fails to remit 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 not less than twenty-five dollars or more than twenty-five percent of the amount of the tax due for each billing period for which the tax has not been paid as set forth in the notice, shall be imposed. The penalty shall become part of the tax otherwise required to be paid.

(Ord. 536 §1(part), 1994)

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 required to collect and remit. Any person owing money to the city under the provisions of this chapter shall be liable to an action brought in the name of the city for recovery of such amount, together with attorneys' fees and costs.

(Ord. 536 §1(part), 1994)

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 as he may have been liable for the remittance to the tax administrator, which records the tax administrator shall have the right to inspect at all reasonable times.

(Ord. 536 §1(part), 1994)

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

B. 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.

C. The tax administrator may make administrative agreements to vary the strict requirements of this chapter so that collection of any tax imposed here may be made in conformance with the billing procedures of 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.

D. The tax administrator shall determine the eligibility of any person who asserts a right to exemption from the tax imposed by this chapter. The tax administrator shall provide the service supplier with the name of any person who the tax administrator determines is exempt from the tax imposed by this chapter, together with the address and account number to which service is supplied to any such exempt person. The tax administrator shall notify the service supplier of 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. 536 §1(part), 1994)

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. Notwithstanding the provisions of subsection A of this section, a service supplier may claim a refund; or take as 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.

C. No refund shall be paid under the provisions of this section unless the claimant establishes his right thereto by written records showing entitlement thereto and the claim for refund is made in writing to the tax administrator within twenty-four months of the payment of the tax for which a refund is claimed.

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.

E. A service supplier may refund the taxes collected to the service user in accordance with this section.

(Ord. 536 §1(part), 1994)

The following cap or maximum tax amount shall be payable under the provisions of this chapter:

A. The maximum annual utility user tax per utility paid by any single service user for one location under this chapter shall not exceed:

1. The sum of one thousand two hundred fifty dollars for each utility service when the total annual utility bill exceeds twenty-five thousand dollars and is less than one hundred thousand dollars during any twelve-month period between June 1st and May 31st; or

2. The sum of one thousand seven hundred fifty dollars for each utility bill service when the total annual utility bill exceeds one hundred thousand dollars during any twelve-month period between June 1st and May 31st.

B. A service user may deposit the cap/maximum tax specified in subsection A of this section with the tax administrator during the month of June of each year as payment in full and in advance of taxes due under this chapter for the twelve-month period commencing on the first day of said twelve-mouth period. The tax administrator shall notify each service supplier when to cease and when to resume billing the tax to such service users.

C. The phrase "one location" as used in subsection A of this section shall mean one or more contiguous sites for which the service user receives one or more utility billings.

(Ord. 536 §1(part), 1994)

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 portion of this chapter or any part thereof. The city council declares that it would have been passed each section, subsection, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsection, subdivision, paragraph, sentences, clauses or phrases be declared unconstitutional.

(Ord. 536 §1(part), 1994)

A. The ordinance codified in this chapter shall be published once in the Exeter Sun, a newspaper of general circulation in the city and shall be in full force and effect thirty days after its adoption.

B. The tax imposed by this chapter shall apply to the utility services furnished to a person from the beginning of such person's first regular billing period commencing on or after the 1st day of June 1, 1994.

C. The effective date of a termination or suspension of any utility tax levied hereby shall be the first day of the full billing period of each utility user which occurs after the effective date of the action of the city council which terminates or suspends the tax.

(Ord. 536 §1(part), 1994)

The five percent utility user's tax imposed on telephone, electricity, gas and cable television utility services provided within the city, pursuant to Exeter Municipal Code Sections 3.32.030A, 3.32.040A, 3.32.050A and 3.32.060A, is herewith temporarily reduced by the suspension of the collection of one percent of said five percent for the period commencing with the first utility cycle after July 1, 1999 to and including June 30, 2000, so that during such period, the utility user's tax to be collected from the users shall be four percent of the charges made for the services referred to in said chapter.

(Ord. 572 §1, 1998; Ord. 585 §1, 1999)