Fowler Municipal Code Ch. 7 Utility Users Tax

This chapter shall be known as the "utility users tax ordinance."

(Ord. 99-6 § 2, 1-1-00)

The utility users tax codified in this chapter is enacted to raise revenue for general governmental purposes of the City of Fowler. All of the proceeds of the tax imposed by this chapter shall be placed in the City's general fund and used for the current expenses of the City as determined by the City Council in making budgetary decisions.

(Ord. 99-6 § 2, 1-1-00)

The following terms whenever used in this chapter shall have the meanings assigned to them in this section.

"Base Service Rate" means the minimum charges that a service supplier charges for having telephone service available to a service user, but in no event shall be less than the minimum rate currently charged by the City's primary supplier of telephone communications services, G.T.E., as of the date the ordinance codified in this chapter is adopted.

"City" means the City of Fowler.

"Commercial, industrial and agricultural service" means electric or gas service provided by a service supplier to commercial, industrial, and agricultural users and which does not otherwise fall within the definition of "residential service."

"Month" means a calendar month.

"Person" means any natural person, domestic or foreign corporation, company, firm, association, organization, society, syndicate, joint stock company, partnership of any kind, joint venture, club, Massachusetts business or common law trust, business trust of any kind, or the manager, lessee, agent, servant, officer or employee of any of these.

"Residential service" means electric or gas service provided by a service supplier to residential users and includes service to single-family dwellings, apartments, condominiums and cooperatives separately metered by the service supplier, service to common areas in a multifamily complex, and farm premises operated by the person whose residence is supplied through the same meter by the service supplier.

"Service supplier" means any person required to collect or self-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 Manager or such other person designated by the City Council to administer the provisions of this chapter.

"Telephone corporation," "electrical corporation" and "gas corporation" shall have the same meanings as defined in Sections 234, 218 and 222, respectively, of the California Public Utilities Code. "Electrical corporation" shall be construed to include any municipality or franchised agency engaged in the selling or supplying of electrical power to a service user.

(Ord. 99-6 § 2, 1-1-00)

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 Federal or California State statute. Nor shall a tax created by this chapter be imposed upon the City or any of its departments, agencies, boards or commissions, or upon the Fowler Unified School District.

(Ord. 99-6 § 2, 1-1-00)

A. No amendment to this chapter that increases the rate of tax or extends the tax to a utility service not covered by this chapter may be made without a vote of the people. However, the City Council may, by ordinance and without a vote of the people, amend this chapter:

1. To establish a utility tax rate lower than that approved by the voters;

2. To alter the procedural and administrative provisions of this chapter, including, but not limited to, the tax collection obligations of utility providers, utility marketers and utility customers;

3. To reflect changes in the technology of the telecommunications, gas or electric industry, including, but not limited to, addressing the unbundling of service components and the opening of the market to multiple service providers; or

4. In any manner which does not increase the tax burden on any rate payer imposed by this voter-approved tax.

B. The City Council may also adopt, by resolution, supplemental rules and regulations consistent with the purposes of this chapter for the carrying out and enforcement of this chapter. Such supplemental rules and regulations shall have the same force and effect as if part of this chapter, and a violation of the supplemental rules and regulations shall be deemed a violation of this chapter.

(Ord. 99-6 § 2, 1-1-00)

A. There is imposed a tax upon every person, 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 (5) percent of all charges which make up the base service rate for such services, and shall be paid by the person paying for such services.

B. As used in this section, "telephone communication services" means that service which provides access to a telephone system for the privilege of telephone quality communications with substantially all persons having telephone stations which are part of such telephone system. "Telephone communication services" do not include land mobile services or maritime mobile services as defined in Section 2.1 of Title 47 of the Code of Federal Regulations.

C. As used in this section, the term "charges" shall also include the value of any other services, credits, property of every kind or nature, or other consideration provided by the service user in exchange for the telecommunication services.

D. As used in this section, the term "charges" does not include charges for long distance or local toll services provided by the service user's long distance carrier, or charges for cellular telecommunications; nor does the term charges include charges for services paid for by inserting coins in coin-operated telephones except that where such coin-operated telephone service is furnished for a guaranteed amount, the amounts paid under such guarantee plus any fixed monthly other periodic charge shall be included in the base for computing the amount of tax due.

E. 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 or terminates within the City. The situs shall be the service address, if known; otherwise, the billing address.

F. The tax imposed by this section shall be collected from the service user by the person who collects payment for the telephone communication services provided. The amount of tax collected 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 predicted on a formula based upon the payment pattern of the supplier's customers.

G. Notwithstanding the provisions of subsections A and B 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 amount paid for such services are exempt from or not subject to the tax imposed under Section 4251 of the Internal Revenue Code or Division 2, Part 20, of the California Revenue and Taxation Code.

(Ord. 99-6 § 2, 1-1-00)

A. There is imposed a tax upon every person in the City using electrical energy in the City. For residential service, the tax imposed by this section shall be at the rate of five (5) percent of all charges made for such energy and shall be paid by the person paying for such energy. For commercial, industrial and agricultural service, the tax imposed by this section shall be at the rate of three (3) percent of all charges made for such energy and shall be paid by the person paying for such energy. "Charges," as used in this section, shall include:

1. Commodity charges for purchased electricity, including charges for metered energy;

2. Transportation charges not included in commodity charges;

3. Capacity or demand charges, service charges, customer charges, standby charges, minimum charges, and all other annual and monthly charges, fuel, or other cost adjustments authorized by the State Public Utilities Commissioner or the Federal Energy Regulatory Commission; and

4. Supplemental services related to the provision of electricity, including charges for wheeling, transmission or distribution; and standby, reserves, firming, ramping, voltage support, regulation, emergency or other similar services.

B. As used in this section, the term "charges" shall also include the value of any other services, credits, property of every kind or nature, or other consideration provided by the service user in exchange for the electricity or services related to the provision of such electricity.

C. 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 such 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 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 an electric public utility or 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 a governmental agency.

D. The tax imposed by this section shall be collected from the service user by the person who collects payment for the electric services provided. The amount of tax collected 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 predicted on a formula based upon the payment pattern of the supplier's customers.

(Ord. 99-6 § 2, 1-1-00)

A. There is imposed a tax upon every person in the City using gas in the City which is delivered through mains or pipes. For residential service, the tax imposed by this section shall be at the rate of five (5) percent of all charges made for such gas and shall be paid by the person paying for such gas. For commercial, industrial and agricultural service, the tax imposed by this section shall be at the rate of three (3) percent of all charges made for such energy and shall be paid by the person paying for such energy. "Charges," as used in this section shall include:

1. Commodity charges for purchased gas which is delivered through mains or pipes, including metered energy;

2. Transportation charges not included in commodity charges; and

3. Capacity or demand charges, service charges, customer charges, standby charges, minimum charges, and all other annual and monthly charges, fuel, or other cost adjustments authorized by the State Public Utilities Commissioner or the Federal Energy Regulatory Commission.

B. As used in this section, the term "charges" shall also include the value of any other services, credits, property of every kind or nature, or other consideration provided by the service user in exchange for the gas or services related to the delivery of such gas.

C. 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 business of gas public utilities; and

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

D. The tax imposed in this section shall be collected from the service user by the person who collects payment for the gas services provided. The amount of tax collected 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 predicted on a formula based upon the payment pattern of the supplier's customers.

(Ord. 99-6 § 2, 1-1-00)

A. Any service user subject to the tax imposed by Sections 3-7.07 and 3-7.08 which receives gas or electricity directly from a nonutility supplier ("energy service provider" or "ESP") not under the jurisdiction of this chapter, or which otherwise is not having the full tax due on the use of gas or electricity in the City that is directly billed and collected by the person who collects payment for the gas or electricity or the service supplier, shall report that fact to the Tax Administrator and shall remit the tax due directly to the Tax Administrator within thirty (30) days of such use. In lieu of paying such actual tax, the service user may, at its option, remit to the Tax Administrator within thirty (30) days of such use an estimated amount of tax measured by the tax billed in the previous month, or upon the payment pattern of similar customers of the service supplier using similar amounts of gas or electricity; provided, that the service user shall submit an adjusted payment or request for credit, as appropriate, within sixty (60) days following each calendar quarter. The credit, if approved by the Tax Administrator, may be applied against any subsequent tax that becomes due.

B. The Tax Administrator may require the service user to identity its nonutility supplier and provide, subject to audit, invoices, books of account, or other satisfactory evidence documenting the quantity of gas or electricity used and the cost or price thereof. If the service user is unable to provide such satisfactory evidence, or, if the administrative cost of calculating the tax, in the opinion of the Tax Administrator, is excessive, the Tax Administrator may determine the tax by applying a tax rate to the equivalent charges the service user would have incurred if the gas or electricity used had been provided by the service supplier, which is the primary provider of gas or electricity within the City. Rate schedules for this purpose shall be available from the Tax Administrator.

(Ord. 99-6 § 2, 1-1-00)

A. Taxes collected from a service user which are not remitted to the City on or before the due dates provided in this chapter are delinquent and are subject to penalties and interest as set forth in this section.

B. Penalties for delinquency in remittance of any tax collected or any deficiency determination shall attach and be paid by the service supplier at the rate of fifteen (15) percent of the total tax collected or imposed by the provisions of this chapter.

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

D. When fraud or gross negligence in reporting and remitting tax collections is discovered, the Tax Administrator shall have the power to impose additional penalties of up to twenty (20) percent of the taxes owed upon the service supplier under the provisions of this chapter.

E. Any service supplier 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 (1½) 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.

F. Notwithstanding the provisions of subsections B and E of this section, no penalty or interest shall be applied if the delinquencies are the result of natural disasters or other phenomena beyond the control of the service supplier, provided the service supplier notifies the Tax Administrator as soon as normal communications permit.

(Ord. 99-6 § 2, 1-1-00)

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 willfully been withheld from 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.

(Ord. 99-6 § 2, 1-1-00)

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

A. The tax shall be collected insofar as practicable at the same time as and along with the charges made in accordance with the regular billing practices 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 has accrued for the billing period, such amount and any subsequent payments by a service user may be applied to the charge first until such charge has been fully satisfied. Any remaining balance shall be applied to the taxes due, except in those cases where a service user pays the full amount of the charges but notifies the service supplier of his refusal to pay the tax imposed on the charges.

B. 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 period.

(Ord. 99-6 § 2, 1-1-00)

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 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 the 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.

C. 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 hereby, 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 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. 99-6 § 2, 1-1-00)

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

B. Whenever the Tax Administrator determines that a service user has deliberately withheld the amount of the tax owed by such user from the amounts remitted to a service supplier, or that a service user has refused to pay the amount of the tax for a period of two (2) or more billing periods, or whenever the Tax Administrator deems it in the best interest of the City, the Tax Administrator shall relieve the service supplier of the obligation to collect taxes due under this chapter from certain named service users for specified billing periods.

C. The service supplier shall provide the City with amounts refused along with the names, addresses and reasons of the service users refusing to pay the tax imposed under the provisions of this chapter.

D. The Tax Administrator shall notify the service user that the Tax Administrator 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 billing was made by the person required to collect the tax; 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 (15) 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 (25) percent of the amount of the tax set forth in the notice shall be imposed, but not less than five dollars ($5.00). The penalty shall become part of the tax herein required to be paid.

(Ord. 99-6 § 2, 1-1-00)

A. It shall be the duty of the service supplier to keep and preserve, for a period of not less than three (3) years, all records as may be necessary to determine the amount of tax as the service supplier may have been liable for the collection of and remittance to the Tax Administrator, which records the Tax Administrator shall have the right to inspect at all reasonable times.

B. The Tax Administrator may request from a person providing transportation services of gas or electricity to service users within the City a list of the names and addresses of its transportation customers within the City pursuant to Section 6354(e) of Chapter 2.5 of Division 3 of the California Public Utilities Code.

(Ord. 99-6 § 2, 1-1-00)

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 provided that a claim is filed as set forth in this section.

B. No refund shall be paid under the provisions of this section unless the claimant files a claim with the City of Fowler and establishes his or her right thereto by written records showing entitlement thereto within one year of the date of the accrual of the cause of action. A cause of action shall be considered to have accrued as of the date of the alleged overpayment or the date of the second payment if the claim is that it was paid more than once, or on the date of the erroneous or illegal collection if the claim is that it has been erroneously or illegally collected or received by the Tax Administrator. The claim shall be filed in accordance with Section 1-6.01 of this Code and in accordance with California Government Code Sections 910 through 915.2. If the City Council fails or refuses to act on a refund claim within the time prescribed by Government Code Section 912.4, the claim shall be deemed to have been rejected by the City Council on the last day of the period within which the City Council was required to act upon the claim as provided in Government Code Section 912.4. Such claims shall further be subject to the provisions of Government Code Sections 945 through 946 relating to the prohibition of suits in the absence of presentation of claims and action thereon by the City Council.

C. Notwithstanding the provisions of subsection A of this section, a service supplier may claim a refund or take as credit against taxes collected and remitted the amount overpaid, paid more than once, or erroneously or illegally collected or received when it is established 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.

D. A service supplier that has collected 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 six (6) months from the date of overpayment.

E. 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 return. In the event this chapter is repealed, the amounts of any refundable taxes will be borne by the City.

F. A service supplier may refund the taxes collected to the service user in accordance with this section or by the service supplier's customary practice.

(Ord. 99-6 § 2, 1-1-00)

Any person who violates any of the provisions of this chapter is guilty of a misdemeanor and shall be punishable pursuant to Section 1-2.01 through 1-2.07 of the Fowler Municipal Code.

(Ord. 99-6 § 2, 1-1-00)

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

(Ord. 99-6 § 2, 1-1-00)

The utility users tax codified in this chapter shall go into effect on January 1, 2000.

(Ord. 99-6 § 2, 1-1-00)