Fremont Municipal Code Art. II Uniform Sales and Use Tax

This article shall be known as the uniform local sales and use tax ordinance of the city. (Ord. 41 § 1. 1990 Code § 2-6200.)

The city council hereby declares that this article is adopted to achieve the following, among other purposes, and directs that the provisions hereof be interpreted in order to accomplish those purposes:

(a) To adopt a sales and use tax ordinance which complies with the requirements and limitations contained in Cal. Rev. & Tax. Code Division 2, Part 1.5;

(b) To adopt a sales and use tax ordinance which incorporates provisions identical to those of the sales and use tax law of the state insofar as those provisions are not inconsistent with the requirements and limitations contained in Cal. Rev. & Tax. Code Division 2, Part 1.5;

(c) To adopt a sales and use tax ordinance which imposes a 0.95 of one percent tax and provide a measure therefor that can be administered and collected by the State Board of Equalization in a manner that adapts itself as fully as practical to, and requires the least possible deviation from, the existing statutory and administrative procedures followed by the State Board of Equalization in administering and collecting the state sales and use taxes;

(d) To adopt a sales and use tax ordinance which can be administered in a manner that will, to the degree possible consistent with the provisions of Cal. Rev. & Tax. Code Division 2, Part 1.5, minimize the cost of collecting city sales and use taxes and at the same time minimize the burden of record keeping upon persons subject to taxation under the provisions of this article. (Ord. 41 § 2; Ord. 271 § 1. 1990 Code § 2-6201.)

This article shall become operative on July 1, 1956, and prior thereto this city shall contract with the State Board of Equalization to perform all functions incident to the administration and operation of this sales and use tax article; provided, that if this city shall not have contracted with the State Board of Equalization, as above set forth, prior to July 1, 1956, this article shall not be operative until the first day of the first calendar quarter following the execution of such a contract by the city and by the State Board of Equalization; provided, further, that this article shall not become operative prior to the operative date of the uniform local sales and use tax ordinance of the county. (Ord. 41 § 3. 1990 Code § 2-6202.)

For the privilege of selling tangible personal property at retail a tax is hereby imposed upon all retailers in the city at the rate of 0.95 of one percent of the gross receipts of the retailer from the sale of all tangible personal property sold at retail in the city on and after the operative date of this article. (Ord. 41 § 4(a)(1). 1990 Code § 2-6203.)

For the purposes of this article, all retail sales are consummated at the place of business of the retailer unless the tangible personal property sold is delivered by the retailer or his/her agent to an out-of-state destination or to a common carrier for delivery to an out-of-state destination. (Ord. 41 § 4(a)(2); Ord. 271 § 2; amended during 2012 reformat. 1990 Code § 2-6204.)

The gross receipts from such sales shall include delivery charges when such charges are subject to the state sales and use tax, regardless of the place to which delivery is made. (Ord. 41 § 4(a)(2); Ord. 271 § 3. 1990 Code § 2-6205.)

In the event a retailer has no permanent place of business in the state or has more than one place of business, the place or places at which the retail sales are consummated shall be determined under rules and regulations to be prescribed and adopted by the State Board of Equalization. (Ord. 41 § 4(a)(2); Ord. 271 § 4. 1990 Code § 2-6206.)

Except as hereinafter provided, and except insofar as they are inconsistent with the provisions of Cal. Rev. & Tax. Code Division 2, Part 1.5, all the provisions of Cal. Rev. & Tax. Code Division 2, Part 1, as amended and in force and effect on July 1, 1956, applicable to sales taxes, are hereby adopted and made a part of Sections 3.10.070 through 3.10.140 as though fully set forth herein. (Ord. 41 § 4(b)(1). 1990 Code § 2-6207.)

Wherever, and to the extent that, in Cal. Rev. & Tax. Code Division 2, Part 1, the state of California is named or referred to as the taxing agency, the city shall be substituted therefor. Nothing in this article shall be deemed to require the substitution of the name of the city for the word “state” when that word is used as part of the title of the State Controller, the State Treasurer, the State Board of Control, the State Board of Equalization, or the name of the State Treasury, or of the Constitution of the state; nor shall the name of the city be substituted for that of the state in any section when the result of that substitution would require action to be taken by or against the city or any agency thereof, rather than by or against the State Board of Equalization in performing the functions incident to the administration or operation of this article; and neither shall the substitution be deemed to have been made in those sections, including, but not necessarily limited to, sections referring to the exterior boundaries of the state, where the result of the substitution would be to provide an exemption from this tax with respect to certain gross receipts which would not otherwise be exempt from this tax while those gross receipts remain subject to tax by the state under the provisions of Cal. Rev. & Tax. Code Division 2, Part 1; nor to impose this tax with respect to certain gross receipts which would not be subject to tax by the state under such provisions of such code; and, in addition, the name of the city shall not be substituted for that of the state in Cal. Rev. & Tax. Code §§ 6701, 6702 (except in the last sentence thereof), 6711, 6715, 6737, 6797 and 6828 as adopted. (Ord. 41 § 4(b)(2). 1990 Code § 2-6208.)

If a seller’s permit has been issued to a retailer under Cal. Rev. & Tax. Code § 6067, an additional seller’s permit shall not be required by reason of this section. (Ord. 41 § 4(b)3; Ord. 964 § 1, 10-16-73. 1990 Code § 2-6209.)

There shall be excluded from the gross receipts by which the tax is measured:

(a) The amount of any sales or use tax imposed by the state upon a retailer or consumer.

(b) The gross receipts from the sale of tangible personal property to operators of aircraft to be used or consumed principally outside the city in which the sale is made and directly and exclusively in the use of such aircraft as common carriers of persons or property under the authority of the laws of this state, the United States or any foreign government. (Ord. 41 § 4(b)(4); Ord. 271 §§ 5, 6; Ord. 1584 § 1, 12-13-83. 1990 Code § 2-6210.)

Editor’s Note: Ord. 1584 §§ 1 and 3, amending Sections 3.10.140 and 3.10.190, become operative Jan. 1, 1984, pursuant to Ord. 1584 § 5. Upon the eventuality of Ord. 1584 §§ 2 and 4 becoming operative, as outlined in the editor’s note for Section 3.10.150, Sections 3.10.140 and 3.10.190 shall be deemed repealed by Ord. 1584 § 7.

There shall be excluded from the gross receipts by which the tax is measured:

(a) The amount of any sales or use tax imposed by the state upon a retailer or consumer.

(b) The gross receipts from the sale of tangible personal property to operators of waterborne vessels to be used or consumed principally outside the city in which the sale is made and directly and exclusively in the carriage of persons or property in such vessels for commercial purposes. (Ord. 964 § 2, 10-16-73; Ord. 1584 § 2, 12-13-83. 1990 Code § 2-6210.1.)

Editor’s Note: Ord. 1584 § 6 provides as follows:

“Sections 2 and 4 of this ordinance [amending Sections 3.10.150 and 3.10.200] shall be operative on the operative date of any act of the Legislature of the State of California which amends or repeals and reenacts Section 7202 of the Revenue and Taxation Code to provide an exemption from city sales and use taxes for operators of waterborne vessels in the same, or substantially the same, language as that existing in subdivisions (i)(7) and (i)(8) of Section 7202 of the Revenue and Taxation Code as those subdivisions read on October 1, 1983.”

An excise tax is hereby imposed on the storage, use, or other consumption in the city of tangible personal property purchased from any retailer on or after the operative date of this article for storage, use, or other consumption in the city at the rate of 0.95 of one percent of the sales price of the property. The sales price shall include delivery charges when such charges are subject to state sales or use tax, regardless of the place to which delivery is made. (Ord. 41 § 5(a). 1990 Code § 2-6211.)

Except as hereinafter provided, and except insofar as they are inconsistent with the provisions of Cal. Rev. & Tax. Code Division 2, Part 1.5, all of the provisions of Cal. Rev. & Tax. Code Division 2, Part 1, as amended and in force and effect on July 1, 1956, applicable to use taxes are hereby adopted and made a part of Sections 3.10.160 through 3.10.190 as though fully set forth herein. (Ord. 41 § 5(b)(1). 1990 Code § 2-6212.)

Wherever, and to the extent that, in Cal. Rev. & Tax. Code Division 2, Part 1, the state of California is named or referred to as the taxing agency, the name of this city shall be substituted therefor. Nothing in this article shall be deemed to require the substitution of the name of this city for the word “state” when that word is used as part of the title of the State Controller, the State Treasurer, the State Board of Control, the State Board of Equalization, or the name of the State Treasury, or of the Constitution of the state of California; nor shall the name of the city be substituted for that of the state in any section when the result of that substitution would require action to be taken by or against the city or any agency thereof, rather than by or against the State Board of Equalization, in performing the functions incident to the administration or operation of this article; and neither shall the substitution be deemed to have been made in those sections, including but not necessarily limited to, sections referring to the exterior boundaries of the state of California, where the result of the substitution would be to provide an exemption from this tax with respect to certain storage, use or other consumption of tangible personal property which would not otherwise be exempt from this tax while such storage, use or other consumption remains subject to tax by the state under the provisions of Cal. Rev. & Tax. Code Division 2, Part 1, or to impose this tax with respect to certain storage, use or other consumption of tangible personal property which would not be subject to tax by the state under the said provisions of that code; and in addition, the name of the city shall not be substituted for that of the state in Cal. Rev. & Tax. Code §§ 6701, 6702 (except in the last sentence thereof), 6711, 6715, 6737, 6797 and 6828 as adopted, and the name of the city shall not be substituted for the word “state” in the phrase “retailer engaged in business in this state” in Cal. Rev. & Tax. Code § 6203 nor in the definition of that phrase in Cal. Rev. & Tax. Code § 6203. (Ord. 41 § 5(b)(2); Ord. 271 §7. 1990 Code § 2-6213.)

There shall be exempt from the tax due under this article:

(a) The amount of any sales or use tax imposed by the state upon a retailer or consumer.

(b) The storage, use or other consumption of tangible personal property, the gross receipts from the sale of which have been subject to sales tax under a sales and use tax ordinance enacted in accordance with Cal. Rev. & Tax. Code Division 2, Part 1.5, by any city and county, county, or city in this state.

(c) In addition to the exemptions provided in Cal. Rev. & Tax. Code §§ 6366 and 6366.1, the storage, use or other consumption of tangible personal property purchased by operators of aircraft and used or consumed by such operators directly and exclusively in the use of such aircraft as common carriers of persons or property for hire or compensation under a certificate of public convenience and necessity issued pursuant to the laws of this state, the United States, or any foreign government. (Ord. 41 § 5(b)(3); Ord. 271 § 8; Ord. 1584 § 3, 12-13-83. 1990 Code § 2-6214.)

Note: See the editor’s note for Section 3.10.140.

There shall be exempt from the tax due under this article:

(a) The amount of any sales or use tax imposed by the state upon a retailer or consumer.

(b) The storage, use or other consumption of tangible personal property, the gross receipts from the sale of which have been subject to sales tax under a sales and use ordinance enacted in accordance with Cal. Rev. & Tax. Code Division 2, Part 1.5, by any city and county, county, or city in this state.

(c) The storage, use or other consumption of tangible personal property purchased by operators of waterborne vessels and used or consumed by such operators directly and exclusively in the carriage of persons or property in such vessels for commercial purposes.

(d) In addition to the exemptions provided in Cal. Rev. & Tax. Code §§ 6366 and 6366.1, the storage, use, or other consumption of tangible personal property purchased by operators of aircraft and used or consumed by such operators directly and exclusively in the use of such aircraft as common carriers of persons or property for hire or compensation under a certificate of public convenience and necessity issued pursuant to the laws of this state, the United States, or any foreign government. (Ord. 964 § 3, 10-16-73; Ord. 1584 § 4, 12-13-83. 1990 Code § 2-6214.1.)

Note: See the editor’s note for Section 3.10.150.

All amendments of the California Revenue and Taxation Code enacted subsequent to the effective date of this article, which relate to the sales and use tax and which are not inconsistent with Cal. Rev. & Tax. Code Division 2, Part 1.5, shall automatically become a part of this article. (Ord. 41 § 6. 1990 Code § 2-6215.)

No injunction or writ of mandate or other legal or equitable process shall issue any suit, action, or proceeding in any court against the state or this city, or against any officer of the state or this city to prevent or enjoin the collection under this article, or Cal. Rev. & Tax. Code Division 2, Part 1.5, of any tax or any amount of tax required to be collected. (Ord. 41 § 7. 1990 Code § 2-6216.)

At the time this article goes into operation, the provisions of other existing city sales tax and city use tax ordinances shall be suspended and shall not again be of any force or effect until and unless for any reason the State Board of Equalization ceases to perform the functions incident to the administration and operation of the sales and use tax hereby imposed; provided, however, that if for any reason it is determined that the city is without power to adopt this article, or that the State Board of Equalization is without power to perform the functions incident to the administration and operation of the taxes imposed by this article, the provisions of such other existing city sales tax and city use tax ordinances shall not be deemed to have been suspended, but shall be deemed to have been in full force and effect at the rate of one percent continuously from and after July 1, 1956. Upon the ceasing of the State Board of Equalization to perform the functions incident to the administration and operation of the taxes imposed by this article, the provisions of such other existing city sales tax and city use tax ordinances shall again be in full force and effect and at the rate of one percent. (Ord. 41 § 8. 1990 Code § 2-6217.)

Nothing in this article shall be construed as relieving any person of the obligation to pay to the city any sales or use tax accrued and owing by reason of the provisions of Ordinance Nos. 18 and 19, in force and effect prior to and including June 30, 1956. (Ord. 41 § 9. 1990 Code § 2-6218.)

(a) Sections 3.10.150 and 3.10.200 shall become operative on January 1st of the year following the year in which the State Board of Equalization adopts an assessment ratio for state-assessed property which is identical to the ratio which is required for local assessments by Cal. Rev. & Tax. Code § 401, at which time Sections 3.10.140 and 3.10.190 shall become inoperative.

(b) In the event that Sections 3.10.150 and 3.10.200 become operative and the State Board of Equalization subsequently adopts an assessment ratio for state-assessed property which is higher than the ratio which is required for local assessments by Cal. Rev. & Tax. Code § 401, Sections 3.10.140 and 3.10.190 shall become operative on the first day of the month following the month in which such higher ratio is adopted, at which time Sections 3.10.150 and 3.10.200 shall become inoperative until the first day of the month following the month in which the Board again adopts an assessment ratio for state-assessed property which is identical to the ratio required for local assessments by Cal. Rev. & Tax. Code § 401, at which time Sections 3.10.150 and 3.10.200 shall again become operative and Sections 3.10.140 and 3.10.190 shall become inoperative. (Ord. 964 § 4, 10-16-73. 1990 Code § 2-6219.)