Indio Municipal Code Ch. 34 Taxation

[1961 Code, § 20.1; Ord. 6]

(A) The duties of the Assessor and Tax Collector of the city, relating to the assessing and collecting of city taxes, shall be hereafter performed by the County Assessor and County Tax Collector, in the manner and as provided by Cal. Rev. & Tax. Code §§ 51500 to 51519, and the city does elect, under the authority of the aforementioned sections of the Revenue and Taxation Code of the state, to avail itself of the provisions of those sections.

(B) The net amount of all taxes collected for the city by the County Tax Collector shall be paid to the Treasurer of the city under the general requirements and penalties provided by law for the settlement of other taxes.

Subchapter 2. Sales and Use Tax

[1961 Code, § 20.2; Ord. 263]

This subchapter shall be known as the “Uniform Local Sales and Use Tax Law” of the city.

[1961 Code, § 20.3; Ord. 263; Ord. 351]

The City Council hereby declares that this subchapter 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 div. 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 div. 2, part 1.5.

(C) To adopt sales and use tax regulations which impose a 0.9% 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 sales and use tax regulations which can be administered in a manner that will, to the degree possible, consistent with the provisions of Cal. Rev. & Tax. Code div. 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 subchapter.

[1961 Code, § 20.4; Ord. 263]

This subchapter shall become operative on July 1, 1957 and prior thereto the city shall contract with the State Board of Equalization to perform all functions incident to the administration and operation of this subchapter; provided, if the city shall not have contracted with the State Board of Equalization, as above set forth, this subchapter 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, this subchapter shall not become operative prior to the operative date of the uniform local sales and use tax ordinance of the county.

[1961 Code, § 20.5; Ord. 363; Ord. 351; Ord. 599; Ord. 660; Ord. 883; Ord. 1036]

(A)

(1) For the privilege of selling tangible personal property at retail, a tax is hereby imposed upon every retailer in the city at the rate of 1% or less of the gross receipts of the retailer from the sale of all tangible personal property sold by that person at retail in the city and a use tax of 1% or less of purchases prices on the storage, use or other consumption of tangible personal property purchased from a retailer for storage, use or consumption in the city.

(2) For the purposes of this subchapter, 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 the retailer's agent to an out-of-state destination or to common carrier for delivery to an out-of-state destination. The gross receipts from these sales shall include delivery charges, when those charges are subject to the state sales and use tax, regardless of the place to which delivery is made. 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 Board of Equalization.

(B)

(1) Except as hereinafter provided, and except insofar as they are inconsistent with the provisions of Cal. Rev. & Tax. Code div. 2, part 1.5, all of the provisions of Cal. Rev. & Tax. Code div. 2, part 1, as amended and in force, and effect on the operative date of this subchapter, applicable to sales taxes are hereby adopted and made a part of this section as though fully set forth herein.

(2) Where, and to the extent that, in Cal. Rev. & Tax. Code §§ 1001 et seq., insofar as they relate to sales and use taxes, the state is named or referred to as the taxing agency, the name of the city as the taxing agency shall be substituted for that of the state (but the name of the city shall not be substituted for the word “state” in the phrase, “retailer engaged in business in the state” in Cal. Rev. & Tax. Code § 6203 nor in the definition of that phrase in Cal. Rev. & Tax. Code § 62) and an additional seller's permit shall not be required if one has been or is issued to the seller under Cal. Rev. & Tax. Code § 56067.

(3) 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.

(4) 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 user of that aircraft as common carriers of persons or property under the authority of the laws of this state, the United States or any foreign government.

[1961 Code, § 20.6; Ord. 883; Ord. 263; Ord. 351; Ord. 660; Ord. 1036]

(A) 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 subchapter, for storage, use or other consumption in the city at the rate of 0.9% of the sales prices of the property. The sales price shall include delivery charges when those charges are subject to state sales or use tax regardless of the place to which delivery is made.

(B)

(1) Except as hereinafter provided and except insofar as they are inconsistent with the provisions of Cal. Rev. & Tax. Code div. 2, part 1.5, all of the provisions Cal. Rev. & Tax. Code div. 2, part 1, as amended and in force and effect on the operative date of this subchapter, applicable to use taxes are hereby adopted and made a part of this section as though fully set forth herein.

(2) Wherever, and to the extent that, in Cal. Rev. & Tax. Code §§ 1001 et seq., insofar as they relate to sales and use taxes, the state is named or referred to as the taxing agency shall be substituted for that of the state (but the name of the city shall not be substituted for the word, “state” in the phrase, “Retailer engaged in business in the state” in Cal. Rev. & Tax. Code § 6203 nor in the definition of that phrase in Cal. Rev. & Tax. Code § 62) and an additional seller's permit shall not be required if one has been or is issued to the seller under Cal. Rev. & Tax. Code § 56067.

(3) There shall be exempt from the tax due under this section:

(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 has been subject to sales tax under a sales and use tax ordinance enacted in accordance with Cal. Rev. & Tax. Code div. 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 those operators directly and exclusively in the use of the aircraft as common carriers or 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.

[1961 Code, § 20.7; Ord. 263]

All amendments of the Revenue and Taxation Code enacted subsequent to the effective date of this (subchapter) which relate to the sales and use tax and which are not inconsistent with Cal. Rev. & Tax. Code div. 2, part 1.5 shall automatically become a part of this subchapter.

[1961 Code, § 20.8; Ord. 263]

No injunction or write of mandate or other legal or equitable process shall issue in 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 subchapter, or Cal. Rev. & Tax. Code div. 2, part 1.5, of any tax or any amount of tax required to be collected.

[1961 Code, § 20.9; Ord. 263]

At the time this subchapter goes into operation, the provisions of Ord. 166 (existing city sale and use tax ordinance) 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, if for any reason it is determined that the city is without power to adopt this subchapter, 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 subchapter, the provisions of Ord. 166 (existing city sales and use tax ordinance) shall not be deemed to have been suspended but shall be deemed to have been in full force and effect at the rate of 1% continuously from and after the operative date of this subchapter. 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 subchapter, the provisions of Ordinance 166 (existing city sales and use tax ordinance) shall again be in full force and effect at the rate of 1%. Nothing in this subchapter shall be construed as relieving any person of the obligation to pay to the city any sales or use tax accrued and owing by reasons of the provisions of Ord. 166 in force and effect prior to the operative date of this subchapter.

Subchapter 3. Transient Occupancy Tax

[1961 Code, § 20.10; Ord. 408]

This subchapter shall be known as the “Uniform Transient Occupancy Tax Ordinance” of the city.

[1961 Code, § 20.11; Ord. 408; Ord. 877; Ord. 1036; Ord. 1667, 11-4-2014]

For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

CAMPGROUND

Any real property where transients may locate a tent, trailer, tent trailer, pick-up, camper, vehicle or other similar temporary structure for the purposes of lodging, dwelling, or sleeping, whether or not water, electricity or sanitary facilities are provided. Real property includes but is not limited to a camping site or a space at a "campground."

HOTEL

Any structure or any portion of any structure which is occupied or intended or designed for use or occupancy by transients including, but not limited to, dwelling, lodging or sleeping purposes and includes any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodginghouse, roominghouse, apartment house, dormitory, public or private club, mobile home or house trailer at a fixed location, or other like structure or portion thereof. "Hotel" includes a recreational vehicle, as defined in Cal. Health & Safety Code § 18010.

OCCUPANCY

The use or possession or the right to the use of possession of any room or rooms or portion thereof in any hotel for dwelling, lodging or sleeping purposes.

OPERATOR

The person who is proprietor of the hotel, whether in the capacity of the owner, lessee, sublessee, mortgagee in possession, licensee or any other capacity. Where the "operator" performs his or her functions through a managing agent of any type or character other than employee, the managing agent also shall be deemed an "operator" for the purposes of this subchapter and shall have the same duties and liabilities as his or her principal. Compliance with the provisions of this subchapter by either the principal or the managing agent shall, however, be considered compliance by both.

RENT

The consideration charged, whether or not received, for the occupancy of space in a hotel valued in money, whether to be received in money, goods, labor or otherwise, including all receipts, cash, credits and property and services of any kind or nature without any deduction therefrom.

TAX ADMINISTRATOR

The City Manager or the City Manager's designated agent.

TRANSIENT

Any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, time-share arrangement, or ownership or agreement or other agreement for a period of 30 consecutive calendar days or less counting portions of calendar days as full days. Any such person so occupying space in a hotel shall be deemed a transient until the period of 30 days has expired. Unless days of occupancy or entitlement to occupancy by one person are consecutive without any break, then prior to subsequent periods of the occupancy or entitlement to occupancy shall not be counted when determining whether a period exceeds the stated 30 consecutive days. In determining whether a person is a transient, uninterrupted periods of time extending both prior and subsequent to the effective date of the ordinance codified in this subchapter may be considered.

[1961 Code, § 20.12; Ord. 408; Ord. 502; Ord. 649; Ord. 877; Ord. 878; Ord. 1036; Ord. 1667, 11-4-2014]

(A) For the privilege of occupancy in any hotel that has less than 50 sleeping rooms or occupancy in any campground or recreational vehicle park, each transient is subject to and shall pay a tax in the amount of 13% of the rent charged by the operator.

(B) For the privilege of occupancy in any hotel that has 50 or more sleeping rooms, each transient is subject to and shall pay a tax in the amount of 10% of the rent charged by the operator; provided, however, that each transient is subject to and shall pay a tax in the amount of 13% of the rent charged by the operator in the event that: (i) the boundaries of the Palm Springs Desert Resort Communities Tourism Business Improvement District, as established by Ordinance No. 883 of the County of Riverside (as amended from time to time) (“Tourism BID”) and the Greater Palm Springs Convention & Visitors Bureau Tourism Marketing District, as established by Ordinance No. 2013-001 of the Palm Springs Desert Resort Communities Convention and Visitors Authority (as amended from time to time) (“Marketing BID”), no longer include a portion of the City of Indio or (ii) the respective governing entities of the Tourism BID and Marketing BID cease to levy an assessment on any hotel subject to the tax imposed by this division (B).

(C) This tax set forth in this section constitutes a debt owed by the transient to the city which is extinguished only by payment to the operator or to the city. The transient shall pay the tax to the operator of the hotel at the time the rent is paid. If the rent is paid in installments, a proportionate share of the tax shall be paid in each installment. The unpaid tax shall be due upon the transient’s ceasing to occupy space in the hotel. If, for any reason, the tax due is not paid to the operator of the hotel, the Tax Administrator may require the tax shall be paid directly to the Tax Administrator.

[1961 Code, § 20.13; Ord. 408; Ord. 442]

(A) No tax shall be imposed upon:

(1) Any person as to whom or any occupancy as to which it is beyond the power of the city to impose a tax herein provided.

(2) Any officer or employee of a foreign government who is exempt by reason of expressed provision of federal law or international treaty.

(B) No exemptions shall be granted except upon a claim therefor made at the time rent is collected and under penalty of perjury upon form prescribed by the Tax Administrator.

[1961 Code, § 20.14; Ord. 408]

(A) Each operator shall collect the tax imposed by this subchapter to the same extent and at the same time as the rent is collected from every transient. The amount of tax shall be separately stated from the amount of the rent charged, and each transient shall receive a receipt for payment from the operator.

(B) No operator of a hotel shall advertise or state in any manner, whether directly or indirectly, that the tax or any part thereof will be assumed or absorbed by the operator or that it will not be added to the rent or that, if added, any part will be refunded except in the manner hereinafter provided.

[1961 Code, § 20.15; Ord. 408]

Within 30 days after the effective date of this subchapter, or within 30 days after commencing business, whichever is later, each operator of any hotel renting occupancy to transient shall register the hotel with the Tax Administrator and obtain from the Administrator a “transient occupancy registration certificate” to be, at all times, posted in a conspicuous place on the premises. The certificate shall, among other things, state the following:

(A) The name of the operator.

(B) The address of the hotel.

(C) The date upon which the certificate was issued.

(D) “This Transient Occupancy Registration Certificate signifies that the person named on the face hereof has fulfilled the requirements of the Uniform Transient Occupancy Tax Ordinance by registering with the Tax Administrator for the purpose of collecting from transients the Transient Occupancy Tax and remitting the tax to the Tax Administrator. This certificate does not authorize any person to conduct any unlawful business or to conduct any lawful business in an unlawful manner or to operator a hotel without strictly complying with all local applicable laws, including, but not limited to, those requiring a permit from any board, commission, department or office of the city. This certificate does not constitute a permit.”

[1961 Code, § 20.16; Ord. 408]

Each operator shall, on or before the last day of the month following the close of each calendar quarter or at the close of any shorter reporting period which may be established by the Tax Administrator, make a return to the Tax Administrator on forms provided by him or her of the total rents charged and received and the amount of tax collected for transient occupancies. At the time the return is filed, the full amount of the tax collected shall be remitted to the Tax Administrator. The Tax Administrator may establish shorter reporting periods for any certificate holder if he or she deems it necessary in order to ensure collection of the tax, and he or she may require further information in the return. Returns and payments are due immediately upon cessation of business for any reason. All taxes collected by operators pursuant to this subchapter shall be held in trust for the account of the city until payment thereof is made to the Tax Administrator.

[1961 Code, § 20.17; Ord. 408; Ord. 1144, 9-1-1993]

(A) Original delinquency. Any operator who fails to remit any tax imposed by this subchapter within the time required shall pay a penalty of 10% of the amount of the tax in addition to the amount of the tax.

(B) Continued delinquency. Any operator who fails to remit any delinquent remittance on or before a period of 30 days following the date on which the remittance first became delinquent shall pay a second delinquency penalty of 10% of the amount of the tax in addition to the amount of the tax and the 10% penalty first imposed.

(C) Fraud. If the Tax Administrator determines that the nonpayment of any remittance due under this subchapter is due to fraud, a penalty of 25% of the amount of the tax shall be added thereto in addition to the penalties stated in divisions (A) and (B) above.

(D) Interest. In addition to the penalties imposed, any operator who fails to remit any tax imposed by this subchapter shall pay interest at the rate of 0.5% per month or fraction thereof on the amount of the tax, exclusive of penalties, from the date on which the remittance first became delinquent until paid.

(E) Lien imposed on real property and bulk sales of business.

(1) If any amount required to be remitted to the city under this section is not paid when due, the city may, within three years after the amount is due, file for record in the office of the Riverside County Recorder, a certificate specifying the amount of tax, penalties and interest due, the name and address as it appears on the records of the city of the operator liable for the same and the fact that the city has compiled with provisions of this section in the determination of the amount required to be paid. Before such filing, the city shall give 5 days written notice of its intent to file the lien to the operator. If the property is owned by a different party than the operator, then the city shall also give five days written notice to the real property owner before filing the lien.

(2) At the time of filing for record, the amount required to be remitted together with penalties and interest constitutes a lien upon all real property in the County of Riverside and upon all bulk sales of personal property owned by the operator or afterwards acquired by him and prior to the expiration of the lien. The lien has the force, effect, and priority of a judgement lien and shall continue in force for ten years from the time of filing of the certificate unless released or otherwise discharged by payment of the amount of taxes, interest, and penalties due to the city.

(F) Penalties merged with tax. Every penalty imposed and the interest as accrued under the provision of this section shall become a part of the tax herein required to be paid.

[1961 Code, § 20.18; Ord. 408]

If any operator shall fail or refuse to collect the tax and to make, within the time provided in this subchapter, any report and remittance of the tax or any portion thereof required by this subchapter, the Tax Administrator shall proceed in such manner as he or she may deem best to obtain facts and information on which to base his or her estimate of the tax due. As soon as the Tax Administrator shall procure the facts and information as he or she is able to obtain upon which to base the assessment of any tax imposed by this subchapter, and payable by any operator, who has failed or refused to collect the same and to make the report and remittance, he or she shall proceed to determine and assess against the operator the tax, interest and penalties provided for by this subchapter. In case the determination is made, the Tax Administrator shall give a notice of the amount so assessed by serving it personally or by depositing it in the United States mail, postage prepaid, addressed to the operator so assessed at his or her last-known place of address. The operator may, within ten days after the serving or mailing of the notice, make application in writing to the Tax Administrator for a hearing on the amount assessed. If application by the operator for a hearing is not made within the time prescribed, the tax interest and penalties, if any, determined by the Tax Administrator shall become final and conclusive and immediately due and payable. If the application is made, the Tax Administrator shall become final and conclusive and immediately due and payable. If the application is made, the Tax Administrator shall give not less than five days' written notice in the manner prescribed herein to the operator to show cause at a time and place fixed in the notice why the amount specified therein should not be fixed of the tax, interest and penalties. At the hearing, the operator may appear and offer evidence why the specified tax, interest and penalties should not be so fixed. After the hearing the Tax Administrator shall determine the proper tax to be remitted and shall thereafter give written notice to the person in the manner prescribed herein of the determination and the amount of the tax, interest and penalties. The amount determined to be due shall be payable after 15 days unless an appeal is taken as provided in § 34.44.

[1961 Code, § 20.19; Ord. 408]

Any operator aggrieved by any decision of the Tax Administrator with respect to the amount of the tax, interest and penalties, if any, may appeal to the City Council by filing a notice of appeal with the City Clerk within 15 days of the serving or mailing of the determination of tax due. The Council shall fix a time and place for hearing the appeal and the City Clerk shall give notice in writing to the operator at his or her last-known place of address. The findings of the City Council shall be final and conclusive and shall be served upon the appellant in the manner prescribed above for service of notice of hearing. Any amount found to be due immediately shall be due and payable upon the service of notice.

[1961 Code, § 20.20; Ord. 408]

It shall be the duty of every operator liable for the collection and payment to the city of any tax imposed by this subchapter to keep and preserve for a period of three years all records as may be necessary to determine the amount of the tax as he may have been liable for the collection of and payment to the city, which records the Tax Administrator shall have the right to inspect at all reasonable times.

[1961 Code, § 20.21; Ord. 408]

(A) When the amount of any tax, interest or penalty has been overpaid or paid more than once or has been erroneously or illegally collected or received by the city under this subchapter, it may be refunded as provided in divisions (B) and (C) below; provided, a claim in writing therefor, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the Tax Administrator within three years of the date of payment. The claim shall be on forms furnished by the Tax Administrator.

(B) An operator 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 in a manner prescribed by the Tax Administrator that the person from whom the tax has been collected as not a transient; provided, neither a refund nor a credit shall be allowed unless the amount of the tax so collected has either been refunded to the transient or credited to rent subsequently payable by the transient to the operator.

(C) A transient may obtain a refund of taxes overpaid or paid more than once or erroneously or illegal collected or received by the city by filing a claim in the manner provided in division (A) above but only when the tax was paid by the transient directly to the Tax Administrator or when the transient, having paid the tax to the operator, establishes to the satisfaction of the Tax Administrator that the transient has been unable to obtain a refund from the operator who collected the tax.

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

[1961 Code, § 20.22; Ord. 408]

Any tax required to be paid by any transient under the provisions of this subchapter shall be deemed a debt owed by the operator to the city. Any person owing money to the city under the provisions of this subchapter shall be liable to an action brought in the name of the city for the recovery of that amount.

[Ord. 1144, 9-1-1993]

If an operator who is liable for any unreported or unremitted tax, interest, or penalties under this section sells, conveys, or otherwise disposes of his business in any manner, his successor shall withhold a sufficient portion of the sales price equal to the amount of such unreported or unremitted tax, interest, or penalties until the selling operator producers either (1) a receipt from the City Finance Department stating that no tax, interest or penalty is due. If the seller does not present either a receipt or tax clearance certificate within 30 days after such successor commences to conduct business, the successor shall deposit the withheld amount with the City Finance Department pending settlement of the account of the seller. If the successor to the business fails to withhold and/or deposit a potion of the purchase price as required by this section, the successor shall be personally liable to the city for the payment of the amount required to be withheld and/or deposited. Within 30 days after receiving written request from the operator or his successor for a receipt or tax clearance certificate stating that no tax or penalty is due, the City Finance Department shall either issue a record or certificate or mail notice to the requesting party at its address as it appears on the records of the City Finance Department of the estimated amount of tax, interest and penalty that must be paid as a condition of issuing the certificate. This section is intended to impose liability upon a successor for any taxes, interest, and penalties which may be due at the time of transfer.

Subchapter 4. Real Property Transfer Tax

[1961 Code, § 20.24; Ord. 500]

This subchapter shall be known as the “Real Property Transfer Tax Ordinance” of the city. It is adopted pursuant to the authority contained in Cal. Rev. & Tax. Code §§ 11901 et seq.

[1961 Code, § 20.25; Ord. 500]

There is hereby imposed on each deed, instrument or writing by which any lands, tenements or other realty sold within the city shall be granted, assigned, transferred or otherwise conveyed to or vested in the purchaser or purchasers, or any other person or persons, by his or their direction, when the consideration or value of the interest or property conveyed (exclusive of the value of any lien or encumbrances remaining thereon at the time of sale) exceeds $100, a tax at the rate of $.275 for each $500 or fractional part thereof.

[1961 Code, § 20.26; Ord. 500]

Any tax imposed pursuant to § 34.61 shall be paid by any person who makes, signs or issues any document or instrument subject to the tax or for whose use or benefit the same is made, signed or issued.

[1961 Code, § 20.27; Ord. 500; Ord. 1036]

(A) Any tax imposed pursuant to this subchapter shall not apply with respect to any deed, instrument or writing to a beneficiary or mortgagee, which is taken from the mortgagor or trustor as the result of or in lieu of foreclosure, provided, that tax shall not apply to the extent that the consideration exceeds the unpaid debt, including accrued interest and cost of foreclosure. Consideration, unpaid debt amount and identification of grantee as beneficiary or mortgagee shall be noted on the deed, instrument or writing or stated in an affidavit or declaration under penalty of perjury for tax purposes.

(B) Any tax imposed pursuant to this subchapter shall not apply with respect to any deed, instrument or other writing which purports to transfer, divide or allocate community, quasi-community or quasi-marital property assets between spouses for the purpose of effecting a division of community, quasi-community or quasi-marital property pursuant to Cal. Rev. & Tax. Code § 11927.

[1961 Code, § 20.28; Ord. 500; Ord. 1036]

In a deed, instrument or writing to which the United States or any agency or instrumentality thereof, any state or territory or political subdivision thereof is a party shall be exempt from any tax imposed pursuant to this subchapter when the exempt agency is acquiring title.

[1961 Code, § 20.29; Ord. 500]

(A) Any tax imposed pursuant to this subchapter shall not apply to the making, delivering or filing of conveyances to make effective any plan of reorganization or adjustment:

(1) Confirmed under the Federal Bankruptcy Act, as amended;

(2) Approved in an equity receivership proceeding in a court involving a railroad corporation, as defined in subdivision (m) of § 205 of Title 11 of the United States Code, as amended;

(3) Approved in an equity receivership proceeding in a court involving a corporation, as defined in subdivision (3) of § 506 of Title 11 of the United States Code, as amended; or,

(4) Whereby a mere change in identity, form or place of organization is affected.

(B) Divisions (A)(1) through (4) above, inclusive, shall only apply if the making, delivery or filing of instruments of transfer or conveyances occurs within five years from the date of the confirmation, approval or change.

[1961 Code, § 20.30; Ord. 500]

Any tax imposed pursuant to this subchapter shall not apply to the making or delivery of conveyances to make effective any order of the Securities and Exchange Commission, as defined in subdivision (a) of § 1083 of the Internal Revenue Code of 1954 but only if:

(A) The order of the SEC in obedience to which the conveyance is made recites that the conveyance is necessary or appropriate to effectuate the provisions of § 79k of Title 15 of the United States Code, relating to the Public Utility Holding Company Act of 1935;

(B) The order specifies the property which is ordered to be conveyed;

(C) The conveyance is made in obedience to the order.

[1961 Code, § 20.31; Ord. 500]

(A) In the case of any realty held by a partnership, no levy shall be imposed pursuant to this subchapter by reason of any transfer of an interest in a partnership or otherwise if:

(1) That partnership (or another partnership) is considered a continuing partnership within the meaning of § 708 of the Internal Revenue Code of 1954; and,

(2) The continuing partnership continues to hold the realty concerned.

(B) If there is a termination of any partnership within the meaning of § 708 of the Internal Revenue Code of 1954 for purposes of this subchapter, the partnership shall be treated as having executed an instrument whereby there was conveyed, for fair market value (exclusive of the value of any lien or encumbrance remaining thereon) all realty held by the partnership at the time of the termination.

(C) Not more than one tax shall be imposed pursuant to this subchapter by reason of a termination described in division (B) above and any transfer pursuant thereto, with respect to the realty held by the partnership at the time of the termination.

[1961 Code, § 20.32; Ord. 500]

The County Recorder shall administer this subchapter in conformity with the provisions of Cal. Rev. & Tax. Code §§ 11901 et seq. and the provisions of any county ordinance adopted pursuant thereto.

[1961 Code, § 20.33; Ord. 500]

Claims for refund of taxes imposed pursuant to this subchapter shall be governed by the provisions of Cal. Rev. & Tax. Code §§ 5096 et seq.

[1961 Code, § 20.34; Ord. 500]

This subchapter shall become operative upon the operative date of any ordinance adopted by the county, pursuant to Cal. Rev. & Tax. Code §§ 11901 et seq. or upon the effective date of this subchapter, whichever is later.

Subchapter 5. Bonds or Other Security

[Ord. 1144, 9-1-1993]

At the discretion of the Finance Director of the city, any operator may be required to post a sufficient bond or other appropriate security in order to assure remittance to the city of any transient occupancy tax, interest, or penalty due under this section. Such bond or other appropriate security shall be posted and maintained in a form and in an amount approved by the City Finance Director and the City Attorney and may be required to be posted and maintained immediately upon an operator's failure to remit any tax, interest, or penalty due.

Subchapter 6. Refunds

[Ord. 1374, 6-2-2004]

Whenever the amount of any tax, interest or penalty has been overpaid, or paid more than once or has been erroneously or illegally collected or received by the City, a claim for refund may be filed pursuant to the City's claims for money or damages procedures in Chapter 36 hereof. Notwithstanding any other provision to the contrary and to the full extent allowed by law, the amount of such refund shall not exceed the amount paid in the year immediately preceding filing of the claim.

Subchapter 7. Utility Users’ Tax

[Ord. 1539, 7-16-2008]

For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

800 SERVICE

A "telecommunications service" that allows a caller to dial a toll-free number without incurring a charge for the call. The service is typically marketed under the name "800", "855", "866", "877", and "888" toll-free calling, and any subsequent numbers designated by the Federal Communications Commission.

900 SERVICE

An inbound toll "telecommunications service" purchased by a subscriber that allows the subscriber's customers to call in to the subscriber's prerecorded announcement or live service. "900 service" does not include the charge for: collection services provided by the seller of the "telecommunications services" to the subscriber, or service or product sold by the subscriber to the subscriber's customer. The service is typically marketed under the name "900" service, and any subsequent numbers designated by the Federal Communications Commission.

ANCILLARY TELECOMMUNICATION SERVICES

Services that are associated with or incidental to the provision, use or enjoyment of telecommunications services, including but not limited to the following services:

ANCILLARY VIDEO SERVICES

Services that are associated with or incidental to the provision or delivery of video services, including but not limited to electronic program guide services, search functions, recording services, or other interactive services or communications that are associated with or incidental to the provision, use or enjoyment of video services.

BILLING ADDRESS

The mailing address of the service user where the service supplier submits invoices or bills for payment by the customer.

CITY

The City of Indio.

CONFERENCE BRIDGING SERVICE

An ancillary service that links two or more participants of an audio or video conference call and may include the provision of a telephone number. "Conference bridging service" does not include the telecommunications services used to reach the conference bridge.

DETAILED TELECOMMUNICATIONS BILLING SERVICE

An ancillary service of separately stating information pertaining to individual calls on a customer's billing statement.

DIRECTORY ASSISTANCE

An ancillary service of providing telephone number information, and/or address information.

GAS

Natural or manufactured gas or any alternate hydrocarbon fuel which may be substituted therefor.

MOBILE TELECOMMUNICATIONS SERVICE

Has the meaning and usage as set forth in the Mobile Telecommunications Sourcing Act (4 U.S.C. § 124) and the regulations thereunder.

MONTH

A calendar month.

PAGING SERVICE

A "telecommunications service" that provides transmission of coded radio signals for the purpose of activating specific pagers; such transmissions may include messages and/or sounds.

PERSON

Without limitation, any natural individual, firm, trust, common law trust, estate, partnership of any kind, association, syndicate, club, joint stock company, joint venture, limited liability company, corporation (including foreign, domestic, and non-profit), municipal district or municipal corporation (other than the city), cooperative, receiver, trustee, guardian, or other representative appointed by order of any court.

PLACE OF PRIMARY USE

The street address representative of where the customer's use of the telecommunications service primarily occurs, which must be the residential street address or the primary business street address of the customer.

POST-PAID TELECOMMUNICATION SERVICE

The telecommunication service obtained by making a payment on a telecommunication-by-telecommunication basis either through the use of a credit card or payment mechanism such as a bank card, travel card, credit card, or debit card, or by charge made to a service number which is not associated with the origination or termination of the telecommunication service.

PREPAID TELECOMMUNICATION SERVICE

The right to access telecommunication services, which must be paid for in advance and which enables the origination of telecommunications using an access number or authorization code, whether manually or electronically dialed, and that is sold in predetermined units or dollars of which the number declines with use in a known amount.

PRIVATE TELECOMMUNICATION SERVICE

A telecommunication service that entitles the customer to exclusive or priority use of a telecommunications channel or group of channels between or among termination points, regardless of the manner in which such channel or channels are connected, and includes switching capacity, extension lines, stations, and any other associated services that are provided in connection with the use of such channel or channels. A telecommunications channel is a physical or virtual path of telecommunications over which signals are transmitted between or among customer channel termination points (such as the location where the customer either inputs or receives the telecommunications).

SERVICE ADDRESS

The residential street address or the business street address of the service user. For a communication service user, "service address" means either:

(1)

The location of the service user's communication equipment from which the communication originates or terminates, regardless of where the communication is billed or paid; or

(2)

If the location in division (1) of this definition is unknown (such as mobile telecommunications service or VoIP service), the service address shall mean the location of the service user's place of primary use.

(3)

For prepaid telecommunication service, "service address" shall mean the location associated with the service number.

SERVICE SUPPLIER

Any entity or person, including the city, that provides telecommunication or video service to a user of such service within the city.

SERVICE USER

A person required to pay a tax imposed under the provisions of this subchapter.

STATE

The State of California.

STREAMLINED SALES AND USE TAX AGREEMENT

The multi-state agreement commonly known and referred to as the Streamlined Sales and Use Tax Agreement, and as it is amended from time to time.

TAX ADMINISTRATOR

The Management Services Director of the city or his or her designee.

TELECOMMUNICATIONS SERVICES

The transmission, conveyance, or routing of voice, data, audio, video, or any other information or signals to a point, or between or among points, whatever the technology used. The term "telecommunications services" includes such transmission, conveyance, or routing in which computer processing applications are used to act on the form, code or protocol of the content for purposes of transmission, conveyance or routing without regard to whether such services are referred to as voice over internet protocol (VoIP) services or are classified by the Federal Telecommunications Commission as enhanced or value added, and includes video and/or data services that is functionally integrated with "telecommunication services". "Telecommunications services" include, but are not limited to the following services, regardless of the manner or basis on which such services are calculated or billed: ancillary telecommunication services; mobile telecommunications service; prepaid telecommunication service; post-paid telecommunication service; private telecommunication service; paging service; 800 service (or any other toll-free numbers designated by the Federal Telecommunications Commission); 900 service (or any other similar numbers designated by the Federal Telecommunications Commission for services whereby subscribers who call in to pre-recorded or live service).

VERTICAL SERVICE

An ancillary service that is offered in connection with one or more telecommunications services, which offers advanced calling features that allow customers to identify callers and to manage multiple calls and call connections, including conference bridging services.

VIDEO PROGRAMMING

Those programming services commonly provided to subscribers by a "video service supplier" including but not limited to basic services, premium services, audio services, video games, pay-per-view services, video on demand, origination programming, or any other similar services, regardless of the content of such video programming, or the technology used to deliver such services, and regardless of the manner or basis on which such services are calculated or billed.

VIDEO SERVICES

"Video programming" and any and all services related to the providing, recording, delivering, use or enjoyment of "video programming" (including origination programming and programming using Internet Protocol, such as IP-TV and IP-Video) using one or more channels by a "video service supplier", regardless of the technology used to deliver, store or provide such services, and regardless of the manner or basis on which such services are calculated or billed, and includes ancillary video services, data services, "telecommunication services", or interactive communication services that are functionally integrated with "video services".

VIDEO SERVICE SUPPLIER

Any person, company, or service which provides or sells one or more channels of video programming, or provides or sells the capability to receive one or more channels of video programming, including any telecommunications that are ancillary, necessary or common to the provision, use or enjoyment of the video programming, to or from a business or residential address in the city, where some fee is paid, whether directly or included in dues or rental charges for that service, whether or not public rights-of-way are utilized in the delivery of the video programming or telecommunications. A "video service supplier" includes, but is not limited to, multichannel video programming distributors [as defined in 47 U.S.C.A. § 522(13)]; open video systems (OVS) suppliers; and suppliers of cable television; master antenna television; satellite master antenna television; multichannel multipoint distribution services (MMDS); video services using internet protocol (such as IP-TV and IP-Video, which provide, among other things, broadcasting and video on demand), direct broadcast satellite to the extent federal law permits taxation of its video services, now or in the future; and other suppliers of video services (including two-way communications), whatever their technology.

VOICE MAIL SERVICE

An ancillary service that enables the customer to store, send or receive recorded messages. "Voice mail service" does not include any vertical services that the customer may be required to have in order to utilize the voice mail service.

VoIP (VOICE OVER INTERNET PROTOCOL)

The digital process of making and receiving real-time voice transmissions over any Internet Protocol network.

[Ord. 1539, 7-16-2008]

(A) Nothing in this subchapter shall be construed as imposing a tax upon any person or service when the imposition of such tax upon such person or service would be in violation of a federal or state statute, the Constitution of the United States or the constitution of the state.

(B) Any service user that is exempt from the tax imposed by this subchapter pursuant to division (A) of this section shall file an application with the Tax Administrator for an exemption; provided, however, this requirement shall not apply to a service user that is a state or federal agency or subdivision with a commonly recognized name for such service. Said application shall be made upon a form approved by the Tax Administrator and shall state those facts, declared under penalty of perjury, which qualify the applicant for an exemption, and shall include the names of all utility service suppliers serving that service user. If deemed exempt by the Tax Administrator, such service user shall give the Tax Administrator timely written notice of any change in utility service suppliers so that the Tax Administrator can properly notify the new utility service supplier of the service user's tax exempt status. A service user that fails to comply with this section shall not be entitled to a refund of utility users' taxes collected and remitted to the Tax Administrator from such service user as a result of such noncompliance.

The decision of the Tax Administrator may be appealed pursuant to § 34.169 of this subchapter. Filing an application with the Tax Administrator and appeal to the City Manager pursuant to § 34.169 of this subchapter is a prerequisite to a suit thereon.

[Ord. 1539, 7-16-2008]

(A) Eligibility. Any service user who is 62 years of age or older and is head of the household shall be eligible for an exemption from the taxes imposed by this subchapter on service supplied to the service user's residential living quarters. The provisions of this exemption shall also apply to any individual who meets the criteria for disability, as established by the Social Security Administration's Supplemental Security Income Program for the Aged, Blind and Disabled (Title XLII of the Social Security Act, as amended) without regard to the age of the disabled individual.

(B) Application: time to file. Applications for exemption shall be filed with the Tax Administrator on forms as he or she may provide. Applications may be filed at any time.

(C) Application: contents. Applications shall be verified by declaration under penalty of perjury and shall contain information as may be required by the Tax Administrator.

(D) Application: review and certification. The Tax Administrator shall review each application and shall certify the service user as exempt if the eligibility requirements of division (A) are met. If a service user is exempt under the eligibility requirements of division (A) and the service user is receiving service from a service supplier through a master meter, upon application and approval, the Tax Administrator shall refund the eligible service user as provided in § 34.168. However, no exemption shall be granted with respect to any tax imposed by this subchapter which is or has been paid by a public agency or where the service user received funds from a public agency specifically for the payment of the tax.

(E) Notice to service supplier. If a service user is certified as exempt, the Tax Administrator shall promptly notify the service user's service suppliers, stating the name of the service user, the address to which exempt service is being supplied, the account number, if any, and such other information as may be necessary for the service supplier to remove the exempt service user from its tax billing procedure.

(F) Discontinuance of billing. Upon receipt of the notice referred to in division (E), the service supplier shall, within 60 days, discontinue billing the service user for taxes imposed by this subchapter, except as otherwise provided in division (G).

(G) Prior taxes to be collected. Taxes billed by the service supplier to the service user from its tax billing procedure shall be collected from the service user and the service user shall pay these taxes to the service supplier. Taxes billed to and paid by the service user between the time the application for exemption is filed and the service supplier removes the service user from its billing procedure will not be refunded to the service user.

(H) Duration. Exemptions certified by the Tax Administrator shall continue as long as the facts supporting the qualification for exemption shall exist; provided, the exemption shall automatically terminate with any change in the service address or residence of the exempt individual and provided, further, that the individual may nevertheless apply for a new exemption with each change of address of residence.

(I) Duty to disclose.

(1) Any service user who has been exempted under this subchapter shall notify the collector within ten days of any change in fact or circumstance which might disqualify the individual from receiving the exemption. It shall be a misdemeanor for any person to knowingly receive the benefits of the exemption provided by this subchapter when the basis for that exemption does not exist or ceases to exist.

(2) Any service supplier who determines, by any means, that a new or nonexempt service user is receiving service through a meter or connection exempt by virtue of an exemption issued to a previous user or exempt user of the same meter or connection shall immediately notify the Tax Administrator of that fact and the Tax Administrator shall conduct an investigation to ascertain whether or not the provisions of this subchapter have been complied with and, where appropriate, order the service supplier to commence collecting the tax from the nonexempt service user.

[Ord. 1539, 7-16-2008; Ord. 1578, 11-2-2010]

(A) There is hereby imposed a tax upon every person in the city using telecommunication services. The tax imposed by this section shall be at the rate of 6% of the charges made for such services and shall be collected from the service user by the telecommunication services supplier or its billing agent. There is a rebuttable presumption that telecommunication services, which are billed to a billing or service address in the city, are used, in whole or in part, within the city's boundaries, and such services are subject to taxation under this subchapter. If the billing address of the service user is different from the service address, the service address of the service user shall be used for purposes of imposing the tax. As used in this Section, the term "charges" shall 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.

(B) "Mobile Telecommunications Service" shall be sourced in accordance with the sourcing rules set forth in the Mobile Telecommunications Sourcing Act (4 U.S.C. § 124). The Tax Administrator may issue and disseminate to telecommunication service suppliers, which are subject to the tax collection requirements of this subchapter, sourcing rules for the taxation of other telecommunication services, including but not limited to post-paid telecommunication services, and prepaid telecommunication services, provided that such rules are based upon custom and common practice that further administrative efficiency and minimize multi-jurisdictional taxation (such as Streamline Sales and Use Tax Agreement).

(C) The Tax Administrator may issue and disseminate to telecommunication service suppliers, which are subject to the tax collection requirements of this subchapter, an administrative ruling identifying those telecommunication services, or charges therefore, that are subject to or not subject to the tax of division (A) above.

(D) As used in this section, the term "telecommunication services" shall include, but are not limited to charges for: connection, reconnection, termination, movement, or change of telecommunication services; late payment fees; detailed billing; central office and custom calling features(including but not limited to call waiting, call forwarding, caller identification and three-way calling); voice mail and other messaging services; directory assistance; access and line charges; universal service charges; regulatory, administrative and other cost recovery charges; and local number portability charges. "Telecommunication services" shall not include digital downloads that are not "ancillary telecommunications services", such as books, music, ringtones, games, and similar digital products.

(E) To prevent actual multi-jurisdictional taxation of telecommunication services subject to tax under this section, any service user, upon proof to the Tax Administrator that the service user has previously paid the same tax in another state or local jurisdiction on such telecommunication services, shall be allowed a credit against the tax imposed to the extent of the amount of such tax legally imposed in such other state or local jurisdiction; provided, however, the amount of credit shall not exceed the tax owed to the city under this section.

(F) The tax on telecommunication services imposed by this section shall be collected from the service user by the service supplier. The amount of tax collected in one month shall be remitted to the Tax Administrator, and must be received by the Tax Administrator on or before the twentieth day of the following month.

[Ord. 1539, 7-16-2008; Ord. 1578, 11-2-2010]

(A) There is hereby imposed a tax upon every person in the city using video services. The tax imposed by this section shall be at the rate of 6% of the charges made for such services and shall be collected from the service user by the video service supplier or its billing agent. There is a rebuttable presumption that video services, which are billed to a billing or service address in the city, are used, in whole or in part, within the city's boundaries, and such services are subject to taxation under this subchapter. If the billing address of the service user is different from the service address, the service address of the service user shall be used for purposes of imposing the tax.

(B) As used in this section, the term "charges" shall include, but is not limited to, charges for the following:

(1) Regulatory fees and surcharges, franchise fees and access fees (PEG);

(2) Initial installation of equipment necessary for provision and receipt of telecommunication services;

(3) Late fees, collection fees, bad debt recoveries, and return check fees;

(4) Activation fees, reactivation fees, and reconnection fees;

(5) Video programming and video services;

(6) Ancillary video programming services (such as electronic program guide services, search functions, recording functions, or other interactive services or communications that are ancillary, necessary or common to the use or enjoyment of the video services);

(7) Equipment leases (such as remote, recording and/or search devises; converters); and

(8) Service calls, service protection plans, name changes, changes of services, and special services.

(C) As used in this section, the term "charges" shall 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 video services.

(D) The Tax Administrator may issue and disseminate to video service suppliers, which are subject to the tax collection requirements of this subchapter, an administrative ruling identifying those telecommunication services, or charges therefor, that are subject to or not subject to the tax of division (A) above.

(E) The tax imposed by this section shall be collected from the service user by the video service supplier, its billing agent, or a reseller of such services. In the case of video service, the service user shall be deemed to be the purchaser of the bulk video service (such as an apartment owner), unless such service is resold to individual users, in which case the service user shall be the ultimate purchaser of the video service. The amount of tax collected in one month shall be remitted to the Tax Administrator, and must be received by the Tax Administrator on or before the twentieth day of the following month.

(F) Notwithstanding the 6% tax rate imposed upon persons using video services and collected by video service suppliers in the city specified in division (A) above, the tax imposed upon service users that obtain video services through a supplier of cable television shall be at the rate of 3% of the charges made for such services, and shall be collected from the service user by the supplier of cable television or its billing agent.

[Ord. 1539, 7-16-2008; Ord. 1578, 11-2-2010]

(A) There is hereby imposed a tax upon every person using electricity in the city. The tax imposed by this section shall be at the rate of 6% of the charges made for such electricity, and for any supplemental services or other associated activities directly related to and/or necessary for the provision of electricity to the service user, which are provided by a service supplier or non-utility service supplier to a service user. The tax shall be collected from the service user by the service supplier or non-utility service supplier, or its billing agent.

(B) As used in this section, the term "charges" shall apply to all services, components and items that are:

(1) Necessary for or common to the receipt, use or enjoyment of electric service; or

(2) Currently are or historically have been included in a single or bundled rate for electric service by a local distribution company to a class of retail customers. The term "charges" shall include, but is not limited to, the following charges:

(a) Energy charges;

(b) Distribution or transmission charges;

(c) Metering charges;

(d) Stand-by, reserves, firming, ramping, voltage support, regulation, emergency, or other similar charges for supplemental services to self-generation service users;

(e) Customer charges, late charges, service establishment or reestablishment charges, demand charges, fuel or other cost adjustments, power exchange charges, independent system operator (ISO) charges, stranded investment or competitive transition charges (CTC), public purpose program charges, nuclear decommissioning charges, trust transfer amounts (bond financing charges), franchise fees, franchise surcharges, annual and monthly charges, and other charges, fees or surcharges which are necessary for or common to the receipt, use or enjoyment of electric service; and

(f) Charges, fees, or surcharges for electricity services or programs which are mandated by the California Public Utilities Commission or the Federal Energy Regulatory Commission, whether or not such charges, fees, or surcharges appear on a bundled or line item basis on the customer billing.

(C) As used in this section, the term "charges" shall 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.

(D) The Tax Administrator, from time to time, may survey the electric service suppliers to identify the various unbundled billing components of electric retail service that they commonly provide to residential and commercial/industrial customers in the city, and the charges therefor, including those items that are mandated by state or federal regulatory agencies as a condition of providing such electric service. The Tax Administrator, thereafter, may issue and disseminate to such electric service suppliers an administrative ruling identifying those components and items which are:

(1) Necessary for or common to the receipt, use or enjoyment of electric service; or

(2) Currently are or historically have been included in a single or bundled rate for electric service by a local distribution company to a class of retail customers. Charges for such components and items shall be subject to the tax of division (A) above.

(E) As used in this section, the term "using electricity" shall not include the mere receiving of such electricity by an electrical corporation or governmental agency at a point within the city for resale.

(F) The tax on electricity provided by self-production or by a non-utility service supplier not under the jurisdiction of this subchapter shall be collected and remitted in the manner set forth in § 34.157 of this subchapter. All other taxes on charges for electricity imposed by this section shall be collected from the service user by the electric service supplier or its billing agent. The amount of tax collected in one month shall be remitted to the Tax Administrator, and must be received by the Tax Administrator on or before the twentieth day of the following month; or, at the option of the person required to collect and/or remit the tax, such person shall remit an estimated amount of tax measured by the tax billed in the previous month or upon the payment pattern of the service user, which must be received by the Tax Administrator on or before the twentieth day of the following month, provided that such person shall submit an adjusted payment or request for credit, as appropriate, within 60 days following each calendar quarter. The credit, if approved by the Tax Administrator, may be applied against any subsequent remittance that becomes due.

[Ord. 1539, 7-16-2008; Ord. 1578, 11-2-2010]

(A) There is hereby imposed a tax upon every person using gas in the city, which is transported and delivered through a pipeline or by mobile transport. The tax imposed by this section shall be at the rate of 6% of the charges made for such gas, including all services related to the storage, transportation and delivery of such gas. The tax shall be collected from the service user by the service supplier or non-utility service supplier, or its billing agent, and shall apply to all uses of gas, including but not limited to, heating, electricity generation, and the use of gas as a component of a manufactured product.

(B) As used in this section, the term "charges" shall apply to all services, components and items for gas service that are:

(1) Necessary for or common to the receipt, use or enjoyment of gas service; or

(2) Currently are or historically have been included in a single or bundled rate for gas service by a local distribution company to a class of retail customers. The term "charges" shall include, but is not limited to, the following charges:

(a) The commodity charges for purchased gas, or the cost of gas owned by the service user (including the actual costs attributed to drilling, production, lifting, storage, gathering, trunk line, pipeline, and other operating costs associated with the production and delivery of such gas), which is delivered through a gas pipeline distribution system;

(b) Gas transportation charges (including interstate charges to the extent not included in commodity charges);

(c) Storage charges; provided, however, that the service supplier shall not be required to apply the tax to any charges for gas storage services when the service supplier cannot, as a practical matter, determine the jurisdiction where such stored gas is ultimately used; but it shall be the obligation of the service user to self-collect the amount of tax not applied to any charge for gas storage by the service supplier and to remit the tax to the appropriate jurisdiction;

(d) Capacity or demand charges, late charges, service establishment or reestablishment charges, transition charges, customer charges, minimum charges, annual and monthly charges, and any other charges which are necessary for or common to the receipt, use or enjoyment of gas service; and

(e) Charges, fees, or surcharges for gas services or programs which are mandated by the California Public Utilities Commission or the Federal Energy Regulatory Commission, whether or not such charges, fees, or surcharges appear on a bundled or line item basis on the customer billing.

(C) As used in this section, the term "charges" shall 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.

(D) The Tax Administrator, from time to time, may survey the gas service suppliers to identify the various unbundled billing components of gas retail service that they commonly provide to residential and commercial/industrial customers in the city, and the charges therefor, including those items that are mandated by state or federal regulatory agencies as a condition of providing such gas service. The Tax Administrator, thereafter, may issue and disseminate to such gas service suppliers an administrative ruling identifying those components and items which are:

(1) Necessary for or common to the receipt, use or enjoyment of gas service; or

(2) Currently are or historically have been included in a single or bundled rate for gas service by a local distribution company to a class of retail customers. Charges for such components and items shall be subject to the tax of division (A) above.

(E) There shall be excluded from the calculation of the tax imposed in this section, charges made for gas which is to be resold and delivered through a pipeline distribution system.

(F) The tax on gas provided by self-production or by a non-utility service supplier not under the jurisdiction of this subchapter shall be collected and remitted in the manner set forth in § 34.157 of this subchapter. All other taxes on charges for gas imposed by this section shall be collected from the service user by the gas service supplier or its billing agent. The amount of tax collected in one month shall be remitted to the Tax Administrator, and must be received by the Tax Administrator, on or before the twentieth day of the following month; or, at the option of the person required to collect and/or remit the tax, such person shall remit an estimated amount of tax measured by the tax billed in the previous month or upon the payment pattern of the service user, which must be received by the Tax Administrator on or before the twentieth day of the following month, provided that such person shall submit an adjusted payment or request for credit, as appropriate, within 60 days following each calendar quarter. The credit, if approved by the Tax Administrator, may be applied against any subsequent remittance that becomes due.

[Ord. 1539, 7-16-2008]

(A) Any service user subject to the tax imposed by § 34.155 or by § 34.156 of this subchapter, which produces gas or electricity for self-use; which receives gas or electricity, including any related supplemental services, directly from a non-utility service supplier not under the jurisdiction of this subchapter; or which, for any other reason, is not having the full tax collected and remitted by its service supplier, a non-utility service supplier, or its billing agent on the use of gas or electricity in the city, including any related supplemental services, shall report said fact to the Tax Administrator and shall remit the tax due directly to the Tax Administrator within 30 days of such use. In lieu of paying said actual tax, the service user may, at its option, remit to the Tax Administrator within 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 60 days following each calendar quarter. The credit, if approved by the Tax Administrator in writing, may be applied against any subsequent tax bill that becomes due.

(B) The Tax Administrator may require said service user to identify its non-utility service supplier and provide, subject to audit: invoices; books of account; or other satisfactory evidence documenting the quantity of gas or electricity used, including any related supplemental services, 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 the tax rate to the equivalent charges the service user would have incurred if the gas or electricity used, including any related supplemental services, had been provided by the service supplier that is the primary supplier of gas or electricity within the city. Rate schedules for this purpose shall be available from the city.

[Ord. 1539, 7-16-2008; Ord. 1578, 11-2-2010]

(A) There is imposed a tax upon every person using water in the city which is transported and delivered through a pipeline distribution system. The tax imposed by this section shall be at the rate of 6% of the charges made for such water.

(B) As used in this section, the term "charges" shall apply to all services, components and items that are:

(1) Necessary for or common to the receipt, use or enjoyment of water service; or

(2) Currently are or historically have been included in a single or bundled rate for water service by a local distribution company to a class of retail customers. The term "charges" shall include, but is not limited to, the following charges:

(a) Water commodity charges (potable and non-potable);

(b) Distribution or transmission charges;

(c) Metering charges;

(d) Customer charges, late charges, service establishment or reestablishment charges, franchise fees, franchise surcharges, annual and monthly charges, and other charges, fees and surcharges which are necessary for or common to the receipt, use or enjoyment of water service; and

(e) Charges, fees, or surcharges for water services or programs, which are mandated by a water district or a state or federal agency, whether or not such charges, fees, or surcharges appear on a bundled or line item basis on the customer billing.

(C) As used in this section, the term "charges" shall 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 water services.

(D) The Tax Administrator, from time to time, may survey the water service suppliers in the city to identify the various unbundled billing components of water retail service that they commonly provide to residential and commercial/industrial customers in the city, and the charges therefor, including those items that are mandated by a water district or a state or federal agency as a condition of providing such water service. The Tax Administrator, thereafter, may issue and disseminate to such water service suppliers an administrative ruling identifying those components and items which are:

(1) Necessary for or common to the receipt, use or enjoyment of water service; or

(2) Currently are or historically have been included in a single or bundled rate for water service by a local distribution company to a class of retail customers. Charges for such components and items shall be subject to the tax of division (A) above.

(E) There shall be excluded from the base on which the tax imposed in this section is computed charges made for water which is to be resold and delivered through a pipeline distribution system; and charges made by a municipal water department, public utility or a city or municipal water district for water used and consumed by such department, public utility or water district in the conduct of the business of such department, utility or district.

(F) The tax on water service imposed by this section shall be collected from the service user by the water service supplier or its billing agent. The amount of tax collected in one month shall be remitted to the Tax Administrator, and must be received by the Tax Administrator on or before the twentieth day of the following month.

[Ord. 1539, 7-16-2008]

If any nontaxable charges are combined with and not separately stated from taxable service charges on the customer bill or invoice of a service supplier, the combined charge is subject to tax unless the service supplier identifies, by reasonable and verifiable standards, the portions of the combined charge that are nontaxable and taxable through the service supplier's books and records kept in the regular course of business, and in accordance with generally accepted accounting principles, and not created and maintained for tax purposes. The service supplier has the burden of proving the proper apportionment of taxable and non-taxable charges. If the service supplier offers a combination of taxable and non-taxable services, and the charges are separately stated, then for taxation purposes, the values assigned the taxable and non-taxable services shall be based on its books and records kept in the regular course of business and in accordance with generally accepted accounting principles, and not created and maintained for tax purposes. The service supplier has the burden of proving the proper valuation of the taxable and non-taxable services.

[Ord. 1539, 7-16-2008]

For purposes of imposing a tax or establishing a duty to collect and remit a tax under this subchapter, "substantial nexus" and "minimum contacts" shall be construed broadly in favor of the imposition, collection and/or remittance of the utility users tax to the fullest extent permitted by state and federal law, and as it may change from time to time by judicial interpretation or by statutory enactment. Any communication service (including VoIP) used by a person with a service address in the city, which service is capable of terminating a call to another person on the general telephone network, shall be subject to a rebuttable presumption that "substantial nexus/minimum contacts" exists for purposes of imposing a tax, or establishing a duty to collect and remit a tax, under this subchapter. A service supplier shall be deemed to have sufficient activity in the city for tax collection and remittance purposes if its activities include, but are not limited to, any of the following: maintains or has within the city, directly or through an agent or subsidiary, a place of business of any nature; solicits business in the city by employees, independent contractors, resellers, agents or other representatives; solicits business in the city on a continuous, regular, seasonal or systematic basis by means of advertising that is broadcast or relayed from a transmitter within the city or distributed from a location within the city; or advertises in newspapers or other periodicals printed and published within the city or through materials distributed in the city by means other than the United States mail; or if there are activities performed in the city on behalf of the service supplier that are significantly associated with the service supplier's ability to establish and maintain a market in the city for the provision of communication services that are subject to a tax under this subchapter.

[Ord. 1539, 7-16-2008]

(A) Collection by service suppliers. The duty of service suppliers to collect and remit the taxes imposed by the provisions of this subchapter shall be performed as follows:

(1) The tax shall be collected by service suppliers insofar as practicable at the same time as, and along with, the collection of the charges made in accordance with the regular billing practice 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 was accrued for the billing period, a proportionate share of both the charge and the tax shall be deemed to have been paid. In those cases where a service user has notified the service supplier of refusal to pay the tax imposed on said charges, § 34.165 shall apply.

(2) The duty of a service supplier to collect the tax from a service user shall commence with the beginning of the first regular billing period applicable to the service user where all charges normally included in such regular billing are subject to the provisions of this subchapter. Where a service user 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.

(B) Filing return and payment. Each person required by this subchapter to remit a tax shall file a return to the Tax Administrator, on forms approved by the Tax Administrator, on or before the due date. The full amount of the tax collected shall be included with the return and filed with the Tax Administrator. The Tax Administrator is authorized to require such additional information as he or she deems necessary to determine if the tax is being levied, collected, and remitted in accordance with this subchapter. Returns are due immediately upon cessation of business for any reason. Pursuant to Cal. Rev. & Tax Code § 7284.6, the Tax Administrator, and its agents, shall maintain such filing returns as confidential information that is exempt from the disclosure provisions of the Public Records Act.

[Ord. 1539, 7-16-2008]

(A) Taxes collected by service supplier from a service user are delinquent if not received by the Tax Administrator on or before the due date. Should the due date occur on a weekend or legal holiday, the return must be received by the Tax Administrator on the first regular working day following the weekend or legal holiday. A direct deposit, including electronic fund transfers and other similar methods of electronically exchanging monies between financial accounts, made by a service supplier in satisfaction of its obligations under this division shall be considered timely if the transfer is initiated on or before the due date, and the transfer settles into the city's account on the following business day.

(B) If the person required to collect and/or remit the utility users' tax fails to collect the tax (by failing to properly assess the tax on one or more services or charges on the customer's billing) or fails to remit the tax collected on or before the due date, the Tax Administrator shall attach a penalty for such delinquencies or deficiencies at the rate of 15% of the total tax that is delinquent or deficient in the remittance, and shall pay interest at the rate of and 0.75% per month, or any fraction thereof, on the amount of the tax, exclusive of penalties, from the date on which the remittance first became delinquent, until paid.

(C) The Tax Administrator shall have the power to impose additional penalties upon persons required to collect and remit taxes pursuant to the provisions of this subchapter for fraud or gross negligence in reporting or remitting at the rate of 15% of the amount of the tax collected and/or required to be remitted, or as recomputed by the Tax Administrator.

(D) For collection purposes only, every penalty imposed and such interest that is accrued under the provisions of this section shall become a part of the tax herein required to be paid.

(E) Notwithstanding the foregoing, the Tax Administrator may, in his or her discretion, modify the due dates of this subchapter to be consistent with any uniform standards or procedures that are mutually agreed upon by other public agencies imposing a utility users' tax, or otherwise legally established, to create a central payment location or mechanism.

[Ord. 1539, 7-16-2008]

Any tax required to be paid by a service user under the provisions of this subchapter 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 and shall no longer be a debt of the service user. Any person owing money to the city under the provisions of this subchapter shall be liable to an action brought in the name of the city for the recovery of such amount, including penalties and interest as provided for in this subchapter, along with any collection costs incurred by the city as a result of the person's noncompliance with this subchapter, including, but not limited to, reasonable attorneys fees. Any tax required to be collected by a service supplier or owed by a service user is an unsecured priority excise tax obligation under 11 U.S.C.A. § 507(a)(8)(C).

[Ord. 1539, 7-16-2008]

(A) The Tax Administrator shall make a deficiency determination if he or she determines that any service supplier or service user required to pay, collect, and/or remit taxes pursuant to the provisions of this subchapter has failed to pay, collect, and/or remit the proper amount of tax by improperly or failing to apply the tax to one or more taxable services or charges. Nothing herein shall require that the Tax Administrator institute proceedings under this § 34.164 if, in the opinion of the Tax Administrator, the cost of collection or enforcement likely outweighs the tax benefit.

(B) The Tax Administrator shall mail a notice of such deficiency determination to the person or entity allegedly owing the tax, which notice shall refer briefly to the amount of the taxes owed, plus interest at the rate of 0.75% per month, or any fraction thereof, on the amount of the tax from the date on which the tax should have been received by the city. Within 14 calendar days after the date of service of such notice, the person or entity allegedly owing the tax may request in writing to the Tax Administrator for a hearing on the matter.

(C) If the person or entity allegedly owing the tax fails to request a hearing within the prescribed time period, the amount of the deficiency determination shall become a final assessment, and shall immediately be due and owing to the city. If the person requests a hearing, the Tax Administrator shall cause the matter to be set for hearing, which shall be scheduled within 30 days after receipt of the written request for hearing. Notice of the time and place of the hearing shall be mailed by the Tax Administrator to such person or entity at least ten calendar days prior to the hearing, and, if the Tax Administrator desires said person or entity to produce specific records at such hearing, such notice may designate the records requested to be produced.

(D) At the time fixed for the hearing, the Tax Administrator shall hear all relevant testimony and evidence, including that of any other interested parties. At the discretion of the Tax Administrator, the hearing may be continued from time to time for the purpose of allowing the presentation of additional evidence. Within a reasonable time following the conclusion of the hearing, the Tax Administrator shall issue a final assessment (or non-assessment), thereafter, by confirming, modifying or rejecting the original deficiency determination, and shall mail a copy of such final assessment to person or entity owing the tax. The decision of the Tax Administrator may be appealed pursuant to § 34.169 of this subchapter. Filing an application with the Tax Administrator and appeal to the City Manager pursuant to § 34.169 of this subchapter is a prerequisite to a suit thereon.

(E) Payment of the final assessment shall become delinquent if not received by the Tax Administrator on or before the thirtieth day following the date of receipt of the notice of final assessment. The penalty for delinquency shall be 15% on the total amount of the assessment, along with interest at the rate of 0.75% percent per month, or any fraction thereof, on the amount of the tax, exclusive of penalties, from the date of delinquency, until paid. The applicable statute of limitations regarding a claim by the city seeking payment of a tax assessed under this subchapter shall commence from the date of delinquency as provided in this division.

(F) All notices under this section may be sent by regular mail, postage prepaid, and shall be deemed received on the third calendar day following the date of mailing, as established by a proof of mailing.

[Ord. 1539, 7-16-2008]

(A) Whenever the Tax Administrator determines that a service user has deliberately withheld the amount of the tax owed by the service user from the amounts remitted to a person required to collect the tax, or whenever the Tax Administrator deems it in the best interest of the city, he or she may relieve such person of the obligation to collect the taxes due under this subchapter from certain named service users for specific billing periods. To the extent the service user has failed to pay the amount of tax owed for a period of two or more billing periods, the service supplier shall be relieved of the obligation to collect taxes due. The service supplier shall provide the city with the names and addresses of such service users and the amounts of taxes owed under the provisions of this subchapter. Nothing herein shall require that the Tax Administrator institute proceedings under this § 34.165 if, in the opinion of the Tax Administrator, the cost of collection or enforcement likely outweighs the tax benefit.

(B) In addition to the tax owed, the service user shall pay a delinquency penalty at the rate of 15% of the total tax that is owed, and shall pay interest at the rate of 0.75% per month, or any fraction thereof, on the amount of the tax, exclusive of penalties, from the due date, until paid.

(C) The Tax Administrator shall notify the non-paying service user that the Tax Administrator has assumed the responsibility to collect the taxes due for the stated periods and demand payment of such taxes, including penalties and interest. The notice shall be served on the service user by personal delivery or by deposit of the notice in the United States mail, postage prepaid, 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 a change of address, to his or her last known address.

(D) If the service user fails to remit the tax to the Tax Administrator within 30 days from the date of the service of the notice upon him or her, the Tax Administrator may impose an additional penalty of 15% of the amount of the total tax that is owed.

[Ord. 1539, 7-16-2008]

(A) The Tax Administrator shall have the power and duty, and is hereby directed, to enforce each and all of the provisions of this subchapter.

(B) The Tax Administrator may adopt administrative rules and regulations consistent with provisions of this subchapter for the purpose of interpreting, clarifying, carrying out and enforcing the payment, collection and remittance of the taxes herein imposed. A copy of such administrative rules and regulations shall be on file in the Tax Administrator's office. To the extent that the Tax Administrator determines that the tax imposed under this subchapter shall not be collected in full for any period of time from any particular service supplier or service user, that determination shall be considered an exercise of the Tax Administrator's discretion to settle disputes and shall not constitute a change in taxing methodology for purposes of Cal. Gov’t Code § 53750 or otherwise. The Tax Administrator is not authorized to amend the city's methodology for purposes of Cal. Gov’t Code § 53750 and the city does not waive or abrogate its ability to impose the communication users' tax in full as a result of promulgating administrative rulings or entering into agreements.

(C) Upon a proper showing of good cause, the Tax Administrator may make administrative agreements, with appropriate conditions, to vary from the strict requirements of this subchapter and thereby:

(1) Conform to the billing procedures of a particular service supplier so long as said agreements result in the collection of the tax in conformance with the general purpose and scope of this subchapter; or

(2) To avoid a hardship where the administrative costs of collection and remittance greatly outweigh the tax benefit. A copy of each such agreement shall be on file in the Tax Administrator's office, and are voidable by the Tax Administrator or the city at any time.

(D) The Tax Administrator may conduct an audit, to ensure proper compliance with the requirements of this subchapter, of any person required to collect and/or remit a tax pursuant to this subchapter. The Tax Administrator shall notify said person of the initiation of an audit in writing. In the absence of fraud or other intentional misconduct, the audit period of review shall not exceed a period of three years next preceding the date of receipt of the written notice by said person from the Tax Administrator. Upon completion of the audit, the Tax Administrator may make a deficiency determination pursuant to § 34.164 of this subchapter for all taxes (and applicable penalties and interest) owed and not paid, as evidenced by information provided by such person to the tax administrator. If said person is unable or unwilling to provide sufficient records to enable the tax administrator to verify compliance with this subchapter, the tax administrator is authorized to make a reasonable estimate of the deficiency. Said reasonable estimate shall be entitled to a rebuttable presumption of correctness.

(E) Upon receipt of a written request of a taxpayer, and for good cause, the Tax Administrator may extend the time for filing any statement required pursuant to this subchapter for a period of not to exceed 45 days, provided that the time for filing the required statement has not already passed when the request is received. No penalty for delinquent payment shall accrue by reason of such extension. Interest shall accrue during said extension at the rate of 0.75% per month, prorated for any portion thereof.

(F) The Tax Administrator shall determine the eligibility of any person who asserts a right to exemption from, or a refund of, the tax imposed by this subchapter.

(G) Notwithstanding any provision in this subchapter to the contrary, the Tax Administrator may waive any penalty or interest imposed upon a person required to collect and/or remit for failure to collect the tax imposed by this subchapter if the non-collection occurred in good faith. In determining whether the non-collection was in good faith, the Tax Administrator shall take into consideration industry practice or other precedence.

[Ord. 1539, 7-16-2008; Ord. 1578, 11-2-2010]

(A) It shall be the duty of every person required to collect and/or remit to the city any tax imposed by this subchapter to keep and preserve, for a period of at least three years, all records as may be necessary to determine the amount of such tax as he or she 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 a reasonable time.

(B) The city, through the City Council, may issue an administrative subpoena to compel a person to deliver, to the Tax Administrator, copies of all records deemed necessary by the Tax Administrator to establish compliance with this subchapter, including the delivery of records in a common electronic format on readily available media if such records are kept electronically by the person in the usual and ordinary course of business. As an alternative to delivering the subpoenaed records to the Tax Administrator on or before the due date provided in the administrative subpoena, such person may provide access to such records outside the city on or before the due date, provided that such person shall reimburse the city for all reasonable travel expenses incurred by the city to inspect those records, including travel, lodging, meals, and other similar expenses, but excluding the normal salary or hourly wages of those persons designated by the city to conduct the inspection.

(C) The Tax Administrator is authorized to execute a non-disclosure agreement approved by the City Attorney to protect the confidentiality of customer information pursuant to Cal. Rev. & Tax Code §§ 7284.6 and 7284.7.

(D) If a service supplier uses a billing agent or billing aggregator to bill, collect, and/or remit the tax, the service supplier shall:

(1) Provide to the Tax Administrator the name, address and telephone number of each billing agent and billing aggregator currently authorized by the service supplier to bill, collect, and/or remit the tax to the city; and

(2) Upon request of the Tax Administrator, deliver, or effect the delivery of, any information or records in the possession of such billing agent or billing aggregator that, in the opinion of the Tax Administrator, is necessary to verify the proper application, calculation, collection and/or remittance of such tax to the city.

(E) If any person subject to record-keeping under this section unreasonably denies the Tax Administrator access to such records, or fails to produce the information requested in an administrative subpoena within the time specified, then the Tax Administrator may impose a penalty of $500 on such person for each day following:

(1) The initial date that the person refuses to provide such access; or

(2) The due date for production of records as set forth in the administrative subpoena. This penalty shall be in addition to any other penalty imposed under this subchapter.

(F) The independent third party performing the tax audit and preparing the annual public report required by § 34.173 shall verify that all city records generated and maintained per this chapter comply with generally accepted accounting principles established by the Governmental Accounting Standards Board, or shall report otherwise to the Citizens' Finance Advisory Commission established by § 34.176.

[Ord. 1539, 7-16-2008]

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 subchapter from a service user or service supplier, it may be refunded as provided in this section.

(A) The Tax Administrator may refund any tax that has been overpaid or paid more than once or has been erroneously or illegally collected or received by the Tax Administrator under this subchapter from a service user or service supplier, provided that no refund shall be paid under the provisions of this section unless the claimant or his or her guardian, conservator, executor, or administrator has submitted a written claim to the Tax Administrator within one year of the overpayment or erroneous or illegal collection of said tax. Such claim must clearly establish claimant's right to the refund by written records showing entitlement thereto. Nothing herein shall permit the filing of a claim on behalf of a class or group of taxpayers unless each member of the class has submitted a written claim under penalty of perjury as provided by this section.

(B) The Tax Administrator, where the claim is less than the City Manager purchasing authority established in § 33.116(C) (2) of this code, or the City Council where the claim is in excess of that amount, shall act upon the refund claim within 45 days of the initial receipt of the refund claim. Said decision shall be final. If the Tax Administrator/City Council fails or refuses to act on a refund claim within the 45-day period, the claim shall be deemed to have been rejected by the Tax Administrator/City Council on the forty-fifth day. The Tax Administrator shall give notice of the action in a form which substantially complies with that set forth in Cal. Gov’t Code § 913.

(C) The filing of a written claim pursuant to Cal. Gov’t Code § 935 is a prerequisite to any suit thereon. Any action brought against the city pursuant to this section shall be subject to the provisions of Cal. Gov’t Code §§ 945.6 and 946.

(D) Notwithstanding the notice provisions of division (A) of this section, the Tax Administrator may, at his or her discretion, give written permission to a service supplier, who has collected and remitted any amount of tax in excess of the amount of tax imposed by this subchapter, to claim credit for such overpayment against the amount of tax which is due the city upon a subsequent monthly return(s) to the Tax Administrator, provided that:

(1) Such credit is claimed in a return dated no later than one year from the date of overpayment or erroneous collection of said tax;

(2) The Tax Administrator is satisfied that the underlying basis and amount of such credit has been reasonably established; and

(3) In the case of an overpayment by a service user to the service supplier that has been remitted to the city, the Tax Administrator has received proof, to his or her satisfaction, that the overpayment has been refunded by the service supplier to the service user in an amount equal to the requested credit.

(E) Notwithstanding divisions (A) though (D) above, a service supplier shall be entitled to take any overpayment as a credit against an underpayment whenever such overpayment has been received by the city within the three years next preceding a deficiency determination or assessment by the Tax Administrator in connection with an audit instituted by the Tax Administrator pursuant to § 34.166(D). A service supplier shall not be entitled to said credit unless it clearly establishes the right to the credit by written records showing entitlement thereto. Under no circumstances shall an overpayment taken as a credit against an underpayment pursuant to this section qualify a service supplier for a refund to which it would not otherwise be entitled under the one-year written claim requirement of this section.

[Ord. 1539, 7-16-2008]

(A) The provisions of this section apply to any decision (other than a decision relating to a refund pursuant to § 34.168 of this subchapter), deficiency determination, assessment, or administrative ruling of the Tax Administrator. Any person aggrieved by any decision (other than a decision relating to a refund pursuant to § 34.168 of this subchapter), deficiency determination, assessment, or administrative ruling of the Tax Administrator, shall be required to comply with the appeals procedure of this section. Compliance with this section shall be a prerequisite to a suit thereon. [See Cal. Gov’t Code § 935(b)]. Nothing herein shall permit the filing of a claim or action on behalf of a class or group of taxpayers.

(B) If any person is aggrieved by any decision (other than a decision relating to a refund pursuant to § 34.168 of this subchapter), deficiency determination, assessment, or administrative ruling of the Tax Administrator; he or she may appeal to the City Manager by filing a notice of appeal with the City Clerk within 14 days of the date of the decision, deficiency determination, assessment, or administrative ruling of the Tax Administrator which aggrieved the service user or service supplier.

(C) The matter shall be scheduled for hearing before an independent hearing officer selected by the City Manager, no more than 30 days from the receipt of the appeal. The appellant shall be served with notice of the time and place of the hearing, as well as any relevant materials, at least five calendar days prior to the hearing. The hearing may be continued from time to time upon mutual consent. At the time of the hearing, the appealing party, the Tax Administrator, and any other interested person may present such relevant evidence as he or she may have relating to the determination from which the appeal is taken.

(D) Based upon the submission of such evidence and the review of the city's files, the hearing officer shall issue a written notice and order upholding, modifying or reversing the determination from which the appeal is taken. The notice shall be given within 14 days after the conclusion of the hearing and shall state the reasons for the decision. The notice shall specify that the decision is final and that any petition for judicial review shall be filed within 90 days from the date of the decision in accordance with Cal. Civ. Proc. Code § 1094.6.

(E) All notices under this section may be sent by regular mail, postage prepaid, and shall be deemed received on the third calendar day following the date of mailing, as established by a proof of mailing.

[Ord. 1539, 7-16-2008]

No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action, or proceeding in any court against this city or against any officer of the city to prevent or enjoin the collection under this subchapter of any tax or any amount of tax required to be collected and/or remitted.

[Ord. 1539, 7-16-2008]

If a tax under this subchapter is added, repealed, increased, reduced, or the tax base is changed, the Tax Administrator shall follow the notice requirements of Cal. Pub. Util. Code § 799.

[Ord. 1539, 7-16-2008]

(A) Unless specifically provided otherwise, any reference to a state or federal statute in this subchapter shall mean such statute as it may be amended from time to time, provided that such reference to a statute herein shall not include any subsequent amendment thereto, or to any subsequent change of interpretation thereto by a state or federal agency or court of law with the duty to interpret such law, to the extent that such amendment or change of interpretation would require voter approval under California law, or to the extent that such change would result in a tax decrease (as a result of excluding all or a part of a communication service, or charge therefor, from taxation). Only to the extent voter approval would otherwise be required or a tax decrease would result, the prior version of the statute (or interpretation) shall remain applicable; for any application or situation that would not require voter approval or result in a decrease of a tax, provisions of the amended statute (or new interpretation) shall be applicable to the maximum possible extent.

(B) To the extent that the city's authorization to collect or impose any tax imposed under this subchapter is expanded or limited as a result of changes in state or federal law, no amendment or modification of this subchapter shall be required to conform the tax to those changes, and the tax shall be imposed and collected to the full extent of the authorization up to the full amount of the tax imposed under this subchapter.

[Ord. 1539, 7-16-2008; Ord. 1578, 11-2-2010]

The city shall annually verify that the taxes owed under this chapter have been properly applied, exempted, collected, and remitted in accordance with this chapter, and properly expended according to applicable municipal law. The annual verification shall be performed by a qualified independent third party and the review shall employ reasonable, cost-effective steps to assure compliance, including the use of sampling audits. The verification shall not be required of tax remitters where the cost of the verification may exceed the tax revenues to be reviewed. The substance of the annual verification shall be reduced to writing and issued as a public report to be reviewed and analyzed by the Citizens' Finance Advisory Commission established per § 34.176, and ultimately received and filed by the City Council at a regularly scheduled public meeting. This annual public report shall directly and succinctly document the city's activity per this chapter, subject to limitation only per Cal. Revenue and Taxation Code §§ 7284.6 and 7284.7 and other applicable authority.

[Ord. 1539, 7-16-2008]

All remedies and penalties prescribed by this subchapter or which are available under any other provision of law or equity, including but not limited to the California False Claims Act (Cal. Gov’t Code § 12650 et seq.) and the California Unfair Practices Act (Cal. Bus. & Prof. Code § 17070 et seq.), are cumulative. The use of one or more remedies by the city shall not bar the use of any other remedy for the purpose of enforcing the provisions of this subchapter, including the penalty specified in § 34.999.

[Ord. 1539, 7-16-2008]

(A) Collection of tax by service providers. Service providers shall begin to collect the tax imposed by this subchapter as soon as feasible after the effective date of the subchapter, but in no event later than permitted by Cal. Pub. Util. Code § 799.

(B) Satisfaction of tax obligation by service users. Prior to April 1, 2009, any person who pays the tax levied pursuant to Chapter 53 (§§ 53.01 through 53.99) of this code, as it existed prior to its amendment as provided herein, with respect to any charge for a service shall be deemed to have satisfied his or her obligation to pay the tax levied pursuant to §§ 34.150 through 34.175 and § 34.999, with respect to that charge. The intent of this division is to prevent the imposition of multiple taxes upon a single utility charge during the transition period from the prior Utility Users' Tax ordinance to the amended Utility Users' Tax ordinance (which transition period ends April 1, 2009) and to permit service providers or other persons with an obligation to remit the tax hereunder, during that transition period, to satisfy their collection obligations by collecting either tax.

(C) Judicial determinations. In the event that a final court order should determine that the election enacting this subchapter is invalid for whatever reason, or that any tax imposed under this subchapter is invalid in whole or in part, then the tax imposed under Chapter 53 (§§ 53.01 through 53.99), unless repealed, shall automatically continue to apply with respect to any service for which the tax levied pursuant to this subchapter has been determined to be invalid. Such automatic continuation shall be effective beginning as of the first date of service (or billing date) for which the tax imposed by this subchapter is not valid. However, in the event of an invalidation, any tax (other than a tax that is ordered refunded by the court or is otherwise refunded by the city) paid by a person with respect to a service and calculated pursuant to this subchapter shall be deemed to satisfy the tax imposed under Chapter 53 (§§ 53.01 through 53.99) on that service, so long as the tax is paid with respect to a service provided no later than six months subsequent to the date on which the final court order is published.

[Ord. 1578, 11-2-2010; Ord. 1592, 4-6-2011; Ord. 1750, 4-15-2020]

(A) A permanent Citizens' Finance Advisory Commission shall be established. This Commission shall receive, review and analyze the annual public report issued by the city's auditor per § 34.173. Within forty-five (45) days of completing this analysis, this Commission shall present the annual public report to the City Council with its recommendation to receive and file same. The Commission's recommendation shall include but not be limited to identification of City Council action warranted to address any irregularities noted in the annual public report.

(B) The Citizens' Finance Advisory Commission shall consist of five voting citizen members, each shall be appointed by a member of the City Council and shall serve on the Commission in a manner consistent with § 32.03, and as that section may be amended from time to time. In addition, the City Treasurer shall serve on the Commission as an ex officio member. Voting Commissioners shall be residents of the city; however, no voting Commissioner shall be an elected official, an employee of the city, or a vendor, contractor or consultant doing business with the city.

(C) Commission members shall serve without compensation.

(D) The Citizens' Finance Advisory Commission shall meet at least once per calendar year. All Commission action, including but not limited to the setting, conduct and notice of meetings, shall be subject to the Brown Act codified at Cal. Gov't Code §§ 54950 et seq. The City Manager or his/her designee shall provide such reasonable administrative or technical assistance as may be required by the Commission.

(E) The City Manager shall ensure that Citizens' Finance Advisory Commission members receive all reports and other documents provided to the City Council relating to the administration of this chapter, excluding attorney-client privileged communications. In addition, the City Manager shall, upon written request of any Citizens' Finance Advisory Commission member, provide said member with a copy of any specific document prepared by the Tax Administrator per this chapter.

Subchapter 8. Transactions and Use Tax

[Ord. 1704, 11-8-2016]

This subchapter shall be known as the Indio Transactions and Use Tax Ordinance. The City of Indio hereinafter shall be called “city.” This subchapter shall be applicable in the incorporated territory of the city as it exists on the operative date of this subchapter, and in the incorporated territory of the city as it may hereafter be amended through annexation (“territory”).

[Ord. 1704, 11-8-2016]

OPERATIVE DATE

Means the first day of the first calendar quarter commencing more than 110 days after the adoption of this subchapter, the date of such adoption being November 8, 2016.

[Ord. 1704, 11-8-2016]

This subchapter 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 impose a retail transactions and use tax in accordance with the provisions of Part 1.6 (commencing with § 7251) of Division 2 of the Cal. Rev. & Tax. Code and § 7285.9 of Part 1.7 of Division 2 which authorizes the city to adopt this tax ordinance which shall be operative if a majority of the electors voting on the measure vote to approve the imposition of the tax at an election called for that purpose.

(B) To adopt a retail transactions and use tax ordinance that incorporates provisions identical to those of the Sales and Use Tax Law of the State of California insofar as those provisions are not inconsistent with the requirements and limitations contained in Part 1.6 of Division 2 of the Cal. Rev. & Tax. Code.

(C) To adopt a retail transactions and use tax ordinance that imposes a tax and provides a measure therefore that can be administered and collected by the State Board of Equalization in a manner that adapts itself as fully as practicable 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 California State Sales and Use Taxes.

(D) To adopt a retail transactions and use tax ordinance that can be administered in a manner that will be, to the greatest degree possible, consistent with the provisions of Part 1.6 of Division 2 of the Cal. Rev. & Tax. Code, minimize the cost of collecting the transactions and use taxes, and at the same time, minimize the burden of record keeping upon persons subject to taxation under the provisions of this subchapter.

[Ord. 1704, 11-8-2016]

Prior to the operative date, the city shall contract with the State Board of Equalization to perform all functions incident to the administration and operation of this transactions and use tax subchapter; provided, that if the city shall not have contracted with the State Board of Equalization prior to the operative date, it shall nevertheless so contract and in such a case the operative date shall be the first day of the first calendar quarter following the execution of such a contract.

[Ord. 1704, 11-8-2016]

For the privilege of selling tangible personal property at retail, a tax is hereby imposed upon all retailers in the incorporated territory of the city at the rate of 1.0% of the gross receipts of any retailer from the sale of all tangible personal property sold at retail in said territory on and after the operative date of this subchapter.

[Ord. 1704, 11-8-2016]

For the purposes of this subchapter, 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 agent to an out-of-state destination or to a common carrier for delivery to an out-of-state destination. 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. 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. 1704, 11-8-2016]

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 and after the operative date of this subchapter for storage, use or other consumption in said territory at the rate of 1.0% 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. 1704, 11-8-2016]

Except as otherwise provided in this subchapter and except insofar as they are inconsistent with the provisions of Part 1.6 of Division 2 of the Cal. Rev. & Tax. Code, all of the provisions of Part 1 (commencing with § 6001) of Division 2 of the Cal. Rev. & Tax. Code are hereby adopted and made a part of this subchapter as though fully set forth herein.

[Ord. 1704, 11-8-2016]

In adopting the provisions of Part 1 of Division 2 of the Cal. Rev. & Tax. Code:

(A) Wherever the State of California is named or referred to as the taxing agency, the name of this city shall be substituted therefor. However, the substitution shall not be made when:

(1) The word “state” is used as a part of the title of the State Controller, State Treasurer, State Board of Equalization, State Treasury, or the Constitution of the State of California;

(2) The result of that substitution would require action to be taken by or against this city or any agency, officer, or employee thereof rather than by or against the State Board of Equalization, in performing the functions incident to the administration or operation of this subchapter.

(3) 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:

(a) Provide an exemption from this tax with respect to certain sales, storage, use or other consumption of tangible personal property which would not otherwise be exempt from this tax while such sales, storage, use or other consumption remain subject to tax by the state under the provisions of Part 1 of Division 2 of the Cal. Rev. & Tax. Code, or;

(b) Impose this tax with respect to certain sales, storage, use or other consumption of tangible personal property which would not be subject to tax by the state under the said provision of that code.

(4) In §§ 6701, 6702 (except in the last sentence thereof), 6711, 6715, 6737, 6797 or 6828 of the Cal. Rev. & Tax. Code.

(B) The word “city” shall be substituted for the word “State” in the phrase “retailer engaged in business in this State” in § 6203 and in the definition of that phrase in § 6203.

[Ord. 1704, 11-8-2016]

If a seller’s permit has been issued to a retailer under § 6067 of the Cal. Rev. & Tax. Code, an additional transactor’s permit shall not be required by this subchapter.

[Ord. 1704, 11-8-2016]

(A) There shall be excluded from the measure of the transactions tax and the use tax the amount of any sales tax or use tax imposed by the State of California or by any city, city and county, or county pursuant to the Bradley-Burns Uniform Local Sales and Use Tax Law or the amount of any state-administered transactions or use tax.

(B) There are exempted from the computation of the amount of transactions tax the gross receipts from:

(1) Sales of tangible personal property, other than fuel or petroleum products, to operators of aircraft to be used or consumed principally outside the county 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.

(2) Sales of property to be used outside the city which is shipped to a point outside the city, pursuant to the contract of sale, by delivery to such point by the retailer or his agent, or by delivery by the retailer to a carrier for shipment to a consignee at such point. For the purposes of this division (B)(2), delivery to a point outside the city shall be satisfied:

(a) With respect to vehicles (other than commercial vehicles) subject to registration pursuant to Chapter 1 (commencing with § 4000) of Division 3 of the Cal. Vehicle Code, aircraft licensed in compliance with § 21411 of the Cal. Pub. Util. Code, and undocumented vessels registered under Division 3.5 (commencing with § 9840) of the Cal. Vehicle Code by registration to an out-of-city address and by a declaration under penalty of perjury, signed by the buyer, stating that such address is, in fact, his or her principal place of residence; and

(b) With respect to commercial vehicles, by registration to a place of business out-of-city and declaration under penalty of perjury, signed by the buyer, that the vehicle will be operated from that address.

(3) The sale of tangible personal property if the seller is obligated to furnish the property for a fixed price pursuant to a contract entered into prior to the operative date of this subchapter.

(4) A lease of tangible personal property which is a continuing sale of such property, for any period of time for which the lessor is obligated to lease the property for an amount fixed by the lease prior to the operative date of this subchapter.

(5) For the purposes of divisions (B)(3) and (4) of this section, the sale or lease of tangible personal property shall be deemed not to be obligated pursuant to a contract or lease for any period of time for which any party to the contract or lease has the unconditional right to terminate the contract or lease upon notice, whether or not such right is exercised.

(C) There are exempted from the use tax imposed by this subchapter, the storage, use or other consumption in this city of tangible personal property:

(1) The gross receipts from the sale of which have been subject to a transactions tax under any state-administered transactions and use tax ordinance.

(2) Other than fuel or petroleum products 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. This exemption is in addition to the exemptions provided in §§ 6366 and 6366.1 of the Cal. Rev. & Tax. Code of the State of California.

(3) If the purchaser is obligated to purchase the property for a fixed price pursuant to a contract entered into prior to the operative date of this subchapter.

(4) If the possession of, or the exercise of any right or power over, the tangible personal property arises under a lease which is a continuing purchase of such property for any period of time for which the lessee is obligated to lease the property for an amount fixed by a lease prior to the operative date of this subchapter.

(5) For the purposes of division (C)(3) and (4) of this section, storage, use, or other consumption, or possession of, or exercise of any right or power over, tangible personal property shall be deemed not to be obligated pursuant to a contract or lease for any period of time for which any party to the contract or lease has the unconditional right to terminate the contract or lease upon notice, whether or not such right is exercised.

(6) Except as provided in division (C)(7), a retailer engaged in business in the city shall not be required to collect use tax from the purchaser of tangible personal property, unless the retailer ships or delivers the property into the city or participates within the city in making the sale of the property, including, but not limited to, soliciting or receiving the order, either directly or indirectly, at a place of business of the retailer in the city or through any representative, agent, canvasser, solicitor, subsidiary, or person in the city under the authority of the retailer.

(7) "A retailer engaged in business in the city" shall also include any retailer of any of the following: vehicles subject to registration pursuant to Chapter 1 (commencing with § 4000) of Division 3 of the Cal. Vehicle Code, aircraft licensed in compliance with § 21411 of the Cal. Pub. Util. Code, or undocumented vessels registered under Division 3.5 (commencing with § 9840) of the Cal. Vehicle Code. That retailer shall be required to collect use tax from any purchaser who registers or licenses the vehicle, vessel, or aircraft at an address in the city.

(D) Any person subject to use tax under this subchapter may credit against that tax any transactions tax or reimbursement for transactions tax paid to a district imposing, or retailer liable for a transactions tax pursuant to Part 1.6 of Division 2 of the Cal. Rev. & Tax. Code with respect to the sale to the person of the property the storage, use or other consumption of which is subject to the use tax.

[Ord. 1704, 11-8-2016]

All amendments subsequent to the effective date of this subchapter to Part 1 of Division 2 of the Cal. Rev. & Tax. Code relating to sales and use taxes and which are not inconsistent with Part 1.6 and Part 1.7 of Division 2 of the Cal. Rev. & Tax. Code, and all amendments to Part 1.6 and Part 1.7 of Division 2 of the Cal. Rev. & Tax. Code, shall automatically become a part of this subchapter, provided however, that no such amendment shall operate so as to affect the rate of tax imposed by this subchapter.

[Ord. 1704, 11-8-2016]

No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action or proceeding in any court against the state or the city, or against any officer of the state or the city, to prevent or enjoin the collection under this subchapter, or Part 1.6 of Division 2 of the Cal. Rev. & Tax. Code, of any tax or any amount of tax required to be collected.

[Ord. 1704, 11-8-2016]

If any provision of this subchapter or the application thereof to any person or circumstance is held invalid, the remainder of the subchapter and the application of such provision to other persons or circumstances shall not be affected thereby.

[Ord. 1704, 11-8-2016]

The proceeds of the tax imposed by this subchapter, as well as the expenditure thereof, shall be audited annually by an independent accounting firm. The audit shall be placed on the agenda of a City Council meeting that is open to the public for City Council review. The report of such audit shall be posted on the city’s website.

[Ord. 1704, 11-8-2016]

The Citizens’ Finance Advisory Commission (“Commission”) established by § 34.176 shall receive, review and analyze the audit report issued by the independent auditing firm described in § 34.214 at a Commission meeting that is open to the public. Within 45 days of completing this analysis and before any review and receipt of said report by the City Council as set forth in § 34.214, the Commission’s analysis and findings, if any, shall be reported to the City Council with its recommendation to receive and file the same. The Commission’s recommendation shall include but not be limited to identification of City Council action warranted to address any irregularities noted in the annual public audit report.

Subchapter 9. Penalty

[1961 Code, § 20.23; Ord. 408; Ord. 1080; Ord. 1539, 7-16-2008]

(A) Any person violating any of the provisions of this §§ 34.35 through 34.47 shall be guilt of a misdemeanor. Any operator or other person who fails or refuses to register as required herein or to furnish any return required to be made or who fails or refuses to furnish a supplemental return or other data required by the Tax Administrator or who renders a false or fraudulent return or claim is guilty of a misdemeanor. Any person required to make, render, sign or verify any report or claim who makes any false or fraudulent report or claim with intent to defeat or evade the determination of any amount due required by this subchapter to be made is guilty of a misdemeanor.

(B) Any person, service supplier or service user violating any provision of §§ 34.150 - 34.175 shall be guilty of a misdemeanor. Each day the violation exists shall be deemed a separate offense. This section is intended to be cumulative to, and not in place of, other rights and remedies available to the city pursuant to this chapter.