Lemoore Municipal Code Ch. 3 Occupation Taxes

ARTICLE A. SALES AND USE TAX

SECTION:

This Article shall be known as the UNIFORM LOCAL SALES AND USE TAX ORDINANCE. (1975 Code §3-1.01)

The City Council hereby declares that this Article is adopted to achieve the following purposes, among others, 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 part 1.5 of division 2 of the Revenue and Taxation Code of California;

B. To adopt a sales and use tax ordinance which incorporates provisions identical to those of the Sales and Use Tax Law 1 of the State of California insofar as those provisions are not inconsistent with the requirements and limitations contained in part 1.5 of division 2 of the Revenue and Taxation Code;

C. To adopt a sales and use tax ordinance which imposes a tax and provides a measure therefor 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 sales and use tax ordinance which can be administered in a manner that will, to the degree possible consistent with the provisions of part 1.5 of division 2 of the Revenue and Taxation Code, minimize the cost of collecting City sales and use taxes and at the same time minimize the burden of record keeping upon persons subject to taxation under the provisions of this Article. (1975 Code §3-1.04)

This Chapter shall be operative on January 1, 1974, 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 sales and use tax Article; provided, that if the City shall not have contracted with the State Board of Equalization prior to said 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 rather than the first day of the first calendar quarter following the adoption of this Article. (1975 Code §§3-1.03, 3-1.05)

Except as otherwise provided in this Article and except insofar as they are inconsistent with the provisions of part 1.5 of division 2 of the Revenue and Taxation Code, all of the provisions of part 1 of division 2 of the Revenue and Taxation Code are hereby adopted and made a part of this Article as though fully set forth herein. (1975 Code §3-1.09)

All subsequent amendments of the Revenue and Taxation Code which relate to the sales and use tax and which are not inconsistent with part 1.5 of division 2 of the Revenue and Taxation Code shall automatically become a part of this Article. (1975 Code §3-1.15)

In adopting the provisions of part 1 of division 2 of the Revenue and Taxation Code, wherever the State of California is named or referred to as the taxing agency, the name of this City shall be substituted therefor. The substitution, however, shall not be made when the word "State" is used as part of the title of the State Controller, the State Treasurer, the State Board of Control, the State Board of Equalization, the State Treasury or the Constitution of the State of California; the substitution shall not be made when the result of that substitution would require action to be taken by or against the City or any agency thereof rather than by or against the State Board of Equalization in performing the functions incident to the administration or operation of this Article; the substitution shall not be made in those sections including, but not necessarily limited to, sections referring to the exterior boundaries of the State of California where the result of the substitution would be to provide an exemption from this tax with respect to certain 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 Revenue and Taxation Code, or to 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 provisions of that Code; the substitution shall not be made in sections 6701, 6702 (except in the last sentence thereof), 6711, 6715, 6737, 6797 or 6828 of the Revenue and Taxation Code; and the substitution shall not be made for the word "State" in the phrase "retailer engaged in business in this State" in section 6203 or in the definition of that phrase in section 6203. (1975 Code §3-1.10)

The rate of sales tax and use tax imposed by this Article shall be ninety eight-hundredths of one percent (.98%). (1975 Code §3-1.02)

A. Tax Imposed: For the privilege of selling tangible personal property at retail, a tax is hereby imposed upon all retailers in the City at the rate stated in Section 3-2A-5 of the gross receipts of the retailer from the sale of all tangible personal property sold at retail in this City on and after the operative date hereof. (1975 Code §3-1.06)

B. Place of Sale:

1. For the purposes of this Article, all retail sales are consummated at the place of business of the retailer unless the tangible personal property sold is delivered by the retailer or his 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.

2. 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. (1975 Code 83-1.07)

C. Seller's Permit: If a seller's permit has been issued to a retailer under section 6067 of the Revenue and Taxation Code, an additional seller's permit shall not be required by this Article. (1975 Code §3-1.11)

An excise tax is hereby imposed on the storage, use or other consumption in this City of tangible personal property purchased from any retailer on and after the operative date for storage, use or other consumption in this City at the rate stated in Section 3-3A-5 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. (1975 Code §3-1.08)

A. Exclusions and Exemptions Specified:

1. There shall be excluded from the measure of tax:

a. The amount of any sales or use tax imposed by the State of California upon a retailer or consumer.

b. The storage, use or other consumption of tangible personal property, the gross receipts from the sale of which have been subject to sales tax under a sales and use tax ordinance enacted in accordance with part 1.5 of division 2 of the Revenue and Taxation Code by any city and county, county, or city in this State.

c. The gross receipts from sales to, and the storage, use or other consumption of property purchased by operators of common carriers and waterborne vessels to be used or consumed in the operation of such common carriers or waterborne vessels principally outside this City.

d. The storage or use of tangible personal property in the transportation or transmission of persons, property or communications, or in the generation, transmission or distribution of electricity, or in the manufacture, transmission or distribution of gas in intrastate, interstate or foreign commerce by public utilities which are regulated by the Public Utilities Commission of the State of California. (1975 Code §3-1.12)

2. Additionally:

a. The amount subject to tax shall not include any sales or use tax imposed by the State of California upon a retailer or consumer.

b. The storage, use or other consumption of tangible personal property, the gross receipts from the sale of which have been subject to tax under a sales and use tax ordinance enacted in accordance with part 1.5 of division 2 of the Revenue and Taxation Code by any city and county, county, or city in this State shall be exempt from the tax due under this Article.

c. There are exempted from the computation of the amount of the sales tax the gross receipts from the sale of tangible personal property to operators of waterborne vessels to be used or consumed principally outside the City in which the sale is made and directly and exclusively in the carriage of persons or property in such vessels for commercial purposes.

d. The storage, use or other consumption of tangible personal property purchased by operators of waterborne vessels and used or consumed by such operators directly and exclusively in the carriage of persons or property of such vessels for commercial purposes is exempted from the use tax.

e. There are exempted from the computation of the amount of the sales tax the gross receipts from the sale of tangible personal property to operators of aircraft to be used or consumed principally outside the City in which the sale is made and directly and exclusively in the use of such aircraft as common carriers of persons or property under the authority of the laws of this State, the United States or any foreign government.

f. In addition to the exemptions provided in sections 6366 and 6366.1 of the Revenue and Taxation Code, the storage, use or other consumption of tangible personal property purchased by operators of aircraft and used or consumed by such operators directly and exclusively in the use of such aircraft as common carriers of persons or property for hire or compensation under a certificate of public convenience and necessity issued pursuant to the laws of this State, the United States or any foreign government is exempted from the use tax. (1975 Code §3-1.13)

B. Application of Provisions Relating to Exclusions and Exemptions:

1. Subsection A2 of this Section shall become operative on January 1 of the year following the year in which the State Board of Equalization adopts an assessment ratio for State-assessed property which is identical to the ratio which is required for local assessments by section 401 of the Revenue and Taxation Code, at which time subsection A1 of this Section shall become inoperative.

2. In the event that subsection A2 of this Section becomes operative and the State Board of Equalization subsequently adopts an assessment ratio for the State-assessed property which is higher than the ratio which is required for local assessments by section 401 of the Revenue and Taxation Code, subsection A1 of this Section shall become operative on the first day of the month next following the month in which such higher ratio is adopted, at which time subsection A2 hereof shall be inoperative until the first day of the month following the month in which the Board again adopts an assessment ratio for State-assessed property which is identical to the ratio required for local assessments by section 401 of the Revenue and Taxation Code, at which time subsection A2 shall again become operative and subsection A1 shall become inoperative. (1975 Code §3-1.14)

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 this City, or against any officer of the State or this City, to prevent or enjoin the collection under this Article, or part 1.5 of division 2 of the Revenue and Taxation Code, of any tax or any amount of tax required to be collected. (1975 Code §3-1.16)

At the time this Article goes into operation, the provisions of Ordinances 228, 271, 280 and 327 shall be suspended and shall not again be of any force or effect until and unless for any reason the State Board of Equalization ceases to perform the functions incident to the administration and operation of the sales and use tax hereby imposed; provided, however, that if for any reason it is determined that the City is without power to adopt this Article, or that the State Board of Equalization is without power to perform the functions incident to the administration and operation of the taxes imposed by this Article, the provisions of Ordinances 271, 228, 280 and 327 shall not be deemed to have been suspended, but shall be deemed to have been in full force and effect at the rate of one percent (1%) continuously from and after July 1, 1957. Upon the ceasing of the state board of equalization to perform the functions incident to the administration and operation of the taxes imposed by this article, the provisions of ordinances 228, 271, 280 and 327 shall again be in full force and effect at the rate of one percent (1%). Nothing in this article shall be construed as relieving any person of the obligation to pay to the city any sales and use tax accrued and owing by the reason of the provisions of ordinances 228, 271, 280 and 327 in force and effect prior to and including June 30, 1957. (1975 Code §3-1.19)

Any person violating any of the provisions of this article shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punishable by a fine of not more than five hundred dollars ($500.00) or by imprisonment for a period of not more than six (6) months, or by both such fine and imprisonment. (1975 Code §3-1.17)

ARTICLE B. TRANSIENT OCCUPANCY TAX

SECTION:

This article shall be known as the TRANSIENT OCCUPANCY TAX ORDINANCE OF THE CITY OF LEMOORE. (Ord. 8404, 6-19-1984)

Except where the context otherwise requires, the definitions given in this section shall govern the construction of this article.

HOTEL: Any recreational vehicle park, any structure, or any portion of any structure which is occupied, or intended or designed for occupancy, by transients for dwelling, lodging or sleeping purposes and shall include any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodging house, rooming house, apartment house, dormitory, public or private club, mobilehome or house trailer at a fixed location, or other similar structure, or portion thereof.

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

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

PERSON: Any individual, firm, partnership, joint venture, association, social club, fraternal organization, joint stock company, corporation, estate, trust, business trust, receiver, trustee, syndicate or any other group or combination acting as a unit.

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, property and services of any kind or nature, without any deduction therefrom whatsoever.

TAX ADMINISTRATOR: The finance director of the city, to be charged with the administration of the transient occupancy tax.

TRANSIENT: Any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license or other agreement for a period of thirty (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 to be a transient until the period of thirty (30) days has expired unless there is an agreement in writing between the operator and the occupant providing for a longer period of occupancy. In determining whether a person is a transient, uninterrupted periods of time extending both prior and subsequent to the effective date hereof may be considered. (Ord. 8404, 6-19-1984; amd. per letter dated 12-1-1997; Ord. 2004-2, 7-20-2004)

For the privilege of occupancy in any hotel, each transient shall be subject to and shall pay a tax in the amount of a percentage of the rent charged by the operator. Such tax shall constitute a debt owed by the transient to the city, which debt shall be 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 with 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 is not paid to the operator of the hotel, the finance director may require that such tax shall be paid directly to the finance director.

The rate to be charged by the city for transient occupancy within the city shall be established by resolution of the city council after a duly noticed public hearing regarding the establishment of said rate. (Ord. 8404, 6-19-1984)

No tax shall be imposed under this article upon:

A. Any person as to whom, or any occupancy as to which, it is beyond the power of the city to impose the tax herein provided for;

B. Any federal or state officer or employee when on official business;

C. Any officer or employee of a foreign government, which officer or employee is exempt by reason of express provision of federal law or international treaty;

D. Any occupant whose rent is of a value of less than two dollars ($2.00) per day; or

E. Any occupant for more than thirty (30) successive calendar days.

No exemption shall be granted pursuant to subsections A, B and C of this section except upon a claim therefor made at the time the rent is collected and under penalty of perjury upon a form prescribed by the finance director. (Ord. 8404, 6-19-1984)

On or before September 1, 1984, or within thirty (30) days after commencing business, whichever is later, each operator of any hotel renting an occupancy to transients shall register such hotel with the finance director and obtain from him/her a transient occupancy registration certificate which shall at all times be posted in a conspicuous place on the premises. Such certificate shall, among other things, set forth the following information:

A. The name of the operator;

B. The address of the hotel;

C. The date upon which the certificate was issued;

D. A statement as follows:

This transient occupancy registration certificate signifies that the person named on the face hereof has fulfilled the requirements of the Transient Occupancy Tax Ordinance registering with the Finance Director for the purpose of collecting from transients the transient occupancy tax and remitting such tax to the Finance Director. This certificate shall not authorize any person to conduct any unlawful business or to conduct any lawful business in an unlawful manner, nor to operate 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 this City. This certificate does not constitute a permit;

and

E. Such additional information as may be required by the finance director.

Such privilege of registration after September 1, 1984, shall not relieve any person from the obligation of the collection and payment of the tax after September 1, 1984, regardless of registration. (Ord. 8404, 6-19-1984)

A. Collection Of Tax: Each operator shall collect the tax imposed by the provisions of this article 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. 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 provided in this article.

B. Reporting And Remitting: 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 finance director, make a return to the finance director on forms provided by him/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 finance director. The finance director may establish shorter reporting periods for any certificate holder if he deems it necessary in order to ensure collection of the tax, and he may require further information in the return. Returns and payments shall be due immediately upon cessation of business for any reason. All taxes collected by operators pursuant to the provisions of this article shall be held in trust for the account of the city until payment thereof is made to the finance director.

If a remittance to cover a payment required by the provisions of this article to be made to the finance director on or before a specified date is sent through the United States mail, properly addressed, with postage prepaid, it shall be deemed to have been received by the finance director on the date shown by the post office cancellation mark stamped upon the envelope containing the remittance or on the date it was mailed if proof satisfactory to the finance director established that the mailing occurred on an earlier date. Nothing in this paragraph shall be construed as constituting payment of any remittance required unless such remittance is actually received by the finance director.

C. Failure To Collect And Report Tax; Estimates: If the operator shall fail or refuse to collect such tax, or any portion thereof, required by the provisions of this article, the finance director shall proceed in such manner as he/she may deem best to obtain the facts and information on which to base his estimate of the tax due. As soon as the finance director shall procure such facts and information as he is able to obtain upon which to base the assessment of any such tax imposed by the provisions of this article and payable by any operator who has failed or refused to collect the same and to make such report and remittance, the finance director shall proceed to determine and assess against such operator the tax, interest and penalties provided for by the provisions of this article. In the event such determination is made, the finance director shall give 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 last known place of address. Such operator may, within ten (10) days after the service or mailing of such notice, make an application in writing to the finance director for a hearing on the amount assessed. If an application by the operator for a hearing is not made within the time prescribed, the tax, interest and penalties, if any, determined by the finance director shall become final and conclusive and immediately due and payable. If such an application is made, the finance director shall give not less than five (5) days' written notice in the manner prescribed in this subsection to the operator to show cause at a time and place fixed in such notice why the amount specified therein should not be fixed for such tax, interest and penalties. At such hearing, the operator may appear and offer evidence why such specified tax, interest and penalties shall not be so fixed. After such hearing, the finance director shall determine the proper tax to be remitted and shall thereafter give written notice to the operator in the manner prescribed in this subsection of such determination and the amount of such tax, interest and penalties. The amount determined to be due shall be payable fifteen (15) days after the service or mailing of such notice unless an appeal is filed as provided in section 3-3B-8 of this article.

D. Failure To Remit Tax; Penalties And Interest:

1. Original Delinquency: Any operator who shall fail to remit any tax imposed by the provisions of this article within the time required shall pay a penalty in the amount of ten percent (10%) of the tax in addition to the amount of the tax.

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

3. Fraud: If the finance director shall determine that the nonpayment of any remittance due pursuant to the provisions of this article is due to fraud, a penalty in the amount of twenty five percent (25%) of the amount of the tax shall be added thereto in addition to the penalties set forth in subsections D1 and D2 of this section.

4. Interest: In addition to the penalties imposed, any operator who shall fail to remit any tax imposed by the provisions of this article shall pay interest at the rate of one-half of one percent (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.

5. Penalties And Interest Merged With Tax: Every penalty imposed, and such interest as accrues pursuant to the provisions of this subsection, shall become a part of the tax required to be paid by the provisions of this article. (Ord. 8404, 6-19-1984)

If the finance director is not satisfied with a return filed by an operator or the amount of the tax required to be paid to the city pursuant to a return, he may compute and determine the amount required to be paid upon the basis of the facts contained in the return or upon the basis of any information within his possession, or that may come into his possession. One or more deficiency determinations may be made of the amount due for any period. The finance director shall give to the operator written notice of his determination in the same manner as provided in subsection 3-3B-6C of this article. The operator shall be entitled to apply for a hearing on the amount assessed to him pursuant to the procedure set forth in said subsection 3-3B-6C of this article and shall thereafter be entitled to appeal to the council in accordance with the provisions of section 3-3B-8 of this article. The penalties and interest provided in subsection 3-3B-6D of this article shall be applicable to the amount of deficiency established pursuant to the provisions of this section. (Ord. 8404, 6-19-1984)

Any operator aggrieved by any decision of the finance director with respect to the amount of such tax, interest and penalties, if any, may appeal to the council by filing a notice of appeal with the city clerk within fifteen (15) days after the service or mailing of the determination of the tax due. The council shall fix a time and place for hearing such appeal, and the city clerk shall give notice in writing to such operator at his last known place of address. The decision of the council shall be final and conclusive and shall be served upon the appellant in the manner prescribed in this article for the service of a notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of notice. (Ord. 8404, 6-19-1984)

A. Whenever the amount of any tax, interest or penalty has been overpaid, or paid more than once, or erroneously or illegally collected or received by the city pursuant to the provisions of this article, such amount may be refunded as provided in subsections B and C of this section, provided a claim in writing therefor, stating under penalty of perjury the specific grounds upon which the claim is found, is filed with the finance director within three (3) years after the date of payment. The claim shall be on forms furnished by the finance director.

B. Any operator may claim a refund or take as a 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 finance director that the person from whom the tax has been collected was not a transient; provided, however, 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, paid more than once or erroneously or illegally collected or received by the city by filing a claim in the manner provided in subsection A of this section but only when the tax was paid by the transient directly to the finance director, or when the transient having paid the tax to the operator, establishes to the satisfaction of the finance director that the transient has been unable to obtain a refund from the operator who collected the tax.

D. No refund shall be paid pursuant to the provisions of this section unless the claimant establishes his right thereto by written records showing entitlement thereto. (Ord. 8404, 6-19-1984)

It shall be the duty of every operator liable for the collection and payment to the city of any tax imposed by the provisions of this article to keep and reserve, for a period of three (3) years and six (6) months, all records as may be necessary to determine the amount of such tax as he may have been liable for the collection of and payment to the city, which records the finance director shall have the right to inspect at all reasonable times. (Ord. 8404, 6-19-1984)

All funds collected pursuant to the provisions of this article, including interest and penalties collected for delinquencies, shall be deposited in the general fund and shall be used for the purposes for which such funds may be used. Any refunds paid pursuant to the provisions of this article shall be out of such fund. (Ord. 8404, 6-19-1984)

Any tax required to be paid by any transient pursuant to the provisions of this article shall be deemed a debt owed by the transient to the city. Any such tax collected by an operator which has not been paid to the city shall be deemed a debt owed by the operator to the city. Any person owing money to the city pursuant to the provisions of this article shall be liable to an action brought in the name of the city for the recovery of such amount 1 . (Ord. 8404, 6-19-1984)

Any operator or other person who fails or refuses to register as required, 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 finance director, or who renders a false or fraudulent return or claim shall be guilty of an infraction. Any person required to make, render, sign or verify any report or claim and who makes any false or fraudulent report or claim with intent to defeat or evade the determination of any amount due required by the provisions of this article to be made shall be guilty of an infraction. (Ord. 8404, 6-19-1984)

If an operator who is liable for any taxes or penalties under this article sells his/her hotel, the successor shall withhold a sufficient portion of the purchase price to equal the amount of such tax or penalty, for payment to the city, until the selling operator produces a receipt from the city showing that the tax or penalty has been paid or a tax clearance certificate from the city stating that no tax or penalty is due. If the selling operator does not present a receipt or tax clearance certificate within thirty (30) days after such successor commences to conduct business, the successor shall deposit the withheld amount with the city as payment, pending any settlement of the account of the selling operator. (Ord. 2004-2, 7-20-2004)