Milpitas Municipal Code Ch. 3 Excise Tax

The following words and phrases, whenever used in this ordinance, shall be construed as defined in this section unless it appears from the context that a different meaning is intended.

(Ord. 57 (part), 11/6/56)

"Sales price" means that total amount for which tangible personal property is sold, valued in money, whether paid in money or otherwise, without any deduction on account of any of the following:

1.01-1 The cost of the property sold;

1.01-2 The cost of materials used, labor or service cost, interest charged, losses, or any other expenses;

1.01-3 The cost of transportation of the property prior to its purchase.

(Ord. 57 (part), 11/6/56)

The total amount for which the property is sold includes all of the following:

1.02-1 Any services that are a part of the sale;

1.02-2 Any amount for which credit is given to the purchaser by the seller.

(Ord. 57 (part), 11/6/56)

"Sales price" does not include the following:

1.03-1 Cash discounts allowed and taken on sales;

1.03-2 The amount charged for property returned by customers when that entire amount is refunded either in cash or credit. This exclusion shall not apply in any instance when the customer, in order to obtain the refund, is required to purchase other property at a price greater than the amount charged for the property that is returned.

1.03-3 The amount charged for labor or services rendered in installing or applying the property sold.

1.03-4 The amount of any federal tax imposed upon or with respect to retail sales whether imposed upon the retailer or upon the consumer and regardless of whether or not the amount of federal tax is stated to customers as a separate charge, and the amount of any California state sales or use tax. (The term "gross receipts" includes the amount of any manufacturer's or importer's excise tax included in the price of the property sold, even though the manufacturer or importer is also the retailer thereof, and whether or not the amount of such tax is stated as a separate charge.)

1.03-5 Transportation charges separately stated, if the transportation occurs after the purchase of the property is made.

(Ord. 57 (part), 11/6/56)

"Use" includes the exercise of any right or power over tangible personal property incident to the ownership of that property; subject, however, to the following exceptions:

1.04-1 It does not include the sale of that property in the regular course of business.

1.04-2 It does not include the storage, use or other consumption of tangible personal property, the gross receipts from the sale of or the cost of which has been subject to sales or use tax under a sales or use tax ordinance, whether enacted in accordance with, or purporting to be in accordance with, Part 1.5 of Division 2 of the Revenue and Taxation Code of the State of California by any other city and county, county or city in this state, or enacted in accordance with the organic law of any such city.

1.04-3 It does not include 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.

1.04-4 It does not include the use or consumption of property purchased by operators of common carrier and waterborne vessels to be used or consumed in the operation of such common carriers or waterborne vessels principally outside the City.

(Ord. 57 (part), 11/6/56)

The word "storage," as used in this article, includes any keeping or retention in the City for any purpose except sale in the regular course of business or subsequent use solely outside this City of tangible personal property purchased from a retailer.

(Ord. 57 (part), 11/6/56)

An excise tax is hereby imposed on the storage, use or other consumption in the City of Milpitas of tangible personal property purchased from any retailer on or after the effective date of this chapter for storage, use or other consumption in said City at the rate of one percent (1%) of the sales price of the property.

(Ord. 57 (part), 11/6/56)

The tax hereby levied, except as otherwise herein provided, is levied in the same manner, to the same extent and under the same conditions as use taxes are levied pursuant to Part 1 of Division 2 of the California Revenue and Taxation Code, known as the "Sales and Use Tax Law" as amended and in force and effect on October 1, 1956.

(Ord. 57 (part), 11/6/56)

All of the provisions of the "Sales and Use Tax Law" as amended and in force and effect on October 1, 1956, except the provisions pertaining solely to the "Sales Tax" and Sections 6008, 6009, 6011, 6201 to 6204, inclusive, 6207, 6226, 6241 to 6246, inclusive, 6355, 6403, 6453, 7052, 7056, 7057, 7101, 7102, 7151, 7152 and 7153, are hereby adopted and made a part of this chapter as though fully set forth herein.

(Ord. 57 (part), 11/6/56)

The term "sales price" shall not include the amount of any California state sales tax or use tax.

(Ord. 57 (part), 11/6/56)

All of the provisions of the "Sales and Use Tax Law" hereby adopted providing for the adoption of rules and regulations and for hearings on the part of the State Board of Equalization shall be performed by the City Council of the City of Milpitas. All other provisions of the state "Sales and Use Tax Law" hereby adopted providing for the performance of official action on the part of the State Board of Equalization shall be performed by the City Manager.

(Ord. 57 (part), 11/6/56)

The City of Milpitas shall be deemed substituted for the State of California whenever the state is referred to in said "Sales and Use Tax Law."

(Ord. 57 (part), 11/6/56)

The City Attorney of Milpitas shall be deemed substituted for the Attorney General whenever the Attorney General is referred to in said "Sales and Use Tax Law."

(Ord. 57 (part), 11/6/56)

The City Manager shall be deemed substituted for the State Controller and State Board of Control whenever the State Controller or State Board of Control are referred to in said "Sales and Use Tax Law."

(Ord. 57 (part), 11/6/56)

The County of Santa Clara shall be deemed substituted for the County of Sacramento whenever the County of Sacramento is referred to in said "Sales and Use Tax Law."

(Ord. 57 (part), 11/6/56)

The rules and regulations of the State Board of Equalization pertaining to the interpretation, administration and enforcement of the "Sales and Use Tax Law," insofar as applicable, shall apply to the interpretation of this Chapter until specifically abandoned by the rules and regulations adopted by the City Council pursuant to this Chapter.

(Ord. 57 (part), 11/6/56)

The inclusion of any clause, portion or part of the "Sales and Use Tax Law," Part 1, Division 2, of the Revenue and Taxation Code of the State of California, verbatim in this ordinance shall not in or of itself be deemed to exclude any of the remaining provisions of said "Sales and Use Tax Law" that are made a part hereof by reference only.

(Ord. 57 (part), 11/6/56)

Every retailer maintaining a place of business in this City shall apply to the City Manager for authorization to collect the tax imposed by this ordinance. Any retailer not maintaining a place of business in this city may apply to the City Manager for authorization to collect the tax hereby imposed. Upon receipt of any application in such form as required by him, the City Manager, in the case of a retailer maintaining a place of business in the City, shall authorize, and in the case of a retailer not maintaining a place of business in the City, may authorize the applicant to make such collections and to forward the same to the City Manager.

(Ord. 57 (part), 11/6/56)

Every person storing, using or otherwise consuming in this City tangible personal property purchased from a retailer, is liable for the tax; provided, however, no tax shall be due hereunder if the tax imposed by Ordinance No. 56, enacted as Chapter 2, Title IX (Revenue and Taxation) of the Milpitas Municipal Code, of the City of Milpitas has been paid on the sale of such property. The liability of such person is not extinguished until the tax has been paid to the City of Milpitas except that a receipt from a retailer authorized pursuant to Section 7 hereof to collect the tax, given to the purchaser pursuant to Section 9 hereof, is sufficient to relieve the purchaser from further liability for the tax to which the receipt refers.

Every retailer who is authorized by the City Manager to collect the tax imposed by this Chapter and who makes sales of tangible personal property for storage, use or other consumption in this City, not exempted under the provisions of this Chapter, shall collect the tax from the purchaser at the time of making the sale, or, if the storage, use or other consumption of the tangible personal property is not then taxable hereunder, at the time the storage, use or other consumption becomes taxable. Upon collecting the tax, the retailer, on demand, shall give to the purchaser a receipt therefor in the manner and form prescribed by the City Manager. The tax so collected by the retailer shall be held in trust by him for the City and shall be paid to the City by the retailer in the manner and at the times elsewhere provided in this ordinance.

(Ord. 57 (part), 11/6/56)

The tax so collected by the retailer from the purchaser shall be displayed separately from the list price, the price advertised in the premises, the marked price or other price on the sales check or other proof of sale.

(Ord. 57 (part), 11/6/56)

Except as otherwise specifically exempted, the tax hereby imposed applies to all tangible personal property located in this City and purchased from a retailer; provided, however, that if the retailer in good faith takes from the purchaser a certificate that the property was purchased prior to the effective date of this ordinance or was not purchased for storage, use or consumption in this City and has not been nor will be so stored, used or consumed, he shall be relieved of liability to collect and pay the tax. The certificate shall be signed by and bear the name of the purchaser, shall indicate the address of the purchaser and the place where such tangible personal property will be stored, used or consumed, the date of purchase, and shall be substantially in such form as the City Manager may prescribe.

(Ord. 57 (part), 11/6/56)

Every retailer selling tangible personal property for storage, use or other consumption in the City of Milpitas and which retailer maintains a place of business in said City or acts through agents located in said City and which retailer is not licensed under the provisions of Ordinance No. 56, enacted as Chapter 2, Title IX (Revenue and Taxation) of the Milpitas Municipal Code, of the City of Milpitas, shall register with the City Manager and give the name and address of such agent or agents and office or other place of business in the City.

(Ord. 57 (part), 11/6/56)

Taxes imposed by this ordinance are due and payable to the City Manager on or before the last day of the month next succeeding each quarterly period. The City Manager may require returns and payment of the amount of taxes for quarterly periods other than calendar quarters depending upon the principal place of or the nature of the business of the seller or retailer or may require returns and payment of the amount of taxes for other than quarterly periods.

(Ord. 57 (part), 11/6/56)

Each return filed by a retailer shall show the total sale price of the property sold by him during the reporting period in respect of which he collected the tax hereby imposed. Each return filed by a purchaser shall show the total sale price of the property purchased by him during the reporting period, in respect of which a tax is due under this Chapter. All returns shall also show the amount of the taxes for the period covered by the return and such other information as the City Manager deems necessary to the proper administration of this Chapter.

(Ord. 57 (part), 11/6/56)

The City Manager shall have the power, for good cause shown, to extend for a period of not to exceed thirty-one (31) days the time for making any return or paying any amount required to be paid under this ordinance, when requested so to do in writing, before the same becomes delinquent. The City Manager may, with the written approval of the City Attorney, waive or compromise any penalty or interest that would otherwise accrue under the provisions of this Chapter. The City Manager shall make and transmit to the City Council quarterly a detailed report of any sums so waived or compromised with the reasons therefor.

(Ord. 57 (part), 11/6/56)

The City Council, by resolution, may adopt rules prescribing methods and schedules for the collection and payment of the tax. Such schedules shall be so determined as to facilitate collection of this tax at the same time that the retailer collects the tax imposed under the California Sales and Use Tax Law and so as to produce an average tax return of one percent (1%) on all purchases subject to the use tax.

(Ord. 57 (part), 11/6/56)

All taxes hereby levied shall be payable to the City Manager and any civil suit for the collection thereof may be filed in any court of competent jurisdiction in the State of California, and the City Attorney of said City shall prosecute the action.

(Ord. 57 (part), 11/6/56)

The City Manager may at his option accept a State of California Resale Certificate as evidence that any sale is not a sale for storage, use or consumption in the City of Milpitas, or he may in his discretion require an affidavit from the seller setting forth such information respecting such sale as he deems necessary to determine the nature of such sale.

(Ord. 57 (part), 11/6/56)

All monies collected under and pursuant to the provisions of this ordinance shall be deposited and paid into the General Fund of the City of Milpitas.

(Ord. 57 (part), 11/6/56)

No officer or employee of the City of Milpitas having an administrative duty under this Chapter shall make known in any manner whatever the business affairs, operations, or information obtained by an investigation of records and equipment of any retailer or any other person visited or examined in the discharge of official duty, or the amount or source of income, profits, losses, expenditures, or any particulars thereof, set forth or disclosed in any return, or permit any return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person. However, the City Council may, by resolution, authorize examination of the returns by federal or state officers or employees or by the tax officers of this or any other city if a reciprocal arrangement exists. Successors, receivers, trustees, executors, administrators, assignees, and guarantors, if directly interested, may be given information as to the items included in the measure and amounts of any unpaid tax or amounts of tax required to be collected, interest and penalties.

(Ord. 57 (part), 11/6/56)

No person required to make, render, sign or verify any report under the provisions of this ordinance, shall make any false or fraudulent return, with intent to defeat or evade the determination of an amount due and required to be paid hereunder.

(Ord. 57 (part), 11/6/56)

No retailer or other person shall fail or refuse to furnish any return required to be made or fail or refuse to furnish a supplemental return or other data required by the City Manager, or render a false or fraudulent return.

(Ord. 57 (part), 11/6/56)

This Chapter is enacted to provide for a tax levy for the usual current expenses of the City pursuant to the provisions of Section 1 of Article IV of the Constitution of the State of California and Section 36937 of the Government Code of the State of California. It is enacted as Chapter 3, Title IX (Revenue and Taxation) of the Milpitas Municipal Code of the City of Milpitas and may be pleaded and cited as such.

(Ord. 57 (part), 11/6/56)

The provisions of this Ordinance No. 57 enacted as Chapter 3, Title IX (Revenue and Taxation) of the Milpitas Municipal Code shall be suspended from the effective date of its enactment and shall not be of any force or effect unless it is determined by a court of competent jurisdiction that the City of Milpitas was for any reason without power to adopt Ordinance No. 55, enacted as Chapter 1, Title IX (Revenue and Taxation) of the Milpitas Municipal Code or the Board of Equalization of the State of California was for any reason without power to perform the functions incident to the administration and operation of the taxes imposed thereby, or unless said Board of Equalization shall for any reason cease to perform the functions incident to the administration and operation of the taxes imposed thereby. Provided, however, that if it is determined by a court of competent jurisdiction that the City of Milpitas was for any reason without power to adopt said Ordinance No. 55, enacted as Chapter 1, Title IX (Revenue and Taxation) of the Milpitas Municipal Code, or that the Board of Equalization of the State of California was for any reason without power to perform the function incident to the administration and operation of the taxes imposed thereby, or if said Board of Equalization shall for any reason cease to perform the function incident to the administration and operation of the taxes imposed thereby, the provisions of this Ordinance No. 57, enacted as Chapter 3, Title IX (Revenue and Taxation) of the Milpitas Municipal Code 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 October 1, 1956. Nothing in this Ordinance No. 57, enacted as Chapter 3, Title IX (Revenue and Taxation) of the Milpitas Municipal Code shall be construed as repealing or amending Ordinance No. 55, enacted as Chapter 1, Title IX (Revenue and Taxation) of the Milpitas Municipal Code.

(Ord. 57 (part), 11/6/56)