Modesto Municipal Code Art. 4 Administrative Provisions

The Tax Collector shall collect and receive the taxes imposed by this chapter. The Tax Collector shall keep an accurate and separate account of all tax payments received by the Tax Collector, showing the name and address of the taxpayer and the date of the payments. The Tax Collector shall transmit all monies collected to the City treasury for deposit to the general fund, unless otherwise provided by law.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

(a) Every taxpayer shall keep and preserve such records for a period of ten (10) years as may be necessary to determine the amount of tax for which he/she may be liable, including all local, State and federal tax returns of any kind. The Tax Collector shall have the right to inspect, examine, and copy such records at any time during normal business hours. Refusal to allow full inspection, examination or copying of such records shall subject the taxpayer to the measures authorized under Sections 6-1.407 and 6-1.410, and shall be unlawful. Where the taxpayer does not have the necessary records to determine liability under this Code or fails to produce such records in a timely fashion, the Tax Collector may determine the taxpayer's liability based upon any information in the Tax Collector's possession or that may come into the Tax Collector's possession.

(b) The Tax Collector may order any persons, whether as taxpayers, supposed taxpayers or witnesses, to produce for inspection, audit, examination and copying at the Tax Collector's office all books, papers and records which the Tax Collector believes may have relevance to enforcing compliance with the provisions of this chapter, and may also order the attendance before the Tax Collector of all persons, whether as taxpayers, supposed taxpayers or witnesses, whom the Tax Collector believes may have any knowledge thereof. The Tax Collector may issue, and serve, subpoenas to carry out these provisions. As an alternative to production at the Tax Collector's office, the Tax Collector may agree to inspect, examine and copy the requested books, papers and records at the taxpayer's place of business or some other mutually acceptable location, and may require the taxpayer to reimburse the City for the Tax Collector's ordinary and reasonable expenses incurred in the inspection, examination and copying of such books, papers and records, including food, lodging, transportation and other related items, as appropriate. All license taxpayers, applicants for licenses and persons doing business in the City are required to permit and cooperate in the examination, audit or inspection of their books and records for the purposes described in this chapter.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

(a) In addition to a subpoena issued pursuant to Section 6-1.402(b), the Tax Collector may, at his or her discretion, send any person, whether as taxpayer, supposed taxpayer or witness, a written request for financial information relevant to verifying or redetermining any person's tax liability or tax-exempt status. "Financial information" shall include, but not be limited to, bank records, journals, ledgers and local, State and federal tax returns, and shall include relevant information regarding subsidiary or related accounts. The request shall be mailed to the person's last known address as indicated in the Tax Collector's records.

(b) Each person to whom a written request for financial information has been sent pursuant to Subsection (a) of this section shall complete and return the form, with the information requested, to the Tax Collector within thirty (30) days of the date of the mailing of the written request. Said person shall provide such financial information that the Tax Collector has requested in writing.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

Any persons, including taxpayers, supposed taxpayers and witnesses, who fail to respond to a written request for financial information shall be subject to the measures provided in Sections 6-1.407 and 6-1.410.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

(a) Delivery by Mail. Except as otherwise provided in this section, any return or other document required to be filed under this chapter, or any payment, including a prepayment, required to be made under this chapter may be delivered to the Tax Collector by United States mail.

(b) Date of Postmark. The date of postmark shall be deemed the date of delivery for any return or other document, or any payment, delivered to the Tax Collector by United States mail if:

(1) The postmark is made by the United States Postal Service;

(2) The postmark date falls within the prescribed period, or on or before the prescribed date, including any extension, for filing the return or other document, or for making the payment; and

(3) The return or other document, or the payment, was, within that time, deposited in the mail in the United States in an envelope or other appropriate wrapper, postage prepaid and properly addressed to the Tax Collector.

The Tax Collector may provide by regulation for application of this rule to postmarks not made by the United States Postal Service.

(c) Registered and Certified Mailing. The registration of any return or other document, or payment, delivered to the Tax Collector by registered mail shall be prima facie evidence that the return or other document, or payment, was delivered to the Tax Collector, and the date of registration shall be deemed the postmark date. The Tax Collector may provide by regulation for the application of this subsection to returns or other documents, or payments, delivered to the Tax Collector by certified mail.

(d) Exceptions. This section shall not apply to:

(1) The filing of a document in, or the making of a payment to, any court; or

(2) Currency or other medium of payment unless actually received and accounted for.

(e) Private Delivery Services. References in this section to the United States mail and a postmark of the United States Postal Service shall include any designated delivery service and any date recorded or marked as described herein by any designated delivery service.

(1) A "designated delivery service" means any delivery service provided by a trade or business if such service is designated by the Tax Collector for purposes of this section. The Tax Collector may designate a delivery service only if he/she determines that such service:

(i) Is available to the general public;

(ii) Is at least as timely and reliable on a regular basis as the United States mail;

(iii) Records electronically to its database, kept in the regular course of its business, or marks on the cover in which any item referred to in this section is to be delivered, the date on which such item was given to such trade or business for delivery; and

(iv) Meets such other criteria as the Tax Collector may prescribe.

(2) The Tax Collector may provide a rule similar to the rule of Subsection (1) with respect to any service provided by a designated delivery service which is substantially equivalent to the United States registered or certified mail.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

Where a taxpayer owes payments for prior years, the Tax Collector may accept partial payments. The difference between the amount paid by the taxpayer and the total amount due shall be treated as a delinquent tax and shall be subject to additional costs applied to the unpaid balance pursuant to Section 6-1.125.

Unless the taxpayer specifies otherwise, the partial payments shall be applied to the oldest year's deficiency, first to interest, additional taxes and costs for that year, and the balance, if any, shall be applied to the taxes due for that year. Any remaining portion of the payment shall then be applied to the next oldest year's deficiency in the same manner and order.

The taxpayer may specify that the partial payment be applied to a tax year other than the oldest, but the order of payment between interest, additional taxes, costs, and taxes due shall remain the same.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

The Tax Collector, whenever he/she deems it necessary to insure compliance with this chapter, may require any person subject thereto to deposit with the Tax Collector such security as the Tax Collector may determine. The amount of the security shall be fixed by the Tax Collector, but shall not be greater than twice the person's estimated average liability for the period for which said person files returns, determined in such manner as the Tax Collector deems proper. The amount of the security may be increased or decreased by the Tax Collector. The Tax Collector may sell the security at public auction if it becomes necessary so to do in order to recover any tax or any amount required to be collected, interest, or additional taxes due. Notice of the sale may be served upon the person who deposited the security and upon the taxpayer, if different, personally or by mail. Upon any sale, any surplus above the amounts due shall be returned to the person who deposited the security.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

(a) If any person is delinquent in the payment of the amount required to be paid by said person, or in the event a determination has been made against any person which remains unpaid, the Tax Collector may, not later than six (6) years after the tax became delinquent give notice thereof to all persons in the City having in their possession or under their control any credits or other personal property belonging to the delinquent, or owing any debts to the delinquent. However, there shall be no limitation on the time in which such actions shall be commenced in cases of fraud, intent to evade tax, or failure to make a return. After receiving such notice, the persons so notified shall neither transfer nor make any other disposition of the credits, other personal property, or debts in their possession or under their control at the time they receive the notice until the Tax Collector consents to a transfer or disposition or until twenty (20) days elapse after the receipt of the notice. All persons so notified shall, within five (5) days after receipt of the notice, advise the Tax Collector of all such credits, other personal property, or debts in their possession, under their control, or owing by them. If persons so notified transfer such assets in violation of the provisions of this subsection, they shall become indebted to the Tax Collector for the value of the property transferred.

(b) In any case, if any person is delinquent in the payment of the amount required to be paid by said person, or in the event a determination has been made against any person which remains unpaid, the Tax Collector may, not later than six (6) years after the tax became delinquent, file an action in Superior Court on behalf of the City to recover all of the tax, penalties, costs and other remedies whatsoever specified in this Code and in State law to which the City may be entitled as a consequence of the delinquency. However, there shall be no limitation on the time in which such actions shall be commenced in cases of fraud, intent to evade tax, or failure to make a return.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

Where it shall appear to the Director that he/she has not been advised of the true facts of a business for which a license is required, or if the tax collector is not satisfied with a return or returns of the tax or the amount of any tax required to be paid to the City by any person, or if it shall at any time appear to the tax collector that by reason of error, misrepresentation, fraud, or for any other cause whatsoever the license tax has not been properly determined for any license issued, or the tax collector determines that a person other than the taxpayer is jointly and severally liable for any third party tax, the tax collector may compute and determine the amount required to be paid upon the basis of the facts contained in a return or returns, or upon the basis of any information within the tax collector's possession or that may come into the tax collector's possession upon investigation. Thereafter, the tax collector shall give not less than twenty (20) days' written notice to the licensee of his/her determination of the tax. The notice shall provide that in the event the licensee disputes the tax it may show cause, either informally, or at the request of either the licensee or the tax collector, show cause at a quasi-judicial proceeding to be presided over by the Director which proceeding shall be recorded, and shall permit the taking of evidence, the examination and cross-examination of witnesses, and result in a written determination of the tax, including additional costs and, interest, if any, by the Director. Notice of the Director's final determination shall be provided to the licensee in accordance with the provisions of this chapter.

The amount of determination, exclusive of additional costs, shall bear interest at the rate of one (1) percent per month, or fraction thereof, from the fifteenth (15th) day after the quarterly period for which the amount or any portion thereof should have been returned until the date of payment.

In making a determination, the tax collector may offset overpayments for a period or periods together with interest on the overpayments against underpayments for another period or periods, against additional costs and against the interest on the underpayments.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

If the Tax Collector believes that the collection of any tax, or of any amount of tax required to be collected and paid to the City, or of any determination will be jeopardized, in whole or in part, by delay, the Tax Collector shall serve upon the taxpayer or other person determined to be liable for the tax notice of his or her determination of jeopardy, and of the tax or amount of tax required to be collected, and demand immediate payment of the tax, interest and additional costs, if any, determined to be due. The Tax Collector may consider all facts and circumstances relevant to determining whether the collection of any tax will be jeopardized by delay, including but not limited to indications that the taxpayer intends or is taking action to discontinue business activities in the City, dissipate or otherwise remove assets from the City, or sell, exchange, assign or otherwise dispose of personal or business income or property. The Tax Collector also may consider whether the taxpayer is insolvent or likely to become insolvent after the taxes at issue are assessed or collected; whether the taxpayer is or has been uncooperative or unresponsive in connection with any investigation, examination, audit, deficiency determination, assessment or collection action or procedure undertaken by the Tax Collector in connection with the taxes at issue; what taxable years are at issue; how many taxable years are at issue; and whether the taxes at issue are third-party taxes.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

(a) A jeopardy determination of tax, interest or penalty is immediately due and payable upon the service of the notice of jeopardy determination to the taxpayer or other person determined to be liable therefor. A lien for the amount due in the notice of jeopardy determination may be recorded immediately, and judicial proceedings for collection may be commenced at once.

(b) The collection of the whole or any amount of a jeopardy determination may be stayed by filing with the Tax Collector: (1) a bond or acceptable letter of credit in an amount equal to the amount (together with interest thereon to the date of payment) as to which the stay is desired, conditioned upon the payment of the amount, the collection of which is stayed by the bond, upon notice and demand by the Tax Collector after a final determination is reached on the appeal, or (2) other security in such amount as the Tax Collector may deem necessary, not exceeding triple the amount (together with interest thereon to the date of payment) as to which the stay is desired. Any stay pursuant to this subsection shall be effective only against the person on whose behalf the bond or other security is provided.

(c) Upon filing of the bond or other security, the collection of so much of the jeopardy determination amount as is covered by the bond or other security shall be stayed pending the exercise by the taxpayer or other person determined to be liable for the tax of his or her appeal rights. The person on whose behalf the bond or other security is submitted, shall have the right to waive such stay at any time in respect of the whole or any part of the amount covered by the bond or other security, and if as a result of such waiver any part of the amount covered by the bond or other security is paid, then the bond or other security shall, at the request of said person, be proportionately reduced. If any portion of the jeopardy determination is abated, the bond or other security shall be proportionately reduced, at the request of the person on whose behalf the bond or other security was provided.

(d) Where collection of the whole or any amount of a jeopardy determination has been stayed under this section, the period of limitation on any action to collect from the person on whose behalf the bond or other security has been provided shall be tolled during the period of such stay.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

If the amount specified in the jeopardy determination is not paid within fifteen (15) days after service of notice thereof upon the person against whom the determination is made, and no petition for redetermination is filed within the fifteen (15) days, the additional costs provided in Section 6-1.125 shall attach to the tax or the amount of the tax required to be collected.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

Any person against whom a jeopardy determination is made may petition for the redetermination thereof. The taxpayer shall, however, file the petition for redetermination with the Tax Collector within fifteen (15) days after the service upon him or her of notice of determination. If a petition for redetermination of a jeopardy determination is not filed within the foregoing fifteen (15)-day period, the determination becomes final at the expiration of that period.

The filing of a petition for redetermination of a jeopardy determination shall not operate to stay collection. Collection may be stayed only as provided in Section 6-1.411(b) above.

If a petition for review is filed from a jeopardy determination, the Tax Collector shall review the matters raised in the petition including, if requested, whether the issuance of the jeopardy determination was reasonable under the circumstances. In making this determination, the Tax Collector shall grant the taxpayer or other person determined to be liable for the tax or his or her authorized representative a hearing, if that person has so requested in his or her petition.

The taxpayer or other person determined to be liable for the tax has the right to a hearing and determination by the Tax Collector upon the matters raised in the petition within forty-five (45) days from the date of the filing of the petition for redetermination, as scheduled by the Tax Collector, unless the taxpayer waives that time restriction. The Tax Collector shall give him or her ten (10) days' notice of the time and place of the hearing. The Tax Collector may continue the hearing from time to time as may be necessary.

If, in the review process, it is determined that the Tax Collector's determination of jeopardy was unreasonable under the circumstances any collection action taken shall be withdrawn, pending the ultimate administrative determination of the amount of the deficiency due from the taxpayer or other person claimed to be liable for the tax claimed to be due in the jeopardy determination notice. Neither the validity of the jeopardy determination's determination of tax, nor the burden of proof, shall be affected by a finding that the determination of jeopardy was unreasonable.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

The Tax Collector may decrease or increase the amount of the determination before it becomes final, but the amount may be increased only if a claim for the increase is asserted by the Tax Collector at least five (5) days before the hearing. Nothing in this section shall preclude a new audit or determination by the Tax Collector of a new or supplemental deficiency. The burden of proof in any proceeding for redetermination or appeal thereof shall be in favor of the Tax Collector.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

(a) Except as otherwise provided in subdivision (c) below, so much of any tax as has been overpaid or paid more than once or has been erroneously collected or received by the City may be refunded, provided a valid, timely, claim in writing is filed with the City Clerk in accordance with Section 2-4.202 of this Code. For purposes of this section, a claim shall be deemed to accrue on the later of the date the return was due or the tax was paid.

(b) Class claims for refunds shall not be permitted. If the claim is approved, the excess amount collected or paid may be refunded or may be credited on any amount due and payable, from the person from whom it was collected or by whom paid and the balance may be refunded to such person, his administrator or executors.

(c) The Tax Collector, in his or her discretion and upon good cause shown, may waive the requirement set forth in subdivision (a) above that a taxpayer file a claim in any case in which the Tax Collector can and does determine on the basis of other evidence presented to him or her that (1) an amount of tax, interest or penalty has been overpaid or paid more than once, or has been erroneously or illegally collected or received by the City, and (2) all other conditions precedent to the payment of a refund to the taxpayer have been satisfied.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

(a) Any amounts of disputed taxes, including interest and additional charges if any, refunded shall bear interest at the average rate of interest computed over the preceding six (6)-month period, lawfully obtainable on deposits of public funds at the time refund is made, whichever rate is lower, and shall be computed from the date of payment to the date of refund except for amounts refunded as a result of a final judicial determination of the invalidity of any portion of, or amendment to this Code, or the invalidity of any administrative interpretation thereof, in which case interest shall be computed from the date of the claim for refund to the date of refund.

(b) If the Tax Collector offsets overpayments for a period or periods against underpayments for another period or periods, against penalties or against interest on the underpayments, the taxpayer will be credited with interest on the amount so applied at the rate of interest set forth above, computed from the date of payment.

(c) If a taxpayer chooses to apply all or part of a refund against a future year's liability, the taxpayer will not be credited with interest on the amount so applied.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

Subject to the authority of the City Council under Section 6-1.436, the Tax Collector shall have power to adopt rules and regulations not inconsistent with the provisions of this Code for the purpose of carrying out and enforcing the payment, collection and remittance of the tax herein imposed; and a copy of such rules and regulations shall be on file and available for public examination in the Tax Collector's office. Failure or refusal to comply with any rules and regulations promulgated under this section shall be deemed a violation of this Code. The Tax Collector may prescribe the extent to which any ruling or regulation shall be applied without retroactive effect.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

In addition to the taxes and other costs and charges imposed by this chapter, the Tax Collector may recover the actual costs, including attorney fees, expert witness fees, investigative costs, and costs of collection incurred by the City up to the time any amount owed is finally paid.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

If any tax imposed pursuant to this chapter is not paid by the last day of the month succeeding the delinquency date, or after any jeopardy or deficiency determination of the Tax Collector becomes final pursuant to Sections 6-1.412 and 6-1.413, the Tax Collector may file, no sooner than ten (10) days after the mailing of the notice required in Subdivision (b), in the office of the County Clerk/Recorder, without fee, a certificate specifying as follows:

(a) The fact that a notice of intent to file the certificate has been sent, by certified mail, to the operator, taxpayer or other person determined to be liable for the tax, at his or her last known address, not less than ten (10) days prior to the date of the certificate;

(b) The fact that the notice required in Subdivision (a) set forth the following information:

(1) The name of the operator, taxpayer or other person determined to be liable for the tax,

(2) The description of the operator's, taxpayer's or other person's business against which the tax has been assessed,

(3) The location and/or address of the business,

(4) The fact that judgment will be sought in the amount of the tax, penalty and interest remaining unpaid at the time of the filing of the certificate,

(5) The fact that, upon issuance and recordation of the judgment, additional interest will continue to accrue at the rate prescribed in this ordinance, and that any bond premium posted or other costs to enforce the judgment shall be an added charge,

(6) The fact that a recording fee in the amount set forth in Section 27361.3 of the California Government Code will be required to be paid for the purpose of the recordation of any release of the judgment lien;

(c) The name of the operator, taxpayer or other person determined to be liable for the tax;

(d) The amount for which judgment is to be entered;

(e) The fact that the City has complied with all provisions of this Code in the computation and the levy of the tax, penalty or interest;

(f) The fact that a request is therein made for issuance and entry of judgment against the operator, taxpayer or other person determined to be liable for the tax.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

The County Clerk/Recorder, immediately upon the filing of the certificate shall enter a judgment for the City against the operator, taxpayer or other person determined to be liable for the tax in the amount of the tax, additional costs and interest, if any, set forth in the certificate. The County Clerk/Recorder may file the judgment in a loose-leaf book entitled "City Summary Tax Judgments."

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

An abstract or copy of the judgment shall be recorded, without fee, in the office of the County Clerk/Recorder. From the time of the recording, the amount of the tax, penalty and interest set forth constitutes a lien upon all property of the judgment debtor in the City, owned by the judgment debtor on the date of recording or acquired by the judgment debtor thereafter, and before the lien expires, acquired by the operator. The lien has the force, effect and priority of a judgment lien and continues for ten (10) years from the date of the recording unless sooner released or otherwise discharged.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

Notwithstanding any other provision of law relating to interest authorized or allowed as a result of any judgment duly entered, the additional costs provided for in Section 6-1.129 shall be imposed in lieu of any such judgment interest.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

In addition to any cost imposed pursuant to this chapter, an additional cost offsetting the reasonable costs incurred to enforce the judgment entered pursuant to Section 6-1.420 shall be imposed.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

Within ten (10) years from the date of the recording or within ten (10) years from the date of the last extension of the lien in the manner provided for in this section, the lien may be extended by recording in the office of the County Clerk/Recorder an abstract or copy of the judgment. From the time of the recording the lien extends to the property for ten (10) years unless sooner released or otherwise discharged.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

Execution shall issue upon the judgment upon request of the Tax Collector in the same manner as execution may issue upon other judgments, and sales shall be held under such execution as prescribed in the California Code of Civil Procedure.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

(a) The judgment is satisfied and the lien removed when, but not before, the certificate of release or discharge from the judgment lien is recorded in the office of the County Clerk/Recorder. In addition to the judgment amount, and any additional penalty authorized by this Code, the Tax Collector shall collect the recording fee in the amount required by Section 27361.3 of the California Government Code and shall transmit that amount to the Assessor/Recorder together with the documents for release or discharge.

(b) The judgment is also satisfied and the lien removed when, but not before, the tax is legally canceled and a release or discharge from the judgment lien is recorded in the office of the County Clerk/Recorder. A recording under this Subsection (b) shall be made without fee.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

The Tax Collector may promulgate and enforce rules and regulations, and issue determinations and interpretations relating to the conducting of administrative hearings and rendering of decisions in accordance with and in furtherance of the purposes of existing ordinances and ordinances passed or amended by the City Council from time to time. Any rules and regulations promulgated by the Tax Collector and any modifications thereof made by the City Council shall be approved as to legal form by the City Attorney.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

(a) The liability at law or in equity of a successor, transferee or alter ego of any taxpayer or other person determined to be liable for any tax, interest or additional cost subject to this ordinance, imposed upon a taxpayer shall be determined, collected and paid in the same manner and subject to the same provisions and limitations as in the case of a deficiency determination pursuant to Section 6-1.409. Nothing in this subsection shall be construed to limit the rights or procedures available to the Tax Collector to collect from any successor, transferee or alter ego, at law or in equity, as may be provided under California statutory or decisional law.

(b) No person shall purchase or acquire an interest in a business subject to any tax imposed under this Code without first obtaining either a receipt from the Tax Collector showing that all of the seller's taxes on the business have been paid, or a certificate stating that no amount is due. For purposes of this section, "purchase" shall include any other voluntary transfer for consideration of a business, except for purchase of stock of a publicly-traded company.

(c) The Tax Collector shall issue such a receipt or certificate, or a notice of the amount that must be paid as a condition of issuing the certificate, to the buyer within thirty (30) days after receiving a written request. However, failure of the Tax Collector to timely mail the notice will not release the buyer from his or her obligations under this section, except to the extent of penalties and interest in the event that the Tax Collector enforces the buyer's obligation in a civil action authorized pursuant to this Code.

(d) If the buyer purchases or acquires an interest in a business owing any taxes, interest or penalties imposed under this Code, the buyer shall withhold from the purchase price a sufficient amount to satisfy said taxes, interest and penalties.

(e) If the buyer purchases or acquires an interest in a business in violation of this section, the buyer shall become personally liable for the amount of taxes, interest and penalties owed on the business.

(f) The buyer's obligations shall accrue at the time the business is purchased or the interest acquired, or at the time the Tax Collector determines the seller's final liability, whichever is later.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

If any sentence, clause or section or any part of this chapter is for any reason held to be unconstitutional, illegal or invalid, such unconstitutionality, illegality or invalidity shall not affect or impair any of the remaining provisions, sentences, clauses, sections or parts of this ordinance. It is hereby declared to be the intent of the enacting body that this chapter would have been adopted had such unconstitutional, illegal or invalid sentence, clause, section or part thereof not been included therein.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

(a) Filing. Any person aggrieved by any decision of the Tax Collector or of any other officer of the city made pursuant to the provisions of this chapter may appeal therefrom to the Council within ten (10) days after notice thereof by filing with the City Clerk a written notice of appeal, briefly stating in such notice each of the grounds relied upon for appeal.

(b) Hearing. If such appeal is made within the time prescribed, the City Clerk shall cause the matter to be set for hearing before the Council within thirty (30) days from the date of receipt of such notice of appeal, giving the appellant not less than ten (10) days notice in writing of the time and place of the hearing. Continuances shall not be granted except for good cause shown, and then only in the absolute discretion of the Council.

(c) Findings; Notice. The findings and determinations of the Council at such hearing shall be memorialized by resolution within sixty (60) days after the hearing, and shall be final and conclusive. Within ten (10) days after such findings and determinations are made in the form of a resolution, the City Clerk shall give notice thereof to the appellant.

(d) Failure to Appeal. In the event no appeal is taken by the permittee, the decision of the Tax Collector shall become final and conclusive on expiration of the time fixed for appeal in subsection (a) of this section.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

(a) After receipt of the Tax Collector's final decision or, as the case may be, the final decision of the City Council, an appellant may file an appeal in the superior court, but only after paying, in full, to the Tax Collector, all taxes, penalties, interest and costs found due of the appellant by the Tax Collector or Council.

(b) The appeal shall be filed within ninety (90) days after the date of mailing of the final administrative decision to the appellant, or the order or decision shall be deemed confirmed. The filing of an appeal in Superior Court pursuant to this section shall fulfill the claim filing requirements of Section 2-4.202 and 6-1.415 of this article.

(c) The appeal shall be in the nature of a request for writ of mandamus, shall state the reasons the appellant objects to the administrative findings or decision, and shall be served upon the City by appellant.

(d) The superior court shall review the administrative record for substantial evidence, and the administrative actions taken for abuse of discretion.

(e) The administrative record shall be received in evidence as prima facie evidence of the facts found therein, and reasonable conclusions drawn from those facts.

(f) The burden of proof on each element of the appeal shall be on the appellant. Proof by either party may be made by a preponderance of the evidence, whether or not fraud is found or included in the sum appealed.

(g) Notwithstanding any provision to the contrary in this Code, no nonpayment, refusal to pay or underpayment of tax may be considered or charged as an infraction, or crime of any sort.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

Upon providing written notice of nonpayment by any business license taxpayer, the Tax Collector may suspend or revoke any license or privilege for conducting any business in the City, and the person receiving such notice shall have the appeal right set forth in Section 6-1.430.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

No refund shall be made where the business license was issued under a misrepresentation of fact by the applicant and/or such applicant actually engaged in the conduct of the business for which the license was granted prior to the date stated in the applicant's original application.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

In any action brought under or arising out of any of the provisions of this title, the fact that a party thereto represented himself or herself as engaged in any business or calling for the transaction of which a license is required, or that such party exhibited a sign indicating such business or calling, shall be conclusive evidence of the liability of such party to pay for a license.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

For the purposes of this title, 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.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

When, by reason of the provisions of the Constitution of the United States or the Constitution of the State of California, the business license tax imposed by this chapter cannot be enforced without there being an apportionment according to the amount of business done in the City, or in the State of California, as the case may be, apportionment rules shall be established as follows:

(a) The Council from time to time shall adopt by resolution general guidelines for apportionment, and/or

(b) The Finance Director, with the approval of the City Attorney, may make such rules and regulations for the apportionment of the tax as are necessary and desirable to overcome constitutional objections, and which are consistent with the general apportionment guidelines adopted by resolution of the Council. The Finance Director shall publish such rules and regulations once in a newspaper of general circulation within the City. Within ten (10) days of the date of publication of such rules and regulations, any interested person may file a request with the City Clerk that the Council review the rules and regulations so published. The rules and regulations shall be final at the expiration of the period for requesting review in the event no request for review is filed, or in the event of the filing of a request for review, when the rules and regulations have been adopted by the Council.

(c) None of the business license taxes provided for by this title shall be so applied as to occasion an undue burden upon interstate commerce or be violative of the Constitutions of the United States or the State of California. In any case where a business license tax is believed by a tax license holder or applicant for a license to place an undue burden upon interstate commerce, or be violative of such constitutional clauses, he may apply to the Tax Collector for an adjustment of the tax. Such application may be made before, at, or within six (6) months after payment of the prescribed business license tax. The applicant shall, by sworn statement and supporting testimony, show his method of business and the gross volume or estimated gross volume of business and such other information as the Tax Collector may deem necessary in order to determine the extent, if any, of such undue burden or violation. The Tax Collector shall then conduct an investigation and, after having first obtained the written approval of the City Attorney, shall fix as the business license tax for the applicant an amount that is reasonable and nondiscriminatory, or if the business license tax has already been paid, shall order a refund of the amount over and above the business license tax so fixed. In fixing the business license tax to be charged, the Collector shall base the tax upon a percentage of gross receipts or any other measure which will assure that the tax assessed shall be uniform with that assessed on businesses of like nature, and that the tax is imposed only on gross receipts resulting from business done with the City, or reasonably deemed to have been conducted in the City.

Notwithstanding any other provision contained in this chapter to the contrary, any person tendering payment of any tax, interest or penalties to the City pursuant to any provision of this chapter shall for all purposes thereafter be precluded and barred from appealing, contesting or otherwise challenging the validity or amount of any such tax, interest or penalties, or seeking refund of all or any portion thereof, pursuant to any otherwise available procedure set forth in this chapter, or otherwise available by law unless said payment is made under written protest to the City. The written protest shall be deemed made for purposes of this section only by one of the following methods: (a) a written notation set forth on the check, draft, money order, or other negotiable instrument by which payment is tendered, indicating that such payment is made under protest; or (b) a written notice addressed and delivered to the Collector at the time of payment indicating that such payment is made under protest.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

The Finance Director is not required to send a renewal, delinquency or other notice or bill to any person subject to the provisions of this chapter and failure to send such notice or bill shall not affect the validity of any tax or penalty due under the provisions of this chapter.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

Except where a repealing or amendatory ordinance specifically provides otherwise, the amendment or repeal of any portion of this chapter shall not be construed to operate as a release or waiver of any liability or sum of money which may be due or owing to the City from any person under the provisions of this chapter as they existed prior to such amendment or repeal. The rule of construction required by this section is declared to be in clarification and confirmation of the existing intent of this chapter, and is not to be construed as applying solely to the effect of repealing or amendatory ordinances adopted subsequent to the effective date of this section.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

Any amendment to the procedural provisions of this chapter is intended by the City Council to retroactively affect pending matters to the fullest extent permitted by law, same and except that such retroactivity shall not have the affect of extinguishing an existing cause of action.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)

Fraud, as that word is used in this title, shall have the meaning defined in the False Claims Act of the State of California as set forth in Cal. Govt. Code Section 12650, et seq., as that law may be amended from time to time, and as interpreted by controlling decisional law of the courts of this State.

(Added by Ord. 3266-C.S., § 2, effective 9-26-02)