Mountain View Municipal Code Div. 1 General Provisions

This article shall be known as the "Utility Users Tax Ordinance of the City of Mountain View."

(Ord. No. 17.10, § 1, 11/2/10.)

This article is adopted pursuant to the powers of the City of Mountain View as a charter city as provided in Article II of the City Charter, and as authorized by Section 6 of Article XI of the Constitution of the State of California, and is adopted as a tax levy to meet the usual current expenses of the city.

(Ord. No. 29.70, 8/10/70; Ord. No. 17.10, § 1, 11/2/10.)

Except where the context otherwise requires, the definitions contained in this section shall govern the construction of this article. The word "may" is always directory and discretionary and not mandatory; the word "shall" is always mandatory and not directory or discretionary.

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

1. Services that link two (2) or more participants of an audio or video conference call, including the provision of a telephone number.

2. Services that separately state information pertaining to individual calls on a customer's billing statement.

3. Services that provide telephone number information and/or address information.

4. Services offered in connection with one (1) or more telecommunications services which offer advanced calling features that allow customers to identify callers or to manage multiple calls and call connections.

5. Services that enable customers to store, send or receive recorded messages.

"Billing address" shall mean the mailing address of a service user where a service supplier submits invoices or bills for payment by the service user.

"City" shall mean the City of Mountain View, California, either the municipal corporation or all of the territory and jurisdiction thereof as presently constituted and any and all of the same which shall later come into existence by any manner or means whatsoever.

"Collector" or "director" shall mean the finance and administrative services director of the City of Mountain View.

"Electrical corporation," "gas corporation" and "telephone corporation" shall have the meanings provided in Sections 218, 222 and 234, respectively, of the Public Utilities Code of the State of California.

"Month" shall mean a calendar month.

"Person" shall mean any natural person, firm, any domestic and foreign corporation, association, firm, trust, estate, association, syndicate, joint ventures, joint stock company, limited liability company, partnership of any kind, club, business or common law trust of any kind, society, cooperative, receiver, trustee, guardian or other representative appointed by order of any court, municipal district, municipal corporation (other than the city), or the manager, lessee, officer, agent or employee of any of them.

"Private telecommunication service" means any dedicated virtual or actual telecommunications service that entitles a user to exclusive or priority use of communications channels.

"Service address" means the street address of the service user's primary place of use.

"Service supplier" shall mean any person required to collect a tax imposed under this article.

"Service user" shall mean a person required to pay a tax imposed under this article.

"Telecommunication services" includes the transmission, conveyance, or routing of voice, data, audio, video, or any other information or signals to a point, or between or among points, whether or not such information is transmitted through interconnected service with the public switched network, whatever the technology used, whether such transmission, conveyance or routing occurs by wire, cable, fiber-optic, light wave, laser, microwave, radio wave (including, but not limited to, cellular service, commercial mobile service, personal communications service (PCS), specialized mobile radio (SMR) and other types of personal wireless service—see 47 USCA Section 332(c) (7) (C) (i)—regardless of radio spectrum used), switching facilities, satellite or any other technology now existing or developed after the adoption of this section, and includes, without limitation, fiber-optic, coaxial cable and wireless. The term "telecommunication services" includes such transmission, conveyance or routing in which computer processing applications are used to act on the form, code or protocol of the content for purposes of transmission, conveyance or routing without regard to whether such services are referred to as voice over internet protocol (VoIP) services or are classified by the Federal Communications Commission as enhanced or value added, and includes video and/or data services that are functionally integrated with telecommunications services.

"Telecommunication services" include, but are not limited to, the following services, regardless of the manner or basis on which such services are calculated or billed: central office and custom calling features (including, but not limited to, call waiting, call forwarding, caller identification and three-way calling), local number portability, text messaging, ancillary telecommunication services, prepaid and post-paid telecommunications services (including, but not limited to, prepaid calling cards); mobile telecommunications service; private telecommunication service; paging service; 800 service (or any other toll-free numbers designated by the Federal Communications Commission); and value-added nonvoice data service. "Telecommunication service" does not include: internet access services; video programming services; or digital downloads, such as downloads of books, music, ringtones, games or similar digital products.

(Ord. No. 29.70, 8/10/70; Ord. No. 17.10, § 1, 11/2/10.)

Nothing contained in this article shall be construed as imposing a tax upon the city or any person when imposition of such tax upon that person would be in violation of the Constitution of the United States or that of the State of California.

(Ord. No. 29.70, 8/10/70; Ord. No. 17.10, § 1, 11/2/10.)

Nothing contained in this article is intended to conflict with applicable rules, regulations and tariffs of any service supplier subject to the jurisdiction of the California Public Utilities Commission. In the event of any conflict, the provisions of said rules, regulations and tariffs shall control.

(Ord. No. 29.70, 8/10/70; Ord. No. 17.10, § 1, 11/2/10.)

The taxes imposed by this article shall become operative as of October 1, 1970.

(Ord. No. 29.70, 8/10/70; Ord. No. 17.10, § 1, 11/2/10.)

A. The taxes imposed by this article shall be collected insofar as practicable at the same time as, and along with, the collection of charges made in accordance with the regular billing practice of a service supplier.

B. The duty to collect taxes from a service user shall commence with the beginning of the first regular billing period applicable to that person which starts on or after the operative date of this article and as provided by California Public Utilities Code Section 799. If a person receives separate billing for different periods, the duty to collect shall arise separately for each billing period.

(Ord. No. 17.10, § 1, 11/2/10.)

It shall be the duty of every person obligated to collect the tax imposed under this article to preserve for three (3) years all records as may be necessary to determine the amount of such tax as he or she may have been liable to collect and remit to the collector, which records the collector shall have the right to inspect or copy at all reasonable times.

(Ord. No. 17.10, § 1, 11/2/10.)

A. Taxes collected from a service user which are not remitted to the collector on or before the due dates provided in this article are delinquent.

B. Penalties for delinquency in remittance of any tax collected or any deficiency determination shall attach and be paid by the service supplier at the rate of fifteen (15) percent of the total tax imposed by this article.

C. The collector shall have power to impose additional penalties upon a service supplier for fraud or negligence in reporting or remitting at the rate of fifteen (15) percent of the amount of the tax due.

D. In addition to any other penalties imposed by this article, any person required to collect and/or remit the tax imposed by this article who fails to collect the tax or fails to remit the tax collected shall pay interest at the rate of one (1) percent per month, or any fraction thereof, on the amount of the tax, exclusive of penalties, from the date on which the remittance first became delinquent, until paid.

E. Notwithstanding the foregoing provisions of this section, no penalty or interest shall apply if delinquencies result from natural disasters or other phenomena beyond the control of the person charged with collecting and remitting the tax, provided the person being delinquent notifies the collector as soon as normal communications permit and collects and remits the tax promptly thereafter.

F. Every penalty imposed and interest due under the provisions of this section shall become a part of the tax required to be remitted.

(Ord. No. 17.10, § 1, 11/2/10.)

Whenever the collector determines that a service user has deliberately withheld the amount of the tax owed by him or her from the amounts remitted to a service supplier, or that a service user has failed to pay the amount of the tax for a period of two (2) or more billing periods, or whenever the collector deems it in the best interest of the city, he or she may relieve the service supplier of the obligation to collect taxes due under this article from certain named service users for specified billing periods. The collector shall notify the service user that he or she has assumed responsibility to collect the taxes due for the stated periods and demand payment of such taxes. The notice shall be served on the service user by handing it to him or her personally or by deposit of the notice in the United States Postal Service, postage prepaid thereon, addressed to the service user at the address to which billing was made by the service supplier; or should the service user have changed his or her address, to his or her last known address. If a service user fails to remit the tax to the collector within fifteen (15) days from the date of service of the notice upon him or her, which shall be the date of mailing if service is not accomplished in person, a penalty of twenty-five (25) percent of the amount of the tax set forth in the notice shall be imposed, but in no event shall the total penalty for nonpayment of the delinquent tax accounts be less than five dollars ($5.00). The penalty shall thereupon become part of the tax required to be paid by this article.

(Ord. No. 17.10, § 1, 11/2/10.)

The collector may make an assessment for taxes not paid or remitted as required by this article. The collector shall mail a notice of such assessment, which shall state the taxes, penalties and interest imposed and the time and place where the assessment may be contested, to the service supplier and/or the service user at least ten (10) days prior to the date of the hearing and shall post such notice for at least five (5) continuous days prior to the hearing. Any interested party having any objections may appear and be heard by the collector provided his or her objection is filed in writing with the collector prior to the time of the hearing. At the time fixed for considering such assessment, the collector shall hear the same, together with any objections filed as provided in this subsection, and thereupon may confirm or modify such assessment. The decision of the collector shall be final as to the city but shall be subject to judicial review pursuant to Code of Civil Procedure Section 1094.5.

(Ord. No. 17.10, § 1, 11/2/10.)

Any tax required to be paid by a service user under the provisions of this article shall be deemed a debt owed by the service user to the city. Any such tax collected from a service user which has not been remitted to the collector shall be deemed a debt owed to the city by the service supplier. Any person owing money to the city under the provisions of this article shall be liable to an action brought in the name of the city for the recovery of such amount and to any other remedy available at law or in equity and resort to any remedy shall not be foreclosed to any other remedy until the tax is collected and paid as required by this article.

(Ord. No. 17.10, § 1, 11/2/10.)

A. Whenever the amount of any tax has been overpaid or paid more than once or has been erroneously or illegally collected or received by the collector under this article, it may be refunded as provided in this section.

B. A service supplier may claim a refund or take as credit against taxes collected and remitted the amount overpaid, paid more than once, or erroneously or illegally collected or received, when it is established in a manner prescribed by the collector that the service user from whom the tax has been collected did not owe the tax; provided, however, that neither a refund nor a credit shall be allowed unless the amount of the tax so collected has either been refunded to the service user or credited to charges subsequently payable by the service user to the person required to collect and remit.

C. No refund shall be paid under this section unless the claimant establishes his or her right thereto by written records showing entitlement thereto.

D. No refund shall be paid under the provisions of this section unless the claimant has submitted a claim pursuant to Section 1.35 of this code.

(Ord. No. 17.10, § 1, 11/2/10.)

If one or more nontaxable items are bundled or billed together with one or more taxable items (as provided for by this article) under a single charge on a customer's bill, the entire single charge shall be taxed unless a service supplier reasonably identifies to the collector the nontaxable component of the single charge based upon one or more of the following methodologies, as selected by the collector: (i) the average industry charges for nontaxable items included in the single charge; (ii) the amount of the single charge less the average industry charges for taxable items included in the single charge; or (iii) the service supplier's books and records kept in the regular course of business, which must be consistent with generally accepted accounting principles.

(Ord. No. 17.10, § 1, 11/2/10.)

A. The collector shall have the power and duty, and is hereby directed, to enforce this article.

B. The collector shall have the power to adopt rules and regulations consistent with provisions of this article to carry out and enforce the obligations to pay, collect and remit the tax imposed by this article. A copy of such rules and regulations shall be on file in the collector's office.

C. Upon a proper showing of good cause, the collector may make administrative agreements, with appropriate conditions, to vary the strict requirements of this article and thereby: (i) conform to the billing procedures of a particular service supplier so long as said agreements result in collection of the tax in conformance with the general purpose and scope of this article; or (ii) to avoid a hardship where the administrative costs of collection and remittance greatly outweigh the tax benefit. A copy of each such agreement shall be on file in the collector's office and are voidable by the collector or the city at any time."

(Ord. No. 17.10, § 1, 11/2/10.)

The city shall annually audit the taxes remitted in accordance with this division, and properly expending the taxes according to applicable law. The audit may employ reasonable, cost-effective steps to ensure compliance, including the use of sampling. No audit shall be conducted as to a service supplier where the cost of the audit is expected to exceed the tax revenues to be received.

(Ord. No. 17.10, § 1, 11/2/10.)