Chapter 3.20 — UTILITY USERS TAX

This chapter shall be known as the "utility users tax chapter."

(Ord. 288 § 2(part), 1997)

The ordinance codified in this chapter is enacted to raise revenue for general governmental purposes. All of the proceeds of the tax imposed by this chapter shall be placed in the city's general fund and used for the current expenses of the city as determined by the city council.

(Ord. 288 § 2(part), 1997)

The following terms whenever used in this chapter shall have the meanings assigned to them in this section.

"City" means the city of Orange Cove.

"Cogeneration technology" means the use for the generation of electricity of exhaust steam, waste steam, heat, or resultant energy from an industrial, commercial or manufacturing plant or process, or the use of exhaust steam, waste steam, or heat from a thermal power plant for an industrial, commercial, or manufacturing plant or process.

"Month" means a calendar month.

"Person" means any domestic or foreign corporation, company, firm, association, syndicate, joint stock company, partnership of any kind, joint venture, club, Massachusetts business or common law trust, society or individuals.

"Service supplier" means any person, (including but not necessarily limited to a utility company, telephone corporation, electrical corporation or gas corporation, as those terms are defined in this section), which is required to collect and remit the tax imposed by this chapter.

"Service user" means a person required to pay a tax imposed by this chapter.

"Tax administrator" means the city administrator or that person designated by the city council to administer the provisions of this chapter.

"Telephone corporation," "electrical corporation" and "gas corporation," shall have the same meanings as defined in Sections 234, 218 and 222, respectively, of the California Public Utilities Code, except "electrical corporation" shall be construed to include any municipality or franchised agency engaged in the selling or supplying of electrical power to a service user, however, as specified by Section 218 of the Code, does not include a corporation or person employing cogeneration technology or producing power from other than a conventional power source for the generation of electricity.

(Ord. 288 § 2(part), 1997)

A.

Nothing in this chapter shall be construed as imposing a tax upon 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.

B.

No amendment to this chapter that increases the rate of tax or extends the tax to a utility service not covered by this chapter may be made without a vote of the people. However, the city council of the city of Orange Cove may, by ordinance and without a vote of the people, amend this tax to do any one or more of the following:

Expand the classes of exemptions provided herein;

Establish a tax rate at or lower than the seven percent rate approved by the voters;

Alter the administrative provisions of this chapter;

Reflect changes in the technology of the telecommunications, gas or electric industries; or

In any manner which does not increase the tax burden on any rate payer imposed by this voter-approved tax.

C.

The tax administrator shall prepare a list of the persons exempt from the provisions of this chapter by virtue of this section and furnish a copy thereof to each service supplier.

(Ord. 288 § 2(part), 1997)

A.

There is imposed a tax on the amounts paid for any intrastate telephone communications services by every person in the city other than a telephone corporation using such services. The tax imposed by this section shall be at the rate of seven percent of the charge made for such services and shall be paid by the person paying for such services.

B.

As used in this section, the term "charges" shall not include charges for services paid for by inserting coins in coin-operated telephones except that where such coin-operated service is furnished for a guaranteed amount, the amounts paid under such guarantee plus any fixed monthly or other periodic charge shall be included in the base for computing the amount of tax due; nor shall the term "charges" include charges for any type of service or equipment furnished by a service supplier subject to public utility regulations during any period in which the same or similar services or equipment are also available for sale or lease from persons other than a service supplier subject to public utility regulation; nor shall the words "telephone communication services" include maritime mobile services as defined in Section 2.1 of Title 47 of the Code of Federal Regulations as the section existed on January 1, 1970. The term "telephone communication services" refers to that service which provides access to a telephone system and the privilege of telephone quality communication with substantially all persons having telephone stations which are part of such telephone system.

C.

The tax imposed by this section shall be collected from the service user by the person who collects payment for the telephone services provided. The amount of the tax collected in one month shall be

remitted to the tax administrator on or before the last day of the following month; remittance of tax may be predicated on a formula based upon the payment pattern of the supplier's customers; or at the option of the person required to collect and remit the tax, and estimated amount of tax collected, measured by the tax billed in the previous month, shall be remitted to the tax administrator on or before the last day of each month.

D.

Notwithstanding the provisions of subsection A of this section, the tax imposed under this section shall not be imposed upon any person for using intrastate telephone communication services to the extent that the amount paid for such services are exempt from or not subject to the tax imposed under Division 2, Part 20 of the California Revenue and Taxation Code, or the tax imposed under Section 4251 of the Internal Revenue Code.

(Ord. 288 § 2(part), 1997)

A.

There is imposed a tax upon every person in the city using electrical energy in the city. The tax imposed by this section shall be at the rate of seven percent of the charges made for such energy and shall be paid by the person paying for such energy. "Charges," as used in this section, shall include charges made for:

Metered energy;

Minimum charges for service, including customer charges, service charges, demand charges, standby charges and annual and monthly charges, fuel, cost adjustment, etc.

B.

As used in this section, the term "using electrical energy" shall not be construed to mean the storage of such energy by a person in a battery owned or possessed by him for such use in an automobile or other machinery or device apart from the premises upon which the energy was received; provided, however, that the term shall include the receiving of such energy for the purpose of using it in the charging of batteries; nor shall the term include electricity used and consumed by an electric utility supplier in the conduct of its business as an electric public utility; nor shall the term include the mere receiving of such energy by an electric public utility or governmental agency at a point within the city for resale; or the use of such energy in the production or distribution of water by a public utility or a governmental agency.

C.

The tax imposed by this section shall be collected from the service user by the person who collects payment for the electric services provided. The amount of tax collected in one month shall be remitted by U.S. mail, to the tax administrator, postmarked on or before the last day of the following month; or at the

option of the person required to collect and remit the tax, and estimated amount of tax, measured by the tax billed in the previous month, shall be remitted by U.S. mail, to the tax administrator, postmarked on or before the last day of each month. Remittance of tax may be predicted on a formula based upon the payment pattern of the supplier's customers.

(Ord. 288 § 2(part), 1997)

A.

There is imposed a tax upon every person in the city, other than a gas corporation or electrical corporation, using in the city gas which is delivered through mains or pipes. The tax imposed by this section shall be at the rate of seven percent of the charges made for such gas and shall be paid by the person paying for such gas. "Charges," as used in this section shall include:

Gas which is delivered through mains or pipes;

Minimum charges for such services, including customer charges, service charges, transportation charges, and annual and monthly charges.

B.

There shall be excluded from the base on which the tax imposed in this section is computed:

Charges made for gas which is to be resold and delivered through mains or pipes;

Charges made for gas sold for use in the generation of electrical energy or for the production or distribution of water by a public utility or governmental agency;

Charges made by a gas public utility for gas used and consumed in the conduct of business of gas public utilities; and

Charges made for gas used in the propulsion of a motor vehicle, as the phrase is defined in the Vehicle Code of the state, utilizing natural gas.

C.

The tax imposed in this section shall be collected from the service user by the person who collects payment for the gas services provided. A service supplier shall collect the tax from the service user based on the transportation charges. The person selling or transporting the gas shall, on or before the twentieth of each calendar month, commencing on the twentieth day of the calendar month after the effective date of the ordinance codified in this chapter, make a return to the tax administrator stating the amount of taxes billed during the preceding calendar month. At the time such returns are filed, the service supplier shall remit tax payments to the tax administrator in accordance with schedules established or approved by the tax administrator.

(Ord. 288 § 2(part), 1997)

A.

Taxes collected from a service user which are not remitted to the city on or before the due dates provided in this chapter are delinquent and are subject to penalties and interest as set forth in this section.

B.

Penalties for delinquency in remittance of any tax collected or any deficiency determination, shall attach and be paid by the persons required to collect and remit at the rate of fifteen percent of the total tax collected or imposed herein.

C.

Every penalty imposed under the provisions of this subsection shall become a part of the tax required to be remitted.

D.

When fraud or gross negligence in reporting and remitting tax collections is discovered, the tax administrator shall have the power to impose additional penalties of up to twenty percent of the taxes owed upon persons required to collect and remit taxes under the provisions of this chapter.

E.

Any person required to remit to the tax administrator delinquent taxes as required in this section, shall pay interest at the rate of one and one-half percent per month or portion thereof, on the amount of tax owed exclusive of penalties, from the date on which the tax first became delinquent until paid.

F.

Notwithstanding the provisions of subsections B and E of this section, no penalty or interest shall be applied if the delinquencies are the result of natural disasters or other phenomena beyond the control of the person charged with the collection and remittance of the tax, provided the person obliged to remit the tax notifies the tax administrator as soon as normal communications permit.

(Ord. 288 § 2(part), 1997)

Any tax required to be paid by a service user under the provisions of this chapter shall be deemed a debt owed by the service user to the city. Any such tax collected from a service user which has willfully been withheld from the tax administrator shall be deemed a debt owed to the city by the person required to collect and remit. Any person owing money to the city under the provisions of this chapter shall be liable to an action brought in the name of the city for recovery of such amount.

(Ord. 288 § 2(part), 1997)

The duty to collect and remit the taxes imposed by this chapter shall be performed as follows:

A.

The tax shall be collected insofar as practicable at the same time as and along with the charges made in accordance with the regular billing practices of the service supplier. Where the amount paid by a service user to a service supplier is less than the full amount of the charge and tax which has accrued for the billing period, such amount and any subsequent payments by a service user may be applied to the charge first until such charge has been fully satisfied. Any remaining balance shall be applied to the taxes due, except in those cases where a service user pays the full amount of the charges but notifies the service supplier of his refusal to pay the tax imposed on the charges.

B.

The duty to collect tax from a service user shall commence with the beginning of the first full regular billing period applicable to the service user where all charges normally included in such regular billing are subject to the provisions of this chapter. Where a person receives more than one billing, one or more being for different periods than another, the duty to collect shall arise separately for each billing period.

(Ord. 288 § 2(part), 1997)

A.

The tax administrator shall have the power and duty, and is directed to enforce each and all of the provisions of this chapter.

B.

The tax administrator shall have power to adopt rules and regulations not inconsistent with provisions of this chapter for the purpose of carrying out and enforcing the payment, collection and remittance of the taxes herein imposed. A copy of such rules and regulations shall be on file in the tax administrator's office.

C.

The tax administrator may make administrative agreements to vary the strict requirements of this chapter so that collection of any tax imposed here may be made in conformance with the billing procedures of a

particular service supplier so long as the agreements result in collection of the tax in conformance with the general purpose and scope of this chapter. A copy of each such agreement shall be on file in the tax administrator's office.

D.

The tax administrator shall determine the eligibility of any person who asserts a right to exemption from the tax imposed by this chapter. The tax administrator shall provide the service supplier with the name of any person who the tax administrator determines is exempt from the tax impose hereby, together with the address and account number to which service is applied to any such exempt person. The tax administrator shall notify the service supplier of the termination of any person's right to exemption hereunder, or the change of any address to which service is supplied to any exempt person.

(Ord. 288 § 2(part), 1997)

A.

The tax administrator may make an assessment for taxes not remitted by a person required to remit.

B.

Whenever the tax administrator determines that service user has deliberately withheld the amount of the tax owed by such users from the amounts remitted to a person required to collect the tax, or that a service user has refused to pay the amount of the tax to such person, or whenever the tax administrator deems it in the best interest of the city, he may relieve such person of the obligation to collect taxes due under this chapter from certain named service users for specified billing periods.

C.

The service supplier shall provide the city with amounts refused along with the names, addresses and reasons of the service users refusing to pay the tax imposed under provisions of this chapter. Whenever the service user has failed to pay the amount of tax for a period of two or more billing periods, the service supplier shall be relieved of the obligation to collect taxes due.

D.

The tax administrator shall notify the service user that he 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 personally or by deposit of the notice in the United States mail, postage prepaid thereon, addressed to the service user at the address to which billing was made by the person required to collect the tax; or, should the service user have changed his address, to his last known address. If a service user fails to remit the tax to the tax administrator within fifteen days from the date of the service of the notice upon him, which shall be the date of mailing if service is not accomplished in person, a penalty of twenty-five percent of the amount of the tax set forth in the notice shall be imposed, but not less than five dollars. The penalty shall become part of the tax herein required to be paid.

(Ord. 288 § 2(part), 1997)

It shall be the duty of every person required to collect and remit to the city any tax imposed by this chapter to keep and preserve, for a period of three years, all records as may be necessary to determine the amount of such tax as he may have been liable for the collection of and remittance to the tax administrator, which records the tax administrator shall have the right to inspect at all reasonable times.

(Ord. 288 § 2(part), 1997)

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 tax administrator under this chapter it may be refunded as provided in this section.

B.

Notwithstanding the provisions of subsection A of this section, 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 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. A service supplier that has collected any amount of tax in excess of the amount of tax imposed by this chapter and actually due from a service user, may refund such amount to the service user and claim credit for such overpayment against the amount of tax which is due upon any other monthly returns, provided such credit is claimed in a return dated no later than six months from the date of overpayment.

C.

Pursuant to the authority contained in Section 935 of the Government Code, the following claims procedures are established for those claims against the city for money damages not now governed by state laws. Notwithstanding the exemptions set forth in Section 905 of the Government Code, all claims against the city for damages or money under this chapter shall be presented within the time limits set forth herein and in the manner prescribed by Section 910 through 915.2 of the Government Code. Such claims shall further be subject to the provisions of Section 945 through 946 of the Government Code relating to prohibition of suits in the absence of presentation of claims and action thereon by the city council. No refund shall be paid under the provisions of this section unless the claimant files a claim with the city of Orange Cove and establishes his right thereto by written records showing entitlement thereto within six months of the date of the accrual of the cause of action. A cause of action shall be considered to have accrued as of the date of the alleged overpayment or the date of the second payment if the claim is that it was paid more than once, or on the date of the erroneous or illegal collection if the claim is that it has been erroneously or illegally collected or received by the tax administrator.

D.

Notwithstanding other provisions of this section, whenever a service supplier, pursuant to an order of the California Public Utilities Commission or a court of competent jurisdiction, makes a refund to service users of charges for past utility services, the taxes paid pursuant to this chapter on the amount of such refunded charges shall also be refunded to service users, and the service supplier shall be entitled to claim a credit for such refunded taxes against the amount of tax which is due upon the next monthly return. In the event this chapter is repealed, the amounts of any refundable taxes will be borne by the city.

E.

A service supplier may refund the taxes collected to the service user in accordance with this section or by the service supplier's customary practice.

F.

Prior to the adoption of the ordinance which added this chapter to this code, a twelve-month claim period applied to service user refund claims provided for and existing under the city's utility users' tax as it existed at that time. Any such claim which was not already time-barred under the twelve-month period on the effective date of the ordinance adopting this chapter, may be the basis of a claim filed within six months of the adoption of said ordinance, even if filed outside the six-month time period that would otherwise apply under subsection C of this section. Notwithstanding any refund claims period provided by local law, it is the understanding of the city that state law which, at the time of the adoption of the ordinance adding this chapter to this code, is found at Section 53728 of the Government Code, provides the exclusive remedy for any refund claim based on the alleged failure by the city to comply with that statute, and it is not the intent of the city that said ordinance, nor any other ordinance, create a local remedy for such alleged violation.

(Ord. 288 § 2(part), 1997)

Any person who violates any of the provisions of this chapter is guilty of a misdemeanor and shall be punishable pursuant to Section 1.24.010 of this code.

(Ord. 288 § 2(part), 1997)