Chapter 3.28

TELEPHONE, GAS, WATER, ELECTRICITY, AND TELEVISION CABLE USERS TAX

Except where context otherwise requires, the definitions hereafter shall govern the construction of this chapter:

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

1. "Conference bridging service" means an ancillary service that links 2 or more participants of an audio or video conference call and may include the provision of a telephone number. Conference bridging service does not include the telecommunication services used to reach the conference bridge.

2. "Detailed telecommunication billing service" means an ancillary service of separately stating information pertaining to individual calls on a customer's billing statement.

3. "Directory assistance" means an ancillary service of providing telephone number information, and/or address information.

4. "Vertical service" means an ancillary service that is offered in connection with one or more telecommunication services, which offers advanced calling features that allow customers to identify callers and to manage multiple calls and call connections, including conference bridging services.

5. "Voice mail service" means an ancillary service that enables the customer to store, send or receive recorded messages. Voice mail service does not include any vertical services that the customer may be required to have in order to utilize the voice mail service.

"Ancillary video services" means services that are associated with or incidental to the provision or delivery of video services, including but not limited to electronic program guide services, search functions, recording services, or other interactive services or communications that are associated with or incidental to the provision, use or enjoyment of video programming.

"Billing address" means the mailing address of the service user where the service supplier submits invoices or bills for payment by the customer.

"City" means the City of Oroville.

"City administrator" means the city administrator or his/her designee.

"Communication services" means "telecommunication services," "ancillary telecommunication services," "video services" and "ancillary video services."

"Electrical corporation, gas corporation and water corporation" have the same meaning, except as here-inafter provided, as defined in Sections 218, 222, 241, respectively, of the Public Utilities Code of the State of California, or any successor statute. "Water corporation" shall be construed to include any organization or municipality, including, but not limited to, a mutual water company, engaged in the selling or supplying of water to a service user.

"Fiscal year" means the fiscal year of the City of Oroville, beginning on July 1st, and ending on

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City of Oroville, CA

REVENUE AND FINANCE

§ 3.28.010

§ 3.28.010

June 30th of the following year.

"Mobile telecommunications service" has the same meaning and usage as set forth in the Mobile Telecommunications Sourcing Act (4 U.S.C. Section 124) and the regulations thereunder or any successor statutes or regulations.

"Month" means a calendar month.

"Person" means, without limitation, any natural individual, firm, trust, common law trust, estate, partnership of any kind, association, syndicate, club, joint stock company, joint venture, limited liability company, corporation (including foreign, domestic, and non-profit), municipal district or municipal corporation (other than the city) cooperative, receiver, trustee, guardian, or other representative appointed by order of any court.

"Place of primary use" means the street address representative of where the service user's use of a communication service primarily occurs, which must be the residential street address or the primary business street address of the customer.

"Post-paid telecommunication service" means a telecommunication service obtained by making a payment on a communication-by-communication basis either through the use of a credit card or payment mechanism such as a bank card, travel card, credit card, or debit card, or by charge made to a service number which is not associated with the origination or termination of the telecommunication service.

"Prepaid telecommunication service" means the right to access telecommunication services, which must be paid for in advance and which enables the origination of communications using an access number or authorization code, whether manually or electronically dialed, and that is sold in predetermined units or dollars of which the number declines with use in a known amount.

"Private telecommunication service" means a telecommunication service that entitles the customer to exclusive or priority use of a communications channel or group of channels between or among termination points, regardless of the manner in which such channel or channels are connected, and includes switching capacity, extension lines, stations, and any other associated services that are provided in connection with the use of such channel or channels. A communications channel is a physical or virtual path of communications over which signals are transmitted between or among customer channel termination points (i.e., the location where the customer either inputs or receives the communications).

"Service address" means the residential street address or the business street address of the service user. For a telecommunication or video service user, "service address" means either:

1. The location of the service user's communication equipment from which the communication originates or terminates, regardless of where the communication is billed or paid; or

2. If the location in paragraph (1) of this definition is unknown (e.g., mobile telecommunications service or VoIP service), the service address means the location of the service user's place of primary use.

3. For prepaid telecommunication service, "service address" means the location associated with the service number, or if unknown, the point of sale of the services.

"Service supplier" means any entity or person, including the city, providing communication, electric, gas or water service to a user of such services within the city.

"Service user" (as a beneficiary of service) means a person required to pay a tax imposed under

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City of Oroville, CA § 3.28.010

OROVILLE CODE

§ 3.28.010

the provisions of this chapter.

"State" means the State of California.

"Streamlined Sales and Use Tax Agreement" means the multi-state agreement commonly known and referred to as the Streamlined Sales and Use Tax Agreement, and as it is amended from time to time.

"Tax administrator" means the finance director of the city or his/her designee.

"Telecommunication services" means:

1. The transmission, conveyance, or routing of voice, data, audio, video, or any other information or signals to a point, or between or among points, whatever the technology used. The term "telecommunications 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 Telecommunications Commission as enhanced or value added, and includes video and/or data services that is functionally integrated with "telecommunication services." "Telecommunications services" include, but are not limited to, the following services, regardless of the manner or basis on which such services are calculated or billed: ancillary telecommunication services; intrastate, interstate, and international telecommunication services; mobile telecommunications service; prepaid telecommunication service; post-paid telecommunication service; private telecommunication service; paging service; 800 service (or any other toll-free numbers designated by the Federal Telecommunications Commission); 900 service (or any other similar numbers designated by the Federal Telecommunications Commission for services whereby subscribers who call in to pre-recorded or live service).

2. Telecommunication services shall also include, without limitation, charges for: connection, reconnection, termination, movement, or change of telecommunication services; late payment fees; detailed billing; central office and custom calling features (including without limitation call waiting, call forwarding, caller identification and 3-way calling); voice mail and other messaging services; directory assistance; access and line charges; universal service charges; regulatory, administrative and other cost recovery charges; local number portability charges; and text and instant messaging. Telecommunication services shall not include digital downloads that are not ancillary telecommunication services, such as video programming, music, ringtones, games, and similar digital products.

"Video programming" means those programming services commonly provided to subscribers by a "video service supplier" including but not limited to basic services, premium services, audio services, video games, pay-per-view services, video on-demand, origination programming, or any other similar services, regardless of the content of such video programming, or the technology used to deliver such services, and regardless of the manner or basis on which such services are calculated or billed.

"Video services" means "video programming" and any and all services related to the providing, recording, delivering, use or enjoyment of "video programming" (including origination programming and programming using Internet Protocol, e.g., IP-TV and IP-Video) using one or more channels by a "video service supplier," regardless of the technology used to deliver, store or provide such services, and regardless of the manner or basis on which such services are calculated or billed, and includes ancillary video services, data services, "telecommunication

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City of Oroville, CA

REVENUE AND FINANCE

§ 3.28.010

§ 3.28.030

services," or interactive communication services that are functionally integrated with "video services."

"Video service supplier" means any person, company, or service which provides or sells one or more channels of video programming, or provides or sells the capability to receive one or more channels of video programming, including any communications that are ancillary, necessary or common to the provision, use or enjoyment of the video programming, to or from a business or residential address in the city, where some fee is paid, whether directly or included in dues or rental charges for that service, whether or not public rights-of-way are utilized in the delivery of the video programming or communications. A "video service supplier" includes, but is not limited to, multichannel video programming distributors [as defined in 47 U.S.C.A. Section 522(13) or any successor statute or regulation]; open video systems (OVS) suppliers; and suppliers of cable television; master antenna television; satellite master antenna television; multichannel multipoint distribution services (MMDS); video services using Internet protocol (e.g., IP-TV and IP-Video, which provide, among other things, broadcasting and video ondemand), direct broadcast satellite to the extent federal law permits taxation of its video services, now or in the future; and other suppliers of video programming or communications (including 2-way communications), whatever their technology.

(Ord. 1082 § 1; Ord. 1389 § 1; Ord. 1760 § 1)

Nothing in this chapter 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 this state.

(Ord. 1082 § 1)

• A. There is hereby imposed a tax upon every person in the city using communication services. The maximum tax imposed by this section shall be at the rate of 4.5% of the charges made for such services and shall be collected from the service user by the communication services supplier or its billing agent. There is a rebuttable presumption that communication services, which are billed to a billing or service address in the city, are used, in whole or in part, within the city's boundaries, and such services are subject to taxation under this chapter. There is also a rebuttable presumption that prepaid telecommunication services sold within the city are used, in whole or in part, within the city and are therefore subject to taxation under this chapter. If the billing address of the service user is different from the service address, the service address of the service user shall be used for purposes of imposing the tax. As used in this section, the term "charges" shall include the value of any other services, credits, property of every kind or nature, or other consideration provided by the service user in exchange for the communication services.

• B. Mobile telecommunications service shall be sourced in accordance with the sourcing rules set forth in the Mobile Telecommunications Sourcing Act (4 U.S.C. Section 124) or any successor statute or regulation. The tax administrator may issue and disseminate to communication service suppliers, which are subject to the tax collection requirements of this chapter, sourcing rules for the taxation of other communication services, including, but not limited to, post-paid communication services, prepaid communication services, VoIP, and private communication services, provided that such rules are based upon industry custom and common practice that further administrative efficiency and minimize multi-

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City of Oroville, CA § 3.28.030

OROVILLE CODE

§ 3.28.030

jurisdictional taxation (e.g., Streamlined Sales and Use Tax Agreement).

• C. The tax administrator may issue and disseminate to communication service suppliers, which are subject to the tax collection requirements of this chapter, an administrative ruling identifying those communication services, or charges therefor, that are subject to or not subject to the tax of subsection A of this section.

• D. Charges for video services and ancillary video services shall include, but are not limited to, charges for the following:

  1. Franchise fees and access fees (PEG);

  2. Initial installation of equipment necessary for provision, receipt, and recording of video services;

  3. Late fees, collection fees, bad debt recoveries, and return check fees;

  4. Activation fees, reactivation fees, and reconnection fees;

  5. All video programming services (e.g., basic services, premium services, audio services, recording services, search services, video games, pay-per-view services, or on-demand programming);

6. Ancillary programming services (e.g., electronic program guide services, recording and/or search functions, or other interactive services or communications that are ancillary, necessary or common to the use or enjoyment of the video programming);

   7. Equipment leases (e.g., recorders, converters, remote devices); and

   8. Service calls, service protection plans, name changes, changes of services, and special services.

• E. To prevent actual multi-jurisdictional taxation of communication services subject to tax under this section, any service user, upon proof to the tax administrator that the service user has previously paid the same tax in another state or city on such communication services, shall be allowed a credit against the tax imposed to the extent of the amount of such tax legally imposed in such other state or city; provided, however, the amount of credit shall not exceed the tax owed to the city under this section.

• F. The tax on communication services imposed by this section shall be collected from the service user by the service supplier or person receiving payment for the services. The amount of the tax collected in one month shall be remitted to the tax administrator, and must be received by the tax administrator, on or before the last day of the following month.

• G. If any nontaxable charges are combined with and not separately stated from taxable service charges on the customer bill or invoice of a service supplier, the combined charge is subject to tax unless the service supplier identifies, by reasonable and verifiable standards, the portions of the combined charge that are nontaxable and taxable through the service supplier's books and records kept in the regular course of business, and in accordance with generally accepted accounting principles, and not created and maintained for tax purposes. If the service supplier offers a combination of taxable and nontaxable services, and the charges are separately stated, then for taxation purposes, the values assigned the taxable and nontaxable services shall be based on its books and records kept in the regular course

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City of Oroville, CA

REVENUE AND FINANCE

§ 3.28.030

§ 3.28.040

of business and in accordance with generally accepted accounting principles, and not created and maintained for tax purposes. The service supplier has the burden of proving the proper valuation and apportionment of the taxable and nontaxable services.

• H. For purposes of imposing a tax or establishing a duty to collect and remit a tax under this chapter, "substantial nexus" and "minimum contacts" shall be construed broadly in favor of the imposition, collection and/or remittance of the utility users tax to the fullest extent permitted by state and federal law, and as it may change from time to time by judicial interpretation or by statutory enactment. Any telecommunication service (including VoIP) used by a person with a service address in the city, which service is capable of terminating a call to another person on the general telephone network, shall be subject to a rebuttable presumption that "substantial nexus/minimum contacts" exists for purposes of imposing a tax, or establishing a duty to collect and remit a tax, under this chapter. A service supplier shall be deemed to have sufficient activity in the city for tax collection and remittance purposes if its activities include, but are not limited to, any of the following: maintains or has within the city, directly or through an agent, affiliate, or subsidiary, a place of business of any nature; solicits business in the city by employees, independent contractors, resellers, agents or other representatives; solicits business in the city on a continuous, regular, seasonal or systematic basis by means of advertising that is broadcast or relayed from a transmitter within the city or distributed from a location within the city; or advertises in newspapers or other periodicals printed and published within the city or through materials distributed in the city by means other than the United States mail; or if there are activities performed in the city on behalf of the service supplier that are significantly associated with the service supplier's ability to establish and maintain a market in the city for the provision of utility services that are subject to a tax under this chapter.

• I. Satisfaction of Tax Obligation by Service Users. Any person who pays the tax levied pursuant to this section with respect to any charge for a communication service shall be deemed to have satisfied his or her obligation to pay the tax levied pursuant to former Sections 24-129 and 24-133 as codified immediately prior to adoption of the ordinance codified in this chapter with respect to that charge. Likewise, prior to April 1, 2011, any person who pays the tax levied pursuant to former Sections 24-129 and 24-133 as codified immediately prior to adoption of said ordinance shall be deemed to have satisfied his or her obligation to pay the tax levied pursuant to this section with respect to that charge. The intent of this paragraph is to prevent the imposition of multiple taxes upon a single utility charge during the transition period from the prior telephone and cable telephone tax to the new communication services tax (which transition period ends April 1, 2011) and to permit communication service providers during that transition period to satisfy their collection obligations by collecting either tax.

• J. Collection of Tax by Service Supplier. Service suppliers shall begin to collect the tax imposed by this section as soon as feasible after the effective date of the ordinance codified in this section, but in no event later than permitted by Section 799 of the California Public Utilities Code.

• (Ord. 1082 § 1; Ord. 1760 § 2)

• A. There is hereby imposed a tax upon every person in the city, other than a gas corporation or an electrical corporation, using electrical energy in the city. The tax imposed by this section shall be at the rate of 5% of the charges made for such energy, including minimum

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City of Oroville, CA § 3.28.040

OROVILLE CODE

§ 3.28.060

charges for service, and shall be paid by the person paying for such energy.

• 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 or her for use in an automobile or other machinery or device apart from the premises upon which the energy was received; provided, 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 be construed to mean the receiving of such energy by an electrical corporation or a governmental agency at a point within the city for resale to service users.

• C. The tax imposed in this section shall be collected from the service user by the person selling such electrical energy. The amount of tax collected in one month shall be remitted to the city finance officer on or before the last day of the following month.

• (Ord. 1082 § 1)

• A. There is hereby imposed a tax upon every person in the city, other than a gas corporation or an electrical corporation, using gas in the city which is delivered through mains or pipes. The tax imposed by this section shall be at the rate of 5% of the charges made for such gas, including minimum charges for service, and shall be paid by the person paying for such gas.

• B. As used in this section, the words "using gas" shall not be construed to mean the receiving of such gas by a gas corporation or governmental agency at a point within the city for resale to service users.

• C. As used in this section, the word "charges" shall not include charges made for gas used in the generation of electrical energy by a public utility or a governmental agency.

• D. The tax imposed in this section shall be collected from the service user by the person selling the gas. The amount collected in one month shall be remitted to the city finance officer on or before the last day of the following month.

• (Ord. 1082 § 1)

• A. The first $_________* of the combined total monthly charges for the use of electrical energy and the use of gas is hereby exempted from the imposition of tax in accordance with the following procedure:

  1. Residential Service Users. The $__________* exemption for a residential service user, as defined by the service supplier, shall apply to each bill issued for any one of the following service conditions:

     • a. The bill covers gas service only;

     • b. The bill covers electrical service only;

     • c. The bill covers a combination of gas and electrical service.

  2. Nonresidential Service Users.

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City of Oroville, CA

REVENUE AND FINANCE

§ 3.28.060

§ 3.28.090

• a. The first $_________* of charges of each bill for a combination of gas service and electrical energy issued to a nonresidential service user, as defined by the service supplier, shall be exempt from the imposition of tax.

• b. The first $_________* of charges of each bill issued to a nonresidential service user for the use of gas service only shall be exempt from tax.

• c. The first $_________* of charges of each bill issued to a nonresidential service user for the use of electrical energy only shall be exempt from tax.

• B. The monthly charges shall be determined by the regular billing period as determined by the service supplier, but shall be for periods of service not less than 27 days nor more than 33 days.

• C. The exemptions granted hereunder shall be prorated for billing periods which total less than 27 days or greater than 33 days.

*** See Master Fee Schedule for current amount.**

(Ord. 1339 § 1; Ord. 1347 § 1; Ord. 1398 § 1; Ord. 1560 § 1)

• A. Electrical energy or gas distributed to residential users through a master meter, such as mobile home parks, may be exempted from the imposition of tax as provided in this section.

• B. The master-metered-service user shall have the burden of proving to the satisfaction of the tax administrator that the average gas and/or electrical bill per occupied space for the previous year was less than 90% of the exemption level stated in this chapter.

• C. The tax administrator may, upon satisfactory proof, issue a one-year exemption to the master-metered-service user. The exemption may be renewed.

• D. Any person aggrieved by any decision of the tax administrator may appeal to the city council by following the procedure set forth in Section 3.28.150.

• (Ord. 1389 § 2)

• A. There is hereby imposed a tax upon every person in the city, other than a water corporation, using water in the city which is delivered through mains or pipes, except as provided in Section 3.28.180. The tax imposed by this section shall be at the rate of 5% of the charges made for such water, including charges for: (1) metered quantities of water; (2) service or minimum charges; and (3) private fire protection service, and shall be paid by the person paying for such water.

• B. The tax imposed in this section shall be collected from the service user by the person selling the water. The amount collected in one month shall be remitted to the city finance officer on or before the last day of the following month.

• (Ord. 1082 § 1)

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City of Oroville, CA

OROVILLE CODE

§ 3.28.090

§ 3.28.090

• A. The tax administrator shall have the power and duty to enforce each and all of the provisions of this chapter.

• B. The tax administrator may adopt administrative rules and regulations consistent with provisions of this chapter for the purpose of interpreting, clarifying, carrying out and enforcing the payment, collection and remittance of the taxes herein imposed. A copy of such administrative rules and regulations shall be on file in the tax administrator's office. To the extent that the tax administrator determines that the tax imposed under this chapter shall not be collected in full for any period of time from any particular service supplier or service user, that determination shall be considered an exercise of the tax administrator's discretion to settle disputes and shall not constitute a change in taxing methodology for purposes of Government Code Section 53750 or otherwise. The tax administrator is not authorized to amend the city's methodology for purposes of Government Code Section 53750 and the city does not waive or abrogate its ability to impose the utility users' tax in full as a result of promulgating administrative rulings or entering into agreements.

• C. Upon a proper showing of good cause, the tax administrator may make administrative agreements, with appropriate conditions, to vary from the strict requirements of this chapter and thereby: (1) conform to the billing procedures of a particular service supplier so long as said agreements result in the collection of the tax in conformance with the general purpose and scope of this chapter; or (2) 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 tax administrator's office, and are voidable by the tax administrator or the city at any time.

• D. The tax administrator may conduct an audit, to ensure proper compliance with the requirements of this chapter, of any person required to collect and/or remit a tax pursuant to this chapter. The tax administrator shall notify said person of the initiation of an audit in writing. In the absence of fraud or other intentional misconduct, the audit period of review shall not exceed a period of 3 years next preceding the date of receipt of the written notice by said person from the tax administrator. Upon completion of the audit, the tax administrator may make a deficiency determination for all taxes (and applicable penalties and interest) owed and not paid, as evidenced by information provided by such person to the tax administrator. If said person is unable or unwilling to provide sufficient records to enable the tax administrator to verify compliance with this chapter, the tax administrator is authorized to make a reasonable estimate of the deficiency. Said reasonable estimate shall be entitled to a rebuttable presumption of correctness.

• E. Upon receipt of a written request of a taxpayer, and for good cause, the tax administrator may extend the time for filing any statement required pursuant to this chapter for a period of not to exceed 45 days, provided that the time for filing the required statement has not already passed when the request is received. No penalty for delinquent payment shall accrue by reason of such extension. Interest shall accrue during said extension at the rate of 0.75% per month, prorated for any portion thereof.

• F. The tax administrator shall determine the eligibility of any person who asserts a right to exemption from, or a refund of, the tax imposed by this chapter.

• G. Notwithstanding any provision in this chapter to the contrary, the tax administrator may waive any penalty or interest imposed upon a person required to collect and/or remit for failure to collect the tax imposed by this chapter if the non-collection occurred in good

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City of Oroville, CA

REVENUE AND FINANCE

§ 3.28.090

§ 3.28.100

faith. In determining whether the non-collection was in good faith, the tax administrator shall take into consideration the uniqueness of the product or service, industry practice or other precedence. The tax administrator may also participate with other UUT public agencies in conducting coordinated compliance reviews with the goal of achieving administrative efficiency and uniform tax application determinations, where possible. To encourage full disclosure and ongoing cooperation on annual compliance reviews, the tax administrator, and his or her agents, may enter into agreements with the tax-collecting service providers and grant prospective only effect on any changes regarding the taxation of services or charges that were previously deemed by the service provider, in good faith and without gross negligence, to be nontaxable. In determining whether the noncollection was in good faith and without gross negligence, the tax administrator shall take into consideration the uniqueness of the product or service, industry practice or other precedence.

(Ord. 1082 § 1; Ord. 1760 § 5)

• A. Taxes collected from a service user which are not remitted to the city finance officer on or before the due dates provided in this chapter are delinquent.

• B. Interest and penalties for delinquency in remittance of any tax collected and not remitted shall be assessed as follows:

  1. Original Delinquency. Any service supplier who fails to remit any tax imposed by this chapter within the time required shall pay a penalty of 10% of the amount of the tax in addition to the amount of the tax.

  2. Continued Delinquency. Any service supplier who fails to remit any delinquent remittance on or before a period of 30 days following the date on which the remittance first became delinquent shall pay a second delinquency penalty of 10% of the amount of the tax in addition to the amount of the tax and the 10% penalty first imposed.

  3. Fraud. If the tax administrator determines that the non-payment of any remittance due under this chapter is due to fraud, a penalty of 25% of the amount of the tax shall be added thereto, in addition to the penalties stated in paragraphs 1 and 2 of this subsection.

  4. Interest. In addition to the penalties imposed, any service supplier who fails to remit any tax imposed by this chapter shall pay interest at the rate of one-half of one percent per month or fraction thereof on the amount of the tax, exclusive of penalties, from the date on which the remittance first became delinquent until paid.

  5. Penalties Merged with Tax. Every penalty imposed and such interest as accrues under the provisions of this subsection shall become a part of the tax herein required to be remitted.

• C. Failure by a service user to pay any tax herein imposed shall result in the following interest and penalties on the service user:

  1. Original Delinquency. Any service user who fails to pay any tax imposed by this chapter within 120 days of the date of the receipt of notice of the amount of tax due from the service supplier shall pay a penalty of 10% of the amount of the tax in

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City of Oroville, CA § 3.28.100

OROVILLE CODE

§ 3.28.130

addition to the amount of the tax.

2. Continued Delinquency. Any service user who fails to pay any delinquent remittance on or before a period of 60 days of the date of the receipt of notice of the amount of tax due from the service supplier shall pay a second delinquency penalty of 10% of the amount of the tax in addition to the amount of the tax and the 10% penalty first imposed.

3. Interest and Collection Charge. In addition to the penalties imposed, any service user who fails to pay any tax imposed by this chapter, shall pay interest at the rate of 7% per annum, exclusive of penalties, from the date on which the remittance first became delinquent until paid, and a collection charge of the amount outlined in the Master Fee Schedule for each delinquent account.

4. Penalties Merged with Tax. Every penalty imposed and such interest as accrues under the provisions of this subsection shall become a part of the tax herein required to be paid.

5. Collection of Penalties, etc. The penalties, interest and collection charges imposed in this subsection shall not be collected by the service supplier but shall be determined and collected by the city as set forth in Section 3.28.110.

(Ord. 1082 § 1)

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 not been remitted to the city finance officer 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 the recovery of such amount.

(Ord. 1082 § 1)

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 practice of the service supplier. Except in those cases where a service user pays the full amount of such charges but does not pay any portion of a tax imposed by this chapter, or where a service user has notified a service supplier that he or she is refusing to pay a tax imposed by this chapter which such service supplier is required to collect, if the amount paid by a service user is less than the full amount of the charge and tax which has accrued for the billing period a proportionate share of both the charge and the tax shall be deemed to have been paid.

• B. The duty to collect tax 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 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. 1082 § 1)

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City of Oroville, CA

REVENUE AND FINANCE

§ 3.28.130

§ 3.28.150

If any service supplier shall fail or refuse to collect such tax and to make, within the time provided in this chapter, any report and remittance of such tax or any portion thereof required by this chapter, the tax administrator shall proceed in such manner as he or she may deem best to obtain facts and information on which to base his or her estimate of the tax due. As soon as the tax administrator shall procure such facts and information as he or she is able to obtain upon which to base the assessment of any tax imposed by this chapter and payable by any service supplier who has failed or refused to collect the same and to make such report and remittance, he or she shall proceed to determine and assess against such service supplier the tax, interest and penalties provided for by this chapter. In case such determination is made, the tax administrator shall give a notice of the amount so assessed by serving it personally or by depositing it in the United States mail, postage prepaid, addressed to the service supplier so assessed at his or her last known place of address. Such service supplier may within 10 days after the serving or mailing of such notice, make application in writing to the tax administrator for a hearing on the amount assessed. If application by the service supplier for a hearing is not made within the time prescribed, the tax, interest and penalties, if any, determined by the tax administrator shall become final and conclusive and immediately due and payable. If such application is made, the tax administrator shall give not less than 5 days' written notice in the manner prescribed herein to the service supplier to show cause at a time and place fixed in such notice why such amount specified therein should not be fixed for such tax, interest and penalties. At such hearing, the service supplier may appear and offer evidence why such specified tax, interest and penalties should not be so fixed. After such hearing, the tax administrator shall determine the proper tax to be remitted and shall thereafter give written notice to the service supplier in the manner prescribed herein of such determination and the amount of such tax, interest and penalties. The amount determined to be due shall be payable after 15 days, unless an appeal is taken as provided in Section 3.28.150.

(Ord. 1082 § 1)

Whenever the tax administrator determines that a service user has deliberately withheld the amount of any tax imposed on him or her by the provisions of this chapter from the amounts remitted to a service supplier required to collect the tax, or that a service user has failed to pay the amount of the tax to such service supplier for a period of 4 or more billing periods, or whenever the tax administrator deems it in the best interest of the city, he or she may relieve such service supplier of the obligation to collect taxes due under this chapter from certain named service users for specified billing periods. The tax administrator 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, plus any penalty imposed and such interest as may be due pursuant to the provisions of Section 3.28.100. 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 mail, postage prepaid thereon, addressed to the service user at the address to which billing was made by the service supplier required to collect the tax; or, should the service user have changed his or her address, to his or her last known address.

(Ord. 1082 § 1)

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City of Oroville, CA § 3.28.150

OROVILLE CODE

§ 3.28.160

Any person aggrieved by any decision of the tax administrator pursuant to Section 3.28.130 or Section 3.28.140 may appeal to the city council by filing a notice of appeal with the city clerk within 15 days of the serving or mailing of the decision. The city council shall fix a time and place for hearing such appeal, and the city clerk shall give notice in writing to such person at his or her last known place of address. The findings of the city council shall be final and conclusive and shall be served upon the appellant in the manner prescribed above for service of notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of notice.

(Ord. 1082 § 1)

• A. It shall be the duty of every person required to collect and/or remit to the city any tax imposed by this chapter to keep and preserve, for a period of at least 3 years, all records as may be necessary to determine the amount of such tax as he/she 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 a reasonable time.

• B. The city, through the city council, may issue an administrative subpoena to compel a person to deliver, to the tax administrator, copies of all records deemed necessary by the tax administrator to establish compliance with this chapter, including the delivery of records in a common electronic format on readily available media if such records are kept electronically by the person in the usual and ordinary course of business. As an alternative to delivering the subpoenaed records to the tax administrator on or before the due date provided in the administrative subpoena, such person may provide access to such records outside the city on or before the due date, provided that such person shall reimburse the city for all reasonable travel expenses incurred by the city to inspect those records, including travel, lodging, meals, and other similar expenses, but excluding the normal salary or hourly wages of those persons designated by the city to conduct the inspection.

• C. The tax administrator is authorized to execute a non-disclosure agreement approved by the city attorney to protect the confidentiality of customer information pursuant to California Revenue and Tax Code Sections 7284.6 and 7284.7.

• D. If a service supplier uses a billing agent or billing aggregator to bill, collect, and/or remit the tax, the service supplier shall: (1) provide to the tax administrator the name, address and telephone number of each billing agent and billing aggregator currently authorized by the service supplier to bill, collect, and/or remit the tax to the city; and (2) upon request of the tax administrator, deliver, or effect the delivery of, any information or records in the possession of such billing agent or billing aggregator that, in the opinion of the tax administrator, is necessary to verify the proper application, calculation, collection and/or remittance of such tax to the city.

• E. If any person subject to recordkeeping under this section unreasonably denies the tax administrator access to such records, or fails to produce the information requested in an administrative subpoena within the time specified, then the tax administrator may impose a penalty of the amount outlined in the Master Fee Schedule on such person for each day following: (1) the initial date that the person refuses to provide such access; or (2) the due date for production of records as set forth in the administrative subpoena. This penalty shall

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City of Oroville, CA

REVENUE AND FINANCE

§ 3.28.160

§ 3.28.170

be in addition to any other penalty imposed under this chapter.

(Ord. 1082 § 1; Ord. 1760 § 6)

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 from a service user or service supplier, it may be refunded as provided in this section:

• A. The tax administrator may refund any tax that has been overpaid or paid more than once or has been erroneously or illegally collected or received by the tax administrator under this chapter from a service user or service supplier; provided that no refund shall be paid under the provisions of this section unless the claimant or his or her guardian, conservator, executor, or administrator has submitted a written claim to the tax administrator within one year of the overpayment or erroneous or illegal collection of said tax. Such claim must clearly establish claimant's right to the refund by written records showing entitlement thereto. Nothing herein shall permit the filing of a claim on behalf of a class or group of taxpayers unless each member of the class has submitted a written claim under penalty of perjury as provided by this subsection. It is the intent of the city council that the one year written claim requirement of this subsection be given retroactive effect; provided, however, that any claims which arose prior to the commencement of the one-year claims period of this subsection, and which are not otherwise barred by a then applicable statute of limitations or claims procedure, must be filed with the tax collector as provided in this subsection within 90 days following the effective date of the ordinance codified in this section.

• B. The city administrator, where the claim is less than the settlement authority established in the municipal code, or the city council where the claim is in excess of that amount, shall act upon the refund claim within 45 days of the initial receipt of the refund claim. Said decision shall be final. If the city administrator/city council fails or refuses to act on a refund claim within the 45-day period, the claim shall be deemed to have been rejected by the city administrator/city council on the forty-fifth day. The tax administrator shall give notice of the action in a form which substantially complies with that set forth in California Government Code Section 913.

• C. The filing of a written claim pursuant to California Government Code Section935 is a prerequisite to any suit thereon. Any action brought against the city pursuant to this section shall be subject to the provisions of California Government Code Sections 945.6 and 946.

• D. Notwithstanding the notice provisions of subsection A of this section, the tax administrator may, at his or her discretion, give written permission to a service supplier, who has collected and remitted any amount of tax in excess of the amount of tax imposed by this chapter, to claim credit for such overpayment against the amount of tax which is due the city upon a subsequent monthly return(s) to the tax administrator, provided that: (1) such credit is claimed in a return dated no later than one year from the date of overpayment or erroneous collection of said tax; (2) the tax administrator is satisfied that the underlying basis and amount of such credit has been reasonably established; and (3) in the case of an overpayment by a service user to the service supplier that has been remitted to the city, the tax administrator has received proof, to his or her satisfaction, that the overpayment has been refunded by the service supplier to the service user in an amount equal to the requested credit.

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City of Oroville, CA § 3.28.170

OROVILLE CODE

§ 3.28.200

• (Ord. 1082 § 1; Ord. 1760 § 4)

Nothing herein contained shall be construed as requiring a service supplier, as herein defined, to pay a tax upon that portion of a utility service purchased by it from another utility company and used in the production of the product it markets to a service user, such as electricity used by a gas company in producing gas, or a water company in pumping its water or bringing water into its service facilities, nor electricity used by the telephone company in operating the equipment that serves its service users.

(Ord. 1082 § 1)

• A. Any person violating any of the provisions of this chapter or any person wilfully refusing to pay any tax required hereunder shall be guilty of a misdemeanor, and shall be punishable therefor by a fine of not more than the amount outlined in the Master Fee Schedule or by imprisonment in the county jail for a period of not more than 6 months, or by both such fine and imprisonment.

• B. Any service supplier required to collect a tax under the provisions of this chapter who fails to furnish any return required to be made, or who fails or refuses to furnish a supplemental return or other data required by the tax administrator, or who renders a false or fraudulent return or claim, is guilty of a misdemeanor, and is punishable as aforesaid. Any person required to make, render, sign or verify any report or claim who makes any false or fraudulent report or claim with intent to defeat or evade the determination of any amount due required by this chapter to be made is guilty of a misdemeanor and is punishable as aforesaid.

• (Ord. 1082 § 1)

Notwithstanding anything contained in this chapter, the maximum tax that may be collected from any service user in any fiscal year shall be as set forth in this section.

• A. For the fiscal year 1993-1994, the maximum tax shall be $25,000.00 plus an amount equal to one-third of the increase in the cost of living as shown in the United States Consumer Price Index for all urban consumers, using the index published nearest to July 1, 1982 as the base year. For each of the next 2 succeeding fiscal years, the maximum tax shall be the maximum tax established in the preceding fiscal year, plus an additional one-third of the increase in the cost of living, plus any increase in the cost of living over the preceding fiscal year.

• B. For the fiscal year 1996-1997 and each succeeding fiscal year thereafter, the maximum tax shall be indexed to the United States Consumer Price Index for all urban consumers. The base maximum tax above provided shall be adjusted as of the beginning of each fiscal year to reflect the yearly changes, if any, in the cost of living as shown in the United States Consumer Price Index for all urban consumers. The beginning index shall be the index published nearest to July 1, 1994. Beginning July 1, 1995, and each year thereafter, the base maximum tax shall be changed in the same proportion as the index figure of the index published nearest to the effective July 1st has been changed.

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City of Oroville, CA

REVENUE AND FINANCE

§ 3.28.200

§ 3.28.220

(Ord. 1389 § 3; Ord. 1560 § 2)

• A. From and after July 1, 1982, a service user may claim and shall be allowed a credit of onehalf of the city's portion of real property and/or sales and use taxes in excess of $50,000.00 paid by that service user during any calendar year.

• B. The credit shall be applied to any utility user's tax due the city for the city's fiscal year following the end of the fiscal year during which the credit is calculated.

• C. In no event shall a service user be entitled to a credit in an amount greater than the utility user's tax that would be due were no credit to be allowed and no credit shall be carried over from year to year.

• D. The tax administrator may issue an exemption from the imposition of the utility user's tax, when, in his or her opinion, a service user would be entitled to claim sufficient credit to entirely offset the utility user's tax. Exemptions shall be reviewed annually.

• E. Credits and exemptions for service users newly annexed to the city shall be calculated as if the city had received the normal portion of the real property and/or sales and use taxes paid by that service user during the preceding calendar year.

• F. The tax administrator shall make rules prescribing the procedure for claiming an allowance of the credit, the issuance of an exemption and the payment of refunds. Refunds shall be made not less frequently than annually nor more often than quarterly.

• G. Any person aggrieved by any decision of the tax administrator may appeal to the city council by following the procedure set forth in Section 3.28.150.

• (Ord. 1389 § 4)

• A. Unless specifically provided otherwise, any reference to a state or federal statute in this chapter shall mean such statute as it may be amended from time to time; provided that such reference to a statute herein shall not include any subsequent amendment thereto, or to any subsequent change of interpretation thereto by a state or federal agency or court of law with the duty to interpret such law, to the extent that such amendment or change of interpretation would require voter approval under California law, or to the extent that such change would result in a tax decrease (as a result of excluding all or a part of a utility service, or charge therefor, from taxation). Only to the extent voter approval would otherwise be required or a tax decrease would result, the prior version of the statute (or interpretation) shall remain applicable; for any application or situation that would not require voter approval or result in a decrease of a tax, provisions of the amended statute (or new interpretation) shall be applicable to the maximum possible extent.

• B. To the extent that the city's authorization to collect or impose any tax imposed under this chapter is expanded or limited as a result of changes in state or federal law, no amendment or modification of this chapter shall be required to conform the tax to those changes, and the tax shall be imposed and collected to the full extent of the authorization up to the full amount of the tax imposed under this chapter.

• (Ord. 1760 § 7)

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City of Oroville, CA

REVENUE AND FINANCE

§ 3.32.010

§ 3.32.010