Chapter 35 — TAXATION

The Council, deeming it to be for the best interests of the city and determining that the public interest and necessity demand the action herein taken, does hereby elect to avail itself, and the city does hereby elect to avail itself, of all the provisions of Cal. Gov't Code Article 1, Chapter 2, Part 2, Division I, Title 5 (Cal. Gov't Code §§ 51500 et seq.) relating to the transfer of city tax functions.

('65 Code, § 3-6.101) (Ord. 51, passed - - )

All assessments for taxes in and for the city shall be made, and all such taxes collected, by the Assessor and Tax Collector, respectively, of the county, and the duties of assessing property and collecting taxes provided by law to be performed by the Assessor and Tax Collector of the city shall be performed by the Assessor and Tax Collector, respectively, of the county until the city shall, by ordinance, elect not to avail itself of the provisions of said state law for any longer time. ('65 Code, § 3-6.102) (Ord. 51, passed - - )

All claims against the city for money or damages not otherwise governed by the Tort Claims Act, Cal. Gov't Code §§ 900 et seq., or another state law (hereinafter in this chapter, "claims") shall be presented within the time and in the manner prescribed by Cal. Gov't Code, Title 1, Division 3.6, Part 3 (commencing with § 900 thereof) for the claims to which that part applies by its own terms, as those provisions now exist or shall hereafter be amended, and as further provided by this chapter. (Ord. 516-C.S., passed 8-21-01)

All claims shall be made in writing and verified by the claimant or by his or her guardian, conservator, executor or administrator. No claim may be filed on behalf of a class of person unless verified by every member of that class as required by Cal. Gov't Code § 910. (Ord. 516-C.S., passed 8-21-01)

In accordance with Cal. Gov't Code §§ 935(b) and 945.6, all claims shall be presented as provided in this chapter and acted upon by the City Council prior to the filing of any action on such claims and no such action may be maintained by a person who has not complied with the requirements of § 35.003 hereof. (Ord. 516-C.S., passed 8-21-01)

Any action brought against the city upon any claim or demand shall conform to the requirements of the Cal. Gov't Code §§ 940-949. Any action brought against any employee of the city shall conform with the requirements of Cal. Gov't Code §§ 950-951.

(Ord. 516-C.S., passed 8-21-01)

REAL PROPERTY TRANSFER TAX

This subchapter shall be known as the Real Property Transfer Tax Law of the city. It is adopted pursuant to the authority contained in Cal. Rev. & Tax. Code Division 2, Part 6.7 (commencing with § 11901).

('65 Code, § 3-6.401) (Ord. 36-C.S., passed - - )

There is hereby imposed on each deed, instrument, or writing by which any lands, tenements, or other realty sold within the city shall be granted, assigned, transferred, or otherwise conveyed to, or vested in, the purchaser or purchasers, or any other person or persons, by his or their direction, when the consideration or value of the interest or property conveyed (exclusive of the value of any lien or encumbrances remaining thereon at the time of sale) exceeds $100 a tax at the rate of $0.275 cents for each $500 or fractional part thereof.

('65 Code, § 3-6.402) (Ord. 36-C.S., passed - - )

Any tax imposed pursuant to the provisions of § 35.016 of this subchapter shall be paid by any person who makes, signs, or issues any document or instrument subject to the tax, or for whose use or benefit the same is made, signed, or issued.

('65 Code, § 3-6.403) (Ord. 36-C.S., passed - - ) Penalty, see § 10.99

Any tax imposed pursuant to the provisions of this subchapter shall not apply to those exemptions set forth in Cal. Rev. & Tax Code §§ 11921 through 11929.

Any tax imposed pursuant to the provisions of this subchapter shall not apply to any instrument in writing given to secure a debt.

('65 Code, § 3-6.404) (Ord. 36-C.S., passed - - )

The United States, or any agency or instrumentality thereof, any state or territory or political subdivision thereof, or the District of Columbia shall not be liable for any tax imposed pursuant to the provisions of this subchapter with respect to any deed, instrument, or writing to which it is a party, but the tax may be collected by assessment from any other party liable therefor.

('65 Code, § 3-6.405) (Ord. 36-C.S., passed - - )

(A) Any tax imposed pursuant to the provisions of this subchapter shall not apply to the making, delivering, or filing of conveyances to make effective any plan of reorganization or adjustment:

(1) Confirmed under the Federal Bankruptcy Act, as amended;

(2) Approved in an equity receivership proceeding in a court involving a railroad corporation, as defined in the United States Code, subsection (m) of § 205 of Title 11, as amended;

(3) Approved in an equity receivership proceeding in a court involving a corporation, as defined in the United States Code, subsection (3) of § 506 of Title 11, as amended; or (4) Whereby a mere change in identity, form, or place of organization is effected.

(B) The provisions of this section shall only apply if the making, delivery, or filing of instruments of transfer or conveyances occurs within five years from the date of such confirmation, approval, or change.

('65 Code, § 3-6.406) (Ord. 36-C.S., passed - - )

Any tax imposed pursuant to the provisions of this subchapter shall not apply to the making or delivery of conveyances to make effective any order of the Securities and Exchange Commission, as defined in the Internal Revenue Code of 1954, subsection (a) of § 1083, but only if:

(A) The order of the Securities and Exchange Commission in obedience to which such conveyance is made recites that such conveyance is necessary or appropriate to effectuate the provisions of the United States Code § 79k of Title 15 relating to the Public Utility Holding Company Act of 1935;

(B) Such order specifies the property which is ordered to be conveyed; and

(C) Such conveyance is made in obedience to such order.

('65 Code, § 3-6.407) (Ord. 36-C.S., passed - - )

(A) In the case of any realty held by a partnership, no levy shall be imposed pursuant to the provisions of this subchapter by reason of any transfer of an interest in a partnership or otherwise if:

(1) Such partnership (or another partnership) is considered a continuing partnership within the meaning of Section 708 of the Internal Revenue Code of 1954; and

(2) Such continuing partnership continues to hold the realty concerned.

(B) If there is a termination of any partnership within the meaning of Section 708 of the Internal Revenue Code of 1954, for the purposes of this subchapter such partnership shall be treated as having executed an instrument whereby there was conveyed, for fair market value (exclusive of the value of any lien or encumbrance remaining thereon), all realty held by such partnership at the time of such termination.

(C) Not more than one tax shall be imposed pursuant to the provisions of this subchapter by reason of a termination described in division (B) of this section, and any transfer pursuant thereto, with respect to the realty held by such partnership at the time of such termination. ('65 Code, § 3-6.408) (Ord. 36-C.S., passed - - )

The County Recorder shall administer the provisions of this subchapter in conformity with the provisions of Cal. Rev. and Tax. Code Division 2, Part 6.7 and the provisions of any county ordinance adopted pursuant thereto.

('65 Code, § 3-6.409) (Ord. 36-C.S., passed - - )

Claims for the refund of taxes imposed pursuant to the provisions of this subchapter shall be governed by the provisions of Cal. Rev. & Tax. Code Division 1, Part 9, Chapter 5 (commencing with § 5096).

('65 Code, § 3-6.410) (Ord. 36-C.S., passed - - )

SALES AND USE TAX

This subchapter shall be known as the Uniform Local Sales and Use Tax Law of the city. ('65 Code, § 3-6.201) (Ord. 717, passed - - )

The Council hereby declares that this subchapter is adopted to achieve the following purposes and directs that the provisions hereof be interpreted in order to accomplish those purposes:

(A) To adopt a sales and use tax law which complies with the requirements and limitations contained in Cal. Rev. & Tax. Code Division 2, Part 1.5;

(B) To adopt a sales and use tax law which incorporates provisions identical to those of the Sales and Use Tax Law of the state insofar as these provisions are not inconsistent with the requirements and limitations contained in Cal. Rev. & Tax. Code Division 2, Part 1.5;

(C) To adopt a sales and use tax law which imposes a 1% tax and provides a measure therefor that can be administered and collected by the State Board of Equalization in a manner that adapts itself as fully as practical to, and requires the least possible deviation from, the existing statutory and administrative procedures followed by the State Board of Equalization in administering and collecting the California State Sales and Use Taxes; and

(D) To adopt a sales and use tax law which can be administered in a manner that will, to the degree possible consistent with the provisions of Cal. Rev. & Tax. Code Division 2, Part 1.5, minimize the cost of collecting city sales and use taxes and at the same time minimize the burden of record keeping upon persons subject to taxation under the provisions of this subchapter.

('65 Code, § 3-6.202) (Ord. 717, passed - - ; Am. Ord. 859, passed - - )

(A) (1) For the privilege of selling tangible personal property at retail, a tax is hereby imposed upon all retailers in the city at the rate 1% of the gross receipts of the retailer from the sale of all tangible personal property sold at retail in the city on and after the operative date of this subchapter.

(2) For the purposes of this subchapter, all retail sales are consummated at the place of business of the retailer unless the tangible personal property sold is delivered by the retailer or his agent to an out-of-state destination or to a common carrier for delivery to an out-of-state destination. The gross receipts from such sales shall include delivery charges, when such charges are subject to the state sales and use tax, regardless of the place to which delivery is made. In the event a retailer has no permanent place of business in the state or has more than one place of business, the place or places at which the retail sales are consummated shall be determined under rules and regulations to be prescribed and adopted by the State Board of Equalization.

(B) (1) Except as hereinafter provided, and except insofar as they are inconsistent with the provisions of Cal. Rev. & Tax. Code Division 2, Part 1.5, all of the provisions of Division 2, Part 1 of said code, as amended and in force and effect on April 1, 1956, applicable to sales taxes, are hereby adopted and made a part of this section as though fully set forth herein.

(2) Wherever, and to the extent that, in Cal. Rev. & Tax. Code Division 2, Part 1, the state is named or referred to as the taxing agency, the city shall be substituted therefor. Nothing in this division shall be deemed to require the substitution of the name of the city for the word “state” when that word is used as part of the title of the State Controller, the State Treasurer, the State Board of Control, the State Board of Equalization, or the name of the state treasury, or of the Constitution of the State of California; nor shall the name of the city be substituted for that of the state in any section when the results of that substitution would require action to be taken by or against the city, or any agency thereof, rather than by or against the State Board of Equalization, in performing the functions incident to the administration or operation of this subchapter; and neither shall the substitution be deemed to have been made in those sections, including, but not necessarily limited to, sections referring to the exterior boundaries of the state, where the result of the substitution would be to provide an exemption from this tax with respect to certain gross receipts which would not otherwise be exempt from this tax while those gross receipts remain subject to tax by the state under the provisions of Cal. Rev. & Tax. Code Division 2, Part. 1; nor to impose this tax with respect to certain gross receipts which would not be subject to tax by the state under the said provisions of that code; and, in addition, the name of the city shall not be substituted for that of the state in Cal. Rev. & Tax. Code §§ 6701, 6702 (except in the last sentence thereof), 6711, 6715, 6737, 6797 and 6828 as adopted.

(3) If a seller's permit has been issued to a retailer under Cal. Rev. & Tax. Code § 6067, an additional seller's permit shall not be required by reason of this section. (4) There shall be excluded from the gross receipts by which the tax is measured:

(a) The amount of any sales or use tax imposed by the state upon a retailer or consumer; and

(b) The gross receipts from the sale of tangible personal property to operators of aircraft to be used or consumed principally outside the city in which the sale is made and directly and exclusively in the use of such aircraft as common carriers of persons or property under the authority of the laws of the state, the United States, or any foreign government.

('65 Code, § 3-6.204) (Ord. 717, passed - - ; Am. Ord. 859, passed - - ; Am. Ord. 154-C.S., passed - - ; Am. Ord. 254-C.S., passed - - )

(A) An excise tax is hereby imposed on the storage, use or other consumption in the city of tangible personal property purchased from any retailer on or after the operative date of this subchapter for storage, use or other consumption in the city at the rate of 1% of the sales price of the property. The sales price shall include delivery charges when such charges are subject to state sales or use tax, regardless of the place to which delivery is made.

(B) (1) Except as hereinafter provided, and except insofar as they are inconsistent with the provisions of Cal. Rev. & Tax. Code Division 2, Part 1.5, all of the provisions of Division 2, Part 1 of said code, as amended and in force and effect on April 1, 1956, applicable to use taxes are hereby adopted and made a part of this section as though fully set forth in this section. (2) Wherever, and to the extent that, in Cal. Rev. & Tax. Code Division 2, Part 1, the state is named or referred to as the taxing agency, the city shall be substituted therefor. Nothing in this subdivision shall be deemed to require the substitution of the name of the city for the word “state” when that word is used as part of the title of the State Controller, the State Treasurer, the State Board of Control, the State Board of Equalization, the name of the state treasury, or the Constitution of the State; nor shall the name of the city be substituted for that of the state in any section when the result of that substitution would require action to be taken by or against the city, or any agency thereof, rather than by or against the State Board of Equalization, in performing the functions incident to the administration or operation of this subchapter; and neither shall the substitution be deemed to have been made in those sections, including, but not necessarily limited to, sections referring to the exterior boundaries of the state where the result of the substitution would be to provide an exemption from such tax with respect to certain storage, use, or other consumption of tangible personal property which would not otherwise be exempt from such tax while such storage, use, or other consumption remains subject to tax by the state under the provisions of Cal. Rev. and Tax. Code Division 2, Part 1, or to impose such tax with respect to certain storage, use, or other consumption of tangible personal property which would not be subject to tax by the state under the said provisions of the state code; and, in addition, the name of the city shall not be substituted for that of the state in Cal. Rev. & Tax. Code §§ 6701, 6702 (except in the last sentence thereof), 6711, 6715, 6737, 6797 and 6828 as adopted, and the name of the city shall not be substituted for the word “state” in the phrase “retailer engaged in business in this state” in Cal. Rev. and Tax. Code § 6203 nor in the definition of such phrase in § 6203.

(3) There shall be exempt from the tax due under this section:

(a) The amount of any sales or use tax imposed by the state upon a retailer or consumer;

(b) The storage, use, or other consumption of tangible personal property, the gross receipts from the sale of which have been subject to sales tax under a sales and use tax ordinance enacted in accordance with Cal. Rev. and Tax. Code Division 2, Part 1.5 by any city and county, county, or city in the state; (c) The storage or use of tangible personal property in transportation or transmission of persons, property, or communications, or in the generation, transmission, or distribution of electricity, or in the manufacture, transmission, or distribution of gas in intrastate, interstate, or foreign commerce by public utilities which are regulated by the Public Utilities Commission of the state; and

(d) The use or consumption of property purchased by operators of common carrier and waterborne vessels to be used or consumed in the operation of such common carriers or waterborne vessels principally outside the city.

(4) There shall be exempt from the tax due under this section:

(a) The amount of any sales or use tax imposed by the state upon a retailer or consumer;

(b) The storage, use, or other consumption of tangible personal property, the gross receipts from the sale of which have been subject to sales tax under a sales and use tax ordinance enacted in accordance with the provisions of Cal. Rev. & Tax. Code Division 2, Part 1.5 by any city and county, county, or city in the state; and

(c) In addition to the exemptions provided in Cal. Rev. & Tax. Code §§ 6366 and 6366.1, the storage, use, or other consumption of tangible personal property purchased by operators of aircraft and used or consumed by such operators directly and exclusively in the use of such aircraft as common carriers of persons or property for hire or compensation under a certificate of public convenience and necessity issued pursuant to the laws of the state, the United States, or any foreign government.

('65 Code, § 3-6.205) (Ord. 717, passed - - ; Am. Ord. 859, passed - - ; Am. Ord. 154-C.S., passed - - ; Am. Ord. 254-C.S., passed - - )

All amendments of the California Revenue and Taxation Code enacted subsequent to the effective date of this subchapter which relate to the sales and use tax and which are not inconsistent with Cal. Rev. & Tax. Code Division 2, Part 1.5 shall automatically become a part of this subchapter. ('65 Code, § 3-6.206) (Ord. 717, passed - - )

No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action, or proceeding in any court against the state or the city, or against any officer of the state or the city, to prevent or enjoin the collection under this subchapter, or Cal. Rev. & Tax. Code Division 2, Part 1.5, of any tax or any amount of tax required to be collected.

('65 Code, § 3-6.207) (Ord. 717, passed - - )

At the time this subchapter goes into operation, the provisions of Ordinance Nos. 576, 641, 708, and 731 shall be suspended and shall not again be of any force and effect until and unless for any reason the State Board of Equalization ceases to perform the functions incident to the administration and operation of the sales and use tax hereby imposed; provided, however, that if for any reason it is determined that the city is without power to adopt this subchapter, or that the State Board of Equalization is without power to perform the functions incident to the administration and operation of the taxes imposed by this subchapter, the provisions of Ordinance Nos. 576, 641, 708, and 731 shall not be deemed to have been suspended, but shall be deemed to have been in full force and effect at the rate of 1% continuously from and after April 1, 1956. Upon the ceasing of the State Board of Equalization to perform the functions incident to the administration and operation of the taxes imposed by this subchapter, the provisions of Ordinance Nos. 576, 641, 708 and 731 shall again be in full force and effect at the rate of 1%. Nothing in this subchapter shall be construed as relieving any person of the obligation to pay to the city any sales or use tax accrued and owing by reason of the provisions of Ordinance Nos. 576, 641, 708 and 731 in force and effect prior to and including March 31, 1956. ('65 Code, § 3-6.208) (Ord. 717, passed - - )

TRANSIENT OCCUPANCY TAX

This subchapter shall be known as the Uniform Transient Occupancy Tax Law of the city. ('65 Code, § 3-6.301) (Ord. 925, passed - - )

For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning. HOTEL. Any structure, or any portion of any structure, which is occupied, or intended or designed for occupancy, by transients for dwelling, lodging or sleeping purposes and shall include any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodging house, rooming house, apartment house, dormitory, public or private club, mobile home or house trailer at a fixed location, or other similar structure, or portion thereof.

OCCUPANCY. The use or possession, or the right to the use or possession, of any room, or portion thereof, in any hotel for dwelling, lodging, or sleeping purposes. OPERATOR. The person who is the proprietor of the hotel, whether in the capacity of owner, lessee, sublessee, mortgagee in possession, licensee or any other capacity. Where the operator performs his functions through a managing agent of any type or character other than an employee, the managing agent shall also be deemed an operator for the purposes of this subchapter and shall have the same duties and liabilities as his principal. Compliance with the provisions of this subchapter by either the principal or the managing agent, however, shall be considered to be compliance by both.

PERSON. Any individual, firm, partnership, joint venture, association, social club, fraternal organization, joint stock company, corporation, estate, trust, business trust, receiver, trustee, syndicate, or any other group or combination acting as a unit.

RENT. The consideration charged, whether or not received, for the occupancy of space in a hotel valued in money, whether to be received in money, goods, labor, or otherwise, including all receipts, cash, credits, property, and services of any kind or nature, without any deduction therefrom whatsoever.

TRANSIENT. Any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, or other agreement for a period of 30 consecutive calendar days or less, counting portions of calendar days as full days. Any such person so occupying space in a hotel shall be deemed to be a transient until the period of 30 days has expired, unless there is an agreement in writing between the operator and the occupant providing for a longer period of occupancy. In determining whether a person is a transient, uninterrupted periods of time extending both prior and subsequent to the effective date of the provisions of this subchapter may be considered. ('65 Code, § 3-6.302) (Ord. 925, passed - - )

For the privilege of occupancy in any hotel, each transient shall be subject to and shall pay a tax in the amount of 12% of the rent charged by the operator. Such tax shall constitute a debt owed by the transient to the city, which debt shall be extinguished only by payment to the operator or to the city. The transient shall pay the tax to the operator of the hotel at the time the rent is paid. If the rent is paid in installments, a proportionate share of the tax shall be paid with each installment. The unpaid tax shall be due upon the transient's ceasing to occupy space in the hotel. If for any reason the tax due is not paid to the operator of the hotel, the Finance Director may require that such tax be paid directly to him.

('65 Code, § 3-6.303) (Ord. 925, passed - - ; Am. Ord. 163-C.S., passed - - ; Am. Ord. 199-C.S., passed - - ; Am. Ord. 316-C.S., passed - - ; Am. Ord. 721, passed 9-16-25) Penalty, see § 10.99

• (A) No tax shall be imposed upon:

(1) Any person as to whom, or any occupancy as to which, it is beyond the power of the city to impose the tax provided for in this subchapter;

(2) Any federal or state officer or employee when on official business; and

(3) Any officer or employee of a foreign government, which officer or employee is exempt by reason of express provisions of federal laws or an international treaty.

(B) No exemption shall be granted except upon a claim therefor made at the time the rent is collected and under penalty of perjury upon a form prescribed by the Finance Director.

('65 Code, § 3-6.304) (Ord. 925, passed - - )

Each operator shall collect the tax imposed by the provisions of this subchapter to the same extent and at the same time as the rent is collected from every transient. The amount of tax shall be separately stated from the amount of the rent charged, and each transient shall receive a receipt for payment from the operator. No operator of a hotel shall advertise or state in any manner, whether directly or indirectly, that the tax, or any part thereof, will be assumed or absorbed by the operator, or that it will not be added to the rent, or that, if added, any part will be refunded, except in the manner provided in this subchapter.

('65 Code, § 3-6.305) (Ord. 925, passed - - ) Penalty, see § 10.99

Within 30 days after commencing business, each operator of any hotel renting an occupancy to transients shall register the hotel with the Finance Director and obtain from him a transient occupancy registration certificate which shall at all times be posted in a conspicuous place on the premises. The certificate, among other things, shall set forth the following information:

(A) The name of the operator;

(B) The address of the hotel;

(C) The date upon which the certificate was issued; and

(D) A statement as follows: “This transient occupancy registration certificate signifies that the person named on the face hereof has fulfilled the requirements of the Uniform Transient Occupancy Tax Law by registering with the Finance Director for the purpose of collecting from transients the transient occupancy tax and remitting such tax to the Finance Director. This certificate shall not authorize any person to conduct any unlawful business or to conduct any lawful business in an unlawful manner, nor to operate a hotel without strictly complying with all local applicable laws, including, but not limited to, those requiring a permit from any board, commission, department, or office of this city. This certificate shall not constitute a permit.

('65 Code, § 3-6.306) (Ord. 925, passed - - ) Penalty, see § 10.99

Each operator shall, on or before the last day of the month following the close of each calendar quarter, or at the close of any shorter reporting period which may be established by the Finance Director, make a return to the Finance Director, on forms provided by him, of the total rents charged and received and the amount of tax collected for transient occupancies. At the time the return is filed, the full amount of the tax collected shall be remitted to the Finance Director. The Finance Director may establish shorter reporting periods for any certificate holder if he deems it necessary in order to insure collection of the tax, and he may require further information in the return. Returns and payments shall be due immediately upon cessation of business for any reason. All taxes collected by operators pursuant to the provisions of this subchapter shall be held in trust for the account of the city until payment thereof is made to the Finance Director.

('65 Code, § 3-6.307) (Ord. 925, passed - - ) Penalty, see § 10.99

(A) Original delinquency. Any operator who shall fail to remit any tax imposed by the provisions of this subchapter within the time required shall pay a penalty in the amount of 10% of the tax in addition to the amount of the tax.

(B) Continued delinquency. Any operator who shall fail 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 in the amount of 10% of the tax in addition to the amount of the tax and the 10% penalty first imposed.

(C) Fraud. If the Finance Director shall determine that the nonpayment of any remittance due pursuant to the provisions of this subchapter is due to fraud, a penalty in the amount of 25% of the amount of the tax shall be added thereto in addition to the penalties set forth in divisions (A) and (B) of this section.

(D) Interest. In addition to the penalties imposed, any operator who shall fail to remit any tax imposed by the provisions of this subchapter shall pay interest at the rate of 0.05% 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.

(E) Penalties and interest merged with tax. Every penalty imposed, and such interest as accrues, pursuant to the provisions of this section shall become a part of the tax required to be paid by the provisions of this subchapter.

('65 Code, § 3-6.308) (Ord. 925, passed - - )

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

Finance Director shall determine the proper tax to be remitted and shall thereafter give written notice to the operator in the manner prescribed in this section of such determination and the amount of such tax, interest, and penalties. The amount determined to be due shall be payable after 15 days the service or mailing of such notice unless an appeal is filed as provided in § 35.064 of this subchapter.

('65 Code, § 3-6.309) (Ord. 925, passed - - )

Any operator aggrieved by any decision of the Finance Director with respect to the amount of such tax, interest, and penalties, if any, may appeal to the Council by filing a notice of appeal with the City Clerk within 10 days after the service or mailing of the determination of the tax due. The Council shall fix a time and place for hearing such appeal, and the City Clerk shall give notice in writing to such operator at his last known place of address. The decision of the Council shall be final and conclusive and shall be served upon the appellant in the manner prescribed in this subchapter for the service of a notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of notice.

('65 Code, § 3-6.310) (Ord. 925, passed - - )

It shall be the duty of every operator liable for the collection and payment to the city of any tax imposed by the provisions of this subchapter 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 payment to the city, which records the Finance Director shall have the right to inspect at all reasonable times.

('65 Code, § 3-6.311) (Ord. 925, passed - - ) Penalty, see § 10.99

Whenever the amount of any tax, interest, or penalty has been overpaid, or paid more than once, or erroneously or illegally collected or received by the city pursuant to the provisions of this subchapter, such amount may be refunded as provided in accordance with the procedure adopted in through 35.006 of the San Gabriel Municipal Code. The City Council authorizes the Finance Director to adopt administrative procedures allowing for staff processing and settlement of individual or operator transient occupancy tax refund claims, not exceeding $500.

('65 Code, § 3-6.312) (Ord. 925, passed - - ; Am. Ord. 516-C.S., passed 8-21-01)

Any tax required to be paid by any transient pursuant to the provisions of this subchapter shall be deemed a debt owed by the transient to the city. Any such tax collected by an operator which has not been paid to the city shall be deemed a debt owed by the operator to the city. Any person owing money to the city pursuant to the provisions of this subchapter shall be liable to an action brought in the name of the city for the recovery of such amount. ('65 Code, § 3-6.313) (Ord. 925, passed - - )

Any operator or other person who fails or refuses to register as required in this chapter, or to furnish any return required to be made, or who fails or refuses to furnish a supplemental return or other data required by the Finance Director, or who renders a false or fraudulent return or claim shall be guilty of a misdemeanor and punishable as set forth in § 10.99 of this code. Any person required to make, render, sign or verify any report or claim and who makes any false or fraudulent report or claim with intent to defeat or evade the determination of any amount due required by the provisions of this chapter to be made shall be guilty of a misdemeanor and punishable as provided in this section. ('65 Code, § 3-6.314) (Ord. 925, passed - - ) Penalty, see § 10.99

UTILITY USERS TAX

For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

ANCILLARY TELECOMMUNICATION SERVICES. The services that are associated with or incidental to the provision, use or enjoyment of telecommunications services, including, but not limited to, the following services. CONFERENCE BRIDGING SERVICE. An ancillary service that links two 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 telecommunications services used to reach the conference bridge. DETAILED TELECOMMUNICATIONS BILLING SERVICE. An ancillary service of separately stating information pertaining to individual calls on a customer’s billing statement. DIRECTORY ASSISTANCE. An ancillary service of providing telephone number information, and/or address information. VERTICAL SERVICE. An ancillary service that is offered in connection with one or more telecommunications services, which offers advanced calling features that allow customers to identify callers and to manage multiple calls and call connections, including conference bridging services. VOICE MAIL SERVICE. 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. BILLING ADDRESS. The mailing address of the service user where the service supplier submits invoices or bills for payment by the customer. CITY. The City of San Gabriel. EXEMPT WHOLESALE GENERATOR. The same meaning as set forth in the Federal Power Act (15 U.S.C. § 79z-5a) and the regulations thereunder. GAS. Natural or manufactured gas or any alternate hydrocarbon fuel, which may be substituted therefor. MOBILE TELECOMMUNICATIONS SERVICE. The meaning and usage as set forth in the Mobile Telecommunications Sourcing Act (4 U.S.C. § 124) and the regulations thereunder. MONTH. A calendar month.

NON-UTILITY SERVICE SUPPLIER.

(1) A service supplier, other than a supplier of electric distribution services to all or a significant portion of the city, which generates electricity for sale to others, and shall include, but is not limited to, any publicly-owned electric utility, investor-owned utility, cogenerator, distributed generation provider, exempt wholesale generator, municipal utility

district, federal power marketing agency, electric rural cooperative or other supplier or seller of electricity. (2) An electric service provider (ESP), electricity broker, marketer, aggregator, pool operator or other electricity supplier other than a supplier of electric distribution services to all or a significant portion of the city, which sells or supplies electricity or supplemental services to electricity users within the city. (3) A gas service supplier, aggregator, marketer or broker, other than a supplier of gas distribution services to all or a significant portion of the city, which sells or supplies gas or supplemental services to users within the city. PAGING. A telecommunications service that provides transmission of coded radio signals for the purpose of activating specific pagers; such transmissions may include messages and/or sounds. PERSON. 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. The street address representative of where the customer’s use of the communications service primarily occurs, which must be the residential street address or the primary business street address of the customer. POST-PAID TELECOMMUNICATION SERVICE. The 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, 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. 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. 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. 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 telecommunication or video equipment from which the communication originates or terminates, regardless of where the communication is billed or paid; (2) If the location in division (1) above is unknown (e.g., mobile telecommunications service or VOIP service), the service address shall mean the location of the service user’s place of primary use; or (3) For prepaid telecommunication service, SERVICE ADDRESS shall mean the location associated with the service number. SERVICE SUPPLIER. Any entity or person, including the city, that provides communication service to a user of such service within the city. SERVICE USER. A person required to pay a tax imposed under the provisions of this subchapter. STATE. The State of California. STREAMLINED SALES AND USE TAX AGREEMENT. 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. The Finance Director of the city or his or her designee. TELECOMMUNICATION SERVICE. 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 Communications 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; 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 Communications Commission); 900 service (or any other similar numbers designated by the Federal Communications Commission for services whereby subscribers who call in to pre-recorded or live service). VOIP (VOICE OVER INTERNET PROTOCOL). The digital process of making and receiving real-time voice transmissions over any internet protocol network. 800 SERVICE. A telecommunications service that allows a caller to dial a toll-free number without incurring a charge for the call. The service is typically marketed

services whereby subscribers who call in to pre-recorded or live service). VOIP (VOICE OVER INTERNET PROTOCOL). The digital process of making and receiving real-time voice transmissions over any internet protocol network. 800 SERVICE. A telecommunications service that allows a caller to dial a toll-free number without incurring a charge for the call. The service is typically marketed

services whereby subscribers who call in to pre-recorded or live service). VOIP (VOICE OVER INTERNET PROTOCOL). The digital process of making and receiving real-time voice transmissions over any internet protocol network. 800 SERVICE. A telecommunications service that allows a caller to dial a toll-free number without incurring a charge for the call. The service is typically marketed under the name “800”, “855”, “866”, “877” and “888” toll-free calling, and any subsequent numbers designated by the Federal Communications Commission. 900 SERVICE. An inbound toll telecommunications service purchased by a subscriber that allows the subscriber’s customers to call in to the subscriber’s pre-recorded announcement or live service. 900 SERVICE does not include the charge for: collection services provided by the seller of the telecommunications services to the subscriber, or service or product sold by the subscriber to the subscriber’s customer. The service is typically marketed under the name “900 service”, and any subsequent numbers designated by the Federal Communications Commission. (‘65 Code, §3-6.501) (Ord. 578, passed 11-4-08)

Cross-reference:

Public Works, see Title V

(A) There is hereby imposed a tax upon every person in the city using communication services including intrastate, interstate and international communication services. The tax imposed by this section shall be at the rate of 8% 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 subchapter. 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. “Communications services” does not include that portion of cable or video television services subject to a cable or video television fee.

(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, § 124). The Tax Administrator may issue and disseminate to communication service suppliers, which are subject to the tax collection requirements of this subchapter, sourcing rules for the

taxation of other communication services, including, but not limited to, post-paid communication services, prepaid communication services and private communication services, provided that such rules are based upon custom and common practice that further administrative efficiency and minimize multi-jurisdictional taxation (e.g., Streamline 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 subchapter, an administrative ruling identifying those communication services or charges therefor, that are subject to or not subject to the tax of division (A) above. (D) As used in this section, the term “telecommunication services” shall include, but are not limited to, charges for: connection, re-connection, termination, movement or change of telecommunication services; late payment fees; detailed billing; central office and custom calling features (including, but not limited to, call waiting, call forwarding, caller identification and three-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 music, ringtones, games and similar digital products.

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 music, ringtones, games and similar digital products.

(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. The amount of tax collected in one month shall be remitted to the Tax Administrator, and must be received by the Tax Administrator on or before the twentieth day of the following month. (‘65 Code, §3-6.502) (Ord. 578, passed 11-4-08)

(A) There is hereby imposed a tax upon every person using electricity in the city. The tax imposed by this section shall be at the rate of 8% of the charges made for such electricity, and for any supplemental services or other associated activities directly related to and/or necessary for the provision of electricity to the service user, which are provided by a service supplier or non-utility service supplier to a service user. The tax shall be collected from the service user by the service supplier or non-utility service supplier, or its billing agent.

(B) As used in this section, the term CHARGES shall apply to all services, components, and items that are: (i) necessary for or common to the receipt, use, or enjoyment of electric service; or (ii) currently, or historically have been, included in a single or bundled rate for electric service by a local distribution company to a class of retail customers. The term CHARGES shall include but is not limited to the following charges:

(1) Energy charges;

(2) Distribution or transmission charges;

(3) Metering charges;

(4) Stand-by, reserves, firming, ramping, voltage support, regulation, emergency, or other similar minimum charges for services;

(5) Customer charges, late charges, service establishment or reestablishment charges, demand charges, fuel or other cost adjustments, power exchange charges, independent system operator (ISO) charges, stranded investment or competitive transition charges (CTC), public purpose program charges, nuclear decommissioning charges, trust transfer amounts (bond financing charges), franchise fees, franchise surcharges, annual and monthly charges, and other charges, fees or surcharges which are necessary for or common to the receipt, use, or enjoyment of electric service; and,

(6) Charges, fees, or surcharges for electricity services or programs which are mandated by the California Public Utilities Commission or the Federal Energy Regulatory Commission, whether or not such charges, fees, or surcharges appear on a bundled or line item basis on the customer billing.

(C) 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 electricity or services related to the provision of such electricity.

(D) The Tax Administrator, from time to time, may survey the electric service suppliers to identify the various unbundled billing components of electric retail service that they commonly provide to residential and commercial/industrial customers in the city, and the charges therefor, including those items that are mandated by state or federal regulatory agencies as a condition of providing such electric service. The Tax Administrator, thereafter, may issue and disseminate to such electric service suppliers an administrative ruling identifying those components and items which are: (i) necessary for or common to the receipt, use, or enjoyment of electric service; or (ii) currently, or historically have been, included in a single or bundled rate for electric service by a local distribution company to a class of retail customers. Charges for such components and items shall be subject to the tax of division (A) above.

(E) As used in this section, the term USING ELECTRICITY shall not be construed to include the mere receiving of such electricity by an electric corporation or governmental agency at a point within the city for resale.

(F) The tax on electricity provided by self-production or by a non-utility service supplier not under the jurisdiction of this subchapter shall be collected and remitted in the manner set forth in § 35.085 of this subchapter. All other taxes on charges for electricity imposed in this section shall be collected from the service user by the electric service supplier or its billing agent. The amount of tax collected by a service supplier in one month shall be remitted to the Tax Administrator, and must be received by the Tax Administrator on or before the twentieth day of the following month; or, at the option of the person required to collect and/or remit the tax, such person shall remit an estimated amount of tax measured by the tax billed in the previous month or upon the payment pattern of the service user, which must be received by the Tax Administrator on or before the twentieth day of the following month, provided that such person shall submit an adjusted payment or request for credit, as appropriate, within 60 days following each calendar quarter. The credit, if approved by the Tax Administrator, may be applied against any subsequent remittance that becomes due. (‘65 Code, § 3-6.503) (Ord. 390-C.S., passed - - ; Am. Ord. Measure A, passed -- ; Am. Ord. 578, passed 11-4-08)

(A) There is hereby imposed a tax upon every person using gas in the city which is transported and delivered through a pipeline distribution system. The tax imposed by this section shall be at the rate of 8% of the charges made for such gas, including all services related to the storage, transportation, and delivery of such gas. The tax shall be collected from the service user by the service supplier or non-utility service supplier, or its billing agent.

(B) As used in this section, the term CHARGES shall apply to all services, components, and items for gas service that are: (i) necessary for or common to the receipt, use, or enjoyment of gas service; or (ii) currently, or historically have been, included in a single or bundled rate for gas service by a local distribution company to a class of retail customers. The term CHARGES shall include but is not limited to the following charges:

(1) The commodity charges for purchased gas, or the cost of gas owned by the service user (including the actual costs attributed to drilling, production, lifting, storage, gathering, trunkline, pipeline, and other operating costs associated with the production and delivery of such gas), which is delivered through a gas pipeline distribution system; (2) Gas transportation charges (including interstate charges to the extent not included in commodity charges);

(3) Storage charges; provided, however, that the service supplier shall not be required to apply the tax to any charges for gas storage services when the service supplier cannot, as a practical matter, determine the jurisdiction where such stored gas is ultimately used; but it shall be the obligation of the service user to self-collect the amount of tax not

applied to any charge for gas storage by the service supplier and to remit the tax to the appropriate jurisdiction;

(4) Capacity or demand charges, late charges, service establishment or reestablishment charges, transition charges, customer charges, minimum charges, annual and monthly charges, and any other charges which are necessary for or common to the receipt, use, or enjoyment of gas service; and,

• (5) Charges, fees, or surcharges for gas services or programs which are mandated by the California Public Utilities Commission or the Federal Energy Regulatory Commission, whether or not such charges, fees, or surcharges appear on a bundled or line item basis on the customer billing.

• (C) 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 gas or services related to the delivery of such gas.

(D) The Tax Administrator, from time to time, may survey the gas service suppliers to identify the various unbundled billing components of gas retail service that they commonly provide to residential and commercial/industrial customers in the city, and the charges therefor, including those items that are mandated by state or federal regulatory agencies as a condition of providing such gas service. The Tax Administrator, thereafter, may issue and disseminate to such gas service suppliers an administrative ruling identifying those components and items which are: (i) necessary for or common to the receipt, use, or enjoyment of gas service; or (ii) currently, or historically have been, included in a single or bundled rate for gas service by a local distribution company to a class of retail customers. Charges for such components and items shall be subject to the tax of division (A) above

• (E) There shall be excluded from the calculation of the tax imposed in this section:

• (1) Charges made for gas which is to be resold and delivered through a pipeline distribution system; and

• (2) Charges made for gas used in the propulsion of a motor vehicle, as that term is defined in the California Vehicle Code.

(F) The tax on gas provided by self-production or by a non-utility service supplier not under the jurisdiction of this subchapter shall be collected and remitted in the manner set forth in § 35.085 of this subchapter. All other taxes on charges for gas imposed in this section shall be collected from the service user by the gas service supplier or its billing agent. The amount of tax collected in one month shall be remitted to the Tax Administrator, and must be received by the Tax Administrator on or before the twentieth day of the following month; or, at the option of the person required to collect and/or remit the tax, such person shall remit an estimated amount of tax measured by the tax billed in the previous month or upon the payment pattern of the service user, which must be received by the Tax Administrator on or before the twentieth day of the following month, provided that such person shall submit an adjusted payment or request for credit, as appropriate, within 60 days following each calendar quarter. The credit, if approved by the Tax Administrator, may be applied against any subsequent remittance that becomes due.

(‘65 Code, § 3-6.504) (Ord. 390-C.S., passed - - ; Am. Ord. Measure A, passed -- ; Am. Ord. 578, passed 11-4-08)

(A) There is hereby imposed a tax upon every person using water in the city which is delivered through a pipeline distribution system. The tax imposed by this section shall be at the rate of 8% of the charges made for such water and shall be collected from the service user by the water service supplier, or its billing agent.

(B) As used in this section, the term CHARGES shall apply to all services, components, and items that are: (i) necessary for or common to the receipt, use, or enjoyment of water service; or (ii) currently, or historically have been, included in a single or bundled rate for water service by a local distribution company to a class of retail customers. The term CHARGES shall include but is not limited to the following charges:

• (1) Water commodity charges (potable and non-potable);

• (2) Distribution or transmission charges;

• (3) Metering charges;

(4) Customer charges, late charges, service establishment or reestablishment charges, franchise fees, franchise surcharges, annual and monthly charges, and other charges, fees and surcharges which are necessary for or common to the receipt, use, or enjoyment of water service; and,

(5) Charges, fees, or surcharges for water services or programs, which are mandated by a water district or a state or federal agency, whether or not such charges, fees, or surcharges appear on a bundled or line item basis on the customer billing.

(C) 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 water services.

(D) The Tax Administrator, from time to time, may survey the water service suppliers in the city to identify the various unbundled billing components of water retail service that they commonly provide to residential and commercial/industrial customers in the city, and the charges therefor, including those items that are mandated by a water district or a state or federal agency as a condition of providing such water service. The Tax Administrator, thereafter, may issue and disseminate to such water service suppliers an administrative ruling identifying those components and items which are: (i) necessary for or common to the receipt, use, or enjoyment of water service; or (ii) currently, or historically have been, included in a single or bundled rate for water service by a local distribution company to a class of retail customers. Charges for such components and items shall be subject to the tax of division (A) above.

(E) There shall be excluded from the base on which the tax imposed in this section is computed charges made for water which is to be resold and delivered through a pipeline distribution system.

(F) The tax imposed in this section shall be collected from the service user by the water service supplier or its billing agent. The amount collected in one month shall be remitted to the Tax Administrator and must be received by the Tax Administrator on or before the twentieth day of the following month.

(‘65 Code, § 3-6.505) (Ord. 390-C.S., passed - - ; Am. Ord. Measure A, passed -- ; Am. Ord. 578, passed 11-4-08)

(A) Any service user subject to the tax imposed by § 35.082 or by § 35.083 of this subchapter, which produces gas or electricity for self-use; which receives gas or electricity, including any related supplemental services, directly from a non-utility service supplier not under the jurisdiction of this subchapter; or which, for any other reason, is not having the full tax collected and remitted by its service supplier, a non-utility service supplier, or its billing agent on the use of gas or electricity in the city, including any related supplemental services, shall report said fact to the Tax Administrator and shall remit the tax due directly to the Tax Administrator within 30 days of such use. In lieu of paying said actual tax, the service user may, at its option, remit to the Tax Administrator within 30 days of such use an estimated amount of tax measured by the tax billed in the previous month, or upon the payment pattern of similar customers of the service supplier using similar amounts of gas or electricity, provided that the service user shall submit an adjusted payment or request for credit, as appropriate, within 60 days following each calendar quarter. The credit, if approved by the Tax Administrator, may be applied against any subsequent tax bill that becomes due.

(B) The Tax Administrator may require the service user to identify its non-utility service supplier and provide, subject to audit: invoices; books of account; or other satisfactory evidence documenting the quantity of gas or electricity used, including any related supplemental services, and the cost or price thereof. If the service user is unable to provide such satisfactory evidence, or, if the administrative cost of calculating the tax in the opinion of the Tax Administrator is excessive, the Tax Administrator may determine the tax by applying the tax rate to the equivalent charges the service user would have incurred if the gas or electricity used, including any related supplemental services, had been provided by the service supplier that is the primary supplier of gas or electricity within the city. Rate schedules for this purpose shall be available from the city.

(‘65 Code, § 3-6.506) (Ord. 390-C.S., passed - - ; Am. Ord. Measure A, passed - - ) Penalty, see § 10.99

If any non-taxable 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. The service supplier has the burden of proving the proper apportionment of taxable and non-taxable charges. If the service supplier offers a combination of taxable and non-taxable services, and the charges are separately stated, then for taxation purposes, the values assigned the taxable and non-taxable services shall be based on its 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. The service supplier has the burden of proving the proper valuation of the taxable and non-taxable services. (Ord. 578, passed 11-4-08)

For purposes of imposing a tax or establishing a duty to collect and remit a tax under this subchapter, “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 communication 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 subchapter. 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 with 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 services that are subject to a tax under this subchapter.

(Ord. 578, passed 11-4-08)

(A) The City Council, by resolution, may grant a temporary utility users tax rebate to any class of service users for the purpose of easing the tax burden on such customer class, which is due to an unusually large increase in the service charges for a particular utility industry subject to the utility users tax. The City Council may rebate an appropriate percentage of the tax prospectively for a period of no more than 12 months. If applicable, the Tax Administrator shall implement the temporary tax rebate by giving 60 day written notice to all affected service suppliers as required by Cal. Pub. Util. Code § 799.

• (B) The City Council shall consider the following factors in determining whether to grant a temporary tax rebate under this section:

• (1) The amount of the increase in the average billing for the utility service for which a rebate is being considered;

• (2) The severity of the burden that the increased billing and associated tax imposes on the customer class for which a rebate is being considered;

• (3) The increased expense to the city as a utility customer, which occurs as a result of the increase in the cost of such utility service;

• (4) The estimated time period that the billing increase will likely persist;

• (5) The forecasted and historical increases or decreases in the other sources of utility users tax;

• (6) The forecasted and historical increases or decreases in municipal tax revenues other than the utility users tax;

• (7) The overall inflation rate during relevant time periods, as measured by the Consumer Price Index (CPI);

• (8) The cost of administering the rebate; and,

• (9) Any other factor that affects the fairness or equity of granting such a temporary rebate.

• (C) In a resolution granting a temporary tax rebate, the City Council shall make the following findings:

• (1) The temporary tax rebate is necessary to abate a significantly increased tax burden on a class of service users; and,

(2) The temporary tax rebate shall not adversely affect the city’s ability to meet its financial obligations as contemplated in its current budget.

(D) Nothing herein shall prohibit the City Council from granting consecutive temporary rebates, provided that the City Council reconsiders the factors enumerated in division (B), above, for each subsequent temporary rebate, and makes appropriate findings for each resolution. As stated in Cal. Gov’t Code § 9611, the enactment of a temporary tax rebate by the City Council shall not constitute a repeal of one or more of the original provisions of this subchapter. Upon the expiration of the time of the temporary tax rebate, the original provisions of this subchapter shall have the same force and effect as if the temporary tax rebate had not been enacted. Nothing herein is intended to constitute a decrease in a tax, or an increase in a tax requiring an election approval under California Constitution Article XIIIC; and to the extent that any aspect of a temporary tax rebate resolution is found to invoke such a requirement, the entire temporary rebate resolution shall be deemed null and void ab initio , and there shall be no entitlement to a rebate for any service user. (Ord. Measure A, passed - - )

(A) Taxes collected from a service user, or owed by a service user subject to § 35.085 of this subchapter are delinquent if not received by the Tax Administrator on or before the due date. Should the due date occur on a weekend or legal holiday, the return must be received by the Tax Administrator on or before the first regular working day following the weekend or legal holiday. A direct deposit, including electronic fund transfers and other similar methods of electronically exchanging monies between financial accounts, made by a service supplier in satisfaction of its obligations under this division shall be considered timely if the transfer is initiated on or before the due date, and the transfer settles into the city’s account on or before the following business day.

(B) If the person required to collect and/or remit the utility users tax fails to collect the tax (by failing to properly assess the tax on one or more services or charges on the customer’s billing) or fails to remit the tax collected on or before the due date, or, in the case of a service user that fails to properly self-collect and remit the tax on or before the due date under § 35.085 of this subchapter, the Tax Administrator shall attach a penalty for such delinquencies or deficiencies at the rate of 15% of the total tax that is delinquent or deficient in the remittance. Notwithstanding the foregoing, a person required to collect and/or remit the utility users tax shall not be subject to the 15% penalty and interest for an “improper assessment” if such “improper assessment” is voluntarily disclosed to the Tax Administrator, or its agent, and promptly corrected thereafter by such person, whether the disclosure occurs in the course of a Tax Administrator survey under §§ 35.081(C), 35.082(D), 35.083(D), and 35.084(D) or the disclosure is voluntarily initiated by such person.

For purposes of this division, the term VOLUNTARILY DISCLOSED shall mean information freely offered by a service supplier to the city for the purpose of increasing the accuracy of the service supplier’s tax collection and/or remittances before the issue has been raised or an inquiry has been initiated by the city or any other California municipality. (C) The Tax Administrator shall have the power to impose additional penalties upon persons required to collect and/or remit taxes pursuant to the provisions of this subchapter for fraud or gross negligence in reporting or remitting at the rate of 15% of the amount of the tax collected and/or required to be remitted, or as recomputed by the Tax Administrator.

r any other California municipality. (C) The Tax Administrator shall have the power to impose additional penalties upon persons required to collect and/or remit taxes pursuant to the provisions of this subchapter for fraud or gross negligence in reporting or remitting at the rate of 15% of the amount of the tax collected and/or required to be remitted, or as recomputed by the Tax Administrator.

(D) In addition to any other penalties imposed by this subchapter, any person required to collect and/or remit any tax imposed by the provisions of this subchapter who fails to collect the tax (by failing to properly assess the tax on one or more services or charges on the customer’s billing) or fails to remit the tax collected on or before the due date, or, in the case of a service user that fails to properly self-collect and remit the tax under § 35.085 of this subchapter on or before the due date, shall pay interest at the rate of 3/4 of 1% 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) The interest accrued under the provision of this section shall become a part of the tax required to be paid. (‘65 Code, § 3-6.507) (Ord. 390-C.S., passed - - ; Am. Ord. Measure A, passed - - )

Any tax required to be paid by a service user under the provisions of this subchapter 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 Tax Administrator shall be deemed a debt owed to the city by the person required to collect and remit and shall no longer be a debt of the service user. Any person owing money to the city under the provisions of this subchapter shall be liable to an action brought in the name of the city for the recovery of such amount, including penalties and interest as provided for in this subchapter, along with any collection costs incurred by the city as a result of the person’s noncompliance with this subchapter, including, but not limited to, reasonable attorneys fees.

(‘65 Code, §3-6.508) (Ord. 390-C.S., passed - - ; Am. Ord. Measure A, passed --)

The duty of service suppliers to collect and remit the taxes imposed by this subchapter 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, a proportionate share of both the charge and the tax shall be deemed to have been paid. In those cases where a service user has notified the service supplier of his or her refusal to pay the tax imposed on the energy charges, § 35.093(B) will apply.

(B) The duty of a service supplier 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 subchapter. 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.

(‘65 Code, § 3-6.509) (Ord. 390-C.S., passed - - ; Am. Ord. Measure A, passed - - )

Each person required by this subchapter to remit a tax shall file a return with the Tax Administrator on forms approved by the Tax Administrator on or before the due date. The full amount of the tax owed shall be included with the return and filed with the Tax Administrator. The Tax Administrator is authorized to require such additional information as he or she deems necessary to determine if the tax is being levied, collected and remitted in accordance with this subchapter. Returns are due immediately upon cessation of business for any reason. Pursuant to Cal. Rev. & Tax. Code § 7284.6, the Tax Administrator, and its agents, shall maintain such filing returns as confidential information, and not subject to the Public Records Act.

(Ord. Measure A, passed - - )

(A) The Tax Administrator shall have the power and duty to enforce each and all of the provisions of this subchapter.

(B) The Tax Administrator may adopt administrative rules and regulations consistent with provisions of this subchapter for the purpose of interpreting, clarifying, carrying out and enforcing the payment, collection and remittance of the taxes herein imposed. The administrative ruling shall not impose a new tax, revise an existing tax methodology as stated in this section or increase an existing tax, except as allowed by Cal. Gov’t Code § 53750(h)(2). 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 subchapter 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 Cal. Gov’t Code § 53750 or otherwise. The Tax Administrator is not authorized to amend the city’s methodology for purposes of Cal. Gov’t Code § 53750 and the city does not waive or abrogate its ability to impose the communication 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 subchapter and thereby: (1) Conform to the billing procedures of a particular service supplier so long as the agreements result in the collection of the tax in conformance with the general purpose and scope of this subchapter; 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 subchapter, of any person required to collect and/or remit a tax pursuant to this subchapter. The Tax Administrator shall notify the 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 three years next preceding the date of receipt of the written notice by the person from the Tax Administrator. Upon completion of the audit, the Tax Administrator may make a deficiency determination pursuant to this subchapter 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 the person is unable or unwilling to provide sufficient records to enable the Tax Administrator to verify compliance with this subchapter, the Tax Administrator is authorized to make a reasonable estimate of the deficiency. The 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 subchapter 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 the 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 subchapter.

(G) Notwithstanding any provision in this subchapter 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 subchapter if the non-collection occurred in good faith. In determining whether the non-collection was in good faith, the Tax Administrator shall take into consideration industry practice or other precedence.

(‘65 Code, §3-6.510) (Ord. 578, passed 11-4-08)

(A) Whenever the Tax Administrator determines that a service user has deliberately withheld the amount of the tax owed by the service user from the amounts remitted to a service supplier required to collect the tax, that a service user has failed to pay the amount of tax for a period of two or more billing periods, or whenever the Tax Administrator deems it in the best interest of the city, the Tax Administrator may relieve such person of the obligation to collect taxes due under this subchapter from certain named service users for specified billing periods. The service supplier shall provide the city with the names and addresses of such service users and the amounts of taxes owed under the provisions of this subchapter.

(B) 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 the 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 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 or her address, to his or her last known address. (C) If a service user fails to remit the tax to the Tax Administrator within 15 days from the date of the service of the notice upon him or her, which shall be the date of mailing if service is not accomplished in person, the Tax Administrator may assess the delinquent service user for the required tax pursuant to § 35.094 of this subchapter. (‘65 Code, § 3-6.511) (Ord. 390-C.S., passed - - ; Am. Ord. Measure A, passed - - )

The Tax Administrator may make an assessment for taxes not paid or remitted by a person required to pay or remit. The Tax Administrator shall mail a notice of such assessment, which shall refer briefly to the amount of 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 days prior to the date of the hearing and shall post such notice for at least five continuous days prior to the date of the hearing. A penalty of 25% of the amount of the tax set forth in the notice shall be imposed, along with interest at the rate of 3/4 of 1% 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, but not less than $5. Any interested party having any objections may appear and be heard at the hearing provided his or her objection is filed in writing with the Tax Administrator, within 14 calendar days of the date of the notice. At the time fixed for considering such assessment, the Tax Administrator shall hear the same, together with any objections filed as provided in this section, and thereupon may confirm or modify such assessment. (Ord. Measure A, passed --)

(A) It shall be the duty of every person required to collect and/or remit to the city any tax imposed by this subchapter to keep and preserve, for a period of at least three years, all records as may be necessary to determine the amount of such tax as he or 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 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 subchapter, 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 Cal. Rev. & Tax. Code §§ 7284.6 and 7284.7. The Tax Administrator may request from a person providing transportation or distribution services of gas or electricity to service users within the city, a list of the names, billing and service addresses, quantities of gas or electricity delivered, and other pertinent information, of its transportation customers within the city pursuant to Cal. Pub. Util. Code § 6354(e). (D) If a service supplier uses a billing agent or billing aggregator to bill, collect, and/or remit the tax, the service supplier shall: (i) 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 (ii) 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.

vice supplier to bill, collect, and/or remit the tax to the city; and (ii) 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 record-keeping under this section unreasonably denies the Tax Administrator, or the Tax Administrator’s designated representative, access to such records, or fails to produce the information requested in an administrative subpoena within the time specified, the Tax Administrator may impose a penalty of $500 on such person for each day following: (i) the initial date that the person refuses to provide such access; or (ii) the due date for production of records as set forth in the administrative subpoena. This penalty shall be in addition to any other penalty imposed under this subchapter.

(‘65 Code, § 3-6.512) (Ord. 390-C.S., passed - - ; Am. Ord. Measure A, passed --) Penalty, see § 10.99

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

(B) The Tax Administrator may refund any tax that has been overpaid, paid more than once, or has been erroneously or illegally collected or received by the Tax Administrator under this subchapter, 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, under penalty of perjury, 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 refund claim on behalf of a class or group of taxpayers. Where the amount of any individual refund claim is in excess of $15,000, City Council approval shall be required.

(C) It is the intent of the city that the one year written claim requirement of this section be given retroactive effect, provided, however, that any claims which arose prior to the enactment of the one year claims period of this section, and which are not otherwise barred by a then-applicable statute of limitations or claims procedure, must be filed with the Tax Administrator as provided in this division within 90 days following the effective date of this ordinance.

(D) The Tax Administrator, or the City Council where the claim is in excess of $15,000, shall act upon the refund claim within 45 days of the initial receipt of the refund claim. Said decision shall be final. If the Tax 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 Tax 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 Cal. Gov’t Code § 913. (E) The filing of a written claim is a prerequisite to any suit thereon. Any action brought against the city pursuant to this section shall be subject to the provisions of Cal. Gov’t Code §§ 945.6 and 946. (F) Notwithstanding other provisions of this section, whenever a service supplier, pursuant to an order of the California Public Utilities Commission, makes a refund to service users of charges for past utility services, the taxes paid pursuant to this subchapter 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 returns. In the event this subchapter is repealed, the amounts of any refundable taxes will be borne by the city.

tility services, the taxes paid pursuant to this subchapter 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 returns. In the event this subchapter is repealed, the amounts of any refundable taxes will be borne by the city.

(G) Notwithstanding divisions (B) and (C) above, a service supplier shall be entitled to take any overpayment as a credit against an underpayment whenever such overpayment has been received by the city within the three years next preceding a notice of tax deficiency or assessment by the Tax Administrator, or during any year for which the service supplier, at the request of the Tax Administrator, has executed a waiver of the defense of the statute of limitations with regard to any claim the city may have for a utility users tax. A service supplier shall not be entitled to said credit unless it clearly establishes the right to the credit by written records showing entitlement thereto. Under no circumstances shall an overpayment taken as a credit against an underpayment pursuant to this division qualify a service supplier for a refund to which it would not otherwise be entitled under the one-year written claim requirement of this section.

(‘65 Code, § 3-6.513) (Ord. 390-C.S., passed - - ; Am. Ord. 516-C.S., passed 8-21-01; Am. Ord. Measure A, passed - - )

(A) The provisions of this section apply to any assessment, decision or administrative ruling of the Tax Administrator, other than a decision relating to a refund pursuant to § 35.096 of this subchapter. Any person aggrieved by any assessment, decision or administrative ruling of the Tax Administrator, other than a decision relating to a refund, shall be required to comply with the appeals procedure of this section. Compliance with this section shall be a prerequisite to a suit thereon. [See Cal. Gov’t Code § 935(b).] Nothing herein shall permit the filing of a claim or action on behalf of a class or group of taxpayers.

(B) If any person is aggrieved by any assessment, decision or administrative ruling of the Tax Administrator, other than a decision relating to a refund; or with the failure of the Tax Administrator to grant an exemption as provided for under this subchapter; he or she may appeal to the City Manager by filing a notice of appeal with the City Clerk within 14 days of the date of the assessment, decision or administrative ruling of the Tax Administrator which aggrieved the service user or service supplier.

(C) The matter shall be set for hearing no more than 30 days from the receipt of the appeal. The appellant shall be served with notice of the time and place of the hearing, as well as any relevant materials, at least five calendar days prior to the hearing. The hearing may be continued from time to time upon mutual consent. At the time of the hearing, the appealing party, the Tax Administrator, the City Manager, and any other interested person may present such relevant evidence as he or she may have relating to the determination from which the appeal is taken.

(D) Based upon the submission of such evidence and the review of the city’s files, the City Manager shall issue a written notice and order upholding, modifying or reversing the determination from which the appeal is taken. The notice shall be given within 14 days after the conclusion of the hearing and shall state the reasons for the decision. The notice shall specify that the decision is final and that any petition for judicial review shall be filed within 90 days from the date of the decision in accordance with Cal. Civ. Proc. Code § 1094.6. If the City Manager fails or refuses to act on a refund claim within the 14 day period, the claim shall be deemed to have been rejected by the City Manager on the fourteenth day.

(E) No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action, or proceeding in any court against this city or against any officer of the city to prevent or enjoin the collection under this subchapter of any tax or any amount of tax required to be collected and/or remitted. (Ord. Measure A, passed - - ; Am. Ord. 627-C.S., passed 9-6-16)

(A) Nothing in this subchapter shall be construed as imposing a tax upon:

(1) Any person or service when the imposition of such tax upon that person or service would be in violation of the Constitution or the laws of the United States or of the State of California;

(2) The city; and,

(3) Any state or federal government entity, including public school districts.

(B) Any service user that is exempt from the tax imposed by this subchapter pursuant to division (A) shall file an application with the Tax Administrator for an exemption; provided, however, this requirement shall not apply to a service user that is a state or federal agency or subdivision with a commonly recognized name. Said application shall be made upon a form approved by the Tax Administrator and shall state those facts, declared under penalty of perjury, which qualify the applicant for an exemption, and shall include the names of all utility service suppliers serving that service user. If deemed exempt by the Tax Administrator, such service user shall give the Tax Administrator timely written notice of any change in utility service suppliers so that the Tax Administrator can properly notify the new utility service supplier of the service user’s tax exempt status. A service user that fails to comply with this section shall not be entitled to a refund of utility users taxes collected and remitted to the Tax Administrator from such service user as a result of such non-compliance. Upon request of the Tax Administrator, a service supplier or non-utility service supplier, or its billing agent, shall provide a list of the names and addresses of those customers which, according to its billing records, are deemed exempt from the utility users tax. A telephone communication services supplier shall provide a copy of the federal exemption certificate for each exempt customer within the city that is served by such service supplier upon request of the Tax Administrator.

(C) The decision of the Tax Administrator may be appealed pursuant to § 35.097 of this subchapter. Filing an application with the Tax Administrator and appeal to the City Manager pursuant to § 35.097 of this subchapter is a prerequisite to a suit thereon.

(‘65 Code, § 3-6.514) (Ord. 390-C.S., passed - - ; Am. Ord. Measure A, passed - - ; Am. Ord. 627-C.S., passed 9-6-16)

(A) Any service user shall be eligible for an exemption from the taxes imposed by this subchapter if the service user qualifies for either the California Alternate Rates for Energy (CARE) Programs of The Southern California Gas Company or Southern California Edison Company, or qualifies for the Lifeline Rate Program of Pacific Bell. Proof of such eligibility shall be submitted by the service user to the Tax Administrator, pursuant to administrative procedures promulgated by the Tax Administrator. (B) The Tax Administrator shall maintain a list of all service users exempt from the utility users tax, according to the provisions of division (A) of this section. The Tax Administrator shall advise all of the service providers required to collect and remit this tax of the names and service addresses of exempt service users. (C) An exemption shall automatically terminate with any change in the service address or residence of the exempt service user, or assignment of a different account number by the service supplier because of discontinuance or suspension of service at the request of the service user; and provided further, that such individual may nevertheless apply for a new exemption with each change of address or residence.

(D) Any service user who has been exempted under this section shall notify the Tax Administrator within ten days of any change in fact or circumstance which might disqualify said individual from receiving such exemption. It shall be a misdemeanor for any person to knowingly receive the benefits of the exemption provided by this section when the basis for such exemption does not exist or ceases to exist.

(E) Any service supplier, who determines by any means that a non-exempt service user is receiving service through a meter or connection exempt by virtue of an exemption issued to a previous user or exempt user of the same meter or connection, shall immediately notify the Tax Administrator of such fact, and the Tax Administrator shall conduct an investigation to ascertain whether or not the provisions of this section have been complied with, and, where appropriate, order the service supplier to commence collecting the tax from the service user.

(‘65 Code, § 3-6.515) (Ord. 390-C.S., passed - - ; Am. Ord. Measure A, passed - - ) Penalty, see § 10.99

All remedies and penalties prescribed by this subchapter or which are available under any other provision of law or equity, including but not limited to the California False Claims Act (Cal. Gov’t Code §§ 12650 et seq .), are cumulative. The use of one or more remedies by the city shall not bar the use of any other remedy for the purpose of enforcing the provisions of this subchapter.

(Ord. Measure A, passed - - )

If a tax under this subchapter is added, repealed, increased, reduced, or the tax base is changed, the Tax Administrator shall follow the notice requirements of Cal. Pub. Util. Code § 799. Prior to the effective date of the ordinance change, the service supplier shall provide the Tax Administrator with a copy of any written procedures describing the information that the service supplier needs to implement the ordinance change. If the service supplier fails to provide such written instructions, the Tax Administrator, or his or her agent, shall send, by first class mail, a copy of the ordinance change to all collectors and remitters of the city’s utility users taxes according to the latest payment records of the Tax Administrator.

(Ord. Measure A, passed - - )

The service supplier shall, upon notification, terminate or suspend any utility users tax commencing with the first full billing period which occurs after the effective date of such action by the City Council.

(‘65 Code, § 3-6.517) (Ord. 390-C.S., passed - - ; Am. Ord. Measure A, passed - - )

The utility users tax shall be reviewed annually by the City Council which may adjust the rate, temporarily suspend the tax, temporarily grant a rebate pursuant to § 35.087, or repeal the tax as appropriate to the financial condition of the city.

(‘65 Code, § 3-6.519) (Ord. 390-C.S., passed - - ; Am. Ord. Measure A, passed - - )

Nothing contained in this subchapter 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. (‘65 Code, § 3-6.520) (Ord. 390-C.S., passed - - ; Am. Ord. Measure A, passed - - )

The City Council may, by order or resolution, establish one or more classes of persons or one or more classes of energy, products, or services otherwise subject to payment of a tax imposed by this subchapter and provide that such person(s) or service(s) shall be exempt, in whole or in part, from such tax. The City Council is further authorized to make any amendments to this subchapter, as adopted by the voters, without a vote of the people; provided however, that it shall not impose a new tax, revise an existing tax methodology, or increase an existing tax without first complying with all relevant constitutional and statutory provisions. (Ord. Measure A, passed - -)

Unless specifically provided otherwise, any reference to a state or federal statute in this subchapter 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 communication 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. To the extent that the city’s authorization to collect or impose any tax imposed under this subchapter is expanded or limited as a result of changes in state or federal law, no amendment or modification of this subchapter 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 subchapter.

(Ord. 578, passed 11-4-08)

(A) Collection of tax by service providers. Service providers shall begin to collect the tax imposed by this subchapter as soon as feasible after the effective date of the subchapter, but in no event later than permitted by Cal. Pub. Util. Code § 799.

(B) Judicial determinations. In the event that a final court order should determine that the election enacting the amendments to this subchapter is invalid for whatever reason, or that any tax imposed under this amended subchapter is invalid in whole or in part, then the tax imposed under this subchapter prior to its amendment as provided herein, shall automatically continue to apply with respect to any service for which the tax levied pursuant to this subchapter has been determined to be invalid. Such automatic continuation shall be effective beginning as of the first date of service (or billing date) for which the tax imposed by this subchapter is not valid. However, in the event of an invalidation, any tax (other than a tax that is ordered refunded by the court or is otherwise refunded by the city) paid by a person with respect to a service and calculated pursuant to this subchapter shall be deemed to satisfy the tax imposed under this subchapter prior to its amendment as provided herein, so long as the tax is paid with respect to a service provided no later than six months subsequent to the date on which the final court order is published.

(Ord. 578, passed 11-4-08)

TRANSACTIONS AND USE TAX

This subchapter shall be known as the “City of San Gabriel Transactions and Use Tax Ordinance of 2020.” The City of San Gabriel hereinafter shall be called “city.” This subchapter shall be applicable in the incorporated territory of the city.

(Ord. 667, passed 3-3-20)

OPERATIVE DATE means the first day of the first calendar quarter commencing more than 110 days after the adoption of this subchapter, the date of such adoption being as set forth below. The transactions and use tax established and codified hereunder shall have an indefinite term. The foregoing notwithstanding, the transactions and use tax established hereunder may be later terminated by the voters of the City of San Gabriel by means of a ballot measure to repeal the same at a future general or special municipal election of the city.

(Ord. 667, passed 3-3-20)

This subchapter is adopted to achieve the following, among other purposes, and directs that the provisions hereof be interpreted in order to accomplish those purposes: (A) To impose a retail transactions and use tax in accordance with the provisions of Part 1.6 (commencing with § 7251) of Division 2 and § 7285.9 of Part 1.7 of Division 2 of the Cal. Rev. & Tax. Code, authorizing the city to adopt this subchapter, which shall be operative if a majority of the electors voting on the measure vote to approve the imposition of the tax at an election called for that purpose;

(B) To adopt a retail transactions and use tax ordinance that incorporates provisions identical to those of the Sales and Use Tax Law of the State of California insofar as those provisions are not inconsistent with the requirements and limitations contained in Part 1.6 of Division 2 of the Cal. Rev. & Tax. Code;

(C) To adopt a retail transactions and use tax ordinance that imposes a tax and provides a measure therefor that can be administered and collected by the California Department of Tax and Fee Administration in a manner that adapts itself as fully as practicable to, and requires the least possible deviation from, the existing statutory and administrative procedures followed by the California Department of Tax and Fee Administration in administering and collecting the California State Sales and Use Taxes;

(D) To adopt a retail transactions and use tax ordinance that can be administered in a manner that will be, to the greatest degree possible, consistent with the provisions of Part

1.6 of Division 2 of the Cal. Rev. & Tax. Code, minimize the cost of collecting the transactions and use taxes, and at the same time, minimize the burden of record keeping upon persons subject to taxation under the provisions of this subchapter;

(E) The revenues generated by the transactions and use tax imposed under this subchapter may be used for any lawful governmental purpose of the city, as authorized by ordinance, resolution or action of the City Council or by ordinance adopted by the electorate of the city. The transactions and use tax established under this subchapter does not meet the criteria established by California Constitution Article IIIC, Section 1(d) for special taxes and said tax is instead a general tax within the meaning of California Constitution Article IIIC, Section 1(a) whose revenues may be used for any unrestricted general revenue purpose;

(F) Transactions and use tax revenues collected by the city shall be deposited in the city’s general fund which is subject to the city’s annual financial audit conducted by the city’s third-party auditor.

(Ord. 667, passed 3-3-20)

Prior to the operative date, the city shall contract with the California Department of Tax and Fee Administration to perform all functions incident to the administration and operation of this transactions and use tax ordinance; provided, that if the city shall not have contracted with the California Department of Tax and Fee Administration prior to the operative date, it shall nevertheless so contract and in such a case the operative date shall be the first day of the first calendar quarter following the execution of such a contract. (Ord. 667, passed 3-3-20)

For the privilege of selling tangible personal property at retail, a tax is hereby imposed upon all retailers in the incorporated territory of the city at the rate of 0.75% of the gross receipts of any retailer from the sale of all tangible personal property sold at retail in said territory on and after the operative date of this subchapter. (Ord. 667, passed 3-3-20)

For the purposes of this subchapter, all retail sales are consummated at the place of business of the retailer unless the tangible personal property sold is delivered by the retailer or his or her agent to an out-of-state destination or to a common carrier for delivery to an out-of-state destination. The gross receipts from such sales shall include delivery charges, when such charges are subject to the state sales and use tax, regardless of the place to which delivery is made. In the event a retailer has no permanent place of business in the state or has more than one place of business, the place or places at which the retail sales are consummated shall be determined under rules and regulations to be prescribed and adopted by the California Department of Tax and Fee Administration.

(Ord. 667, passed 3-3-20)

An excise tax is hereby imposed on the storage, use or other consumption in the city of tangible personal property purchased from any retailer on and after the operative date of this subchapter for storage, use or other consumption in said territory at the rate of 0.75% of the sales price of the property. The sales price shall include delivery charges when such charges are subject to state sales or use tax regardless of the place to which delivery is made. (Ord. 667, passed 3-3-20)

Except as otherwise provided in this subchapter and except insofar as they are inconsistent with the provisions of Part 1.6 of Division 2 of the Cal. Rev. & Tax. Code, all of the provisions of Part 1 (commencing with § 6001) of Division 2 of the Cal. Rev. & Tax. Code are hereby adopted and made a part of this subchapter as though fully set forth herein. (Ord. 667, passed 3-3-20)

In adopting the provisions of Part 1 of Division 2 of the Cal. Rev. & Tax. Code:

(A) Wherever the State of California is named or referred to as the taxing agency the name of the city shall be substituted therefor. However, the substitution shall not be made:

(1) When the word “state” is used as a part of the title of the State Controller, State Treasurer, State Treasury, or the Constitution of the State of California;

(2) When the result of that substitution would require action to be taken by or against this city or any agency, officer, or employee thereof rather than by or against the California Department of Tax and Fee Administration, in performing the functions incident to the administration or operation of this subchapter;

(3) In those sections, including, but not necessarily limited to sections referring to the exterior boundaries of the State of California, where the result of the substitution would be: (a) To provide an exemption from this tax with respect to certain sales, storage, use or other consumption of tangible personal property which would not otherwise be exempt from this tax while such sales, storage, use or other consumption remain subject to tax by the state under the provisions of Part 1 of Division 2 of the Cal. Rev. & Tax. Code; or (b) To impose this tax with respect to certain sales, storage, use or other consumption of tangible personal property which would not be subject to tax by the state under the said provision of that code.

(4) In §§ 6701, 6702 (except in the last sentence thereof), 6711, 6715, 6737, 6797 or 6828 of the Cal. Rev. & Tax. Code.

(B) (1) The word “city” shall be substituted for the word “state” in the phrase “retailer engaged in business in this state” in § 6203 and in the definition of that phrase in § 6203 of the Cal. Rev. & Tax. Code.

(2) “A retailer engaged in business in the District” shall also include any retailer that, in the preceding calendar year or the current calendar year, has total combined sales of tangible personal property in this state or for delivery in the state by the retailer and all persons related to the retailer that exceeds $500,000. For purposes of this section, a person is related to another person if both persons are related to each other pursuant to § 267(b) of Title 26 of the United States Code and the regulations thereunder. (Ord. 667, passed 3-3-20)

If a seller’s permit has been issued to a retailer under § 6067 of the Cal. Rev. & Tax. Code, an additional transactor’s permit shall not be required by this subchapter. (Ord. 667, passed 3-3-20)

(A) There shall be excluded from the measure of the transactions tax and the use tax the amount of any sales tax or use tax imposed by the State of California or by any city, city and county, or county pursuant to the Bradley-Burns Uniform Local Sales and Use Tax Law or the amount of any state-administered transactions or use tax.

(B) There are exempted from the computation of the amount of transactions tax the gross receipts from:

(1) Sales of tangible personal property, other than fuel or petroleum products, to operators of aircraft to be used or consumed principally outside the county in which the sale is made and directly and exclusively in the use of such aircraft as common carriers of persons or property under the authority of the laws of this state, the United States, or any foreign government;

(2) Sales of property to be used outside the city which is shipped to a point outside the city, pursuant to the contract of sale, by delivery to such point by the retailer or his agent, or by delivery by the retailer to a carrier for shipment to a consignee at such point. For the purposes of this section, delivery to a point outside the city shall be satisfied: (a) With respect to vehicles (other than commercial vehicles) subject to registration pursuant to Chapter 1 (commencing with § 4000) of Division 3 of the Cal. Vehicle Code, aircraft licensed in compliance with § 21411 of the Cal. Public Utilities Code, and undocumented vessels registered under Division 3.5 (commencing with § 9840) of the Cal. Vehicle Code by registration to an out-of-city address and by a declaration under penalty of perjury, signed by the buyer, stating that such address is, in fact, his or her principal place of residence; and

(b) With respect to commercial vehicles, by registration to a place of business out of city and declaration under penalty of perjury, signed by the buyer, that the vehicle will be operated from that address.

(3) The sale of tangible personal property if the seller is obligated to furnish the property for a fixed price pursuant to a contract entered into prior to the operative date of this subchapter;

(4) A lease of tangible personal property which is a continuing sale of such property, for any period of time for which the lessor is obligated to lease the property for an amount fixed by the lease prior to the operative date of this subchapter;

(5) For the purposes of divisions (3) and (4) above, the sale or lease of tangible personal property shall be deemed not to be obligated pursuant to a contract or lease for any period of time for which any party to the contract or lease has the unconditional right to terminate the contract or lease upon notice, whether or not such right is exercised. (C) There are exempted from the use tax imposed by this subchapter, the storage, use or other consumption in this city of tangible personal property: (1) The gross receipts from the sale of which have been subject to a transactions tax under any state-administered transactions and use tax ordinance; (2) Other than fuel or petroleum products purchased by operators of aircraft and used or consumed by such operators directly and exclusively in the use of such aircraft as common carriers of persons or property for hire or compensation under a certificate of public convenience and necessity issued pursuant to the laws of this state, the United States, or any foreign government. This exemption is in addition to the exemptions provided in §§ 6366 and 6366.1 of the Cal. Rev. & Tax. Code;

(3) If the purchaser is obligated to purchase the property for a fixed price pursuant to a contract entered into prior to the operative date of this subchapter; (4) If the possession of, or the exercise of any right or power over, the tangible personal property arises under a lease which is a continuing purchase of such property for any period of time for which the lessee is obligated to lease the property for an amount fixed by a lease prior to the operative date of this subchapter; (5) For the purposes of divisions (3) and (4) above, storage, use, or other consumption, or possession of, or exercise of any right or power over, tangible personal property shall be deemed not to be obligated pursuant to a contract or lease for any period of time for which any party to the contract or lease has the unconditional right to terminate the contract or lease upon notice, whether or not such right is exercised;

(6) Except as provided in division (7) below, a retailer engaged in business in the city shall not be required to collect use tax from the purchaser of tangible personal property, unless the retailer ships or delivers the property into the city or participates within the city in making the sale of the property, including, but not limited to, soliciting or receiving the order, either directly or indirectly, at a place of business of the retailer in the city or through any representative, agent, canvasser, solicitor, subsidiary, or person in the city under the authority of the retailer;

etailer ships or delivers the property into the city or participates within the city in making the sale of the property, including, but not limited to, soliciting or receiving the order, either directly or indirectly, at a place of business of the retailer in the city or through any representative, agent, canvasser, solicitor, subsidiary, or person in the city under the authority of the retailer;

(7) “A retailer engaged in business in the city” shall also include any retailer of any of the following: vehicles subject to registration pursuant to Chapter 1 (commencing with § 4000) of Division 3 of the Cal. Vehicle Code, aircraft licensed in compliance with § 21411 of the Cal. Public Utilities Code, or undocumented vessels registered under Division 3.5 (commencing with § 9840) of the Cal. Vehicle Code. That retailer shall be required to collect use tax from any purchaser who registers or licenses the vehicle, vessel, or aircraft at an address in the city.

(D) Any person subject to use tax under this subchapter may credit against that tax any transactions tax or reimbursement for transactions tax paid to a district imposing, or retailer liable for a transactions tax pursuant to Part 1.6 of Division 2 of the Cal. Rev. & Tax. Code with respect to the sale to the person of the property the storage, use or other consumption of which is subject to the use tax.

(Ord. 667, passed 3-3-20)

All amendments subsequent to the effective date of this subchapter to Part 1 of Division 2 of the Cal. Rev. & Tax. Code relating to sales and use taxes and which are not inconsistent with Part 1.6 and Part 1.7 of Division 2 of the Cal. Rev. & Tax. Code, and all amendments to Part 1.6 and Part 1.7 of Division 2 of the Cal. Rev. & Tax. Code, shall automatically become a part of this subchapter, provided however, that no such amendment shall operate so as to affect the rate of tax imposed by this subchapter. (Ord. 667, passed 3-3-20)

No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action or proceeding in any court against the state or the city, or against any officer of the state or the city, to prevent or enjoin the collection under this subchapter, or Part 1.6 of Division 2 of the Cal. Rev. & Tax. Code, of any tax or any amount of tax required to be collected.

(Ord. 667, passed 3-3-20)