Chapter 2-4 — UTILITY USERS TAX

Note: Editor's Note: Previous Chapter 2-4, previously contained herein, was repealed in its entirety by Ordinance No. 90-011 and further repealed by Ordinance No. 90-016. Prior ordinance history includes Ordinance No. 87-09.

Article 1

General Provisions(Legislative History: Ordinance No. 90-016, 9/4/90 (2-4-100—2-4-110); Ordinance No. 93-011, 6/7/93; Ordinance No. 94-011, 6/13/94 (Section 2-4-105); Ordinance No. 99-04, 2/16/99 (Sections 2-4-105, 2-4-110); Ordinance No. 04-014, 7/6/04 (Sections 2-4-105, 2-4-110))

The purpose of the tax imposed hereby is to raise revenue for the current and usual expenses of the City.

The following words and phrases whenever used in this Chapter shall be construed as defined in this section:

"City" shall mean the City of San Leandro.

"Cogenerator" shall mean any corporation or person employing cogeneration as defined in Section 218.5 of the California Public Utilities Code for producing power for the generation of electricity for self-use or sale to others from a qualified cogeneration facility (as defined in the Federal Public Utility Regulatory Policies Act of 1978 and regulations thereunder).

"Electrical corporation," "gas corporation," and "telephone corporation" shall have the same meanings as defined in Sections 218, 222 and 234 respectively of the Public Utilities Code of the State of California. "Electrical corporation" and "gas corporation" shall also be construed to include any municipality or public agency engaged in the selling or supplying of electrical power or gas to a service user.

"Exempt wholesale generator" shall have the same meaning as set forth in the Federal Power Act (15 U.S.C.S. 79z-5a) and regulations thereunder.

"Gas" shall mean natural or manufactured gas or any alternate hydrocarbon fuel which may be substituted therefor.

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

"Month" shall mean a calendar month.

"Non-residential user" shall mean any service user other than a residential user.

"Non-utility service supplier" shall mean:

(1) A service supplier, other than a provider 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, 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 provider 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; and

(3) A gas service supplier, aggregator, marketer or broker, other than a provider of gas distribution services to all or a significant portion of the City, which sells or supplies gas or supplemental services to gas users within the City.

"Person" shall mean, 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 nonprofit), municipal corporation (other than the City), municipal district, cooperative, or receiver, trustee, guardian or other representative appointed by order of any court.

"Place of primary use" means the street address representative of where the customer's use of
the telecommunications service primarily occurs, which must be the residential street address or
the primary business street address of the customer. In the case of mobile telecommunications
services, "place of primary use" must be within the licensed service area of the home service
provider, and shall have the same meaning and usage as set forth in the Mobile
Telecommunications Sourcing Act (4 U.S.C. Section 116 et seq.) and the regulations thereunder.

"Residential user" shall mean any service user of telephone services, electric energy or gas at
a place of service which is a house, duplex, townhouse, apartment, or mobile home and is the
primary residence of such service user.

"Service address" means the residential street address or the business street address of the gas,
electric, water or video service user. For a telephone communication service user, "service
address" means:

(1) The location of the telecommunications equipment to which a service user's call is charged
and from which the call originates or terminates, regardless of where the call is billed or
paid; or,

(2) If the location in subsection (m)(1) of this section is unknown, the service address means
the location of the service user's place of primary use.

"Service supplier" shall mean any regulated or non-regulated entity, or person, including the
City, that provides telephone communication, electric, or gas service to a user of such services
within the City, and includes an entity or person required to collect, or self-collect under Section
2-4-215 of this Chapter, and remit a tax as imposed by this Chapter, including its billing agent in
the case of electric, gas, water or video service.

"Service user" shall mean a person required to pay a tax imposed under the provisions of this
Chapter.

"State" shall mean the State of California.

"Tax Administrator" shall mean the Finance Director of the City or designee.

"Telephone communication services" shall include "communications services" as defined in Sections4251 and 4252 of the Internal Revenue Code (26 U.S.C.A.), and the regulations thereunder, and shall include teletypewriter exchange and similar data services, and any service that is capable of transmitting telephonic quality communications [including the use of internet protocol (IP) or other similar means], whether provided by analog, digital, electronic, radio or similar means through "interconnected service" with the "public switched network" [as these terms are commonly used in the Federal Communications Act and the regulations of the Federal Communications Commission—see 47 U.S.C.A. Section 332(d)] or over digital networks by which communications with a substantial portion of the public is available (e.g., voice using internet protocol or VoIP), and whether such transmission occurs by wire, teletypewriter, cable, cable modem or digital subscriber line (DSL), internet, fiber-optic, light wave, laser, microwave, switching facilities, satellite, radio wave [including, but not limited to, mobile telecommunications service, cellular service, commercial mobile service and commercial mobile radio service (see 47 U.S.C. Section 332(d)(1) and Part 20.3 of Title 47 of the Code of Federal Regulations), personal communications service (PCS), specialized mobile radio (SMR), and other similar services regardless of radio spectrum used], or any other similar facilities, and whether charges for such service are based on time, distance, or on any other basis.

"Utility tax year" shall mean the 12 month period commencing July 1, and ending June 30, of the next succeeding calendar year.

"Video service supplier" means any person, company, or service which provides one or more channels of video programming, including any communications that are ancillary, necessary or common to the use and enjoyment of the video programming, to or from an address in the City, including to or from a business, home, condominium, or apartment, where some fee is paid, whether directly or included in dues or rental charges for that service, whether or not public rights-of-way are utilized in the delivery of the video programming or communications. A "video service supplier" includes, but is not limited to, multichannel video programming distributors [as defined in 47 U.S.C.A. Section 522(13)]; open video systems (OVS) suppliers; suppliers of cable television; master antenna television; satellite master antenna television; multichannel multipoint distribution services (MMDS); direct broadcast satellite to the extent Federal law permits taxation of its video services, now or in the future; and other suppliers of video programming or communications (including two-way communications), whatever their technology.

"Video services" means any and all services related to the providing of video programming (including origination programming), including any communications that are ancillary, necessary or common to the use or enjoyment of the video programming, regardless of the content of such video programming or communications. "Video services" do not include services for which a tax is paid under Section 2-4-200 of this Article.

(a) The taxes imposed by this Chapter shall not apply to:

(1) Any person or service if imposition of such tax upon that person or service would be in violation of the Constitution of the United States or the Constitution of the State of California, or in violation of a Federal statute or State statute applicable to Charter Cities.

(2) The City. Any service user exempt from the taxes imposed by this Chapter described in subsection (a)(1) of this section, other than State and Federal agencies or their subdivisions with commonly recognized names, shall file an application with the Tax Administrator for an exemption. Such application shall be made upon a form supplied 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 providers 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 providers so that the Tax Administrator can properly notify the new utility service provider 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 nonutility supplier, or their billing agents, shall provide a list of the names and addresses of those customers which, according to their billing records, are deemed exempt from the utility users tax.

(b) Any service user exempt from the taxes imposed by this Chapter described in subsection (a)(1) of this section, other than State and Federal agencies or their subdivisions with commonly recognized names, shall file an application with the Tax Administrator for an exemption. Such application shall be made upon a form supplied 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 providers 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 providers so that the Tax Administrator can properly notify the new utility service provider 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 supplier, or their billing agents, shall provide a list of names and addresses of those customers which, according to their billing records, are deemed exempt from the utility users tax. A telephone communication service supplier shall, upon request of the Tax Administrator, provide a copy of the Federal exemption certificate for each exempt customer within the City that is served by such service supplier.

The decision of the Tax Administrator may be appealed pursuant to Section 2-4-280 of this Chapter. Filing an application with the Tax Administrator and appeal to the City Administrator pursuant to Section 2-4-280 of this Chapter is a prerequisite to a suit thereon.

(c) The City Council may, by ordinance or resolution, establish that one or more classes of persons or one or more classes of utility services otherwise subject to payment of a tax imposed by this Chapter shall be exempt, in whole or in part from such tax.

(d) The Tax Administrator shall prepare a list of the persons and/or utility services that the Tax Administrator is aware are exempt from the provisions of this Chapter by virtue of this section and furnish a copy thereof to each service supplier.

Article 2 Imposition of Tax(Legislative History: Ordinance No. 90-016, 9/4/90 (2-4-200—2-4-265); Ordinance No. 92-09, 5/18/92 (Section 2-4-200); Ordinance No. 93-011, 6/7/93 (Section 2-4-216); Ordinance No. 94-011, 6/13/94 (Sections 2-4-105, 2-4-200, 2-4-205, 2-4-210, 2-4-216); Ordinance No. 99-04, 2/16/99 (Sections 2-4-200, 2-4-205, 2-4-210, 2-4-215, 2-4-216, 2-4-230, 2-4-250); Ordinance No. 04-014, 7/6/04 (Sections 2-4-200—2-4-218, 2-4-221—2-4-245, 2-4-255—2-4-259, 2-4-261); Ordinance No. 2011-006, 4/4/11 (Section 2-4-256))

(a) There is hereby imposed a tax upon every person in the City who uses telephone communication services, including intrastate, interstate and international telephone communication services. The tax imposed by this section shall be at the rate of 6% of all charges made for such telephone communication services and shall be paid by the person paying for such services. 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, regardless of where the telephone communication service may originate, terminate, or pass through. Charges for mobile telecommunications services are subject to taxation under this Chapter if the customer's place of primary use is in the City, regardless of where the mobile telecommunications service may originate, terminate, or pass through.

(b) As used in this section, the term "telephone communication services" shall not include "private mobile radio service," as defined in Part20 of Title 47 of the Code of Federal Regulations, or "private mobile service," as defined in 47 U.S.C.A. Section 332(d)(3), which is not interconnected with the public switched network or is not provided over digital networks by which communications with a substantial portion of the public is available (e.g., voice using internet protocol or VoIP). The tax imposed under subsection (a) of this section shall not be imposed upon any person for using telephone communication services to the extent that, pursuant to Sections 4252 and 4253 of the Internal Revenue Code, the amounts paid for such communication services are exempt from or are not subject to the tax imposed under Section 4251 of the Internal Revenue Code. In the event that the Federal excise tax on "communication services" as provided in Sections 4251, 4252 and 4253 of the Internal Revenue Code is subsequently repealed, any reference in this Section 2-4-200 and in Section 2-4-105(r) to such law, including any related Federal regulations, private letter rulings, case law, and other opinions interpreting these sections, shall refer to that body of law that existed immediately prior to the date of repeal, as well as to any judicial or administrative decision interpreting such Federal excise tax law which is published or rendered after the date of repeal.

(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 telephone communication services. The term "charges" shall also include charges to a service user by a hotel or motel for telephone communication services used in the City when such charges are incidental to the right of occupancy in such hotel or motel. The collection of the tax from the service user shall be the responsibility of the hotel or motel owner. "Charges" shall not include charges for services paid for by inserting coins in coin-operated telephones except that where such coin-operated telephone service is furnished for a guaranteed amount, the amounts paid under such guarantee plus any fixed monthly or other periodic charge shall be included in the base for computing the amount of tax due. If a non-taxable service and a taxable service are billed together under a single charge, the entire charge shall be deemed taxable.

(d) The Tax Administrator, from time to time, may issue and disseminate to telephone communication service suppliers that are subject to the tax collection requirements of this Chapter, an administrative ruling identifying those telephone communication services that are subject to the tax of subsection (a) of this section and/or identifies the sourcing of such services for tax administration purposes. This 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 California Government Code Section 53750(h)(2)(A). An administrative ruling shall not constitute a new tax or an increase in an existing tax if such administrative ruling is:

(1) Consistent with the existing ordinance language; and,

(2) Merely reflects a change in, clarification to, or new rendition of:

(A) The definition, interpretation, or application of substantial nexus by a court of competent jurisdiction or by preemptive State or Federal law, for purposes of taxation;

(B) The sourcing of taxable transactions, which furthers administrative efficiency and minimizes multijurisdictional taxation; or,

(C) The definition, interpretation, or application of the Federal excise tax rules, regulations, and laws pertaining to "communications services" (Sections 4251, 4252 and 4253 of the Internal Revenue Code) by the Internal Revenue Service, or by a State or local agency that assumes an interpretative role of those rules, regulations, and laws in the event that the Federal excise tax on "communications services" is repealed.

(e) To prevent actual multi-jurisdictional taxation of telephone 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 telephone communication service, 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 the credit shall not exceed the tax owed to the City under this section.

(f) The tax on telephone communication services imposed by this section shall be collected from the service user by the service supplier. The amount of the tax collected in one month shall be remitted to the Tax Administrator and must be received by the Tax Administrator on or before the last day of the following month or, at the option of the person required to collect or remit the tax, such person shall remit an estimated amount of the 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 last day of the following month, 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.

(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 6% of the charges made for such electricity, and for any supplemental services or other associated activities directly related and/or necessary for the provision of electricity to the end-user, which are provided by a service supplier or non-utility supplier to a service user. The tax shall be paid by the person paying for such electricity or supplemental services.

(b) "Charges," as used in this section, shall include: (1) energy charge; (2) distribution or transmission charge; (3) metering charge; (4) standby, reserves, firming, ramping, voltage support, regulation, emergency, or other similar charges for supplemental service; (5) customer charge, service charge, demand charge, fuel or other cost adjustments, power exchange charge, independent system operator (ISO) charge, stranded investment or competitive transition charge (CTC), public purpose program charge, nuclear decommissioning charge, trust transfer amount (bond financing charge), franchise fee, franchise surcharge; and (6) all other annual and monthly charges or surcharges for electricity services or programs, which are authorized by the City Council, the California Public Utilities Commission or the Federal Energy Regulatory Commission, whether or not such charges appear on a bundled or line item basis on the customer billing. "Charges" shall also 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.

(c) As used in this section, the term "using electricity" shall not be construed to mean the storage of electrical energy by a person in a battery that he or she owns or possesses for use in an automobile or other machinery or device apart from the premises upon which the electricity was received; provided, however, the term shall include the receiving of such electricity for the purpose of using it in the charging of batteries. The term shall not include electricity used in water pumping by water corporations; nor shall the term include the mere receiving of such electricity by an electrical corporation or governmental agency at a point within the City for resale.

(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: (1) necessary or common to the receipt, use or enjoyment of electric service; or, (2) 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 subsection (a) of this section.

(e) The tax on electricity provided by self-production or by a non-utility supplier or an electric utility not under the jurisdiction of this Chapter shall be collected and remitted in the manner set forth in Section 2-4-215. All other taxes on charges for electricity imposed by this section shall be collected from the service user by the electric service supplier or its billing agent. The amount of the tax collected in one month shall be remitted to the Tax Administrator on or before the last day of the following month or, at the option of the person required to collect or remit the tax, such person shall remit an estimated amount of the 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 last day of the following month, 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.

(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 6% of the charges made for such gas, including all services related to the storage, transportation and delivery of such gas, and shall be paid by the person using such gas; provided, however, that the tax shall not apply to any charges for gas storage services when the service provider cannot, as a practical matter, determine the location where such stored gas is ultimately used. "Charges" as used in this section shall include: (1) the commodity charges for purchased gas, or the cost of gas owned by the service user, which is delivered through a gas pipeline distribution system or by mobile transport; (2) gas transportation charges (including interstate charges to the extent not included in commodity charges); and (3) capacity or demand charges, service charges, marketing charges, administrative charges, transition charges, customer charges, minimum charges, annual and monthly charges, and any other charges for gas services or programs, which are authorized by the California Public Utilities Commission or the Federal Energy Regulatory Commission.

The "cost of gas owned by the service user" shall include 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. "Charges" shall also 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.

(b) The tax otherwise imposed by this section is not applicable to: (1) charges made for gas which is to be resold and delivered through mains and pipes; (2) charges made for gas used and consumed by a public utility or governmental agency in the conduct of its business or; (3) charges made by a gas public utility or gas used and consumed in the course of its public utility business; and (4) charges made for gas used in the propulsion of a motor vehicle, as authorized in the Vehicle Code of the State of California.

(c) 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: (1) necessary or common to the receipt, use or enjoyment of gas service; or, (2) 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 subsection (a) of this section.

(d) The tax that is calculated on charges for gas provided by self-production or by a non-utility supplier not under the jurisdiction of this Chapter shall be collected and remitted in the manner set forth in Section 2-4-215. 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 last day of the following month; or, at the option of the person required to collect 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 last day of the following month, 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.

ELECTRICITY.

(a) Any service user subject to the tax imposed by Sections 2-4-205 and 2-4-210 hereof, which produces gas or electricity for self-use, or which receives gas or electricity directly from a non-utility supplier not under the jurisdiction of this Chapter, or which otherwise is not having the full tax due on the use of gas or electricity in the City that is directly billed and collected by the service supplier or its billing agent, 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 pattern payment 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 said service user to identify its non-utility supplier and provide, subject to audit, invoices, books of account, or other satisfactory evidence documenting the quantity of gas or electricity used 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 had been provided by the service supplier, which is the primary provider of gas or electricity within the City. Rate schedules for this purpose shall be available from the City.

(a) There is hereby imposed a tax upon every person using video services in the City from a video service supplier. The tax imposed by this section shall be at the rate of 6% of the charges made for such video services.

(b) As used in this section, the term "charges" shall apply to all services, components and items
that are: (1) necessary for or common to the receipt, use or enjoyment of video service; or,
(2) currently are or historically have been included in a single or bundled rate for video
service by a local video service supplier to a class of retail customers. The term "charges"
shall include, but is not limited to, the following charges:

(1) Franchise fees and access fees (PEG), whether designated on the customer's bill or
not;

(2) Initial installation of equipment necessary for provision and receipt of video services;

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

(4) Activation fees, reactivation fees, and reconnection fees;

(5) All programming services (e.g., basic services, premium services, audio services,
video games, payper-view services, video on demand, and electronic program guide
services);

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

(7) Service calls, service protection plans, name changes, changes of services, and special
services.

(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 video services.

(d) The Tax Administrator, from time to time, may survey the video service suppliers in the
City to identify the various components of video service that are being offered to customers
within the City, and the charges therefor. The Tax Administrator, thereafter, may issue and
disseminate to such video service suppliers an administrative ruling identifying those
components: (1) that are necessary for or common to the receipt, use or enjoyment of video
service; or, (2) which currently are or historically have been included in a bundled rate for
video service by a local distribution company. Charges for such components shall be
subject to the tax of subsection (a) of this section.

(e) The tax imposed by this section shall be collected from the service user by the video service
supplier, its billing agent, or a reseller of such services. In the case of video service, the
service user shall be deemed to be the purchaser of the bulk video service (e.g., an
apartment owner), unless such service is resold to individual users, in which case the
service user shall be the ultimate purchaser of the video service. 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 last day of the following month or, at the option of
the person required to collect or remit the tax, such person shall remit an estimated amount
of the 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 last day
of the following month, 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.

ITEMS.

Except as otherwise provided by State or Federal law, or as approved in writing by the Tax Administrator, if one or more non-taxable items are bundled or aggregated together with one or more taxable items (as provided for by this Chapter) under a single charge on a service user's bill, the entire single charge shall be deemed taxable.

For purposes of imposing a tax or establishing a duty to collect and remit a tax under this Chapter, "substantial nexus" and "minimum contacts" shall be construed broadly in favor of the imposition, collection and/or remittance of the utility users tax to the fullest extent permitted by State and Federal law, and as it may change from time to time by judicial interpretation or by statutory enactment.

Taxes collected from a service user which are not remitted to the Tax Administrator on or before the due dates provided in this Chapter are delinquent. Should the due date occur on a weekend or legal holiday, the return may be postmarked on the first regular working day following a Saturday/Sunday, or legal holiday.

Each person required by this Chapter to remit a tax shall file a return to the Tax Administrator, on forms approved by the Tax Administrator, on or before the due date. The full amount of the tax collected 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 Chapter. Returns are due immediately upon cessation of business for any reason. Pursuant to Revenue and Tax Code Section 7284.6, the Tax Administrator, and its agents, shall maintain such filing returns as confidential information exempt from disclosure provisions of the Public Records Act.

Any tax required to be paid by a service user under the provisions of this Chapter shall be deemed a debt owed by the service user to the City. Any such tax collected from a service user which has not been remitted to the 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 Chapter 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 Chapter, along with any collection costs incurred by the City as a result of the person's noncompliance with this Chapter, including, but not limited to, reasonable attorneys fees and court costs. Any tax required to be collected by a service supplier or owed by a service user is an unsecured priority excise tax obligation under 11 U.S.C.A. Section507(a)(8)(C).

COLLECTORS.

(a) Taxes collected from a service user, or self-collected by a service user subject to Section
2-4-215 of this Chapter, 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 subsection,
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 a service supplier, or a service user subject to Section 2-4-215 of this Chapter, fails to
remit any tax collected, on or before the due date, said person shall pay a penalty for such
delinquencies at the rate of 15% of the total tax that is delinquent in the remittance, and
shall pay interest at the rate of three-quarters of one percent (3/4%) 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.

(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 Chapter 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) For collection purposes only, every penalty imposed and such interest that is accrued under
the provisions of this section shall become a part of the tax herein required to be paid.

APPLICATION ERRORS.

(a) The Tax Administrator shall make a deficiency determination if he or she determines that
any person required to pay, collect or self-collect taxes pursuant to the provisions of this
Chapter has failed to pay, collect, self-collect and/or remit the proper amount of tax by
improperly or failing to apply the tax to one or more taxable services or charges.

(b) The Tax Administrator shall mail a notice of such deficiency determination to the person
required to pay or remit the tax, which notice shall refer briefly to the amount of the taxes
owed, plus interest at the rate of three-quarters of one percent (3/4%) per month, or any
fraction thereof, on the amount of the tax from the date on which the tax should have been
received by the City. Within 14 calendar days after the date of service of such notice, the
person may request in writing to the Tax Administrator for a hearing on the matter. If the
person fails to request a hearing within the prescribed time period, the amount of the
deficiency determination shall become a final assessment, and shall immediately be due
and owing to the City.

(c) If the person requests a hearing, the Tax Administrator shall cause the matter to be set for
hearing, which shall be held within 30 days after receipt of the written request for hearing.
Notice of the time and place of the hearing shall be mailed by the Tax Administrator to
such person at least 10 calendar days prior to the hearing, and, if the Tax Administrator
desires said person to produce specific records at such hearing, such notice may designate
the records requested to be produced.

(d) At the time fixed for the hearing, the Tax Administrator shall hear all relevant testimony
and evidence, including that of any other interested parties. At the discretion of the Tax
Administrator, the hearing may be continued from time to time for the purpose of allowing
the presentation of additional evidence. Within a reasonable time following the conclusion
of the hearing, the Tax Administrator shall issue a final assessment (or non-assessment),
thereafter, by confirming, modifying or rejecting the original deficiency determination, and
shall mail a copy of such final assessment to person owing the tax. The decision of the Tax
Administrator may be appealed pursuant to Section 2-4-280 of this Chapter. Filing an
application with the Tax Administrator and appeal to the City Manager pursuant to Section
2-4-280 of this Chapter is a prerequisite to a suit thereon.

(e) Payment of the final assessment shall become delinquent if not received by the Tax
Administrator on or before the thirtieth (30th) day following the date of receipt of the notice
of final assessment. The penalty for delinquency shall be 15% on the total amount of the
assessment, along with interest at the rate of three-quarters of one percent (3/4%) per
month, or any fraction thereof, on the amount of the tax, exclusive of penalties, from the
date of delinquency, until paid. The applicable statute of limitations regarding a claim by
the City seeking payment of a tax assessed under this Chapter shall commence from the
date of delinquency as provided in this subsection.

(f) All notices under this section may be sent by regular mail, postage prepaid, and shall be
deemed received on the third calendar day following the date of mailing, as established by
a proof of mailing.

(a) The Tax Administrator shall have the power and duty, and is hereby directed, to enforce each and all of the provisions of this Chapter.

(b) The Tax Administrator may adopt administrative rules and regulations not inconsistent with provisions of this Chapter for the purpose of interpreting, clarifying, carrying out and enforcing the payment, collection and remittance of the taxes herein imposed. A copy of such administrative rules and regulations shall be on file in the Tax Administrator's office.

(c) Upon a proper showing of good cause, the Tax Administrator may make administrative agreements, with appropriate conditions, to vary from the strict requirements of this Chapter and thereby: (1) conform to the billing procedures of a particular service supplier (or service user subject to Section 2-4-215 of this Chapter) so long as said agreements result in the collection of the tax in conformance with the general purpose and scope of this Chapter; or, (2) to avoid a hardship where the administrative costs of collection and remittance greatly outweigh the tax benefit. A copy of each such agreement shall be on file in the Tax Administrator's office, and are voidable by the Tax Administrator or the City at any time.

(d) The Tax Administrator may conduct an audit, to ensure proper compliance with the requirements of this Chapter, of any person required to collect and/or remit a tax pursuant to this Chapter. The Tax Administrator shall notify said person of the initiation of an audit in writing. In the absence of fraud or other intentional misconduct, the audit period of review shall not exceed a period of three years next preceding the date of receipt of the written notice by said person from the Tax Administrator. Upon completion of the audit, the Tax Administrator may make a deficiency determination pursuant to Section 2-4-250 of this Chapter for all taxes, penalties and interest owed and not paid, as evidenced by information provided by such person to the Tax Administrator. If said person is unable or unwilling to provide sufficient records to enable the Tax Administrator to verify compliance with this Chapter, the Tax Administrator is authorized to make a reasonable estimate of the deficiency. Said reasonable estimate shall be entitled to a rebuttable presumption of correctness.

(e) Upon receipt of a written request of a taxpayer, and for good cause, the Tax Administrator may extend the time for filing any statement required pursuant to this Chapter for a period of not to exceed 45 days, provided that the time for filing the required statement has not already passed when the request is received. No penalty for delinquent payment shall accrue by reason of such extension. Interest shall accrue during said extension at the rate of three-quarters of one percent (3/4%) per month, prorated for any portion thereof.

(f) The Tax Administrator, with the written approval of the City Attorney, may compromise a claim pursuant to this Chapter where the portion of the claim proposed to be released is less than the amount set by separate resolution of the City Council relating to the settlement of general liability claims against the City and, with the approval of the City Attorney and the City Council, may compromise such a claim where the portion proposed to be released is equal to or greater than the amount set by separate resolution of the City Council relating to the settlement of general liability claims against the City.

(g) Notwithstanding any provision in this Chapter to the contrary, the Tax Administrator may waive any penalty or interest imposed upon a person required to collect and/or remit for failure to collect the tax imposed by this Chapter if the non-collection occurred in good faith. In determining whether the non-collection was in good faith, the Tax Administrator shall take into consideration industry practice or other precedence.

(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 person required to collect the tax, or whenever the Tax Administrator deems it in the best interest of the City, he or she may relieve such person of the obligation to collect the taxes due under this Chapter from certain named service users for specific billing periods. Whenever the service user has failed to pay the amount of tax owed for a period of two or more billing periods, the service supplier shall be relieved of the obligation to collect taxes due. 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 Chapter.

(b) In addition to the tax owed, the service user shall pay a delinquency penalty at the rate of
15% of the total tax that is owed, and shall pay interest at the rate of three-quarters of one
percent (3/4%) per month, or any fraction thereof, on the amount of the tax, exclusive of
penalties, from the due date, until paid.

(c) The Tax Administrator shall notify the non-paying service user that the Tax Administrator
has assumed the responsibility to collect the taxes due for the stated periods and demand
payment of such taxes, including penalties and interest. The notice shall be served on the
service user by personal delivery or by deposit of the notice in the United States mail,
postage prepaid, 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 a change of address,
to his or her last known address.

(d) If the service user fails to remit the tax to the Tax Administrator within 30 days from the
date of the service of the notice upon him or her, the Tax Administrator may impose an
additional penalty of 15% of the amount of the total tax that is owed.

(a) It shall be the duty of every person required to collect and/or remit to the City any tax imposed by this Chapter to keep and preserve, for a period of at least three years, all records as may be necessary to determine the amount of such tax as he/she may have been liable for the collection of and remittance to the Tax Administrator, which records the Tax Administrator, or the Tax Administrator's designated representative, 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 Chapter, including the delivery of records in a common
electronic format on readily available media if such records are kept electronically by the
person in the usual and ordinary course of business. As an alternative to delivering the
subpoenaed records to the Tax Administrator on or before the due date provided in the
administrative subpoena, such person may provide access to such records outside the City
on or before the due date, provided that such person shall reimburse the City for all
reasonable travel expenses incurred by the City to inspect those records, including travel,
lodging, meals, and other similar expenses, but excluding the normal salary or hourly
wages of those persons designated by the City to conduct the inspection.

(c) The Tax Administrator, or the Tax Administrator's designated representative, is authorized
to execute a non-disclosure agreement approved by the City Attorney to protect the
confidentiality of customer information pursuant to California Revenue and Tax Code
Sections 7284.6 and 7284.7. The Tax Administrator, or the Tax Administrator's designated
representative, may request from a person providing transportation services of gas or
electricity to service users within the City a list of the names and addresses, and other
pertinent information, of its transportation customers within the City pursuant to Section
6354(e) of the California Public Utilities Code.

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

(e) If any person subject to 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, then the Tax Administrator may impose a penalty of Five hundred dollars on
such person for each day following: (1) the initial date that the person refuses to provide
such access; or, (2) the due date for production of records as set forth in the administrative
subpoena. This penalty shall be in addition to any other penalty imposed under this
Chapter.

(a) The Tax Administrator may refund any tax that has been overpaid or paid more than once or has been erroneously or illegally collected or received by the Tax Administrator under this Chapter, provided that no refund shall be paid under the provisions of this section unless the claimant has submitted a written claim to the Tax Administrator within one year of the overpayment or erroneous or illegal collection of said tax. Such claim must clearly establish claimant's right to the refund by written records showing entitlement thereto.

Nothing herein shall permit the filing of a claim on behalf of a class or group of taxpayers. The submission of a written claim, which is acted upon by the City Council, shall be a prerequisite to a suit thereon. (See Government Code Section 935.) The City Council shall act upon the refund claim within the time period set forth in Government Code Section 912.4. If the City Council fails or refuses to act on a refund claim within the time prescribed by Government Code Section 912.4, the claim shall be deemed to have been rejected by the City Council on the last day of the period within which the City Council was required to act upon the claim as provided in Government Code Section 912.4. It is the intent of the City Council that the one-year written claim requirement of this subsection be given retroactive effect; provided, however, that any claims which arose prior to the commencement of the one-year claims period of this subsection, and which are not otherwise barred by a then applicable statute of limitations or claims procedure, must be filed with the Tax Administrator as provided in this subsection within 90 days following the effective date of the ordinance codified in this section.

(b) Notwithstanding the provisions of subsection (a) of this section, a service supplier may claim a refund; or take as credit against taxes remitted the amount overpaid, paid more than once, or erroneously or illegally collected or received when it is established that the service user from whom the tax has been collected did not owe the tax; provided however, that neither a refund nor a credit shall be allowed unless the amount of the tax erroneously or illegally collected has either been refunded to the service user or credited to charges subsequently payable by the service user to the person required to collect and remit. A service supplier that has collected any amount of tax in excess of the amount of tax imposed by this Chapter and actually due from a service user, may refund such amount to the service user and claim credit for such overpayment against the amount of tax which is due upon any other monthly returns, provided such credit is claimed in a return dated no later than one year from the date of overpayment.

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

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

(a) Effective July 1, 2004 any nonresidential user who has paid combined telephone, electric or gas utility user taxes in excess of Twenty-five thousand dollars, exclusive of interest and penalties, during the 2003-04 utility tax year shall be entitled to a rebate of a portion of such excess tax payments in accordance with the provisions of this section.

(b) Not later than 90 days following the end of the 2003-04 utility tax year, such user may apply to the Tax Administrator for a rebate on forms and in the manner prescribed by the Tax Administrator.

(c) Upon timely presentation of evidence satisfactory to the Tax Administrator a rebate shall be made to the nonresidential user in an amount equal to the total utility user taxes paid

minus the sum of Twenty-five thousand dollars, multiplied by .5. The Tax Administrator shall set off against such rebate any taxes, charges, interest or late payments then due and owing the City.

(d) No rebate shall be paid to any nonresidential service user who fails to apply for a rebate within the time prescribed by this section.

(a) The provisions of this section apply to any decision (other than a decision relating to a refund pursuant to Section 2-4-250 of this Chapter), deficiency determination, assessment, or administrative ruling of the Tax Administrator. Any person aggrieved by any decision (other than a decision relating to a refund pursuant to Section 2-4-250 of this Chapter), deficiency determination, assessment, or administrative ruling of the Tax Administrator, 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 Government Code Section 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 decision (other than a decision relating to a refund
pursuant to Section 2-4-250 of this Chapter), deficiency determination, assessment, or
administrative ruling of the Tax Administrator; 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 decision,
deficiency determination, assessment, 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 Code of Civil Procedure
Section 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 (14th) day.

(e) All notices under this section may be sent by regular mail, postage prepaid, and shall be
deemed received on the third (3rd) calendar day following the date of mailing, as
established by a proof of mailing.

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 Chapter of any tax or any amount of tax required to be collected and/or remitted.

All remedies and penalties prescribed by this Chapter or which are available under any other provision of law or equity, including but not limited to the California False Claims Act (Government Code Section 12650 et seq.) and the California Unfair Practices Act (Business and Professions Code Section 17070 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 Chapter.

If a tax under this Chapter is added, repealed, increased, reduced, or the tax base is changed, the Tax Administrator shall follow the notice requirements of California Public Utilities Code Section 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.

If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Chapter or any part thereof is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portion of this Chapter or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases be declared unconstitutional.

Unless specifically provided otherwise, any reference to a State or Federal statute in this Chapter shall mean such statute as it may be amended from time to time.

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.