San Leandro Municipal Code Art. 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 Sections 4251 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.