Sand City Municipal Code Ch. 3.01 Utility Users Tax

The ordinance codified in this chapter is adopted pursuant to the provisions of California Government Code Section 53723 for the purpose of providing general municipal revenue to be used for general municipal purposes.

(OTP 1-87 §1)

There is hereby imposed an annual utility users tax in the amount set forth in Sections 3.01.060(A) and 3.01.070(A) to raise revenues for the general governmental purposes of the City. Such general tax shall be levied for each fiscal year by the City. This chapter may be amended by a majority vote of the City Council of Sand City to decrease, but not to increase, the tax rates set forth in Sections 3.01.060(A) and 3.01.070(A), percentage.

(OTP 1-87 §2)

Except where the context otherwise requires, the definitions contained in this section shall govern the construction of this chapter.

"City"

shall mean the City of Sand City, California, including all the territory and jurisdiction thereof as presently constituted, and any and all of the same which shall later come into existence by any means whatsoever.

"Collector"

shall mean the City Manager of the City.

"Electrical corporation" and "gas corporation"

shall have the same meanings, except as hereafter provided, as defined in Sections 218 and 222, respectively, of the Public Utilities Code of the State of California.

"In the City"

shall mean physically located, in whole or in part, within the exterior territorial limits of the City.

"Month"

shall mean a calendar month.

"Person"

shall mean any domestic and foreign corporation, association, syndicate, joint stock company, partnership of any kind, joint venture, club, Massachusetts business or common law trust, society, individual or municipal corporation.

"Service supplier"

shall mean a person required to collect and remit a tax imposed under the provisions of this chapter.

"Service user"

shall mean a person required to pay a tax imposed under the provisions of this chapter.

"Utility tax year"

shall mean the fiscal year of Sand City, provided that the initial utility tax year shall be the effective date of the ordinance codified in this chapter, through June 30th, 1988, inclusive.

(OTP 1-87 §3; Ord. 17-04 §14)

Nothing contained in this chapter 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.

(OTP 1-87 §4)

The taxes imposed by this chapter shall be imposed on the effective date of the ordinance codified in this chapter, or at the beginning of the first regular billing period thereafter which includes service only from the effective date of said ordinance, and thereafter.

(OTP 1-87 §5)

A. Tax Imposed. There is hereby imposed upon every person in the City using electrical energy for any purpose, other than an electrical corporation or a gas corporation, a tax at the rate of 5% of the charges for said service. As used in this section "charges" shall include charges made for (1) metered energy, and (2) minimum charges for service, including customer charges, service charges, demand charges, standby charges and annual and monthly charges.

B. Exclusions. As used in this section, the phrase "using electrical energy" shall not be construed to mean:

1. The storage of such energy by a person in a battery owned or possessed by such person for use in an automobile or other machinery or device apart from the premises upon which the energy was received, provided however, that the phrase shall include the receiving of such energy for the purpose of using it in the charging of batteries; or

2. The mere receiving of such energy by an electrical corporation or a government agency at a point within the City for resale.

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

(OTP 1-87 §6)

A. Tax Imposed. There is hereby imposed upon every person in the City, other than a gas corporation or electrical corporation, using gas which is delivered through mains or pipes for any purpose, a tax at the rate of 5% of the charges made for said service.

B. Exclusions. As used in this section the word "charges" shall not include charges made for gas used in the generation of electrical energy by a public utility or a governmental agency, and the phrase "using gas" shall not be construed to mean the mere receiving of such gas by a gas corporation or governmental agency at a point within the City for resale.

C. Tax Collection. The tax imposed by this section shall be collected from the service user by the person selling the gas. The amount of tax collected in one month shall be remitted to the collector on or before the last day of the following month.

(OTP 1-87 §7)

A. Action by the City. 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 collector shall be deemed a debt owed to the City by the person required to collect and remit. Any person owing money to the City under the provisions of this chapter shall be liable to an action brought in the name of the City for the recovery of such amount.

B. Duty to Collection—Procedures. The duty to collect and remit the taxes imposed by this chapter shall be performed as follows:

1. The tax shall be collected insofar as practicable at the same time as and along with the charges made in accordance with regular billing practice of the service supplier. Except in those cases where a service user pays the full amount of said charges but does not pay any portion of a tax imposed by this chapter, or where a service user has notified a service supplier that he or she is refusing to pay a tax imposed by this chapter which said tax the service supplier is required to collect, if the amount paid by the service user is less than the full amount of the charge and tax which has accrued for the billing period, a proportionate share of both the charge and the tax shall be deemed to have been paid.

2. The duty to collect tax from a service user shall commence with the beginning of the first regular billing period applicable to that person which starts on or after the operative date of this chapter. Where a person receives more than one billing, one or more being for different periods than another, the duty to collect shall arise separately for each billing period.

C. Powers and Duties of Collector. The collector shall have the power and duty, and is hereby directed to enforce each and all of the provisions of this chapter. The collector shall have the power to adopt rules and regulations not inconsistent with the provisions of this chapter for the purpose of carrying out and enforcing the payment, collection and remittance of the taxes herein imposed; and a copy of such rules and regulations shall be on file and available for the public examination in the collector's office.

D. Administrative Agreements. The collector may make administrative agreements to vary the strict requirements of this chapter so that the collection and remittance on any tax imposed herein may be made in conformance with the billing procedures of a particular service supplier so long as the overall result of said agreements results in collection of the tax in conformance with the general purpose and scope of this chapter. A copy of each agreement shall be on file and available for public examination in the collector's office.

(OTP 1-87 §8)

Taxes collected from a service user which are not remitted to the collector on or before the due dates provided in this chapter are delinquent.

A. General Penalty. In addition to remitting the amount of the tax, any service supplier who fails to remit any tax imposed by this chapter within the time required and upon 10 days' written notice to the service supplier of its failure to remit, shall pay a penalty of 10% of the amount of the tax which shall be added on the last day of each month following the date on which remittance was due until the tax and penalties are remitted.

B. Penalty for Fraud. If the collector determines that the nonpayment by any service supplier of any remittance due under this chapter is due to fraud, a penalty of 25% of the amount of the tax shall be added to the penalty imposed by subsection A of this section.

C. Interest. In addition to the penalties imposed by subsections A and B of this section, any service supplier who fails to remit any tax imposed by this chapter shall pay interest at the rate of 1% 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.

D. Penalty and Interest Part of Tax. Every penalty imposed upon a service supplier and such interest as accrues under the provisions of subsections A to C, inclusive, shall become a part of the tax required to be remitted.

(OTP 1-87 §9)

A. General Penalty. In addition to paying the amount of the tax, any service user who fails to pay any tax imposed by this chapter within 60 days of the date of the notice of the amount of tax due from the service supplier shall pay a penalty of 10% of the amount of the tax which shall be added on the last day of each month following the date on which payment was due until the tax and penalties are paid.

B. Penalty for Fraud. If the collector determines that the nonpayment by any service user of any tax imposed by this chapter is due to fraud, a penalty of 25% of the amount of the tax shall be added thereto in addition to the penalty imposed by subsection A of this section.

C. Interest. In addition to the penalties imposed by subsections A and B of this section, any service user who fails to pay any tax imposed by this chapter shall pay interest at the rate of 1% per month, or fraction thereof, exclusive of penalties from the date on which the remittance first became delinquent until paid, and a collection charge of $10 for each delinquent account.

D. Penalty and Interest Part of Tax. The penalties, interest and collection charges imposed in subsections A to C, inclusive, shall not be collected by the service supplier but by the collector.

E. Collection of Penalty and Interest. Every penalty imposed upon a service user and such interest as accrues under the provisions of subsections A through C, inclusive, shall become a part of the tax imposed by this chapter.

(OTP 1-87 §10)

A. Collector to Estimate Tax Due. If any service supplier shall fail to make, within the time provided in this chapter, any report and remittance of said tax or any portion thereof required by this chapter the collector shall proceed in such manner as he or she may deem best to obtain facts and information on which to base his or her estimate of the tax due. As soon as the collector shall procure such facts and information as he or she is able to obtain upon which to base the assessment of any tax imposed by this chapter and payable by any service supplier who has failed or refused to make such report and remittance, he or she shall proceed to determine and assess against such service supplier the tax, interest and penalties provided for by this chapter. In case such determination is made, the collector shall give a notice of the amount to be assessed by serving it personally or depositing it in the United States Mail, postage prepaid, addressed to the service supplier so assessed at his or her last known place of address.

B. Hearing on Determination of Tax. The service supplier may, within 20 days after the serving or mailing of the notice referred to in subsection A of this section, make application in writing to the collector for a hearing on the amount assessed. If application by the service supplier for hearing is not made within the time prescribed, the tax, interest and penalties, if any, determined by the collector shall become final and conclusive and immediately due and payable. If such application is made, the collector shall give not less than 10 days' written notice in the manner prescribed herein to the service supplier to show cause at a time and place fixed in said notice why said amount specified therein should not be fixed for such tax, interest and penalties. At such hearing, the service supplier may appear and offer evidence why such specified tax, interest and penalties should not be so fixed.

C. Determination of Tax Following Hearing—Notice When Due. After a hearing on the amount of tax assessed, the collector shall determine the proper tax to be remitted, and shall thereafter give written notice to the service supplier in the manner prescribed above of such determination and the amount of such tax, interest and penalties. The amount determined to be due shall be payable after 15 days unless an appeal is taken as provided in this chapter.

D. Collection of Taxes From Service User. Whenever the collector determines that a service user has deliberately withheld the amount of any tax imposed on him or her by the provisions of this chapter from the amounts remitted to a service supplier required to collect the tax, or that a service user has failed to pay the amount of the tax to such service supplier for a period of four or more billing periods, or whenever the collector deems it in the best interest of the City, he or she may relieve such service supplier of the obligation to collect taxes due under this chapter from certain named service users for specified billing periods. The collector shall notify the service user that he or she has assumed responsibility to collect the taxes due for the stated periods and demand payment of such taxes, plus any penalty imposed and such interest as may be due pursuant to the provisions of Section 3.01.100 of this chapter. The notice shall be served on the service user by handing to him or her personally or by deposit of the notice in the United States Mail, postage prepaid thereon, addressed to the service user at the address to which billing was made by the service supplier required to collect the tax; or, should the service user have changed his or her address, to his or her last known address.

(OTP 1-87 §11)

A. Who May Appeal. Any person aggrieved by any decision of the collector pursuant to this chapter may appeal to the City Council by filing a notice of appeal with the collector within 15 days of the serving, by mail, of the decision.

B. Hearing Notice. The Council shall fix a time and place for hearing such appeal. The collector shall give notice thereof in writing to such person by serving it personally or by depositing it in the United States Mail, postage prepaid, addressed to such person at his or her last known place of address.

C. Hearing—Determination. The Council shall have authority to determine all questions raised on such appeal at the time of the hearing. No determinations made by the Council shall conflict with any substantive provision in this chapter.

(OTP 1-87 §12)

It shall be the duty of every service supplier required to collect and remit to the City any tax imposed by this chapter, to keep and preserve, for a period of three years, all records as may be necessary to determine the amount of such tax that such service supplier may have been requested to collect and remit to the City, which records the collector shall have the right to inspect at all reasonable times.

(OTP 1-87 §13)

A. Whenever the amount of any tax, interest or penalty has been overpaid or paid more than once, or has been erroneously or illegally collected or received by the City under this chapter, it may be refunded as provided in this section provided a claim in writing therefor, stating under penalty of perjury the specified grounds upon which the claim is founded is filed with the collector within three years of the date of payment. The claim shall be on forms furnished by the collector.

B. A service supplier may claim a refund or take as credit against taxes collected and remitted an amount overpaid more than once or erroneously or illegally collected or received when it is established in a manner prescribed by the collector that the service user from whom the tax has been collected did not owe the tax; provided, however, that neither the refund nor a credit shall be allowed unless the amount of the tax so collected has either been refunded to the service user or credited to charges subsequently payable by the service user to the service supplier.

C. No refund shall be paid under the provisions of this section unless the claimant establishes his or her right thereto by written records showing entitlement thereto.

(OTP 1-87 §14)

A. Exemption. Every person who is either elderly or disabled shall be exempt from the payment of the tax imposed by this chapter. "Elderly" means every natural person over the age of 65 years. "Disabled" means a natural person defined in California Vehicle Code Section 22511.5(a). To be eligible for exemption a person must file an application with the collector as provided in subsection B of this section and provide proof that they are:

1. Elderly or disabled, and

2. Jointly or severally liable for the payment of the utility bills, and

3. The utilities are used only at their principal place of residence.

B. Application. Applications for exemption may be filed with the collector at any time on such forms as he or she may provide. Applications shall be verified by declaration under penalty of perjury and shall contain such information as may be required by the collector.

C. Review and Certification. The collector shall review each application and shall certify the service users as exempt if the eligibility requirements of subsection A of this section are met, except that no exemption shall be granted to a service user who is receiving service from a service supplier through a master meter and no exemption shall be granted with respect to any tax imposed by this chapter which is or has been paid by a public agency or where the service user receives funds from a public agency specifically for the payment of such tax.

D. Effective Date. Upon completion of the application and certification, the collector shall submit the information to the service suppliers. The exemption shall become effective at the next billing cycle after the service suppliers have entered the exemption in their records.

E. Prior Taxes to Be Collected. Taxes billed by the service supplier to the service user prior to removing the service user from its tax billing procedure, shall be collected from the service user and the service user shall pay such taxes to the service supplier. Taxes billed to and paid by the service user between the time that the application for exemption is filed and the service supplier removes the service user from its taxing procedure will not be refunded to the service user.

F. Duration of Exemption. Exemptions certified by the collector shall continue so long as the facts supporting the qualification for exemption shall exist; provided, however, that the exemption shall automatically terminate with any change in the service address or residence of the exempt individual; and provided further, that such individual may nevertheless apply for a new exemption with each change of address or residence.

G. Duty to Disclose—Disqualification. Any service user who has been exempt under this section shall notify the collector within 10 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.

Any service supplier, who determines by any means that a new or nonexempt 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 collector of such fact and the collector 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 nonexempt service user.

H. Audit by Collector. The collector shall have the power and right to demand evidence of continued eligibility of a service user for exemption under the provisions of this section.

(OTP 1-87 § 15)

Nothing in this chapter shall be construed as imposing a tax upon any person if the imposition of such tax upon that person would be in violation of the Constitution of the United States or the Constitution of the State of California.

(OTP 1-87 §16)

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

(OTP 1-87 §17)

If approved by a majority of the voters, this chapter shall be considered as adopted upon the date that the vote is declared by the City Council and shall go into effect 10 days after that date, as provided in California Elections Code Section 4013.

(OTP 1-87 §18)