Soledad Municipal Code Ch. 3.44 Utility Users Tax

The ordinance codified in this chapter is adopted pursuant to the provisions of California Government Code Section 37100.5 for the purpose of raising revenue to be used for general municipal purposes.

(Ord. 521 § 1, 1993)

There is imposed an annual utility users tax in the amount set forth in Sections 3.44.060, 3.44.070, 3.44.090 and 3.44.100 hereof to raise revenues for the general governmental purposes of the city. Such general tax shall be levied for each fiscal year by the city.

(Ord. 521 § 2, 1993)

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

A. "City" means the city of Soledad, 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 manner or means whatsoever.

B. "Collector" means the city manager of the city.

C. "Electrical corporation," "gas corporation," "telephone corporation" and "cable television corporation" shall have the same meanings, except as hereafter provided, as defined in Sections 218, 222, 234 and 215-5, respectively, of the Public Utilities Code of the state, except, "electrical corporation" and "gas corporation" shall also be construed to include any municipality, public agency or person engaged in the selling or supplying of electrical power or gas to a service user.

D. "Month" means a calendar month.

E. "Person" means 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.

F. "Service supplier" means a person required to collect and remit a tax imposed under the provisions of this chapter.

G. "Service user" means a person required to pay a tax imposed under the provisions of this chapter.

H. "Utility tax year" means the fiscal year of the city, provided that the initial utility tax year shall be the effective date of the ordinance codified in this chapter, through June 30, 1994, inclusive.

(Ord. 521 § 4, 1993)

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 provision of such rules, regulations and tariffs shall control.

(Ord. 521 § 4, 1993)

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.

(Ord. 521 § 5, 1993)

A. Tax Imposed.

1. There is 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 five percent of the charges of the service.

2. As used in this section, "charges" shall include charges made for:

a. Metered energy; and

b. Minimum charges for service, including customer charges, service charges, demand charges, standby charges and annual monthly charges.

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

(Ord. 521 § 6, 1993)

A. Tax Imposed.

1. There is imposed a tax upon every person in the city other than a gas corporation or electrical corporation, using, in the city, gas which is transported through mains or pipes or by mobile transport. The tax imposed by this section shall be at the rate of five percent of the charges made for the gas and shall be billed to and paid by the person using the gas. The tax applicable to gas or gas transportation provided by nonutility suppliers shall be determined by applying the tax rate to the equivalent charges the service user would have incurred if the gas or gas transportation has been provided by the gas corporation franchised by the city.

2. "Charges" as used in this section shall include:

a. That billed for gas which is delivered through mains or pipes;

b. Gas transportation charges; and

c. Demand charges, service charges, customer charges, minimum charges, annual and monthly charges, and any other charge authorized by the California Public Utilities Commission or the Federal Energy Regulation Commission.

B. Exclusions. 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.

C. Tax Collection. The tax imposed by this section shall be collected from the service user by the person selling or transporting the gas. A person selling only transportation services to a user for delivery of gas through mains or pipes shall collect the tax from the service user based on the transportation charges. The person selling or transporting the gas shall, on or before the twentieth of each calendar month, commencing on the twentieth day of the calendar month after the effective date of the ordinance codified in this chapter, make a return to the collector stating the amount of taxes billed during the preceding calendar month. At the time such returns are filed, the person selling or transporting the gas shall remit tax payments to the collector in accordance with schedules established or approved by the collector. The tax imposed in this section on use supplied by self-production or a nonutility supplier not subject to the jurisdiction of this chapter, shall be collected and remitted to the collector in the manner set forth in Section 13.44.080.

(Ord. 521 § 7, 1993)

A. Notwithstanding any other provision of this chapter, a service user receiving gas or electricity directly from a nonutility supplier not under the jurisdiction of this chapter, or otherwise not having the full tax due on the use of gas or electricity in the city directly billed and collected by the service supplier, shall report the fact to the collector within thirty days of the use and shall directly remit to the city the amount of tax due.

B. The collector may require the service user to provide, subject to audit, filed tax returns or other satisfactory evidence documenting the quantity of gas or electricity used and the price thereof.

(Ord. 521 § 8, 1993)

A. Tax Imposed. There is imposed a tax on the amounts paid for any intrastate, interstate or international telephone services by every person in the city, other than a telephone corporation, using such services. The tax imposed by this section shall be at the rate of five percent of the charges made for such services for residential users and five percent of the charges made for such services for nonresidential users and shall be paid by the person paying for such services.

B. Exclusions.

1. As used in this section, the term "charges" shall not include charges for services paid for by inserting coins in coin-operated telephones except that where such coin-operated 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; nor shall the term charges include charges for any type of service or equipment furnished by a service supplied subject to public utility regulations during any period in which the same or similar services or equipment are also available for sale or lease from persons other than a service supplier subject to public utility regulation; nor shall the words "telephone communication services" include land mobile service or maritime mobile services as defined in Section 2.1 of Title 47 of the Code of Federal Regulations, as the section existed on January 1, 1970. The term telephone communication services refers to that service which provides access to a telephone system and the privilege of telephone quality communication with substantially all persons having telephone stations which are part of such telephone system. The telephone users tax is intended to, and does, apply to all charges billed to a telephone account having a situs in the city, irrespective of whether a particular communication service originates and/or terminates within the city.

2. Notwithstanding the provisions of subsection A, the tax imposed under this section shall not be imposed upon any person for using intrastate, interstate or international telephone communication services to the extent that the amounts paid for such services are exempt from or not subject to the tax imposed under Division 2, Part 20 of the California Revenue and Taxation Code, or the tax imposed under Section 4251 of the Internal Revenue Code.

3. Tax Collection. The tax imposed by this section shall be collected from the service user by the person providing the telephone communication services, or the person receiving payment for such services. 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; or at the option of the person required to collect and remit the tax, an estimated amount of tax collected, measured by the tax bill in the previous month, shall be remitted to the collector on or before the last day of each month.

(Ord. 521 § 9, 1993)

A. Tax Imposed. There is imposed a tax upon every person in the city using cable television service. The tax imposed by this section shall be at the rate of five percent of the charges made for such service and shall be paid by the person paying for such television service.

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

(Ord. 521 § 10, 1993)

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 Collect—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 the 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 is refusing to pay a tax imposed by this chapter which such 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 where all charges normally included in such billing are subject to the provisions 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 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 compliance with the billing procedures of a particular service supplier so long as the overall result of such agreements results in collection of the tax in compliance 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.

(Ord. 521 § 11, 1993)

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 ten days written notice to the service supplier of its failure to remit, shall pay a penalty of ten percent 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 twenty-five percent 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 one percent per month, or fraction thereof on the amount of the tax exclusive of penalties, from the date on which the remittance first became delinquent until paid.

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 of this section, inclusive, shall become a part of the tax required to be remitted.

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

(Ord. 521 § 12, 1993)

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 the tax or any portion thereof required by this chapter the collector shall proceed in such manner as he may deem best to obtain facts and information on which to base his estimate of the tax due. As soon as the collector shall procure such facts and information as he 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 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 servicing it personally or depositing it in the United States mail, postage prepaid, addressed to the service supplier so assessed at his last known place of address.

B. Hearing on Determination of Tax. The service supplier may within twenty 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 by 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 ten days written notice in the manner prescribed herein to the service supplier to show cause at a time and place fixed in the notice why the 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 fifteen 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 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 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 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 3.44.120. The notice shall be served on the service user by sending to him 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 address, to his last known address.

(Ord. 521 § 13, 1993)

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 fifteen 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 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 of this chapter.

(Ord. 521 § 14, 1993)

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.

(Ord. 521 § 15, 1993)

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.

B. No refund may be made except upon a written claim verified by the person who paid the tax or by his or her guardian or conservator or the executor or administrator of his or her will or estate and stating the grounds upon which the claim is made. A service supplier may claim a refund or claim a credit against taxes collected but not yet remitted to the city of the amount overpaid, paid more than once or erroneously or illegally collected or received, however, in the case of a tax erroneously or illegally collected by the service supplier, no refund shall be allowed unless the service user or other person from whom the amount was collected has submitted a written claim to the service supplier in the form prescribed above and the amount thereof has either been refunded by the service supplier to the service user or other person from whom the amount was collected, or credited against charges subsequently payable by such service user or other person. All claims filed pursuant to this subsection must be presented within one year after payment of the amount sought to be refunded.

C. No order of a refund may be made until a written claim therefor has been presented in accordance with this section. No suit for money, damages or a refund may be brought against the city until a written claim therefor has been presented to the city and has been acted upon or has been deemed rejected by the city, in accordance with this section. Only the person who filed the claim may bring such a suit and if another person should do so, judgment shall not be rendered for the plaintiff.

D. 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 article on the amount of such refunded service charges may also be refunded to service users by the service supplier and the service supplier can claim credit for such refunded taxes against the amount which is due upon any monthly returns. In the event this chapter has been repealed as of the time such refund is to be made, the amount of any refundable taxes will be borne by the city.

(Ord. 583 § 2, 2002)

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.

(Ord. 521 § 17, 1993)