Ventura Municipal Code § 4.130.090 Violations – Misdemeanor

6 State law reference(s): Cigarette tax, Rev. and Tax. Code, Sections 30001 through 30476.

A. Title. This chapter shall be known as the “cigarette tax ordinance” of the city of San Buenaventura.

B. Definitions.

“Cigarette” means any roll for smoking, made wholly or in part of tobacco, irrespective of size or shape and irrespective of whether the tobacco is flavored, adulterated or mixed with any other ingredient, where such roll has a wrapper or cover made of paper or any other material, except where such wrapper is wholly or in the greater part made of tobacco and such roll weighs over three pounds per thousand.

“Retailer” means every person as herein defined who sells cigarettes for any purpose other than resale. Where cigarettes are offered for sale through the means of a vending machine, the person holding title to the cigarettes in the machine shall be deemed the retailer.

“Use or consumption” means the exercise of any right or power over cigarettes incident to the ownership thereof other than the sale of the cigarettes or the keeping or retention thereof for the purpose of sale. (Code 1971, § 1561)

A. Generally. An excise tax is hereby imposed upon the use or consumption in the city of San Buenaventura of cigarettes purchased from a retailer for use or consumption within the city of San Buenaventura at the rate of one mill ($0.001) per cigarette.

B. Tax Paid to Retailer. The tax constitutes a debt owed by the purchaser to the city which is extinguished only by payment of the tax to the city treasurer or to the retailer. When a purchase from a retailer is made within the city, the tax shall be paid to the retailer at the time the purchase price is paid. The tax collected or required to be collected by the retailer constitutes a debt owed by the retailer to the city. Should any remittance of tax be made by a retailer prior to sale of cigarettes to a consumer, such remittance shall be considered as an advance payment to be reimbursed by adding the amount of the tax to the price of the cigarettes at the time of sale to the user or consumer.

C. Retailer Remits Quarterly. Each retailer selling cigarettes within the city shall collect the tax imposed under subsection A of this section and on or before the last day of the month following the close of a calendar quarter remit the total amount so collected to the city treasurer together with a statement on a form provided by the city treasurer showing the number of cigarettes sold to purchasers, the amount of tax collected, and such other information as the city treasurer shall require. Where the city treasurer determines that efficiency in the administration of the tax would be promoted, the treasurer may establish reporting periods greater than quarterly, but not to exceed one year. The city treasurer may establish shorter reporting periods for any retailer if the treasurer deems it necessary in order to insure collection of the tax. Statements and payments are due immediately upon cessation of the business of selling cigarettes for any reason. All taxes collected by retailers pursuant to this chapter shall be held in trust for the account of the city until payment thereof is made to the city treasurer.

D. Deposit of Receipts. Receipts from the tax imposed by this chapter shall be deposited in the capital outlays fund. (Code 1971, § 1562)

A. Within 30 days after the operative date of this chapter, or within 30 days after commencing business, whichever is later, each retailer shall register with the city treasurer and obtain from the treasurer a “cigarette tax registration certificate” to be at all times posted in a conspicuous place on the premises; provided, however, each retailer who does not operate from a fixed place of business shall keep the registration certificate upon their person at all times while engaging in the business of being a retailer. No person shall engage in the business of being a retailer without obtaining a registration certificate therefor. Said certificate shall, among other things, state the following:

1. The name of the retailer.

2. The address of the retailer’s place of business.

3. The date upon which the certificate was issued.

4. “"This cigarette tax registration certificate signifies that the person named on the face hereof has fulfilled the requirements of the cigarette tax ordinance by registering with the city treasurer for the purpose of collecting the cigarette tax from purchasers of cigarettes and remitting said tax to the city treasurer. This certificate does not authorize any person to conduct any lawful business in an unlawful manner, nor to operate a cigarette retailing business without complying with all state and local applicable laws, including but not limited to those requiring a permit from any board, commission, department or office of this city. This certificate does not constitute a permit."”

B. All cigarette tax registration certificates shall be countersigned by the city treasurer.

C. A retailer having within the city more than one place of business at which cigarettes are sold shall be required to obtain a separate registration for each such place of business. (Code 1971, § 1563)

A. Taxes collected by a retailer which are not remitted to the city treasurer on or before the due dates fixed in Section 4.130.020(C) or fixed by the city treasurer as provided herein are delinquent.

B. Any retailer who fails to remit any tax imposed by this chapter within the time required shall pay a penalty of 10 percent of the amount of the tax in addition to the amount of the tax.

C. Any retailer who fails to remit the said tax on or before the thirtieth day following the date on which the tax first became delinquent shall pay a second delinquency penalty of 10 percent of the amount of the tax in addition to the amount of the tax and the 10 percent penalty first imposed.

D. If the city treasurer determines that the nonpayment of any tax due under this chapter is due to fraud, a penalty of 25 percent of the amount of the tax shall be added thereto in addition to the penalties stated in subsections B and C of this section.

E. Interest. In addition to the penalties imposed, any retailer who fails to remit any tax imposed by this chapter shall pay interest at the rate of one-half of one percent per month, or fraction thereof, on the amount of the tax, exclusive of penalties, from the date on which the tax first became delinquent until paid.

F. Penalties Merged With Tax. Every penalty imposed and such interest as accrues under the provisions of this section shall become a part of the tax herein required to be paid. (Code 1971, § 1564)

If any retailer shall fail or refuse to collect said tax and 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 city treasurer shall proceed in such manner as the treasurer may deem best to obtain facts and information on which to base the treasurer’s estimate of the tax due. As soon as the city treasurer shall procure such facts and information as the treasurer is able to obtain upon which to base the assessment of any tax imposed by this chapter and payable by any retailer who has failed or refused to collect the same and to make such report and remittance, the treasurer shall proceed to determine and assess against such retailer the tax, interest and penalties provided for by this chapter. In case such determination is made, the city treasurer shall give a notice of the amount so assessed by serving it personally or by depositing it in the United States mail, postage prepaid, addressed to the retailer so assessed at the retailer’s last known place of address. Such retailer may within 10 days after the serving or mailing of such notice make application in writing to the city treasurer for a hearing on the amount assessed. If application by the retailer for a hearing is not made within the time prescribed, the tax, interest and penalties, if any, determined by the city treasurer shall become final and conclusive and immediately due and payable. If such application is made, the city treasurer shall give not less than five days’ written notice in the manner prescribed herein to the retailer 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 retailer may appear and offer evidence why such specified tax, interest and penalties should not be so fixed. After such hearing the city treasurer shall determine the proper tax to be remitted and shall thereafter give written notice to the retailer in the manner prescribed herein 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 Section 4.130.060. (Code 1971, § 1565)

A. Procedure. Any retailer aggrieved after such hearing by any decision of the city treasurer with respect to the amount of such tax, interest and penalties, if any, may appeal to the council by filing a notice of appeal with the city clerk within 15 days of the serving or mailing of the determination of tax due. The council shall fix a time and place for hearing such appeal, and the city clerk shall give notice in writing to such retailer at the retailer’s last known place of address. The findings of the council shall be final and conclusive and shall be served upon the appellant in the manner prescribed above for service of notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of notice.

B. Actions to Collect. Any person using or consuming cigarettes within the city who has not paid the tax required by the provisions of this chapter, and any retailer who has failed to collect or who has collected but not remitted any tax required to be paid by the provisions of this chapter, shall be liable to an action brought in the name of the city for the recovery of such amount. (Code 1971, § 1566)

It shall be the duty of every retailer liable for the collection and payment to the city of 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 as the retailer may have been liable for the collection of and payment to the city, which records the city treasurer shall have the right to inspect at all reasonable times. (Code 1971, § 1567)

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 subsections B and C of this section provided a claim in writing therefor, stating under penalty of perjury the specific ground upon which the claim is founded, is filed with the city treasurer within three years of the date of payment. The claim shall be on forms furnished by the city treasurer.

B. A retailer may claim a refund or take as credit against taxes collected and remitted the amount overpaid, paid more than once or erroneously or illegally collected or received when it is established in a manner prescribed by the city treasurer that the person from whom the tax has been collected was not a user or consumer as that term is defined in Section 4.130.010(B); provided, however, that neither a refund nor a credit shall be allowed unless the amount of the tax so collected has either been refunded to the purchaser erroneously required to pay the tax or otherwise credited to them.

C. No refund shall be paid under the provisions of this section unless the claimant establishes the claimant’s right thereto by written records showing entitlement thereto. (Code 1971, § 1568)

Any person violating any of the provisions of this chapter shall be guilty of a misdemeanor and shall be punishable as provided for in the San Buenaventura Municipal Code.

Any retailer or other person who fails or refuses to register as required herein, or to furnish any return required to be made, or who fails or refuses to furnish a supplemental return or other data required by the city treasurer, or who renders a false or fraudulent return or claim, is guilty of a misdemeanor, and is punishable as aforesaid. Any person required to make, render, sign or verify any report or claim who makes any false or fraudulent report or claim with intent to defeat or evade the determination of any amount due required by this chapter to be made is guilty of a misdemeanor and is punishable as aforesaid. (Code 1971, § 1569)