Vernon Municipal Code Ch. 3.16 Utility Users' Tax

This chapter shall be known as the "Utility Users' Tax Ordinance of the City of Vernon."

(Prior code § 5.110)

This chapter is enacted solely to raise revenues for general governmental purposes of the City of Vernon and is not enacted for regulatory purposes. All proceeds from the utility users' tax of the City of Vernon shall be deposited in the general fund of the City of Vernon and used for general governmental purposes.

(Prior code § 5.111)

As used in this chapter, the following terms have the meanings indicated:

"Ancillary telecommunications services"

means services that are associated with or incidental to the provision, use or enjoyment of telecommunications services, including, but not limited to, the following services: (1) ancillary services that link two or more participants of an audio or video conference call and may include the provision of a telephone number, but not including the telecommunications services used to reach the conference bridge ("conference bridging services"); (2) ancillary services of separately stating information pertaining to individual calls on a customer's billing statement ("detailed telecommunications billing services"); (3) ancillary services that are offered in connection with one or more telecommunications services, which offer advanced calling features that allow customers to identify callers and to manage multiple calls and call connections, including conference bridging services ("directory assistance"); (4) ancillary services that are offered in connection with one or more telecommunications services, which offer advanced calling features that allow customers to identify callers and to manage multiple calls and call connections, including conference bridging services ("vertical services"); and (5) ancillary services that enable the customer to store, send or receive recorded messages, but not including any vertical services that the customer may be required to have in order to utilize such services ("voice mail services").

"Ancillary video services"

means services that are associated with or incidental to the provision, use or enjoyment of video services, including, but not limited to: (1) electronic program guide services, recording services, search functions or other interactive services; or (2) telecommunications that are associated with or incidental to the provision, use or enjoyment of video programming.

"Billing address"

means the mailing address of the service user where the service supplier submits invoices or bills for payment by the service user.

"City"

means the City of Vernon, California.

"Code"

means the Code of the City.

"Effective date"

has the meaning ascribed thereto in Section 3.16.040 of this chapter.

"Electrical charges"

means, with respect to the electricity users' tax: (1) charges made for metered electrical energy; (2) charges for services, including customer charges, service charges, demand charges, luminaire charges, horsepower charges, standby charges, fuel or other cost adjustments, pass-through charges and all other annual and monthly charges; and (3) the value of any other services, credit, property of every kind or nature or other consideration provided by the service user in exchange for the electrical energy or services related to the provision of such electrical energy.

"Electrical corporation"

has the meaning ascribed thereto in Section 218 of the California Public Utilities Code.

"Electricity users' tax"

means the tax imposed by Section 3.16.050 of this chapter.

"Fiscal year"

means the fiscal year of the City, which is the 12-month period starting July 1 and ending on the following June 30.

"Gas charges"

means, with respect to the gas users' tax: (1) charges made for commodity gas whether procured from a gas corporation, a nonutility supplier or the City, including natural or manufactured gas or any alternative hydrocarbon fuel which may be substituted therefor; (2) charges for services, including transportation charges, customer charges, service charges, annual and monthly charges and any other charges authorized by the California Public Utilities Commission, the Federal Energy Regulatory Commission or any other regulatory body, as applicable; and (3) the value of any other services, credit, 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; provided, however, that "gas charges" does not include any one-time connection charges.

"Gas corporation" has the meaning ascribed thereto in Section 222 of the California Public Utilities Code. "Gas users' tax"

means the tax imposed by Section 3.16.060 of this chapter.

"Government Code"

means the California Government Code.

"Mobile telecommunications service"

has the meaning ascribed thereto, and the usage as set forth, in the Mobile Telecommunications Sourcing Act (4 U.S.C. Section 124) and the regulations thereunder.

"Nonutility supplier"

means a service supplier within the City, other than a gas corporation, which sells or supplies gas or supplemental services to gas users within the City.

"Paging service"

means a telecommunications service that provides transmission of coded radio signals for the purpose of activating specific pagers. Such transmissions may include messages and/or sounds.

"Person"

means, without limitation, any natural individual, any domestic or foreign corporation, firm, association, syndicate, joint venture, partnership of any kind, club, joint stock company, cooperative, common law trust, trust of any kind, or receiver, trustee, guardian or other representative appointed by order of any court, or other entity.

"Place of primary use"

means, with respect to a specified telecommunications service, the street address representative of where a person's use of such telecommunications service primarily occurs, which must be either the residential street address or the primary business street address of such person.

"Postpaid telecommunications service"

means the telecommunications service obtained by making a payment on a telecommunication-by-telecommunication basis either through the use of a payment mechanism such as a bank card, travel card, credit card or debit card, or by charge made to a service number which is not associated with the origination or termination of the telecommunications service.

"Prepaid telecommunications service"

means the right to access telecommunications services, which must be paid for in advance and which enables the origination of telecommunications using an access number or authorization code, whether manually or electronically dialed, and that is sold in predetermined units or dollars.

"Private telecommunications service"

means a telecommunications service that entitles the customer to exclusive or priority use of a telecommunications channel or group of channels between or among termination points, regardless of the manner in which such channel or channels are connected, and includes switching capacity, extension lines, stations, and any other associated services that are provided in connection with the use of such channel or channels. A telecommunications channel is a physical or virtual path of telecommunications over which signals are transmitted between or among customer channel termination points (i.e., the location where the customer either inputs or receives the telecommunications).

"Residential service"

means: (1) with respect to telecommunications services, those telecommunications services with a service address that is a residential structure; and (2) with respect to all other services, those services delivered to a residential structure.

"Service address"

means either: (1) the location of the service user's telecommunications equipment from which the telecommunications originate or terminate, regardless of where the telecommunications are billed or paid; (2) if the location described in clause (1) of this definition is unknown (such as with mobile telecommunications services or VoIP services), the location of the service user's place of primary use, or (3) for prepaid telecommunications services, the location associated with the service number.

"Service supplier"

means any person required to collect or self-impose and remit the utility users' tax.

"Service user"

means any person required to pay the utility users' tax.

"State"

means the State of California.

"Tax Administrator"

means the Finance Director of the City, or appointed designee; provided, however, that if such official position of the City is eliminated, then "Tax Administrator" means the officer of the City with substantially similar duties and responsibilities, or appointed designee.

"Telecommunications charges"

means, with respect to the telecommunications users' tax: (1) charges made for telecommunications services; and (2) the value of any other services, credits, property of any kind or nature, or other consideration provided by the service user in exchange for the telecommunications services.

"Telecommunications services"

means the transmission, conveyance or routing of voice, data, audio, video or any other information or signals to a point, or between or among points, whatever the technology used. The term "telecommunications services" includes such transmission, conveyance or routing in which computer processing applications are used to act on the form, code or protocol of the content for purposes of transmission, conveyance or routing without regard to whether such services are referred to as VoIP services or are classified by the Federal Telecommunications Commission as enhanced or value added, and includes video services and/or data services that are functionally integrated with telecommunications services. "Telecommunications services" include, but are not limited to: ancillary telecommunications services, mobile telecommunications services, prepaid telecommunications services (to the extent that it is practicable for the service supplier to collect the correct tax imposed under this chapter from the service supplier), postpaid telecommunications services, private telecommunications services, paging services, 800 services, 900 services, charges for connection, reconnection, termination, movement, or change of telecommunications services, late payment fees, detailed billing, central office and custom calling features (including, but not limited to, call waiting, call forwarding, caller identification and three-way calling), access and line charges, universal service charges, regulatory, administrative and other cost recovery charges, local number portability charges, and text and instant messaging, regardless of the manner or basis on which such services are calculated or billed. The term "telecommunications services" shall not include digital downloads that are not ancillary telecommunications services, such as books, music, ringtones, games, and similar digital products.

"Telecommunications users' tax"

means the tax imposed by Section 3.16.080 of this chapter.

"Utility charges"

means the electrical charges, the gas charges, the telecommunications charges, the video charges and the water charges.

"Utility users' tax"

means the electricity users' tax, the gas users' tax, the telecommunications users' tax, the video users' tax and the water users' tax.

"Video charges"

means, with respect to the video users' tax: (1) charges for all video programming services: (2) ancillary video services; (3) charges for equipment leases; (4) charges for regulatory fees and surcharges, franchise fees and access fee; (5) charges for initial installation of equipment necessary for provision and receipt of video service; (6) late fees, collection fees, bad debt recoveries and return check fees; (7) activation fees, reactivation fees and reconnection fees; (8) charges for service calls, service protection plans, name changes, changes of services and special services; and (9) the value of any other services, credits, property of any kind or nature, or other consideration provided by the service user in exchange for video services.

"Video programming"

means those programming services commonly provided to subscribers by a supplier of video services including, but not limited to, basic services, premium services, audio services, video games, pay-per-view services, video on demand, origination programming or any other similar services, regardless of the content of such video programming or the technology used to deliver such services, and regardless of the manner or basis on which such services are calculated or billed.

"Video services"

means any and all services related to the providing, storing or delivering of video programming (including origination programming and programming using internet protocol) using one or more channels by a supplier of video services, regardless of the technology used to deliver, store or provide such services, and regardless of the manner or basis on which such services are calculated or billed, and includes ancillary video services, data services and interactive telecommunications services that are functionally integrated with video services.

"Video users' tax"

means the tax imposed by Section 3.16.090 of this chapter.

"VoIP"

means voice over internet protocol, which is the digital process of making and receiving real-time voice transmissions over any internet protocol network.

"Water charges"

means, with respect to the water users' tax: (1) charges made for metered water; (2) charges for service, including customer charges, service charges and annual and monthly charges and any other charge authorized by the laws of the State; and (3) the value of any other services, credit, property of every kind or nature or other consideration provided by the service user in exchange for the water or services related to the delivery of such water.

"Water users' tax"

means the tax imposed by Section 3.16.070 of this chapter.

"800 service"

means a telecommunications service that allows a caller to dial a toll-free number without incurring a charge for the call, which service includes toll-free calling typically marketed under the name "800," "855," "866," "877" and "888" and any subsequent numbers designated by the Federal Communications Commission.

"900 service"

means an inbound toll telecommunications service purchased by a subscriber that allows the subscriber's customers to call in to the subscriber's pre-recorded announcement or live service, which services include toll-free calling typically marketed under the name "900" and any subsequent numbers designated by the Federal Communications Commission; provided, however, that the term "900 service" does not include the charge for collection services provided by the seller of the telecommunications services to the subscriber, or services or products sold by the subscriber to the subscriber's customer.

(Prior code § 5.112)

A. The taxes imposed by this chapter shall become effective upon certification by the City Council of the adoption by the electorate of the ordinance adding this chapter to the Code (the "effective date"). As soon after the effective date as reasonably practicable, the Tax Administrator shall submit written notification to the service suppliers, in accordance with procedures established by the service suppliers, requesting that the utility users' tax be collected. The service suppliers responsible for collecting and remitting the utility users' tax shall have a reasonable period of time to install and implement necessary billing changes to effect the collection of the utility users' tax, but in no event to exceed 90 days from the date of receipt of such written notification or, if 90 days from the date of receipt of such written notification is not the first day of a month, then the first day of the month following the month in which such 90th day occurs.

B. This chapter and the utility users' tax shall be of no further force and effect at 11:59 p.m. (California time) on the date that is 10 years after the effective date; provided, however, that nothing herein shall prohibit the City from taking any action authorized under this chapter after such time and date to collect any utility users' tax accrued and owed as of such time and date.

(Prior code § 5.113)

A. There is hereby imposed a tax upon every person using electrical energy in the City at the rate of six percent of the electrical charges made for such electrical energy. The electricity users' tax shall be paid by the person paying for such electrical energy.

B. As used in this section, the term "using electrical energy" shall not be construed to mean: (1) the storage of electrical energy by a person in a battery that such person owns or possesses for use in an automobile or other machinery or device apart from the premises upon which the electrical energy was received; provided, however, that the term "using electrical energy" shall include the receiving of such electrical energy for the purpose of using it in the charging of batteries; (2) the mere receiving of electrical energy by an electrical corporation or governmental agency within the City for resale; or (3) the use of electrical energy in the production or distribution of water, gas or other utility by a public utility or a governmental agency.

C. The electricity users' tax shall be collected from the service user by the service supplier providing the electrical energy or its billing agent. The amount of tax collected in each month shall be remitted by the service supplier or its billing agent to the Tax Administrator on or before the last day of the following month, unless the due date occurs on a weekend or a holiday, in which case the electricity users' tax shall be remitted on or before the next business day thereafter. The electricity users' tax shall be deemed remitted on the date received by the Tax Administrator, or on the date postmarked if remitted by first class United States mail with postage fully prepaid.

(Prior code § 5.114)

A. There is hereby imposed a tax upon every person using gas, including natural or manufactured gas or any alternative hydrocarbon fuel which may be substituted therefor, in the City which is delivered through mains, pipes or mobile transport at the rate of six percent of the gas charges made for such gas. The gas users' tax shall be paid by the person paying for such gas.

B. There shall be excluded from the base on which the gas users' tax is computed charges made for gas which is to be resold and delivered through mains, pipes or mobile transport, and charges made for gas used by a nonutility supplier to generate electrical energy for its own use or for sale to others, provided the electrical energy so generated is subject to tax under Section 3.16.050 of this chapter.

C. The gas users' tax shall be collected from the service user by the service supplier providing the gas or its billing agent. The amount of tax collected in each month shall be remitted by the service supplier or its billing agent to the Tax Administrator on or before the last day of the following month, unless the due date occurs on a weekend or a holiday, in which case the tax shall be remitted on or before the next business day thereafter. The gas users' tax shall be deemed remitted on the date received by the Tax Administrator, or on the date postmarked if remitted by first class United States mail with postage fully prepaid.

(Prior code § 5.115)

A. There is hereby imposed a tax upon every person using water in the City at the rate of six percent of the water charges made for such water. The water users' tax shall be paid by the person paying for such water.

B. The water users' tax shall be collected from the service user by the service supplier providing the water or its billing agent. The amount of tax collected in each month shall be remitted by the service supplier or its billing agent to the Tax Administrator on or before the last day of the following month, unless the due date occurs on a weekend or a holiday, in which case the tax shall be remitted on or before the next business day thereafter. The water users' tax shall be deemed remitted on the date received by the Tax Administrator, or on the date postmarked if remitted by first class United States mail with postage fully prepaid.

(Prior code § 5.116)

A. There is hereby imposed a tax upon every person using telecommunications services at the rate of six percent of the telecommunications charges made for such telecommunications services. The telecommunications users' tax shall be paid by the person paying for such telecommunications services. There is a rebuttable presumption that telecommunications services, which are billed to a billing address or service address in the City, are used, in whole or in part, within the City's boundaries and such services are subject to the telecommunications users' tax. 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 the telecommunications users' tax.

B. Mobile telecommunications service shall be sourced in accordance with the sourcing rules set forth in the Mobile Telecommunications Sourcing Act (4 U.S.C. Section 124). The Tax Administrator may issue and disseminate to service suppliers of telecommunications services, which are subject to the tax collection requirements of this section, sourcing rules for the taxation of other telecommunications services, including, but not limited to, postpaid telecommunications services, prepaid telecommunications services and private telecommunications services; provided, that, such rules are based upon custom and common practice that further administrative efficiency and minimize multi-jurisdictional taxation.

C. To prevent actual multi-jurisdictional taxation of telecommunications services subject to the telecommunications users' tax, any service user, upon proof to the tax administrator that the service user has previously paid the same tax in another State or local jurisdiction on such telecommunications services, shall be allowed a credit against the telecommunications users' tax to the extent of the amount of such tax legally imposed in such other State or local jurisdiction; provided, however, that the amount of credit shall not exceed the telecommunications users' tax owed to the City.

D. The Tax Administrator may issue and disseminate to service suppliers of telecommunications services that are subject to the tax collection requirements of this section, an administrative ruling identifying those telecommunications services, or charges therefor, that are subject to or not subject to the telecommunications users' tax.

E. The telecommunications users' tax shall be collected from the service user by the service supplier providing the telecommunications services or its billing agent. The amount of tax collected in each month shall be remitted by the service supplier or its billing agent to the Tax Administrator on or before the last day of the following month, unless the due date occurs on a weekend or a holiday, in which case the tax shall be remitted on or before the next business day thereafter. The telecommunications users' tax shall be deemed remitted on the date received by the Tax Administrator, or on the date postmarked if remitted by first class United States mail with postage fully prepaid.

(Prior code § 5.117)

A. There is hereby imposed a tax upon every person using video services in the City at the rate of six percent of the video charges made for such video services. The video users' tax shall be paid by the person paying for such video services. There is a rebuttable presumption that video services, which are billed to a billing address or service address in the City, are used, in whole or in part, within the City's boundaries and that such video services are subject to the video users' tax. 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 the video users' tax.

B. The Tax Administrator may issue and disseminate to service suppliers of video services that are subject to the tax collection requirements of this section, an administrative ruling identifying those video services, or charges therefor, that are subject to or not subject to the video users' tax.

C. The video users' tax shall be collected from the service user by the service supplier providing the video services or its billing agent. The amount of tax collected in each month shall be remitted by the service supplier or its billing agent to the Tax Administrator on or before the last day of the following month, unless the due date occurs on a weekend or a holiday, in which case the tax shall be remitted on or before the next business day thereafter. The video users' tax shall be deemed remitted on the date received by the Tax Administrator, or on the date postmarked if remitted by first class United States mail with postage fully prepaid.

(Prior code § 5.118)

For purposes of imposing the utility users' tax or establishing a duty to collect and remit the utility users' tax under this chapter, "substantial nexus" and "minimum contacts" shall be construed broadly in favor of the imposition, collection and remittance of the utility users' tax to the fullest extent permitted by Federal and State law, and as it may change from time to time by judicial interpretation or by statutory enactment. Any telecommunications service used by a person with a service address in the City, which service is capable of terminating a call to another person on the general telephone network, shall be subject to a rebuttable presumption that a substantial nexus and minimum contacts exists for purposes of imposing the telecommunications users' tax, or establishing a duty to collect and remit the telecommunications users' tax. A service supplier, with respect to any utility users' tax, shall be deemed to have sufficient activity in the City for tax collection and remittance purposes if its activities include, without limitation: (1) maintaining or having within the City, directly or through an agent or subsidiary, a place of business of any nature; (2) soliciting business in the City by employees, independent contractors, resellers, agents or other representatives; (3) soliciting business in the City on a continuous, regular, seasonal or systematic basis by means of advertising that is broadcast or relayed from a transmitter within the City or distributed from a location within the City; or (4) advertising in newspapers or other periodicals printed and published within the City or through materials distributed in the City by means other than the United States mail.

(Prior code § 5.119)

If any nontaxable charges are combined with and not separately stated from taxable utility charges on the service user's bill or invoice of a service supplier, the combined charge is subject to the utility users' tax unless the service supplier identifies, by reasonable and verifiable standards, the portions of the combined charges that are nontaxable and taxable through the service supplier's books and records kept in the regular course of business, and in accordance with generally accepted accounting principles, and not created and maintained for tax purposes. The service supplier has the burden of proving the proper apportionment of taxable utility charges and nontaxable charges. If the service supplier offers a combination of services subject to and not subject to the utility users' tax, and the charges are separately stated, then for taxation purposes, the values assigned the services subject to and not subject to the utility users' tax shall be based on its books and records kept in the regular course of business and in accordance with generally accepted accounting principles, and not created and maintained for tax purposes. The service supplier has the burden of proving the proper valuation and apportionment of the service subject to and not subject to the utility users' tax.

(Prior code § 5.120)

A. Nothing in this chapter shall be construed as imposing a tax upon any person or upon any utility charges when the imposition of such tax upon such person or such utility charges would be in violation of a Federal or State statute, the Constitution of the United States or the Constitution of the State.

B. The utility users' tax imposed by this chapter shall not be imposed upon utility charges for residential services if the person paying for such utility charges for residential services resides in a residential structure that: (1) with respect to telecommunications services, is the service address for such telecommunications services; or (2) with respect to all other services, is the residential structure to which services are delivered.

C. The exemptions granted by this section shall not eliminate the duty of the service supplier from collecting taxes from such exempt individuals or the duty of such exempt individuals from paying such taxes to the service supplier, unless an exemption is granted to the service user in accordance with the provisions of subsection D of this section.

D. Any service user who believes he or she is exempt from the taxes imposed by this chapter because of the provisions of subsection B may file an application with the Tax Administrator for an exemption; provided, however, that such requirement shall not apply to a person that is a Federal or State agency or subsection of such agency with a name commonly known to be associated with a Federal or State agency. Said 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 itemize each service supplier serving the user. The Tax Administrator shall review all such applications and certify as exempt those applicants determined to qualify therefor and shall notify all service suppliers affected that such exemption has been approved, stating the name of the applicant, the address to which such exempt service is being supplied, the account number, if any, and such other information as may be necessary for the service supplier to identify and remove the exempt service user from its tax billing procedure. Upon receipt of such notice, the service supplier shall cease to bill any further tax imposed by this chapter against such exempt service user upon the earlier of a change of service address, termination of service, or until further notice by the Tax Administrator is given. The service supplier shall eliminate such exempt service user from its tax billing procedure upon receipt of such notice from the Tax Administrator, but in no event later than 60 days after receipt of such notice from the Tax Administrator, or as otherwise provided by law. If deemed exempt by the Tax Administrator, such service user shall give the Tax Administrator timely written notice of any change in service suppliers so that the Tax Administrator can properly notify the new service supplier of the person's tax exempt status. A person that fails to comply with this section shall not be entitled to a refund of taxes collected and remitted to the Tax Administrator from such person as a result of such noncompliance. The decision of the Tax Administrator may be appealed pursuant to Section 3.16.220 of this chapter. Filing an application with the Tax Administrator and appeal to the City Administrator pursuant to Section 3.16.220 of this chapter is a prerequisite to a suit thereon. All exemptions shall continue and be renewed automatically by the City Treasurer so long as the prerequisite facts supporting the initial qualification for exemption continue; provided, however, that the exemption shall automatically terminate with any change in the service address or residence of the exempt individual; further provided, such individual may nevertheless apply for a new exemption with each change of address or residence. Any individual deemed exempt from the tax shall notify the Tax Administrator within 10 days of any change in fact or circumstance which might disqualify such individual from receiving such exemption. The Tax Administrator may request re-verification of eligibility from individuals claiming an exemption annually or as deemed necessary by the Tax Administrator. It shall be a misdemeanor for any person in a household to knowingly receive the benefits of the exemptions provided by this section when the basis for such exemption either does not exist or ceases to exist. Notwithstanding any of the provisions of this subsection, however, any service supplier who determines by any means that a new or non-exempt service user is receiving service through a meter or connection which was deemed by the Tax Administrator to be exempt by virtue of an exemption issued to a previous service user or exempt user of the same meter or connection, shall immediately notify the Tax Administrator of such fact, and the Tax Administrator 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 non-exempt service user.

E. The City Council may, by ordinance or resolution, establish one or more classes of persons or one or more classes of utility charges otherwise subject to payment of the utility users' tax and provide that such classes of persons or utility charges shall be exempt, in whole or in part, from the utility users' tax for a specified period of time.

(Prior code § 5.121)

A. The City Council may, by ordinance or resolution, adjust any of the rates of the utility users' tax; provided, however, that such rate shall not exceed seven percent unless approved by the voters.

B. The rates established by this chapter shall be revised annually based upon changes in the Consumer Price Index for All Urban Consumers (CPI-U), All Items Index, Los Angeles-Anaheim-Riverside Area (1982-84=100) (herein-after "CPI") published by the United States Department of Labor, Bureau of Labor Statistics. In the event said CPI for the 12-month period ending March 31 of each year (the "adjustment date") is higher than said CPI for the 12-month period ending March 31, 2018, the tax rates set forth in this chapter shall be increased by multiplying said tax rates by a fraction, the numerator of which is the CPI on the adjustment date and the denominator of which is the CPI for the 12-month period ending March 31, 2018. The resulting adjusted tax rates shall then be the tax rates for the fiscal year commencing the next July 1st. There shall be no reduction in rates by operation of this provision. If, in the future, said CPI shall be changed so that the base year differs from that used as of the effective date of the ordinance codified in this chapter, it shall be converted in accordance with the conversion factor published by the United States Department of Labor, Bureau of Labor Statistics. The City Clerk shall submit a written report to the City Council setting forth the adjustments to the tax rates required by this subsection, which the City Council shall approve by resolution.

C. Upon any such adjustment in tax rate, the Tax Administrator shall submit, as soon thereafter as reasonably practicable, written notification to the service suppliers, in accordance with procedures established by the service suppliers, of such adjustment in tax rate. The service suppliers responsible for collecting and remitting the utility users' tax shall have a reasonable period of time to implement such change in tax rate, but in no event to exceed 60 days from the date of receipt of such written notification or, if 60 days from the date of receipt of such written notification is not on the first day of a month, then the first day of the month following the month in which such 60th day occurs.

D. The City Council may, by ordinance or resolution, terminate or suspend the utility users' tax. Upon any such termination or suspension, the Tax Administrator shall submit, as soon thereafter as reasonably practicable, written notification to the service suppliers, in accordance with procedures established by the service suppliers, of such termination or suspension. The service suppliers responsible for collecting and remitting the utility users' tax shall have a reasonable period of time to implement such termination or suspension, but in no event to exceed 60 days from the date of receipt of such written notification or, if 60 days from the date of receipt of such written notification is not on the first day of a month, then the first day of the month following the month in which such 60th day occurs.

(Prior code § 5.122)

A. The utility users' tax shall be collected by service suppliers insofar as practicable at the same time as, and together with, the collection of the utility charges made in accordance with the regular billing practice of the service supplier. With respect to any given billing period, where the amount paid by a service user to a service supplier is less than the full amount of the utility charges and utility users' tax accrued for such billing period, a proportionate share of both the utility charges and utility users' tax shall be deemed to have been paid. In cases where a service user has notified the service supplier of refusal to pay the utility users' tax imposed on said utility charges, Section 3.16.180 of this chapter shall apply.

B. The duty of a service supplier to collect the utility users' tax from a service user shall commence with the beginning of the first regular billing period applicable to the service user where all utility charges normally included in such regular billing are subject to the provisions of this chapter, in accordance with Section 3.16.040 of this chapter. Where a service user 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. Each person required to remit a utility users' 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 utility users' 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 utility users' 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 Section 7284.6 of the California Revenue and Taxation Code, the Tax Administrator, and its agents, shall maintain such filing returns as confidential information that is exempt from the disclosure provisions of the California Public Records Act.

(Prior code § 5.123)

A. The utility users' tax collected from a service user is delinquent and subject to penalties and interest if not received by the Tax Administrator on or before the due date as specified in this chapter. 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 chapter 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 the following business day.

B. If the person required to collect and/or remit a utility users' tax fails to collect such tax (by failing to properly assess the tax on one or more utility charges on the customer's billing) or fails to remit such tax collected on or before the due date, the Tax Administrator shall attach a penalty for such delinquencies or deficiencies at the rate of 10.0% of the total tax that is delinquent or deficient in the remittance, and shall pay interest at the rate of 0.5% percent 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. When fraud or gross negligence in reporting or remitting tax collections is discovered, the Tax Administrator shall have the power to impose additional penalties upon the persons required to collect and/or remit the utility users' tax at the rate of 10.0% of the total utility users' tax that is delinquent or deficient due to such fraud or gross negligence.

D. For collection purposes only, every penalty imposed and interest that is accrued under the provisions of this section shall become a part of the utility users' tax herein required to be paid.

E. Notwithstanding the foregoing, the Tax Administrator may, in his or her discretion, modify the due dates of this chapter to be consistent with any uniform standards or procedures that are mutually agreed upon by other public agencies imposing a utility users' tax, or otherwise legally established, to create a central payment location or mechanism.

(Prior code § 5.124)

Any utility users' 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 service supplier 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 in this chapter, together 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 attorney's fees. Any utility users' tax required to be collected by a service supplier or owed by a service user is an unsecured priority tax obligation under 11 U.S.C. Section 507(a)(8)(C).

(Prior code § 5.125)

A. The Tax Administrator shall make a deficiency determination if he or she determines that any person required to pay or collect a utility users' tax has failed to pay, collect and/or remit the proper amount of such tax by improperly or failing to apply such tax to one or more taxable utility charges. Nothing herein shall require that the Tax Administrator institute proceedings under this section if, in the opinion of the Tax Administrator, the cost of collection or enforcement likely outweighs the benefit.

B. The Tax Administrator shall personally deliver or mail notice of such deficiency determination to the person allegedly owing a utility users' tax, which notice shall refer briefly to the amount of such tax owed, plus interest at the rate of 0.5% percent per month, or any fraction thereof, on the amount of such tax from the date on which such tax should have been received by the City. Within 14 calendar days after the date of service of such notice, the person allegedly owing such tax may request in writing to the Tax Administrator for a hearing on the matter.

C. If the person allegedly owing a utility users' tax 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. If such person requests a hearing, the Tax Administrator shall cause the matter to be set for hearing, which shall be scheduled 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 the person owing the utility users' tax (or if no utility users' tax is determined to be owed, to the person who requested the hearing). The decision of the Tax Administrator may be appealed pursuant to Section 3.16.220 of this chapter. Filing an application with the Tax Administrator and an appeal to the City Administrator pursuant to Section 3.16.220 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 30th day following the date of receipt of the notice of final assessment. The penalty for delinquency shall be 10.0% on the total amount of the assessment, along with interest at the rate of 0.5% per month, or any fraction thereof, on the amount of the delinquent utility users' 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 utility users' tax 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 date established by a proof of delivery.

(Prior code § 5.126)

A. Whenever the Tax Administrator determines that a service user has deliberately withheld the amount of the utility users' tax owed by such service user from the amounts remitted to a service supplier required to collect the utility users' tax, or whenever the Tax Administrator deems it in the best interest of the City, he or she may relieve such service supplier of the obligation to collect the utility users' tax from a certain named service user for specific billing periods. To the extent such service user has failed to pay the amount of utility users' tax owed for a period of two or more billing periods, the service supplier shall be relieved of the obligation to collect the utility users' tax due; provided, that, the service supplier shall continue to include the utility users' tax on any subsequent bills and invoices to such service user. The service supplier shall provide the City with the names and addresses of such service users and the amounts of utility users' tax owed under the provisions of this chapter. Nothing herein shall require the Tax Administrator to institute proceedings under this section if, in the opinion of the Tax Administrator, the cost of collection or enforcement likely outweighs the benefit.

B. In addition to the utility users' tax owed, the service user shall pay a delinquency penalty at the rate of 10.0% of the total utility users' tax that is owed, and shall pay interest at the rate of 0.5% per month, or any fraction thereof, on the amount of the delinquent utility users' tax, exclusive of penalties, from the due date, until paid.

C. The Tax Administrator shall notify the non-paying service user, as such non-paying service user is determined in accordance with subsection A of this section, that the Tax Administrator has assumed the responsibility to collect the utility users' tax due for the stated periods and demand payment of such tax, including penalties and interest. The notice shall be served on the service user by personal delivery or by first class United States mail, postage prepaid, addressed to the service user at the address to which billing was made by the service supplier required to collect the utility users' tax, or, should the service user have a change of address, to such service user's last known address.

D. If the service user fails to remit the utility users' tax to the Tax Administrator within 30 days from the date of the service of the notice upon him or her pursuant to subsection C of this section, the Tax Administrator may impose an additional penalty of 10.0% of the amount of the total utility users' tax that is owed.

(Prior code § 5.127)

A. The Tax Administrator shall have the power and duty, and is directed, to enforce each and all of the provisions of this chapter.

B. The Tax Administrator may adopt administrative rules and regulations consistent with provisions of this chapter for the purpose of interpreting, clarifying, carrying out and enforcing the payment, collection and remittance of the utility users' tax. The administrative ruling shall not impose a new tax, revise an existing tax methodology as stated in this chapter, or increase or extend the existing tax, except as allowed by Section 53750(h)(2) of the Government Code. 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 so long as said agreements result in the collection of the utility users' 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 benefit. A copy of each such agreement shall be on file in the Tax Administrator's office and are voidable, with due notice given to the applicable service supplier, by the Tax Administrator or the City Council 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 3.16.170 of this chapter for the utility users' tax (and applicable 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 0.5% per month, prorated for any portion thereof.

F. The Tax Administrator shall determine the eligibility of any person who asserts a right to exemption from, or a refund of, the utility users' tax.

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 and/or remit the utility users' tax if the non-collection or non-remittance occurred in good faith. In determining whether the non-collection or non-remittance was in good faith, the Tax Administrator shall take into consideration industry practice or other precedence.

(Prior code § 5.128)

A. It is the duty of every person required to collect and remit to the City any utility users' tax to keep and preserve, for a period of three years, all records necessary to determine the amount of utility users' tax that person was obliged to collect and remit to the City. The Tax Administrator or designee shall have the right to inspect such records at all reasonable times, including through the issuance of a subpoena pursuant to State law.

B. The Tax Administrator is authorized to execute a nondisclosure agreement approved by the City Attorney to protect the confidentiality of customer information pursuant to Sections 7284.6 and 7284.7 of the California Revenue and Taxation Code.

C. If a service supplier uses a billing agent or billing aggregator to bill, collect and/or remit the utility users' 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 utility users' 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 utility users' tax to the City.

(Prior code § 5.129)

A. Whenever the amount of any utility users' tax has been overpaid or paid more than once or has been erroneously or illegally collected or received by the Tax Administrator under this chapter from a person or service supplier, it may be refunded as provided in this section.

B. The Tax Administrator may refund any utility users' 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 from any person; provided, however, that no refund shall be paid under the provisions of this section unless the claimant or his or her guardian, conservator, executor or administrator has submitted a written claim to the Tax Administrator within one year of the overpayment or erroneous or illegal collection of said utility users' 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 unless each member of the class has submitted a written claim under penalty of perjury as provided by this subsection.

C. Pursuant to Section 935 of the Government Code, the filing of a written claim for a refund pursuant to this section is a prerequisite to any suit thereon. The Tax Administrator, or the City Council where the claim is in excess of $5,000.00, shall act upon the refund claim within the time period set forth in Section 912.4 of the Government Code. If the Tax Administrator or the City Council, as applicable, fails or refuses to act on a refund claim within the time prescribed by Section 912.4 of the Government Code, 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 Section 912.4 of the Government Code. The Tax Administrator shall give notice of its action in a form which substantially complies with that set forth in Section 913 of the Government Code.

D. Notwithstanding the notice provisions of subsection A of this section, the Tax Administrator may, at his or her discretion, give written permission to a service supplier, who has collected and remitted any amount of utility users' tax in excess of the amount of utility users' tax imposed by this chapter, to claim credit for such overpayment against the amount of utility users' tax which is due the City upon a subsequent monthly return(s) to the Tax Administrator, provided that: (1) such credit is claimed in a return dated no later than one year from the date of overpayment or erroneous collection of said utility users' tax; (2) the Tax Administrator is satisfied that the underlying basis and amount of such credit has been reasonably established; and (3) in the case of an overpayment by a service user to the service supplier that has been remitted to the City, the Tax Administrator has received proof, to his or her satisfaction, that the overpayment has been refunded by the service supplier to the service user in an amount equal to the requested credit.

E. Notwithstanding subsections A through C of this section, a service supplier shall be entitled to take any overpayment as a credit against an underpayment whenever such overpayment has been received by the City within the three years next preceding a deficiency determination or assessment by the Tax Administrator in connection with an audit instituted by the Tax Administrator pursuant to Section 3.16.190 of this chapter. A service supplier shall not be entitled to said credit unless it clearly establishes the right to the credit by written records showing entitlement thereto. Under no circumstances shall an overpayment taken as a credit against an underpayment pursuant to this subsection qualify a service supplier for a refund to which it would not otherwise be entitled under the one-year written claim requirement of this section.

(Prior code § 5.130)

A. The provisions of this section apply to any decision (other than a decision relating to a refund pursuant to Section 3.16.210 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 3.16.210 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. 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 3.16.210 of this chapter), deficiency determination, assessment, or administrative ruling of the Tax Administrator, he or she may appeal to the City Administrator 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 scheduled for hearing before an independent hearing officer, which independent hearing officer shall not be an officer, official or employee of the City, selected by the City Administrator 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, and any other interested persons may present any 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 hearing officer selected pursuant to subsection C of this section 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 Section 1094.6 of the California Code of Civil Procedure.

E. All notices under this section may be sent by regular mail, postage prepaid, and shall be deemed received on the date established by a proof of delivery.

(Prior code § 5.131)

Nothing contained in this chapter is intended to conflict with tariffs of any service supplier subject to the jurisdiction of the California Public Utilities Commission or with any applicable rules or regulations of said Commission. In the event any such conflict arises, the provisions of said rules, regulations and tariffs shall control.

(Prior code § 5.132)

The City Council may, by ordinance, amend, repeal, renumber or recodify any or all of the provisions of this chapter; provided, however, that no ordinance extending or increasing the utility users' tax shall be effective unless submitted to, and approved by, the voters of the City as required pursuant to the applicable law at the time of such action.

(Prior code § 5.133)

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

(Prior code § 5.134)

The City shall annually verify that the utility users' tax has been properly applied, exempted, collected and remitted in accordance with this chapter, and properly expended according to applicable municipal law. The annual verification shall be performed by a qualified independent third party and the review shall employ reasonable, cost-effective steps to assure compliance, including the use of sampling audits. The verification shall not be required of tax remitters where the cost of the verification may exceed the tax revenues to be reviewed.

(Prior code § 5.135)

No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action or proceeding in any court against the City or against any officer of the City to prevent or enjoin the collection under this chapter of any utility users' tax or any amount of utility users' tax required to be collected and/or remitted.

(Prior code § 5.136)

All remedies and penalties prescribed by this chapter or which are available under any other provision of law or equity 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.

(Prior code § 5.137)