Yucca Valley Municipal Code Ch. 3.28 Sewer Implementation and Assessment Assistance Transactions and Use Tax

This chapter shall be known as the TOWN OF YUCCA VALLEY SEWER IMPLEMENTATION AND ASSESSMENT ASSISTANCE TRANSACTIONS AND USE TAX ORDINANCE. This chapter shall be applicable only in the incorporated territory of the Town. (Ord. 264, 11-8-2016)

A. As used in this chapter, "Town" means the Town of Yucca Valley and "tax" means the temporary transactions and use tax (special tax) imposed under the provisions of this chapter. The tax imposed in this chapter is a special tax, the funds of which shall be dedicated towards those sewer implementation purposes described in section 3.28.090 of this chapter.

B. As used in this chapter, "Hi-Desert Water District" means that County water district by the same name organized and operating pursuant to the provisions of the County Water District Law, Water Code sections 30000 et seq.

C. As used in this chapter, "sewer project" means that Town-wide conversion of septic systems to a sewer collection system and construction of wastewater reclamation facilities, recharge ponds and appurtenances, all as undertaken by the Hi-Desert Water District in response to California Regional Water Quality Control Board Resolution No. R7-2011-0004 adopted on May 19, 2011.

D. As used in this chapter, "assessment" means all assessed rates levied in the Town pursuant to the provisions of the "Municipal Improvement Act of 1913" (being division 12 of the Streets and Highways Code of the State of California, commencing with section 10000), for purposes of financing the costs constructing the sewer project, including rates adopted for Assessment District 2014-1 and subsequent assessment districts formed or annexed by vote in relation thereto. (Ord. 264, 11-8-2016)

"Operative date" means the first day that the tax is imposed. The "operative date" means the first day of the first calendar quarter commencing more than one hundred ten (110) days after the effective date of this chapter, such effective date being as set forth in section 3.28.180 of this chapter. (Ord. 264, 11-8-2016)

This chapter is adopted to achieve the following, among other purposes, and directs that the provisions hereof be interpreted in order to accomplish those purposes:

A. To impose a special, temporary retail transactions and use tax in accordance with the provisions of part 1.6 (commencing with section 7251) of division 2 of the Revenue and Taxation Code and section 7285.91 of part 1.7 of division 2, which authorizes the Town to adopt this chapter, which shall be operative if two- thirds (2/3) of the electors voting on the measure vote to approve the imposition of the tax at an election called for that purpose.

B. To adopt a temporary retail transactions and use tax (special tax) ordinance that incorporates provisions identical to those of the Sales and Use Tax Law of the State of California insofar as those provisions are not inconsistent with the requirements and limitations contained in part 1.6 of division 2 of the Revenue and Taxation Code.

C. To adopt a temporary retail transactions and use tax ordinance that imposes a special tax and provides a measure therefor that may be administered and collected by the State Board of Equalization in a manner that adapts itself as fully as practicable to, and requires the least possible deviation from, the existing statutory and administrative procedures followed by the State Board of Equalization in administering and collecting the California State sales and use taxes.

D. To adopt a special, temporary retail transactions and use tax ordinance that may be administered in a manner that will be, to the greatest degree possible, consistent with the provisions of part 1.6 of division 2 of the Revenue and Taxation Code, minimize the cost of collecting the transactions and use taxes, and at the same time, minimize the burden of record keeping upon persons subject to taxation under the provisions of this chapter. (Ord. 264, 11-8-2016)

Prior to the operative date, the Town shall contract with the State Board of Equalization to perform all functions incident to the administration and operation of this chapter; provided however, that if the Town shall not have contracted with the State Board of Equalization prior to the operative date, it shall nevertheless so contract and in such a case the operative date shall be the first day of the first calendar quarter following the execution of such a contract. (Ord. 264, 11-8-2016)

For the privilege of selling tangible personal property at retail, a tax is hereby imposed upon all retailers in the incorporated territory of the Town at the rate of one-half cent per dollar (0.5%) of the gross receipts of any retailer from the sale of all tangible personal property sold at retail in said territory on and after the operative date of this chapter. (Ord. 264, 11-8-2016)

For the purposes of this chapter, all retail sales are consummated at the place of business of the retailer unless the tangible personal property sold is delivered by the retailer or his agent to an out-of-state destination or to a common carrier for delivery to an out-of-state destination. The gross receipts from such sales shall include delivery charges, when such charges are subject to the State sales and use tax, regardless of the place to which delivery is made. In the event a retailer has no permanent place of business in the State or has more than one (1) place of business, the place or places at which the retail sales are consummated shall be determined under rules and regulations to be prescribed and adopted by the State Board of Equalization. (Ord. 264, 11-8-2016)

An excise tax is hereby imposed on the storage, use or other consumption in the Town of tangible personal property purchased from any retailer on and after the operative date of this chapter for storage, use or other consumption in said territory at the rate of one-half cent per dollar (0.5%) of the sales price of the property. The sales price shall include delivery charges when such charges are subject to State sales or use tax regardless of the place to which delivery is made. (Ord. 264, 11-8-2016)

A. The tax established by this chapter is a special tax, the proceeds of which are dedicated towards subsidizing those assessments levied upon Town citizens for sewer project implementation.

B. Revenue and Taxation Code section 7285.91 requires that this chapter include "an expenditure plan describing the specific projects for which the revenues from the tax may be expended". All revenue from the tax shall be restricted revenue, expended solely to fund the sewer project in such a manner as to lower sewer project assessments levied upon citizens in the Town of Yucca Valley. The Town shall negotiate an agreement with the Hi- Desert Water District under which the Town will remit payments of the tax proceeds towards the sewer project on an agreed-upon basis, subject to the following terms:

1. The Town's allocation of the tax proceeds towards the sewer project shall be credited towards sewer project assessments imposed upon Town citizens,

2. The tax proceeds shall be credited towards sewer project assessments equitably amongst all assessment payers in all sewer project phases, such that all assessment payers will receive the same pro-rata percentage decrease in their assessments,

3. The tax proceeds shall not be used to pay for any sewer project services or improvements already provided by a governmental or private entity or in a manner that would diminish or replace services provided by the Hi-Desert Water District,

4. The tax proceeds may be used to pay for the Town's costs associated with those independent audits, special fund management and administrative costs associated with the tax required by this chapter, excepting that payment of administrative costs shall not exceed five percent (5%) of the annual tax proceeds in any annual period, and

5. The Town's expenditure of tax proceeds shall be made on a regular basis on a frequency to be determined by the Town and in conformance with the State Board of Equalization's allocation of such proceeds to the Town.

In the event the Town and Hi-Desert Water District are unable to reach mutual agreement upon the foregoing terms, the Town shall undertake an alternative method of utilizing the tax proceeds to directly achieve lower assessments in an equitable manner for all sewer project phases, in accord with the foregoing expenditure terms in subsections B1 through B5 of this section. In any event, any expenditure of tax proceeds shall be undertaken for the sole purpose of decreasing or subsidizing assessments equitably in all sewer project phases.

C. When received by the Town, the proceeds resulting from the transactions and use tax imposed by this chapter shall be deposited into a special fund established by the Town as the "Sewer Project Assessment Assistance Fund". The Town's independent auditors shall complete a report reviewing the collection, management and expenditure of revenue from the tax levied by this chapter. The independent auditor's report shall include an accounting of the revenues received and expenditures made from the Sewer Project Assessment Assistance Fund annually to the Town Council and made available for public review. The Town Council shall, as part of the Town's regular budget process, annually review, direct and adopt an expenditure plan for the Sewer Project Assessment Assistance Fund, applying the proceeds of the transactions and use tax consistent with the requirements of this chapter. In no event shall the Town Council have authority to direct a use of tax proceeds that is inconsistent with the purposes expressed in this chapter. (Ord. 264, 11-8-2016)

Except as otherwise provided in this chapter and except insofar as they are inconsistent with the provisions of part 1.6 of division 2 of the Revenue and Taxation Code, all of the provisions of part 1 (commencing with section 6001) of division 2 of the Revenue and Taxation Code are hereby adopted and made a part of this chapter as though fully set forth herein. (Ord. 264, 11-8-2016)

In adopting the provisions of part 1 of division 2 of the Revenue and Taxation Code:

A. Wherever the State of California is named or referred to as the taxing agency, the name of the Town shall be substituted therefor. However, the substitution shall not be made when:

1. The word "State" is used as a part of the title of the State Controller, State Treasurer, State Board of Equalization, State Treasury, or the Constitution of the State of California.

2. The result of that substitution would require action to be taken by or against this Town or any agency, officer, or employee thereof rather than by or against the State Board of Equalization, in performing the functions incident to the administration or operation of this chapter.

3. In those sections, including, but not necessarily limited to, sections referring to the exterior boundaries of the State of California, where the result of the substitution would be to:

a. Provide an exemption from this tax with respect to certain sales, storage, use or other consumption of tangible personal property, which would not otherwise be exempt from this tax while such sales, storage, use or other consumption remain subject to tax by the State under the provisions of part 1 of division 2 of the Revenue and Taxation Code, or

b. Impose this tax with respect to certain sales, storage, use or other consumption of tangible personal property, which would not be subject to tax by the State under the said provision of that code.

4. In sections 6701, 6702 (except in the last sentence thereof), 6711, 6715, 6737, 6797 or 6828 of the Revenue and Taxation Code.

B. The word "Town" shall be substituted for the word "State" in the phrase "retailer engaged in business in this State" in section 6203 and in the definition of that phrase in section 6203 of the Revenue and Taxation Code. (Ord. 264, 11-8-2016)

If a seller's permit has been issued to a retailer under section 6067 of the Revenue and Taxation Code, an additional transactor's permit shall not be required by this chapter. (Ord. 264, 11-8-2016)

A. There shall be excluded from the measure of the special transactions tax and the use tax the amount of any sales tax or use tax imposed by the State of California or by any city, city and county, or county pursuant to the Bradley-Burns Uniform Local Sales and Use Tax Law or the amount of any State-administered transactions or use tax.

B. There are exempted from the computation of the amount of special transactions tax the gross receipts from:

1. Sales of tangible personal property, other than fuel or petroleum products, to operators of aircraft to be used or consumed principally outside the County in which the sale is made and directly and exclusively in the use of such aircraft as common carriers of persons or property under the authority of the laws of this State, the United States, or any foreign government.

2. Sales of property to be used outside the Town which is shipped to a point outside the Town, pursuant to the contract of sale, by delivery to such point by the retailer or his agent, or by delivery by the retailer to a carrier for shipment to a consignee at such point. For the purposes of this paragraph, delivery to a point outside the Town shall be satisfied:

a. With respect to vehicles (other than commercial vehicles) subject to registration pursuant to chapter 1 (commencing with section 4000) of division 3 of the Vehicle Code, aircraft licensed in compliance with section 21411 of the Public Utilities Code, and undocumented vessels registered under division 3.5 (commencing with section 9840) of the Vehicle Code by registration to an out-of-Town address and by a declaration under penalty of perjury, signed by the buyer, stating that such address is, in fact, his or her principal place of residence; and

b. With respect to commercial vehicles, by registration to a place of business out-of-Town and declaration under penalty of perjury, signed by the buyer, that the vehicle will be operated from that address.

3. The sale of tangible personal property if the seller is obligated to furnish the property for a fixed price pursuant to a contract entered into prior to the operative date of this chapter.

4. A lease of tangible personal property which is a continuing sale of such property, for any period of time for which the lessor is obligated to lease the property for an amount fixed by the lease prior to the operative date of this chapter.

5. For the purposes of subsections B3 and B4 of this section, the sale or lease of tangible personal property shall be deemed not to be obligated pursuant to a contract or lease for any period of time for which any party to the contract or lease has the unconditional right to terminate the contract or lease upon notice, whether or not such right is exercised.

C. There are exempted from the special use tax imposed by this chapter, the storage, use or other consumption in this Town of tangible personal property:

1. The gross receipts from the sale of which have been subject to a transactions tax under any State-administered transactions and use tax ordinance.

2. Other than fuel or petroleum products purchased by operators of aircraft and used or consumed by such operators directly and exclusively in the use of such aircraft as common carriers of persons or property for hire or compensation under a certificate of public convenience and necessity issued pursuant to the laws of this State, the United States, or any foreign government. This exemption is in addition to the exemptions provided in sections 6366 and 6366.1 of the Revenue and Taxation Code of the State of California.

3. If the purchaser is obligated to purchase the property for a fixed price pursuant to a contract entered into prior to the operative date of this chapter.

4. If the possession of, or the exercise of any right or power over, the tangible personal property arises under a lease which is a continuing purchase of such property for any period of time for which the lessee is obligated to lease the property for an amount fixed by a lease prior to the operative date of this chapter.

5. For the purposes of subsections C3 and C4 of this section, storage, use, or other consumption, or possession of, or exercise of any right or power over, tangible personal property shall be deemed not to be obligated pursuant to a contract or lease for any period of time for which any party to the contract or lease has the unconditional right to terminate the contract or lease upon notice, whether or not such right is exercised.

6. Except as provided in subsection C7 of this section, a retailer engaged in business in the Town shall not be required to collect use tax from the purchaser of tangible personal property, unless the retailer ships or delivers the property into the Town or participates within the Town in making the sale of the property, including, but not limited to, soliciting or receiving the order, either directly or indirectly, at a place of business of the retailer in the Town or through any representative, agent, canvasser, solicitor, subsidiary, or person in the Town under the authority of the retailer.

7. "A retailer engaged in business in the Town" shall also include any retailer of any of the following: vehicles subject to registration pursuant to chapter 1 (commencing with section 4000) of division 3 of the Vehicle Code, aircraft licensed in compliance with section 21411 of the Public Utilities Code, or undocumented vessels registered under division 3.5 (commencing with section 9840) of the Vehicle Code. That retailer shall be required to collect use tax from any purchaser who registers or licenses the vehicle, vessel, or aircraft at an address in the Town.

D. Any person subject to use tax under this chapter may credit against that tax any transactions tax or reimbursement for transactions tax paid to a district imposing, or retailer liable for a transactions tax pursuant to part 1.6 of division 2 of the Revenue and Taxation Code with respect to the sale to the person of the property the storage, use or other consumption of which is subject to the use tax. (Ord. 264, 11-8-2016)

All amendments subsequent to the effective date of this chapter to part 1 of division 2 of the Revenue and Taxation Code relating to sales and use taxes and which are not inconsistent with part 1.6 and part 1.7 of division 2 of the Revenue and Taxation Code, and all amendments to part 1.6 and part 1.7 of division 2 of the Revenue and Taxation Code, shall automatically become a part of this chapter, provided however, that no such amendment shall operate so as to affect the rate of tax imposed by this chapter. (Ord. 264, 11-8-2016)

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 State or the Town, or against any officer of the State or the Town, to prevent or enjoin the collection under this chapter, or part 1.6 of division 2 of the Revenue and Taxation Code, of any tax or any amount of tax required to be collected. (Ord. 264, 11-8-2016)

This chapter levying the special tax described herein shall be effective ten (10) days after the date on which the Town Council has declared that the voters of the Town of Yucca Valley have approved the chapter by a vote of no less than two-thirds (2/3) of the votes cast by the electors voting on the tax measure set forth in this chapter at that general Municipal election to be held on Tuesday, November 8, 2016. (Ord. 264, 11-8-2016)

The authority to levy the special tax imposed by this chapter shall expire ten (10) years from the operative date. (Ord. 264, 11-8-2016)

An Independent Citizens' Special Tax Oversight Committee appointed by the Town Council shall review the expenditures of revenues generated by the tax imposed by this chapter, confirm that expenditures are undertaken for the specified purposes to which the tax proceeds are dedicated under this chapter, and make the results of such review publicly available. Such Committee shall meet and be subject to all provisions of the Ralph M. Brown Act, Government Code sections 54950 et seq. (Ord. 264, 11-8-2016)

Without limiting any remedies available at law or equity, any person violating any of the provisions of this chapter shall be deemed guilty of a misdemeanor. (Ord. 264, 11-8-2016)

The tax rate in this chapter may only be increased by a vote of the people of the Town of Yucca Valley; provided, however, that the Town Council may amend this chapter to reduce the amount of the tax authorized herein or to otherwise implement or advance the purpose and intent of this chapter. (Ord. 264, 11-8-2016)