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HomeMy Public PortalAboutOrdinance 702ORDINANCE NO. 702 AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BEAUMONT, CALIFORNIA, ESTABLISHING A UTILITY TAX OF Three (3 %) PERCENT UPON TELEPHONE, ELECTRIC, GAS AND CABLE T.V. UTILITY USERS BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT, STATE OF CALIFORNIA, AS FOLLOWS: SECTION 1: hereby repealed. SECTION 2: Chapter 13.14 is hereby added to read as follows: Chapter 13.14 of the Beaumont Municipal Code is Sections: 13.14.010 13.14.020 13.14.030 13.14.040 13.14.050 13.14.060 13.14.070 13.14.080 13.14.090 13.14.100 13.14.110 13.14.120 13.14.130 13.14.140 13.14.150 Chapter 13.14 UTILITY USER TAX Established --Purpose. Definitions. Exemptions. Telephone users tax. Electricity users tax. Gas users tax. Cable television users tax. Penalty for delinquency. Actions to collect. Duty to collect --Procedures. Powers of Tax Administrator. Assessment --Collection by Tax Administrator. Records. Refunds. Civil debt. 13.14.010 Established --Purpose. There is hereby established a Three (_%) percent utility user tax for the purpose of providing general fund operating funds for use by the City. 13.14.020 Definitions. The following words and phrases, whenever used in this Ordinance shall be construed as defined in this Section: A. "City" shall mean the City of Beaumont. B. "Month" shall mean a calendar month. C. "Person" shall mean any domestic or foreign corporation, firm, association, syndicate, joint stock company, partnership of any kind, joint venture, club, Massachusetts business or common law trust, society or individuals. D. "Tax Administrator" shall mean the Finance Director of the City of Beamont. E. "Telephone corporation", "Electrical corporation", "Gas corporation" and "Cable Television corporation" shall have the same meanings as defined in Section 234, 218, 222 and 215-5, respectively, of the Public Utilities Code of the State of California as said sections existed on January 1, 1986. "Electrical corporation" shall be construed to include any municipality or franchised agency engaged in the selling or supplying of electircal power to a service user. F. "Service supplier" shall mean a utility company which receives taxes paid and remits same as imposed by this Ordinance. G. "Service user" shall mean a person required to pay a tax imposed by this Ordinance. H. "Non-utility service supplier" shall mean a service supplier, other than an electrical corporation franchised to serve the City, which generates electrical energy in capacities -1- 6/6/91 of at least fifty (50) kilowatts for its own use or for sale to others. 13.14.030 Exemptions. Nothing in this Ordinance shall be construed as imposing a tax upon any person when imposition of such tax upon that person would be in violation of the Constitution of the United States or that of the State of California. A. A household with a combined annual gross income of $7,500.00 or less is eligible for exemption or refund when application is made pursuant to Sections 13.14.110(D) and 13.14.140(F). B. The Tax Administrator shall prepare a list of the persons exempt from the provisions of this Chapter by virtue of this Section and furnish a copy thereof to each service supplier. 13.14.040 Telephone users tax. A. There is hereby imposed a tax on the amounts paid for any intrastate telephone services by every person in the City using such services. The tax imposed by this Section shall be at the rate of Three (3 %) percent of the charges made for such services and shall be paid by the person paying for such services. B. As used in this Section, the term "charges" shall not include charges for services paid for by inserting coins in coin-operated telephones except that where such coin-operated service is furnished for a guaranteed amount, the amounts paid under such guarantee plus any fixed monthly or other periodic charge shall be included in the base for computing the amount of tax due; nor shall the term "charges" include charges for any type of service or equipment during any period in which the same lease from persons other than a service supplier subject to Public Utility regulations, nor shall the words "telephone communication service" include land mobile services or maritime mobile services as defined in Section 2.1 of Title 47 of the Code of Federal Regulations, as said Section existed on January 1, 1970. The term "telephone communication services" refers to that service which provides access to a telephone system and the privilege of telephone quality communication with substantially all persons having telephone stations which are part of such telephone system. The Telephone Users Tax is intended to, and does, apply to all charges billed to a telephone account having a situs in the City, irrespective of whether a particular communication services originates and/or terminates within the City. C. The tax imposed by this Section shall be collected from the service user by the person providing the intrastate telephone communications services, or the person receiving payment for such services. The amount of the tax collected in one (1) month shall be remitted to the Tax Administrator on or before the last day of the following month; or the amount of tax collected in one (1) month shall be remitted to the Tax Administrator on or before the last day of the following month; or at the option of the person required to collect and remit the tax, an estimated amount of tax collected, measured by the tax bill in the previous month, shall be remitted to the Tax Administrator on or before the last day of each month. D. Notwithstanding the provisions of Subsection A of this Section, the tax imposed under this Section shall not be imposed upon any person for using intrastate telephone communication services to the extent that the amounts paid for such services are exempt from or not subject to the tax imposed under Division 2, Part 20 of the California Revenue and Taxation Code, or the tax imposed under Section 4251 of the Internal Revenue Code. 13.14.050 Electricity users tax. A. There is hereby imposed a tax upon every person in the City using electrical energy in the City. The tax imposed by this Section shall be at the rate of Three ( 3 %) percent of the charges made for such energy by an electrical corporation franchised to serve the City and shall be paid by the person -2- using the energy. The tax applicable to electrical energy provided by a non-utility service supplier shall be determined by applying the tax rate to the equivalent charges the service user would have incurred if the energy used had been provided by the electrical corporation available from the City. Non-utility suppliers shall install and maintain an appropriate utility -type metering system which will enable compliance with this Section. "Charges", as used in this Section, shall include charges made for: (1) metered energy, and (2) minimum charges for service including customer charges, service charges, demand charges, stand-by charges and annual and monthly charges, fuel cost adjustments, etc. B. As used in this Section, the term "using electrical energy" shall not be construed to mean the storage of such energy by a person in a battery owned or possessed by him for use in an automobile or other machinery or device apart from the premises upon which the energy was received; provided, however, that the term shall include the receiving of such energy for the purpose of using it in the charging of batteries; nor shall the term include electricity used and consumed by an electric utility supplier in the conduct of its business as an electric public utility or governmental agency at a point within the City of Beaumont for resale; or the use of such energy in the production or distribution of water by a public utility or a governmental agency. C. The tax imposed in this Section shall be collected from the service user by the person supplying such energy. The tax shall be self-imposed by non-utility suppliers as to their own use. The amount of tax collected in one (1) month shall be remitted to the Tax Administrator on or before the last day of the following month; or at the option of the person required to collect and remit the tax, an estimated amount of tax, measured by the tax billed in the previous month, shall be remitted to the Tax Administrator on or before the last day of each month. Remittance of tax may be predicated on a formula based upon the payment pattern of the supplier's customers. 13.14.060 Gas users tax. A. There is hereby imposed a tax upon every person in the City, other than a gas corporation or electrical corporation, using in the City gas which is delivered through mains or pipes. The tax imposed by this Section shall be at the rate of three (3 %) percent of the charges made for such gas and shall be paid by the person paying for such gas. "Charges" as used in this Section shall include: (1) gas which is delivered through mains or pipes; (2) minimum charges for such services, including customer charges, service charges and annual and monthly charges. B. There shall be excluded from the base on which the tax imposed in this Section is computed: 1. Charges made for gas which is to be resold and delivered through mains or pipes; 2. Charges made for gas sold for use in the generation of electrical energy or for the production or distribution of water by a public utility or governmental agency; 3. Charges made by a gas public utility for gas used and consumed in the conduct of the business of gas public utilities; 4. Charges made for gas used in the propulsion of a motor vehicle, as that phrase is defined in the Vehicle Code of the State of California, utilizing natural gas, and 5. Charges related to late payments and returned checks. C. The tax imposed in this Section shall be collected from the service user by the person selling the gas. The person selling the gas shall, on or before the twentieth (20th) of the calendar month, commencing on the twentieth (20th) day of calendar month after the effective date of this part, make a return to the Tax Administrator stating the amount of taxes billed during the preceding calendar month. At the time such returns are filed, the person selling the gas shall remit tax payments to the Tax Administrator in accordance with schedules -3- established or approved by the Tax Administrator. 13.14.070 Cable television users tax. A. There is hereby imposed a tax upon every person in the City using cable television service. The tax imposed by this Section shall be at the rate of Three (1 %) percent of the charges made for such service and shall be paid by the person paying for such service. B. The tax imposed in this Section shall be collected from the service user by the person furnishing the cable television service. The amount collected in one (1) month shall be remitted to the Tax Administrator on or before the last day of the following month. 13.14.080 Penalty for delinquency. A. Taxes collected from a service user which are not remitted to the Tax Administrator on or before the due dates provided in this Ordinance are delinquent. B. The interest penalty shall be the same as specified in Section 13.14.120, Paragraph D - Administrative Remedy Penalty. 13.14.090 Actions to collect. Any such tax received from a service user which has willfully been withheld from the Tax Administrator shall be deemed a debt owed to the City by the person required to collect and remit. Any person holding such money contrary to provisions of this Ordinance shall be liable to an action brought in the name of the City for the recovery of such amount. 13.14.100 Duty to collect -Procedures: The duty to collect and remit the taxes imposed by this Ordinance shall be performed as follows: A. The tax shall be collected insofar as practicable at the same time as and along with the charges made in accordance with the regular billing practices of the service supplier. Where the amount paid by a service user to a service supplier is less than the full amount of the energy charge and tax which has accrued for the billing period, such amount and any subsequent payments by a service user shall be applied to the utility charges first until such charge has been satisfied. Any remaining balance shall be applied to taxes due. In those cases where a service user has notified the service supplier of his refusal to pay the tax imposed on said energy charge, Section 13.14.120 (C) will apply. B. The duty to collect tax from a service user shall commence with the beginning of the first full regular billing period applicable to the service user where all charges normally included in such regular billing are subject to the provisions of this Chapter. Where a person receives more than one billing, one or more being for different periods than another, the duty to collect shall arise separately for each billing. 13.14.110 Powers of Tax Administrator. A. The Tax Administrator shall have the power and duty, and is hereby directed to enforce each and all of the provisions of this Ordinance. B. The Tax Administrator shall have power to adopt rules and regulations not inconsistent with provisions of this Ordinance for the purpose of carrying out and enforcing the payment, collection and remittance of taxes herein imposed. A copy of such rules and regulations shall be on file in the Tax Administrator' s office. C. The Tax Administrator may make administrative agreements to vary the strict requirements of this Ordinance so that collection of any tax imposed here may be made in conformance with the billing procedures of a particular service supplier so long as said agreements result in collection of the tax in conformance with the general purpose and scope of this Ordinance. A copy of such agreement shall be on file in the Tax Administrator's office. -4- D. The Tax Administrator shall determine the eligibility of any person who asserts a right to exemption from the tax imposed by this Ordinance. The Tax Administrator shall provide the service supplier with the name of any person who the Tax Administrator determines is exempt from the tax imposed hereby, together with the address and account number to which services are supplied to any such exempt person. The Tax Administrator shall notify the service supplier of the termination of any person's right to exemption hereunder, or the change of any address to which service is supplied to any exempt person. 13.14.120 Assessment --Collection by Tax Administrator. A. The Tax Administrator may make an assessment for taxes not remitted by a person required to remit. B. Whenever the Tax Administrator determines that a service user has deliberately withheld the amount of the tax owed by him from the amounts remitted to a person required to collect the tax, or that a service user has refused to pay the amount of tax to such person, or whenever the Tax Administrator deems it in the best interest of the City, he may relieve such person of the obligation to collect taxes due under this Ordinance from certain named service users for specified billing periods. C. The service supplier shall provide the City with amounts refused along with the names and addresses of the service users refusing or neglecting to pay the tax imposed under provisions of this Ordinance. Whenever the service user has failed to pay the amount of tax for a period of two or more billing periods, the service supplier shall be relieved of the obligation to collect back taxes due. D. The Tax Administrator shall notify the service user that he has assumed responsibility to collect the taxes due for the stated periods and demand payment of such taxes. The notice shall be served on the service user by handing it to him personally or by deposit of the notice in the United States mail, postage prepaid thereon, addressed to the service user at the address to which billing was made by the person required to collect the tax; or should the service user have changed his address, to his last known address. If a service user fails to remit the tax to the Tax Administrator within fifteen (15) days from the date of the service of the notice upon him, which shall be the date of mailing if service is not accomplished in person, a penalty of twenty-five percent (25%) of the amount of the tax set forth in the notice shall be imposed, but not less than $5.00. The penalty shall become part of the tax herein required to be paid. 13.14.130 Records. It shall be the duty of every person required to collect and remit to the City any tax imposed by this Ordinance to keep and preserve, for a period of three (3) years, all records as may be necessary to determine the amount of such tax as he may have been liable for the collection of and remittance to the Tax Administrator, which records the Tax Administrator shall have the right to inspect at all reasonable times. 13.14.140 Refunds. A. Whenever the amount of any tax has been overpaid or paid more than once or has been erroneously or illegally collected or received by the Tax Administrator under this Ordinance, it may be refunded as provided in this Section. B. Notwithstanding the provisions of Subsection A of this Section, a service supplier 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 that the service user from whom the tax has been collected did not owe the tax; 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 service user or credited to charges subsequently payable by the service user to the person required to collect and remit. A service supplier that has collected any amount of tax in excess of the amount of tax imposed by this Ordinance, and actually due from a service user, may refund such amount to the service user and claim credit for such overpayment against the amount of tax which -5- is due. upon any other monthly returns, provided such credit is claimed in a return dated no later than three (3) years from the date of overpayment. C. No refund shall be paid under the provisions of this Section unless the claimant establishes his right thereto by written records showing entitlement thereto. D. Notwithstanding other provisions of this Section, whenever a service supplier, pursuant to an order of the California Public Utilities Commission or a Court of competent jurisdiction, makes a refund to service users of charges for past utility service, the taxes paid pursuant to this Ordinance on the amount of such refunded charges shall also be refunded to service users, and the service supplier shall be entitled to claim a credit for such refunded taxes against the amount of tax which is due upon the next monthly returns. In the event this Ordinance is repealed, the amounts of any refundable taxes will be borne by the City. E. If the amount of any tax paid is in excess of the maximum amount payable as provided in any Section hereof, the Tax Administrator shall refund the amount overpaid to the service user within sixty (60) days after the service user has established his entitlement to such refund, provided that no refunds under this Subsection need be made more frequently than quarter -annually. F. A refund of all taxes due and paid under the provisions of this Ordinance for utility services rendered on and after July 1, 1990 and through June 30, 1991, or for any succeeding twelve-month period, shall be made whenever all of the following occur: 1. The annual gross income of the household in which claimant lives is less than $7,500 for the claimant's preceding federal or state personal income tax reporting period; 2. An amount greater than the maximum amount specified in Section 13.14.050(D) is paid; 3. Claimant makes application and files a verified claim in writing at the Department of Finance at City Hall for such refund upon a claim form provided by the Tax Administrator; 4. The claim is approved by the Tax Administrator as being in conformance with this Subsection. G. Only one member of each household may file a claim, and only one claim may be filed for each individual household. H. The claimant shall be the person in whose name the bills for utility services were rendered. "Income of the household" means all income of the claimant's household while members of such household are related to the claimant as a spouse or as defined in Sections 17056 and 17057 of the Revenue and Taxation Code of California. I. "Gross income" shall mean the sum of adjusted gross income as used for purposes of the California Personal Income Tax Law, together with the net income from all sources of all kinds, including but not limited to alimony, support money, cash public assistance and relief, pensions, annuities, social security, interest on securities (including tax free interest on governmental securities) , realized capital gains, workers' compensation (not including medical benefits) , unemployment insurance income, insurance benefits of all kinds (other than medical) , and gifts, except that income shall not include Medicare benefits, Medicaid benefits, gifts of food and gifts between members of the household, the receipt of surplus food or other relief in kind supplied by a governmental agency. J. The claim for such refund for the preceding twelve-month period ending on June 30 shall be made only during the month of September or October of each year, and must be accompanied by a copy of the utility bills, together with proof that the utility taxes have been paid by the claimant or some member of the household. No such refund shall be made on any claim filed or postmarked later than the 31st day of October. K. No refund shall be made to any person for taxes levied on a utility account for which any utility tax is due and outstanding for the period for which refund is claimed or for any prior period. No refund shall be made of any tax which was paid with public assistance or relief funds which included an allownace to pay the tax. L. Nothing in this Section shall be construed to require -6- that any utility company has any obligation to make or furnish, for the purpose of the refund provisions hereof, proof of utility taxes due or utility taxes paid. 13.14.150 Civil debt. The taxes imposed by this Ordinance shall be civil debts owing to the City from the service user. A service supplier is not liable to the City until the tax is collected from a service user. Any person owing money to the City under the provisions of this Ordinance shall be liable to an action brought in the name of the City for the recovery of such amount. SECTION 3: If any Section, Subsection, Subdivision, Paragraph, Sentence, Clause or Phrase of this Ordinance or any part thereof is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have passed such Section, Subsection, Subdivision, Paragraph, Sentence, Clause or Phrase thereof, irrespective of the fact that any one or more Sections, Subsections, Subdivisions, Paragraphs, Sentences, Clauses or Phrases be declared unconstitutional. SECTION 4: This Ordinance is adopted pursuant to Government Code Sections 53720 et seq. Pursuant to Section 53723 of said Code, the City Clerk is hereby directed to submit to the electorate of the City of Beaumont in the General Election to be held in November 1991 the question as to whether the voters approve the adoption of the Ordinance and the imposition of the taxes charged herein. If this Ordinance is not approved in said election by a majority of the vote of the voters voting in that election, then this Ordinance shall be deemed to have been repealed as of the date of the certification of said election and no further taxes shall be collected hereunder. Approval by a majority of said voters shall be deemed retroactive to the date of the adoption of this Ordinance. If the Supreme Court of the State of California shall, prior to said election, determine Government Code Section 53723 to be unconstitutional as applied to taxes of the type imposed in this Ordinance, the approval by a vote of the electorate shall not be required, and if said issue has already been placed on the ballot the results of the election shall be null and void and this Ordinance shall remain in full force and effect. SECTION 5: This Ordinance is passed, accepted and enacted, pursuant to Section 36934 of the California Government Code as an urgency measure pursuant to the police power of the City of Beaumont. The intent and necessity of this Ordinance is to protect the public health, safety and public welfare of the citizens of the City of Beaumont by creating the necessary funds to preserve the services that are presently provided and need to be provided. It shall become effective immediately. PASSED AND ADOPTED on this 10th day of Bina , 1991, upon the following roll call vote. AYES: Council Member Leja, MacNeilage, McLaughlin, Parrott and Mayor Connors. NOES: None. ABSTAIN: None. ABSENT: None. MAYOR OF THE CITY OF BEAUMONT ATTEST: CITY CLERK APPROVE. D AS TO0 ITY ATT►♦'NEY CERTIFICATION I, Robert J. Bounds, City Clerk of the City of Beaumont, DO HEREBY CERTIFY that the foregoing Ordinance was introduced at a regular meeting of the City Council of said City held on .Bina in , 1991, and was duly adopted upon first reading on li,na in , 1991, upon the following roll call vote: AYES: Council Member Leja, MacNeilage, McLaughlin, Parrott and Mayor Connors. NOES: None. ABSTAIN: None. ABSENT: None. CITY CLERK, CITY OF BEAUMONT