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HomeMy WebLinkAboutNS-1042ORDINANCE NS-1042 PROVIDING FOR UTILITY USER TAX UPON T~tE USE OF ELECTRICITY, GAS, TELEPHONE, AND WATER FACILITIES AND SERVICES T~E CITY COUNCIL OF TI~E CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: SECTION 1: That the Santa Ana Municipal Code is hereby amended by adding Article IV to Chapter 35 thereof to read in words and figures, as follows: ARTICLE IV - UTILITY USER TAX Sec. 35-201. Definitions. For the purpose of this Article, the following words, terms, phrases, and any derivatives thereof, shall have the meanings set forth herein: (a) "Person" shall mean any domestic or foreign corporation, association, syndicate, firm, joint stock company, partnership, joint venture, club, society, individual, or municipal corpo- ration. (b) "City" shall refer to and mean the City of Santa Ana. (c) "Electrical corporation", "gas corporation", "telephone corporation", and "water corporation" shall have the same meanings given them by Sections 218, 222, 234, and 241, respectively, of the Public Utilities Code of the State of California, as of August 1, 1970. In addition, "water corporation" shall be con- strued to include any municipality engaging in the business of selling water to a service user in the City of Santa Ana. (d) "Month" shall mean a calendar month. (e) "Service supplier" shall mean a person required to collect and remit a tax imposed under the provisions of this Article. (f) "Service user" shall mean a person required to pay a tax imposed under the provisions of this Article. Sec. 35-202. Exemptions. Nothing in this Article shall be construed to impose a tax upon any person when the imposition of such tax upon that person would be violative of the Constitution of the United States or the Constitution of the State of California. Sec. 35-203. Electricity User Tax. (a) There is hereby imposed a tax upon every person in the City using electrical energy in the City. The tax hereby imposed shall be at the rate of five percent (5%) of the charges made for such energy, and shall be paid by the person paying for such energy. "Charges" as used herein shall include charges for metered energy, minimum charges for service (including customer charges, service charges, demand charges, standby charges, and annual and monthly charges). (b) As used in this section, the phrase "using electrical energy" shall not be construed to mean the use of such energy from a storage battery, provided, however, that the term shall include the receiving of such energy for the purpose of using it in the charging of storage batteries. The term shall not include the mere receiving of such energy by an electrical public utility or governmental agency at a point within the City of Santa Ana for resale, or that used by a governmental agency or public utility for the production or distribution of its particular public utility product or service. (c) The tax imposed in this Section shall be collected from the service user by the electricity service supplier. The amount of tax collected in one month shall be remitted to the Director of Finance of City on or before the 20th day of the following month. Sec. 35-204. Gas User Tax. (a) There is hereby imposed a tax upon every person in the City using gas in the City which is delivered through mains or pipes. The tax hereby imposed shall be at the rate of five percent (5%) of the charges made for such gas, and shall be paid by the person paying for such gas. "Charges", as used herein, shall include charges for metered gas, minimum charges for service (including customer charges, service charges, demand charges, standby charges, and annual and monthly charges). (b) The term "charges" shall not include charges made for gas which is to he resold and delivered through mains or pipes, charges made for gas sold or used by a governmental agency or public utility in the production or distribution of its particular public utility product or service charges made by a gas public utility for gas used or consumed in the conduct of the business of gas public utilities, charges made for gas utilized to propel motor vehicles, and charges made for gas utilized in water pumping and distribution activities by governmental agencies or water public utilities. (c) The tax imposed in this Section shall be collected from the service user by the gas service supplier. The amount of tax collected in one month shall be remitted to the Director of Finance of City on or before the 20th day of the following month. Sec. 35-205. Telephone User Tax. (a) There is hereby imposed a tax upon every person in the City, other than a telephone corporation, using intrastate telephone communication services in the City. The tax hereby imposed shall be at the rate of five percent (5%) of the charges made for such service, and shall be paid by the person paying for such service. (b) As used in this Section, the term "charges" shall not include charges for service paid for by inserting coins in coin- operated telephones, except that where such coin-operated telephone 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 "telephone communication services" include land mobile services or maritime mobile services as defined in Section 2.1 of Title 47 of the Code of Federal Regula- tions, as such section existed on August 1, 1970. (c) Notwithstanding the provisions of Subsection (a), 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 by Section 4251 of Title 26 of the United States Code, as such section existed on August 1, 1970, without regard to Subsection (b) thereof. -2- (d) The tax imposed in this Section shall be collected from the service user by the telephone service supplier. The amount of tax collected in one month shall be remitted to the Director of Finance of City on or before the 20th day of the following month. Sec. 35-206. Water User Tax. (a) There is hereby imposed a tax upon every person in the City using water in the City which is delivered through mains or pipes. The tax hereby imposed shall be at the rate of five percent (5%) of the charges made for such water, and shall be paid by the person paying for such water. (b) There shall be excluded from the base on which the tax imposed in this Section is computed charges made for water which is to be resold and delivered through mains or pipes; and charges made by a municipal water department, public utility, or a county or municipal water district for water used and consumed by such department, utility, or district in the production or distribution of its particular public utility product or service. There shall be included charges made by, or the proportionate share of the cost of, a local private mutual water company to its members receiving water from its own well. (c) The tax imposed in this Section shall be collected from the service user by the water service supplier or general manager or any private mutual water company. The amount of the tax collected in one month shall be remitted to the Director of Finance of City on or before the 20th day of the following month Sec. 35-207. Payment of Tax. Interest and Penalty. (a) Taxes due hereunder which are collected from a service user, and which are not remitted to the Director of Finance of City on or before the 20th day of the month following the month of collection are delinquent. (b) In addition to remitting the amount of the tax, any service supplier who fails to remit any tax imposed in this Article within the time required, and upon 10 days' written notice to the service supplier of its failure to remit, shall pay a penalty of fifteen percent (15%) of the amount of the tax. (c) If the Director of Finance of City determines that the nonpayment by any service supplier of any remittance due pursuant to this Article is willful or fraudulent, a penalty of twenty percent (20%) of the amount of the tax shall be added thereto in addition to the penalties provided in Section 35-207(b) above. (d) Every penalty imposed under the provisions of this Section shall become a part of the remittance due to the Director of Finance of City from the service supplier. Sec. 35-208. Actions to Collect. Any tax required to be paid by a service user under the provisions of this Article shall be deemed a debt owed by the service user to City. Any such tax collated from a service user which has not been remitted to the Director of Finance of City shall be deemed a debt owed to the City by the service supplier who collected such tax. Any person owing money to the City under the provisions of this Article shall be subject to an action brought in the name of City for the recovery thereof. -3- Sec. 35-209. Duty tQ Collect. Procedures. The duty to collect and remit the taxes imposed by this Article 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 regular billing practices of the service supplier. Except in those cases where a service user pays the full amount of said charges but does not pay any portion of a tax imposed, or where a service user has notified a service supplier that he is refusing to pay a tax imposed which said service supplier is required to collect, if the amount paid by a service user is less than the full amount of the charge and tax which has accrued for the billing period, a proportionate share of both the charge and the tax shall be deemed to have been paid. (b) The duty to collect tax from a service user shall commence with the beginning of the first regular billing period applicable to that person which starts on or after the operative date of this Article. Where a person receives more than one billing, one or more being for different periods than another, the duty to collect shall arise separately for each billing period. (c) Where the remittance of taxes collected under this Article is based upon the estimated percentage of the total amount billed, less uncollectibles and delinquents, the service supplier may submit a payment plan to the Clerk of the Council for his approval. If the Director of Finance of the City determines after examining the plan that it is reasonably based on prior system-wide bill collection experience he shall approve the plan. If there is indication to the Director of Finance of City that the payments made are less than ninety-five percent (95%) of the actual taxes due, he is authorized to investigate and determine whether the service supplier shall submit a new plan. Sec. 35-210. Powers and Duties of Director of Finance. The Director of Finance of City shall have the power and duty, and is hereby directed to enforce each and all of the provisions of this Article. The Director of Finance shall have power to adopt rules and regulations not inconsistent with the provisions of this Article for the purpose of carrying out and enforcing the payment, collection and remittance of the taxes herein imposed; and a copy of such rules and regulations shall be on file and available for public examination in the office of the Director of Finance. Sec. 35-211. Assessment. Administrative Remedy. (a) The Director of Finance may make an assessment for taxes not paid or remitted by a person required to pay or remit. A notice of assessment, which shall refer briefly to the a~ount of taxes and penalties imposed and the time and place when such assessment is due and payable, shall be submitted to the City Council for confirmation or modification. The Director of Finance shall mail a copy of such notice to the service supplier and to the service user at least ten (10) days prior to the date of the hearing and shall post such notice, for at least ten (10) continuous days prior to the date of the hearing, on the bulletin board in the entryway at the City Hall, 217 North Main Street. Any interested party having any objections may appear and be heard at the hearing, provided that his objection is filed in writing with the Clerk of the Council and Director of Finance prior to the time set for the hearing. -4- (b) At the time fixed for considering said assessment, the City Council shall hear the same together with any objection filed as aforesaid and thereupon may confirm or modify said assessment by motion. (c) Whenever the Director of Finance determines that a service user has deliberately withheld the amount of any tax imposed on him by the provisions of this Article from the amounts remitted to a service supplier required to collect the tax, or that a service user has failed to pay the amount of the tax to such service supplier for a period of two (2) or more billing periods, or whenever the Director of Finance deems it in the best interest of the City, he shall relieve such service supplier of the obligation to collect taxes due under this Article from certain named service users for specified billing periods. The Director of Finance shall notify the service user that he has assumed the 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 service supplier required to collect the tax; or, should the service user have changed his address, to his last known address. Sec. 35-212. Records. It shall be the duty of every person required to collect and remit to the City any tax imposed by this Article to keep and preserve, for a period of three (3) years, all records as may be necessary to determine the amount of tax which he may have been required to collect and remit to the Director of Finance, which records the Director of Finance shall have the right to inspect at all reasonable times. Sec. 35-213. 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 Director of Finance under the provisions of this Article, it may be refunded as provided in this Section. A claim in writing shall be filed with the Director of Finance within three (3) years of the date of payment stating under penalty of perjury the specific grounds upon which the claim is founded. (b) A service supplier may claim a refund or take as credit against taxed collected and remitted. The refund or credit shall be for any amount overpaid, paid more than once, or erroneously or illegally collected or received when it is established in a manner prescribed by the Director of Finance that the service user from whom the tax has been collected did not owe the tax. However, 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. (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. Sec. 3~-214. Effective Date. The taxes imposed by this Article shall become operative as of November 1, 1970, and shall continue in effect for one year from said date. -5- SECTION 2: That the Clerk of the Council shall certify to the passage of this Ordinance and cause the same to be published in some daily newspaper printed and published in the City of Santa Ana. SECTION 3: That this Ordinance shall take effect thirty days from and after the date of its adoption. PASSED AND ADOPTED by the City Council of the City of Santa Ana at its regular meeting held on the 21st day of September, 1970. ATTEST: CLERK OF THE COUNdiL MAYOR STATE OF CALIFORNIA) COUNTY OF ORANGE ) CITY OF SANTA ANA ) SS I, FLORENCE I. MALONE, do hereby certify that I am the Clerk of the Council of the City of Santa Ana; that the foregoing Ordinance was introduced to said Council at its regular meeting held on the 8th day of September, 1970, and was again considered by said CounCil at its regular meeting held on the 21st day of September, 1970, and was at said meeting passed and adopted by the following vote, to wit: AYES, COUNCILMEN: Patterson, Villa, Yamamoto, Griset NOES, COUNCILMEN: Herrin, Evans, Markel ABSENT, COUNCILMEN: None CLERK OF THE COUNCIL -6-