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HomeMy WebLinkAboutNS-1268.1ORDINANCE NO. NS - 1268.1 (EMERGENCY) AN ORDINANCE OF THE CITY OF SANTA ANA ADDING ARTICLE VI, TO CHAPTER 35 OF THE SANTA ANA MUNICIPAL CODE TO BE KNOWN AS THE UTILITY USERS TAX CODE, DECLARING THE URGENCY THEREOF, AND PROVIDING FOR IMMEDIATE EFFECT. THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: SECTION 1: This ordinance is for the purpose of fixing the rate of taxation for the Utility Users Tax, and for the purpose of providing a tax levy for the usual and current expense of the City of Santa Ana, and is urgently required for the immediate preservation of public peace, health and safety for the reasons that present revenues to the City of Santa Ana are insufficient to maintain the present level of services to the citizenry, increased revenues are essential to the implementation of an expanded crime prevention and para- medic program, and the utility users tax is more equitable to all citizens of Santa Ana since every user of telephone, electricity and gas utilities will share in the utility users tax, and for the reason that the utility suppliers obligated to collect the tax under this ordinance require at least 60 days prior to the October 1, 1975, operative date of the tax to revise their billing procedure. Allowances are made herein to exempt low income households. Therefore, the City Council declares that this ordinance shall take effect as, and is adopted as, an emergency measure and is to be enforced from the date of its posting or publication. SECTION 2: That the Santa Ana Municipal Code is hereby amended by adding Article VI to Chapter 35 thereof, consisting of Sections 35-151, 35-152, 35-153, 35-154, 35-155, 35-156, 35-157, 35-158, 35-159, 35-160, 35-161, 35-162, 35-163, 35-164, 35-165, and 35-166 to read as follows: ARTICLE VI. Utility Users Tax Code Sec. 35-151. Short Title. This Article shall be known as the "Utility Users Tax Code." The word "Code", as used in this Article shall mean the "Utility Users Tax Code" unless otherwise so indicated. Sec. 35-152. Purpose. This Code is required for the purpose of fixing the rate of taxation for the Utility Users Tax, and for the pur- pose of providing a tax levy for the usual and current expenses of the City of Santa Ana. Sec. 35-153. Definitions. The following words and phrases whenever used in this Code shall be construed as defined in this section. (a) "Person" shall mean all domestic and foreign corporations, associations, syndicates, joint-stock com- panies, partnerships of every kind, joint ventures, societies, Massachusetts business or common-law trusts, and individuals. ORDINANCE NO. NS-1268.1 (EMERGENCY) PAGE TWO (b) "City" shall mean the City of Santa Ana. (c) "Telephone corporation," "electrical corporation," and "gas corporation" shall have the same meanings as defined in Sections 234, 218 and 241, respectively, of the Public Utilities Code of the State of California as said sections existed on January 1, 1975. "Electrical corporation" shall be construed to include any municipality or franchised agency engaged in the selling or supplying of electrical power to a service user. (d) "Tax Administrator" shall mean the Finance Director of the City of Santa Ana. (e) "Service supplier" shall mean a person required to collect and remit a tax imposed by this Code. (f) "Service user" shall mean a person required to pay a tax imposed by this Code. (g) "Month" shall mean a calendar month. Sec. 35-154. Constitutional Exemptions. Nothing in this Code 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 Calif6rnia. Sec. 35-155. Telephone Users Tax. (a) There is hereby imposed a tax upon every person, other than a telephone corporation, in the City of Santa Ana using intrastate telephone communication services in the City of Santa Ana. The tax imposed by this section shall be at the rate of three percent (3%) of all charges made for such ser- vices 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 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 mari- time mobile services as defined in Section 2.1 of Title 47 of the Code of Federal Regulations. (c) The tax imposed in this section shall be collected from the service user by the person providing the intrastate telephone communication services. The amount of tax collected in one month shall be remitted to the Tax Administrator on or before the 20th day of the following month. (d) Notwithstanding the provisions of subsection (a), the tax imposed under this section shall not be imposed upon any person for using intrastate telephone communications services to the extent that the amounts paid for such services are exempt from or not subject to the tax imposed under Sec- tion 4251 of Title 26 of the United States Code. Sec. 35-156. Electricit~ Users Tax. (a) There is hereby imposed a tax upon every person in the City of Santa Ana using electrical energy in the City. The tax imposed by this section shall be at the ORDINANCE NO. NS-1268.1 (EMERGENCY) PAGE THREE rate of three percent (3%) of the charges made for such energy and shall be paid by the person paying for such energy. "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, standby charges, and annual and monthly charges. (b) As used in this section, the term "using elec- trical 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 oharging of batteries; nor shall the term include the mere receiving of such energy by an electric public utility or governmental agency at a point within the City of Santa Ana 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 amount of tax collected in one month shall be remitted to the Tax Administrator on or before the 20th day of the following month. Remittance of tax may be predicated on a formula based upon the payment pattern of the supplier's cus- tomers. Sec. 35-157. Gas User Tax. (a) There is hereby imposed a tax upon every person in the City of Santa Ana, other than a gas corporation or electrical corporation, using in the City gas which is deli- vered through mains or pipes. The tax imposed by this section shall be at the rate of three percent (3%) of the charges made for such gas and shall be paid by the person paying for such gas. (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; and (3) oharges made by a gas public utility for gas used and consumed in the conduct of the business of gas public utilities. (c) The tax imposed in this section shall be collected from the service user by the person selling the gas. The amount oollected in one month shall be remitted to the Tax Administrator on or before the 20th day of the following month. Sec. 35-158. Penalty. (a) Taxes collected from a service user which are not remitted to the Tax Administrator on or before the due dates provided in this Code are delinquent. Sec. 35-159. Actions to Collect. Any tax required to be paid by a service user under the provisions of this Code shall be deemed a debt owed by the service user to the City. Any such tax collected from a ser- vice user which has not been remitted to the Tax Administrator shall be deemed a debt owed to the City by the person required to collect and remit. Any person owing money to the City under the provisions of this Code shall be liable to an action brought in the name of the City for the reoovery of such amount. ORDINANCE NO. NS-1268.1 (EMERGENCY) PAGE FOUR Sec. 35-160. Duty to Collect - Procedures. The duty to collect and remit the taxes imposed by this Code 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 accor- dance with the regular billing practice. (b) The duty to collect tax from a service user shall commence with the beginning of the first full regular billing period applicable to that person which starts on or after the operative date of this Code. Where a person receives more than one billing, for different periods, the duty to collect shall arise separately for each billing period. Sec. 35-161. Additional Powers and Duties of Tax Administrator, etc. (a) The Tax Administrator shall have the power and duty, and is hereby directed to enforce each and all of the provisions of this Code. Sec. 35-162. Assessment - Administrative Remedy. (a) The Tax Administrator may make an assessment for taxes not paid or remitted by a person required to pay. (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 failed to pay the amount of the tax to such person for a period of two or more billing periods, or whenever the Tax Administrator deems it in the best interest of the City, he shall relieve such person of the obligation to collect taxes due under this Code from such service users for specified billing periods. 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. Sec. 35-163. Records. It shall be the duty of every person required to collect and remit to the City any tax imposed by this Code to keep and preserve, for a period of three 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. Sec. 35-164. Refunds. (a) or paid more collected or Whenever the amount of any tax has been overpaid than once or has been erroneously or illegally received by the Tax Administrator under this Code ORDINANCE NO. NS-1268.1 (EMERGENCY) PAGE FIVE it may be refunded as provided in this section. No refund will be considered by the Tax Administrator for a period in excess of twelve (12) months prior to the date application is received. (b) A person required to collect and remit taxes im- posed under this Code may claim a refund or take as credit against taxes collected and remitted the amount overpaid, paid more than once or erroneously or illegally collected or received when it is established in a manner prescribed by the Tax Administrator 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. (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. 35-165. Low Income Household Exemption. (a) The utility users tax imposed by this code shall not apply to any service user who uses telephone, electric or gas services, in or upon any premises occupied by such service user, provided the combined gross income of all mem- bers of the household in which such user resided was less than Seven Thousand Five Hundred Dollars ($7,500.00) for the calendar year prior to the fiscal year (July 1 through June 30) for which the exemption provided in this section is applied for. The exemption granted by this section shall not elimi- nate the duty of the service supplier to collect taxes from such exempt individual or the duty of such exempt individual to pay such taxes to the service supplier unless an exemption is applied for by the service user and granted in accordance with the provisions of subsection (b) hereof. (b) Any service user exempt from the taxes imposed by this code because of the provisions of subsection (a) above, may file an application with the Tax Administrator at the Department of Finance, City Hall, for an exemption. Such application shall be made upon forms supplied by the Tax Administrator and shall recite facts under oath which qualify the applicant for an exemption. 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, and such other information as may be necessary for the service supplier to remove the exempt service user from its tax billing procedure. Upon receipt of such notice, the service supplier shall not be required to continue to bill any further tax imposed by this code from such exempt service user 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, no later than sixty (60) days after receipt of such notice from the Tax Administrator. Ail exemptions shall continue and be renewed automati- cally by the Tax Administrator so long as the prerequisite facts supporting the initial qualification for exemption ORDINANCE NO. NS-1268.1 (EMERGENCY) PAGE SIX shall continue; provided, however, that the exemption shall automatically terminate with any change in the service address or residence of the exempt individual; further pro- vided such individual may nevertheless apply for a new exemption with each change of address or residence. Any individual exempt from the tax shall notify the Tax Adminis- trator within ten (10) days of any change in fact or cir- cumstance which might disqualify said individual from receiving such exemption. It shall be a misdemeanor for any person to knowingly receive the benefits of the exemptions provided by this section when the basis for such exemption either does not exist or ceases. Notwithstanding any of the provisions of this sub- section, however, any service supplier who determines by any means that a new or nonexempt service user is receiving service through a meter or connection exempt by virtue of an exemption issued to a previous user or exempt user of the same meter or connection, such service supplier 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 nonexempt service user. Sec. 35-166. Violation; Misdemeanor. Any person violating any of the provisions of this code shall be guilty of a misdemeanor and shall be punishable thereafter by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the Orange County Jail for a period of not more than six months or by both such fine and imprisonment. 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 each section, subsection, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, subdivision, paragraphs, sentences, clauses or phrases be declared unconstitutional. SECTION 4: This ordinance, inasmuch as it fixed the rate of taxation for the Utility Users Tax, and provides for a tax levy for the usual and current expenses of the City of Santa Ana, shall take effect immediately upon the date of its publication or on the date of its posting, whichever occurs first, except that the tax imposed by this ordinance shall become operative and be imposed on October 1, 1975, or at the beginning of the first regular billing period on or after October 1, 1975, as provided in Section 35-160 hereof, whichever is later, and shall not apply prior to said date. SECTION 5: The Clerk of the Council shall certify to the passage and adoption of this ordinance and sha~l cause ORDINANCE NO. NS-1268.1 (EMERGENCY) PAGE SEVEN the same to be published in the official newspaper of the City of Santa Ana within fifteen (15) days after its adoption. PASSED AND ADOPTED by the City Council of the City of Santa Ana as an emergency measure at its regular meeting held on the 21st day of July , 1975. ATTEST: JOHN GARTHE VICE CLERK OF THE COUNCIL \ \ STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss.: CITY OF SANTA ANA ) 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 21st day of July , 1975, and was at said meeting passed and adopted as an emergency measure by the following vote, to wit: AYES: Councilmen: Ward, Garthe, Brandt NOES: Councilmen: Evans, Ortiz ABSENT: Councilmen: None Bricken, Yamamoto, APPROVED AS TO FORM: FLORENCE I. MALONE CLERK OF THE COUNCI~ - \ %