Loading...
HomeMy WebLinkAboutNS-2132 - Amending Article VI of Chapter 35 of Santa Ana Municipal Code Relating to Utility Users Tax 389 r ORDINANCE NO. NS-2132 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING ARTICLE VI OF CHAPTER 35 OF THE SANTA ANA MUNICIPAL CODE RELATING TO UTILITY USERS TAX. THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: SECTION l: That Article VI of Chapter 35 of the Santa Ana Municipal Code, is hereby amended 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 purpose or 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 companies, partnerships of every kind, joint ventures, societies, Massachusetts business or common law trusts, and individuals. (b) city shall mean the city of Santa Ana. ~ (c) Telephone corporation, electrical corporation, and gas corporation, and water corporation shall have the same meanings as defined in Sections 234, 218, 222 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 1 ORDINANCE NO. NS-2132 PAGE TWO 391 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 California. 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 telephone communication services, including services for intrastate, interstate, or international calls, in the City of Santa Ana, and using any teletypewriter exchange services in the city of Santa Ana or mobile or cellular telephone communication when the owner or lessee of the telephone has a billing address in the City of Santa Ana. The tax imposed by this section shall be at the rate of five (5) per cent of all charges made for such services and shall be paid by the person paying for such services. Interstate calls shall be deemed to include calls to the District of Columbia. The telephone users' tax is intended to, and does, apply to all charges billed to a telephone account having a situs in the city of Santa Ana, irrespective of whether a particular communication service originates or terminates within the city of Santa Ana. (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 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 Regulations, 2 ORDINANCE NO. NS-2l32 PAGE THREE 393 (c) The tax imposed in this section shall be collected from the service user by the person providing the telephone communication services or the teletypewriter exchange services or the person receiving payment for such service. The amount of tax collected in one (1) month shall be remitted to the tax administrator on or before the twentieth 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 telephone communications services or teletypewriter exchange services or mobile or cellular telephone services, to the extent that the amounts paid for such services are exempt from or not subject to the tax imposed under section 4251 of Title 26 of the United states Code. Sec. 35-156. Electricity 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 rate of five (5) per cent 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 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 from the premises upon which the energy 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 (1) month shall be remitted to the tax administrator on or before the twentieth day of the following month. Remittance of tax may be predicated on a formula based upon the payment pattern of the supplier's " i 3 ORDINANCE NO. NS-2132 PAGE FOUR 395 customers. 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 delivered through mains or pipes. The tax imposed by this section shall be at a rate of five (5) percent 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) Charges make 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 collected in one (1) month shall be remitted to the tax administrator on or before the twentieth day of the following month. (d) Notwithstanding other provisions of this section, whenever a service supplier, pursuant to all order of the California Public Utilities Commission or a court of competent jurisdiction, makes a refund to service users of charges for past utility services, the taxes paid pursuant to this Code 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 Code is repealed, the amounts of any refundable taxes will be borne by the city. Sec. 35-158. Water user tax. (a) There is hereby imposed a tax upon every person in the city using water which is delivered through mains or pipes. The tax imposed by this section shall be at the rate of five percent (5t) of the charges made for such water and shall be paid by the person paying for such water. 4 i i II ~ ORDINANCE NO. NS-2132 PAGE FIVE 397 (b) "charges" as used in this section shall include charges made for: (1) Metered water, and (2) Minimum charges for service, including customer charges, service charges, demand charges, standby charges, and annual and bi-monthly charges. Sec. 35-159. Penalty. Taxes collected from a service remitted to the tax administrator on or provided in this code are delinquent. user which are not before the due dates Sec. 35-160. 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 service user which has not been remitted to the tax administrator shall be deemed a debt owed to the city be 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 recovery of such amount. Sec. 35-161. 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 accordance 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 (1) billing for different periods, the duty to collect shall arise separately for each billing period. Sec. 35-162. Additional powers and duties of tax administrator, etc. The tax administrator shall have the power and duty and is hereby directed to enforce each and all of the provisions of this code. 5 ORDINANCE NO. NS-2132 PAGE SIX 399 Sec. 35-163. 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 (2) 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. (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 (l5) 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 (25) per cent of the amount of the tax set forth in the notice shall be imposed but not less than five dollars ($5.00). The penalty shall become part of the tax herein required to be paid. Sec. 35-164. 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 (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. Sec. 35-165. 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 code, 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. 6 I I ORDINANCE NO. NS-2l32 PAGE SEVEN 401 (b) A person required to collect and remit taxes imposed 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. 35-166. 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 members of the household in which such user resided was less than ten thousand dollars ($10,000.00) 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 eliminate 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 7 i ~~+ ORDINANCE NO. NS-2132 PAGE EIGHT 4.03 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. ( All exemptions shall continue and be renewed automatically by the tax administrator so long as the prerequisite facts supporting the initial qualification for exemption shall 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 exempt from the tax shall notify the tax administrator within ten (10) days of any change in fact or circumstance 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 subsection, 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. 35-167. 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 (6) months or by both such fine and imprisonment. Sec. 35-168. Maximum amount payable under the utility users tax. ( (1) The following subsections shall be effective for each fiscal year commencing on July 1. (a) The combined total maximum of electricity, gas and telephone user taxes paid by any single service user for one (1) location under this utility user tax code shall not exceed the following amounts 8 ...,...---------' ORDINANCE NO. NS-2132 PAGE NINE 405 during the following respective fiscal years: r 1991-92 1992-93 1993-94 1994-95 1995-96 and after $ 7,000.00 $ 8,000.00 $ 9,000.00 $10,000.00 $11,000.00 As used herein, "fiscal year" means a twelve-month period between July first of one calendar year and June thirtieth of the following calendar year. (b) A service user may deposit the maximum tax specified in subsection (a) with the tax administrator during the month of July of each year as payment in full and in advance of taxes due under this code for the twelve-month period commencing on the first day of said month and ending on June thirtieth thereafter. Any service user making said payment in July of any given year shall not thereafter be billed for any tax under this code for said twelve-month period. (c) The penalty assessment provided in section 35-162 of this code shall not be counted in computing the maximum tax as provided in subsection (a). (d) Any service user paying more than the maximum tax provided for in subsection (a) during any twelve-month period commencing July first and ending June thirtieth may claim a refund or credit for such over payment in the manner provided in section 35-164 of this code. (e) The phase "one (1) location" as used in subsection (a) shall mean one (1) or more contiguous sites for which the service user receives one (1) or more utility billings. SECTION 2: This ordinance shall come into full force and effect on the first day of the first calendar month following the effective date of this ordinance. SECTION 3: If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The city Council of the city of Santa Ana hereby declares that it would have adopted 9 ORDINANCE NO. NS-2132 PAGE TEN 407 this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that anyone or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. ;; ( ! SECTION 4: Neither the adoption of this Ordinance nor the repeal hereby of any ordinance shall in any manner affect the prosecution for violation of ordinances, which violations were committed prior to the effective date hereof, nor be construed as affecting any of the provisions of such ordinance relating to the collection of any such tax or penalty or interest or the penal provision applicable thereto and all rights and obligations thereunder appertaining shall continue in full force band effect. ADOPTED this 15th day of Ju1y , 1991. -D~~ ATTEST: 'I COUNCILMEMBERS: Young Acosta Griset McGuigan Norton Pulido Richardson Aye Nay Absent Ave Nay Aye Aye APPROVED AS TO FORM: E~~r City Attor y /' 10