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HomeMy WebLinkAboutTC Ord 1991-06-20 ORDINANCE NO. 370 N.S. AN ORDINANCE OF 11IE TOWN COUNCIL OF THE TOWN OF TIBURON ADDING A NEW CHAPTER 7A TO 11IE TIBURON MUNICIPAL CODE IMPOSING A UTlLrIY USERS TAX The Town Council of the Town of Tiburon does ordain as follows: SECTION 1. CHAPTER ADDED. A new chapter, Chapter 7A, Utility Users Tax, is hereby added to the Town of Tiburon Municipal Code to read as follows: Sections: 7A-I. 7 A-2. 7 A-3. 7A-4. 7 A-5. 7A-6. 7A-7. 7 A-8. 7A-9. 7A-IO. 7A-II. 7 A-12. 7 A-13. 7A-14. 7 A-15. 7A-16. 7A-17. 7 A-18. Chapter 7 A Utility Users Tax Authority and Purpose. Definitions. Exemptions. Telephone Users Tax. Electricity Users Tax. Gas Users Tax. Service Users Receiving Direct Purchase of Gas or Electricity. Water Users Tax. Cable Television Users Tax. Remittance of Tax. Actions to Collect. Duty to Collect - Procedures. Additional Powers and Duties of Tax Administrator. Assessment - Service User Administrative Remedy. Records. Refunds. Violations - Penalty. Operative Date. Section 7 A-I. Authority and PUl1lose. This Chapter is adopted pursuant to the authority of Section 37100.5 of the Government Code for the purpose of providing general municipal revenues for general operating and capital expenses. Section 7 A-2. Definitions. Except where the context otherwise requires, the following definitions shall govern the construction of this Chapter. (a) "Person" shall mean any domestic or foreign corporation, firm, association, syndicate, joint stock company, partnership of any kind, joint venture, club, society, or individual. (b) "Town" shall mean the Town of Tiburon. (c) "Gas" shall mean natural or manufactured gas or any alternate hydrocarbon fuel which may be substituted therefor. (d) "Telephone corporation," "electrical corporation," "gas corporation," "water corporation," and "cable television corporation" shall have the same meanings as defined in Sections 234, 218, 222, 241, and 214.5, respectively, of the California Public Utilities Code except, "electrical corporation," "gas corporation" and "water corporation" shall also be construed to include any Inunicipality, public agency or person engaged in the selling or supplying of electrical power or gas or water to a service user. (e) Tiburon. "Tax Administrator" shall mean the Finance Director of the Town of (1) "Service supplier" shall mean any entity required to collect or self- impose and remit a tax as imposed by this chapter. (g) "Service user" shall mean a person required to pay a tax imposed by this chapter. (h) "Month" shall mean a calendar month. (i) "Non-utility Supplier" shall mean: (a) a service supplier, other than an electrical corporation serving within the Town which generates electrical energy in capacities of at least 50 kilowatts for its own use or for sale to others; or (b) a gas supplier other than a gas corporation, that sells or supplies gas to users within the Town. - 2 - Section 7 A-3. Exemptions. (a) Nothing in this Chapter 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. (b) If a service supplier has a program which provides for an exemption or discount rates to low or limited income users, said users shall be exempt from the tax provided in this chapter. (c) 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. Each supplier shall collect the tax for every service user unless and until an exemption is granted. (d) The taxes imposed by this Chapter shall not apply to any non-profit or public entity providing low income housing within the Town of Tiburon. Section 7 A-4. Telephone Users Tax. (a) There is hereby imposed a tax on the amounts paid for any telephone services by every person in the Town using such services. The tax imposed by this section shall be at the rate of seven percent (7%) 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 furnished by a service supplied subject to Public Utility regulations during any period in which the same or similar services or equipment are also available for sale or lease from persons other than a service supplier subject to public utility regulation; nor shall the words "telephone communication services" include land mobile service or maritime mobile service 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 Town, irrespective of whether a particular communication service originates and/or terminates within the Town. - 3 - (c) The tax imposed by this section shall be collected from the service user by the person providing the telephone communication 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 at the option of the person required to collect and remit the tax, an estimated amount of tax collected, 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. When the latter option is utilized, any additional amounts actually due shall be remitted within thirty (30) days after the estimated payment was made. Any overpayments of estimated taxes may be credited on the next remittance. (d) Notwithstanding the provisions of subsection (a), the tax imposed under this section shall not be imposed upon any person for using 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. Section 7 A-5. Electricity Users Tax. (a) There is hereby imposed a tax upon every person other than an electric or gas corporation using electrical energy in the Town. The tax imposed by this section shall be at the rate of seven percent (7%) of the charges made for such energy by an electrical corporation providing service in the Town and shall be billed to and paid by the person using the energy. The tax applicable to electrical energy provided by a non-utility supplier shall be determined by applying the tax rate to the equivalent charge the service user would have incurred if the energy used had been provided by the electrical corporation franchised by the Town. Rate schedules for this purpose shall be available from the Town. Non-utility suppliers shall install, maintain and use 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, standby charges and all other annual and monthly charges, fuel or other cost adjustments, authorized by the California Public Utilities Commission or the Federal Energy Regulatory Commission. (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 for use in an automobile or other machinery 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; nor shall the term include the mere receiving of such energy by an electric corporation or governmental agency at a point - 4 - within the Town of Tiburon for resale; nor shall the term include the use of such energy in the production or distribution of water by a water utility or a governmental agency. (c) The tax imposed in this section shall be collected from the service user by the service supplier or non-utility supplier. The tax imposed in this section on use supplied by self-generation or from a non-utility supplier not subject to the jurisdiction of this ordinance, shall be collected and remitted to the Tax Administrator in the manner set forth in Section 7 A-7. The amount of tax collected by a service supplier or a non-utility supplier in one 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. When the latter option is utilized, any additional amounts actually due shall be remitted within thirty (30) days after the estimated payment was made. Any overpayment of estimated taxes may be credited on the next remittance. Section 7 A-6. Gas Users Tax. (a) There is hereby imposed a tax upon every person in the Town other than a gas corporation or electrical corporation using in the Town gas which is transported through mains or pipes or by mobile transport. The tax imposed by this section shall be at the rate of seven percent (7%) of the charges made for the gas and shall be billed to and paid by the person using the gas. The tax applicable to gas or gas transportation provided by non-utility supplier shall be determined by applying the tax rate to the equivalent charges the service user would have incurred if the gas or gas transportation had been provided by the gas corporation franchised by the Town. "Charges" as used in this section shall include: (1) that billed for gas which is delivered through mains or pipes; (2) gas transportation charges; and (3) demand charges, service charges, customer charges, minimum charges, annual and monthly charges, and any other charge authorized by the California Public Utilities Commission or the Federal Energy Regulatory Commission. (b) The tax otherwise imposed by this section is not applicable to: (1) charges made for gas which is to be resold and delivered through mains and pipes; (2) charges made for gas used and consumed by a public utility or governmental agency in the conduct of its business or; (3) charges made by a gas public utility or gas used and consumed in the course of its public utility business; and (4) charges made for gas used in the propulsion of a motor vehicle, as authorized in the Vehicle Code of the State of California. - 5 - (c) The tax imposed in this section shall be collected from the service user by the person selling or transporting the gas. A person selling only transportation services to a user for delivery of gas through mains or pipes shall collect the tax from the service user based on the transportation charges. The tax imposed in this section on use supplied by self-production or a non-utility supplier not subject to the jurisdiction of this ordinance, shall be collected and remitted to the Tax Administrator in the manner set forth in Section 7 A-'. The amount of tax collected by a service supplier or a non-utility supplier in one 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. When the latter option is utilized, any additional amounts actually due shall be remitted within thirty (30) days after the estimated payment was made. Any overpayment of estimated taxes may be credited on the next remittance. Section 7 A-7. Service Users Receivine Direct Purchase of Gas or Electricity. (a) Notwithstanding any other provision of this chapter, a service user receiving gas or electricity directly from a non-utility supplier not under the jurisdiction of this chapter, or otherwise not having the full tax due on the use of gas or electricity in the Town directly billed and collected by the service supplier, shall report this fact to the Tax Administrator within thirty days of use and shall directly remit to the Town the amount of tax due. (b) The Tax Administrator may require such service users to provide, subject to audit, filed tax returns or other satisfactory evidence documenting the quantity of gas or electricity used and the price thereof. Section 7 A-8. Water Users Tax. (a) There is hereby imposed a tax upon every person in the Town using water which is delivered through mains or pipes. The tax imposed by this section shall be at the rate of seven percent (7%) 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 city or municipal water district for water used and consumed by such department, utility or district. (c) The tax imposed in this section shall be collected from the service user by the person supplying the water. The amount collected in one (1) month shall be - 6 - 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. When the latter option is utilized, any additional amounts actually due shall be remitted within thirty (30) days after the estimated payment was made. Any overpayment of estimated taxes may be credited on the next remittance. Section 7A-9. Cable Television Users Tax. (a) There is hereby imposed a tax upon every person in the Town using cable television service. The tax imposed by this section shall be at the rate of seven percent (7%) of the charges made for such cable television service and shall be paid by the person paying for such services. (b) As used in this section, the term "cable television service" includes all services for which a charge is made, including basic and premium services, installation charges and equipment rentals. (c) The tax imposed in this section shall be collected from the service user by the person supplying the cable television service. The amount collected in one 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. When the latter option is utilized, any additional amounts actually due shall be remitted within thirty (30) days after the estimated payment was made. Any overpayment of estimated taxes may be credited on the next remittance. Section 7A-IO. Remittance of Tax. (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. Should the due date occur on a weekend or legal holiday, the return may be postmarked on the first regular working day following a Saturday/Sunday, or legal holiday. (b) Once taxes due are delinquent, the Tax Administrator shall send a written notice of delinquency to the person required to collect the tax. If that person does not remit payment within ten (10) days after the date of the delinquency notice, a ten percent (10%) penalty shall be added to the amount delinquent. - 7 - Section 7A-II. Actions to Collect. Any tax required to be paid by a service user under the provisions of this ordinance shall be deemed a debt owed by the service user to the Town. Any such tax collected from a service user which has willfully been withheld from the Tax Administrator shall be deemed a debt owed to the Town by the person required to collect and remit. Any person owing money to the Town under the provisions of this chapter shall be liable to an action brought in the name of the Town for the recovery of such amount. Section 7 A-12. Duty to Collect - Procedures. The duty to collect and remit the taxes imposed by this chapter shall be performed as follows: (a) Notwithstanding the provisions of Section '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 service 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 charge first until such charge has been fully satisfied. Any remaining balance shall be applied to taxes due. (b) The duty to collect tax from a service oser 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. Section 7 A-13. Additional Powers and Duties 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 chapter. (b) The Tax Administrator shall have the power to adopt rules and regulations consistent with provisions of this chapter for the purpose of carrying out and enforcing the payment, collection and remittance of the 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 - 8 - 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 chapter. A copy of each such agreement shall be on file in the Tax Administrator's office. (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 service is supplied to any such exempt person. The Tax Administrator shall notify the service supplier of termination of any persons right to exemption hereunder, or the change of any address to which service is supplied to any exempt person. (e) The Tax Administrator shall provide notice to all service suppliers, at least 90 days prior to any annexation or other change in the Town's boundaries. Said notice shall set forth the revised boundaries by street and address, along with a copy of the final annexation order from LAFCO. Section 7 A-14. Assessment - Service User Administrative Remedy. (a) Whenever the Tax Administrator determines that a service user has deliberately withheld the amount of the tax owed 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, such person may be relieved of the obligation to collect taxes due under this ordinance from certain named service users for specified billing periods as set forth below. Section 7 A-15. Records. It shall be the duty of every person required to collect and remit to the Town any tax imposed by this chapter 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 that person may have been liable for the remittance to the Tax Administrator. The Tax Administrator shall have the right to inspect these records at all reasonable times. Section 7A-16. 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 chapter, 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 remitted the amount overpaid, paid more than once, or erroneously or illegally collected or - 9 - 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 erroneously or illegally 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 chapter 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 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) 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 services, 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 chapter is repealed, the amounts of any refundable taxes will be borne by the Town. (d) A service supplier may refund the taxes collected to the service user in accordance with this section or by the service supplier's customary practice. Section 7A-17. Violations - Penalty. Any person violating any provision of this chapter or any person refusing to pay any tax required by this chapter shall be guilty of a misdemeanor and upon conviction shall be punished as provided for in Section 36901 of the Government Code. Section 7 A-18. Operative Date. The provisions of this chapter shall become operative as of October 1, 1991. The taxes imposed under this article shall apply beginning on the first day of the service supplier's first regular billing period, or if gas or electrical power used arose from self-production, the taxes imposed under this article shall apply on and after October 1, 1991. The Tax Administrator may upon showing of good cause allow a service supplier an additional period in which to begin applying, billing, collecting and remitting the taxes imposed under this chapter. SECTION 2. SEVERABILITY. If any section, subsection, clause, sentence, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of a Court or competent jurisdiction, such decision shall not affect the validity of the remaining - 10- portions of the Ordinance. The Town Council of the Town of Tiburon hereby declares that it would have passed this Ordinance, any section, subsection, sentence, clause or phrase thereof, irrespective of the fact that anyone or more sections, subsections, sentences, clauses, or phrases may be declared invalid or unconstitutional. SECTION 3. EFFECTIVE DATE. This Ordinance shall take effect and be in force thirty (30) days after the date of passage, and before the expiration of fifteen (15) days after its passage the same shall be published, with the names of the members voting for and against the same, at least once in a newspaper of general circulation, published in the Town of Tiburon. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Tiburon on June 20, 1991, by the following vote: AYES: NOES: ABSENT: COUNCILMEMBERS: COUNCILMEMBERS: COUNCILMEMBERS: ATTEST: ~M1~~~LERK - 11 -