Chapter 3.10 TAXATION

The duties of assessing property and of collecting taxes, provided by law to be performed by the assessor and the tax collector of the city, shall be performed by the assessor and the tax collector of the county in accordance with the provisions of Cal. Gov’t Code §§ 51500 through 51519. (Ord. 6 § 1. 1990 Code § 2-6100.)

3.10.020 Transfer of duties to city clerk.

All other duties of the city assessor are transferred to the city clerk and all other duties of the city tax collector are transferred to the chief of police, or such other officer as shall from time to time perform the functions of the chief of police. (Ord. 6 § 2. 1990 Code § 2-6101.)

3.10.030 Abolition of offices of city assessor and tax collector.

The offices of the city assessor and city tax collector are hereby abolished. (Ord. 6 § 3. 1990 Code § 2-6102.)

Article II. Uniform Sales and Use Tax

3.10.040 Short title.

This article shall be known as the uniform local sales and use tax ordinance of the city. (Ord. 41 § 1. 1990 Code § 2-6200.)

3.10.050 Purpose.

The city council hereby declares that this article is adopted to achieve the following, among other purposes, and directs that the provisions hereof be interpreted in order to accomplish those purposes:

(a) To adopt a sales and use tax ordinance which complies with the requirements and limitations contained in Cal. Rev. & Tax. Code Division 2, Part 1.5;

(b) To adopt a sales and use tax ordinance which incorporates provisions identical to those of the sales and use tax law of the state insofar as those provisions are not inconsistent with the requirements and limitations contained in Cal. Rev. & Tax. Code Division 2, Part 1.5;

(c) To adopt a sales and use tax ordinance which imposes a 0.95 of one percent tax and provide a measure therefor that can be administered and collected by the State Board of Equalization in a manner that adapts itself as fully as practical to, and requires the least possible deviation from, the existing statutory and administrative procedures followed by the State Board of Equalization in administering and collecting the state sales and use taxes;

(d) To adopt a sales and use tax ordinance which can be administered in a manner that will, to the degree possible consistent with the provisions of Cal. Rev. & Tax. Code Division 2, Part 1.5, minimize the cost of collecting city sales and use taxes and at the same time minimize the burden of record keeping upon persons subject to taxation under the provisions of this article. (Ord. 41 § 2; Ord. 271 § 1. 1990 Code § 2-6201.)

3.10.060 Operative date – Contract with state.

This article shall become operative on July 1, 1956, and prior thereto this city shall contract with the State Board of Equalization to perform all functions incident to the administration and operation of this sales and use tax article; provided, that if this city shall not have contracted with the State Board of Equalization, as above set forth, prior to July 1, 1956, this article shall not be operative until the first day of the first calendar quarter following the execution of such a contract by the city and by the State Board of Equalization; provided, further, that this article shall not become operative prior to the operative date of the uniform local sales and use tax ordinance of the county. (Ord. 41 § 3. 1990 Code § 2-6202.)

3.10.070 Imposition of sales tax.

For the privilege of selling tangible personal property at retail a tax is hereby imposed upon all retailers in the city at the rate of 0.95 of one percent of the gross receipts of the retailer from the sale of all tangible personal property sold at retail in the city on and after the operative date of this article. (Ord. 41 § 4(a)(1). 1990 Code § 2-6203.)

3.10.080 Presumption that sale takes place at location of retailer.

For the purposes of this article, all retail sales are consummated at the place of business of the retailer unless the tangible personal property sold is delivered by the retailer or his/her agent to an out-of-state destination or to a common carrier for delivery to an out-of-state destination. (Ord. 41 § 4(a)(2); Ord. 271 § 2; amended during 2012 reformat. 1990 Code § 2-6204.)

3.10.090 Inclusion of delivery charges in gross receipts.

The gross receipts from such sales shall include delivery charges when such charges are subject to the state sales and use tax, regardless of the place to which delivery is made. (Ord. 41 § 4(a)(2); Ord. 271 § 3. 1990 Code § 2-6205.)

3.10.100 Rule where no, or more than one, place of business.

In the event a retailer has no permanent place of business in the state or has more than one place of business, the place or places at which the retail sales are consummated shall be determined under rules and regulations to be prescribed and adopted by the State Board of Equalization. (Ord. 41 § 4(a)(2); Ord. 271 § 4. 1990 Code § 2-6206.)

3.10.110 Adoption of state regulations as to sales taxes.

Except as hereinafter provided, and except insofar as they are inconsistent with the provisions of Cal. Rev. & Tax. Code Division 2, Part 1.5, all the provisions of Cal. Rev. & Tax. Code Division 2, Part 1, as amended and in force and effect on July 1, 1956, applicable to sales taxes, are hereby adopted and made a part of Sections 3.10.070 through 3.10.140 as though fully set forth herein. (Ord. 41 § 4(b)(1). 1990 Code § 2-6207.)

3.10.120 Adoption of state regulations as to sales taxes – “City” substituted for “state.”

Wherever, and to the extent that, in Cal. Rev. & Tax. Code Division 2, Part 1, the state of California is named or referred to as the taxing agency, the city shall be substituted therefor. Nothing in this article shall be deemed to require the substitution of the name of the city for the word “state” when that word is used as part of the title of the State Controller, the State Treasurer, the State Board of Control, the State Board of Equalization, or the name of the State Treasury, or of the Constitution of the state; nor shall the name of the city be substituted for that of the state in any section when the result of that substitution would require action to be taken by or against the city or any agency thereof, rather than by or against the State Board of Equalization in performing the functions incident to the administration or operation of this article; and neither shall the substitution be deemed to have been made in those sections, including, but not necessarily limited to, sections referring to the exterior boundaries of the state, where the result of the substitution would be to provide an exemption from this tax with respect to certain gross receipts which would not otherwise be exempt from this tax while those gross receipts remain subject to tax by the state under the provisions of Cal. Rev. & Tax. Code Division 2, Part 1; nor to impose this tax with respect to certain gross receipts which would not be subject to tax by the state under such provisions of such code; and, in addition, the name of the city shall not be substituted for that of the state in Cal. Rev. & Tax. Code §§ 6701, 6702 (except in the last sentence thereof), 6711, 6715, 6737, 6797 and 6828 as adopted. (Ord. 41 § 4(b)(2). 1990 Code § 2-6208.)

3.10.130 No additional seller’s permit required.

If a seller’s permit has been issued to a retailer under Cal. Rev. & Tax. Code § 6067, an additional seller’s permit shall not be required by reason of this section. (Ord. 41 § 4(b)3; Ord. 964 § 1, 10-16-73. 1990 Code § 2-6209.)

3.10.140 Exclusion from gross receipts.

There shall be excluded from the gross receipts by which the tax is measured:

(a) The amount of any sales or use tax imposed by the state upon a retailer or consumer.

(b) The gross receipts from the sale of tangible personal property to operators of aircraft to be used or consumed principally outside the city in which the sale is made and directly and exclusively in the use of such aircraft as common carriers of persons or property under the authority of the laws of this state, the United States or any foreign government. (Ord. 41 § 4(b)(4); Ord. 271 §§ 5, 6; Ord. 1584 § 1, 12-13-83. 1990 Code § 2-6210.)

Editor’s Note: Ord. 1584 §§ 1 and 3, amending Sections 3.10.140 and 3.10.190, become operative Jan. 1, 1984, pursuant to Ord. 1584 § 5. Upon the eventuality of Ord. 1584 §§ 2 and 4 becoming operative, as outlined in the editor’s note for Section 3.10.150, Sections 3.10.140 and 3.10.190 shall be deemed repealed by Ord. 1584 § 7.

3.10.150 Exclusion from gross receipts.

There shall be excluded from the gross receipts by which the tax is measured:

(a) The amount of any sales or use tax imposed by the state upon a retailer or consumer.

(b) The gross receipts from the sale of tangible personal property to operators of waterborne vessels to be used or consumed principally outside the city in which the sale is made and directly and exclusively in the carriage of persons or property in such vessels for commercial purposes. (Ord. 964 § 2, 10-16-73; Ord. 1584 § 2, 12-13-83. 1990 Code § 2-6210.1.)

Editor’s Note: Ord. 1584 § 6 provides as follows:

“Sections 2 and 4 of this ordinance [amending Sections 3.10.150 and 3.10.200] shall be operative on the operative date of any act of the Legislature of the State of California which amends or repeals and reenacts Section 7202 of the Revenue and Taxation Code to provide an exemption from city sales and use taxes for operators of waterborne vessels in the same, or substantially the same, language as that existing in subdivisions (i)(7) and (i)(8) of Section 7202 of the Revenue and Taxation Code as those subdivisions read on October 1, 1983.”

3.10.160 Imposition of use tax.

An excise tax is hereby imposed on the storage, use, or other consumption in the city of tangible personal property purchased from any retailer on or after the operative date of this article for storage, use, or other consumption in the city at the rate of 0.95 of one percent of the sales price of the property. The sales price shall include delivery charges when such charges are subject to state sales or use tax, regardless of the place to which delivery is made. (Ord. 41 § 5(a). 1990 Code § 2-6211.)

3.10.170 Adoption of state regulations as to use taxes.

Except as hereinafter provided, and except insofar as they are inconsistent with the provisions of Cal. Rev. & Tax. Code Division 2, Part 1.5, all of the provisions of Cal. Rev. & Tax. Code Division 2, Part 1, as amended and in force and effect on July 1, 1956, applicable to use taxes are hereby adopted and made a part of Sections 3.10.160 through 3.10.190 as though fully set forth herein. (Ord. 41 § 5(b)(1). 1990 Code § 2-6212.)

3.10.180 Adoption of state regulations as to use taxes – “City” substituted for “state.”

Wherever, and to the extent that, in Cal. Rev. & Tax. Code Division 2, Part 1, the state of California is named or referred to as the taxing agency, the name of this city shall be substituted therefor. Nothing in this article shall be deemed to require the substitution of the name of this city for the word “state” when that word is used as part of the title of the State Controller, the State Treasurer, the State Board of Control, the State Board of Equalization, or the name of the State Treasury, or of the Constitution of the state of California; nor shall the name of the city be substituted for that of the state in any section when the result of that substitution would require action to be taken by or against the city or any agency thereof, rather than by or against the State Board of Equalization, in performing the functions incident to the administration or operation of this article; and neither shall the substitution be deemed to have been made in those sections, including but not necessarily limited to, sections referring to the exterior boundaries of the state of California, where the result of the substitution would be to provide an exemption from this tax with respect to certain storage, use or other consumption of tangible personal property which would not otherwise be exempt from this tax while such storage, use or other consumption remains subject to tax by the state under the provisions of Cal. Rev. & Tax. Code Division 2, Part 1, or to impose this tax with respect to certain storage, use or other consumption of tangible personal property which would not be subject to tax by the state under the said provisions of that code; and in addition, the name of the city shall not be substituted for that of the state in Cal. Rev. & Tax. Code §§ 6701, 6702 (except in the last sentence thereof), 6711, 6715, 6737, 6797 and 6828 as adopted, and the name of the city shall not be substituted for the word “state” in the phrase “retailer engaged in business in this state” in Cal. Rev. & Tax. Code § 6203 nor in the definition of that phrase in Cal. Rev. & Tax. Code § 6203. (Ord. 41 § 5(b)(2); Ord. 271 §7. 1990 Code § 2-6213.)

3.10.190 Exemptions.

There shall be exempt from the tax due under this article:

(a) The amount of any sales or use tax imposed by the state upon a retailer or consumer.

(b) The storage, use or other consumption of tangible personal property, the gross receipts from the sale of which have been subject to sales tax under a sales and use tax ordinance enacted in accordance with Cal. Rev. & Tax. Code Division 2, Part 1.5, by any city and county, county, or city in this state.

(c) In addition to the exemptions provided in Cal. Rev. & Tax. Code §§ 6366 and 6366.1, the storage, use or other consumption of tangible personal property purchased by operators of aircraft and used or consumed by such operators directly and exclusively in the use of such aircraft as common carriers of persons or property for hire or compensation under a certificate of public convenience and necessity issued pursuant to the laws of this state, the United States, or any foreign government. (Ord. 41 § 5(b)(3); Ord. 271 § 8; Ord. 1584 § 3, 12-13-83. 1990 Code § 2-6214.)

Note: See the editor’s note for Section 3.10.140.

3.10.200 Exemptions.

There shall be exempt from the tax due under this article:

(a) The amount of any sales or use tax imposed by the state upon a retailer or consumer.

(b) The storage, use or other consumption of tangible personal property, the gross receipts from the sale of which have been subject to sales tax under a sales and use ordinance enacted in accordance with Cal. Rev. & Tax. Code Division 2, Part 1.5, by any city and county, county, or city in this state.

(c) The storage, use or other consumption of tangible personal property purchased by operators of waterborne vessels and used or consumed by such operators directly and exclusively in the carriage of persons or property in such vessels for commercial purposes.

(d) In addition to the exemptions provided in Cal. Rev. & Tax. Code §§ 6366 and 6366.1, the storage, use, or other consumption of tangible personal property purchased by operators of aircraft and used or consumed by such operators directly and exclusively in the use of such aircraft as common carriers of persons or property for hire or compensation under a certificate of public convenience and necessity issued pursuant to the laws of this state, the United States, or any foreign government. (Ord. 964 § 3, 10-16-73; Ord. 1584 § 4, 12-13-83. 1990 Code § 2-6214.1.)

Note: See the editor’s note for Section 3.10.150.

3.10.210 Amendments of state law.

All amendments of the California Revenue and Taxation Code enacted subsequent to the effective date of this article, which relate to the sales and use tax and which are not inconsistent with Cal. Rev. & Tax. Code Division 2, Part 1.5, shall automatically become a part of this article. (Ord. 41 § 6. 1990 Code § 2-6215.)

3.10.220 Enjoining collection forbidden.

No injunction or writ of mandate or other legal or equitable process shall issue any suit, action, or proceeding in any court against the state or this city, or against any officer of the state or this city to prevent or enjoin the collection under this article, or Cal. Rev. & Tax. Code Division 2, Part 1.5, of any tax or any amount of tax required to be collected. (Ord. 41 § 7. 1990 Code § 2-6216.)

3.10.230 Other existing city sales tax and city use tax ordinances suspended.

At the time this article goes into operation, the provisions of other existing city sales tax and city use tax ordinances shall be suspended and shall not again be of any force or effect until and unless for any reason the State Board of Equalization ceases to perform the functions incident to the administration and operation of the sales and use tax hereby imposed; provided, however, that if for any reason it is determined that the city is without power to adopt this article, or that the State Board of Equalization is without power to perform the functions incident to the administration and operation of the taxes imposed by this article, the provisions of such other existing city sales tax and city use tax ordinances shall not be deemed to have been suspended, but shall be deemed to have been in full force and effect at the rate of one percent continuously from and after July 1, 1956. Upon the ceasing of the State Board of Equalization to perform the functions incident to the administration and operation of the taxes imposed by this article, the provisions of such other existing city sales tax and city use tax ordinances shall again be in full force and effect and at the rate of one percent. (Ord. 41 § 8. 1990 Code § 2-6217.)

3.10.240 Prior obligations remain in effect.

Nothing in this article shall be construed as relieving any person of the obligation to pay to the city any sales or use tax accrued and owing by reason of the provisions of Ordinance Nos. 18 and 19, in force and effect prior to and including June 30, 1956. (Ord. 41 § 9. 1990 Code § 2-6218.)

3.10.250 Application of provisions relating to exclusions and exemptions.

(a) Sections 3.10.150 and 3.10.200 shall become operative on January 1st of the year following the year in which the State Board of Equalization adopts an assessment ratio for state-assessed property which is identical to the ratio which is required for local assessments by Cal. Rev. & Tax. Code § 401, at which time Sections 3.10.140 and 3.10.190 shall become inoperative.

(b) In the event that Sections 3.10.150 and 3.10.200 become operative and the State Board of Equalization subsequently adopts an assessment ratio for state-assessed property which is higher than the ratio which is required for local assessments by Cal. Rev. & Tax. Code § 401, Sections 3.10.140 and 3.10.190 shall become operative on the first day of the month following the month in which such higher ratio is adopted, at which time Sections 3.10.150 and 3.10.200 shall become inoperative until the first day of the month following the month in which the Board again adopts an assessment ratio for state-assessed property which is identical to the ratio required for local assessments by Cal. Rev. & Tax. Code § 401, at which time Sections 3.10.150 and 3.10.200 shall again become operative and Sections 3.10.140 and 3.10.190 shall become inoperative. (Ord. 964 § 4, 10-16-73. 1990 Code § 2-6219.)

Article III. Uniform Transient Occupancy Tax

3.10.260 Title.

This article shall be known as the uniform transient occupancy tax ordinance of the city. (Ord. 453 § 1. 1990 Code § 2-6300.)

3.10.270 Definitions.

Except where the context otherwise requires, the definitions given in this section govern the construction of this article:

(a) “Person” means any individual, firm, partnership, joint venture, association, social club, fraternal organization, joint stock company, corporation, estate, trust, business trust, receiver, trustee, syndicate, or any other group or combination acting as a unit.

(b) “Hotel” means any structure, or any portion of any structure, which is occupied or intended or designed for occupancy by transients for dwelling, lodging or sleeping purposes, and includes any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodging house, rooming house, apartment house, dormitory, public or private club, mobile home or house trailer at a fixed location, or other similar structure or portion thereof.

(c) “Occupancy” means the use or possession, or the right to the use or possession of any room or rooms or portion thereof, in any hotel for dwelling, lodging or sleeping purposes.

(d) “Transient” means any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license or other agreement for a period of 30 consecutive calendar days or less, counting portions of calendar days as full days. Any such person so occupying space in a hotel shall be deemed to be a transient until the period of 30 days has expired, unless there is an agreement in writing between the operator and the occupant providing for a longer period of occupancy. In determining whether a person is a transient, uninterrupted periods of time extending both prior and subsequent to the effective date of this article may be considered.

(e) “Rent” means the consideration charged, whether or not received, for the occupancy of space in a hotel valued in money, whether to be received in money, goods, labor or otherwise, including all receipts, cash, credits and property and services of any kind or nature, without any deduction therefrom whatsoever.

(f) “Operator” means the person who is proprietor of the hotel, whether in the capacity of owner, lessee, sublessee, mortgagee in possession, licensee, or any other capacity. Where the operator performs his/her functions through a managing agent of any type or character other than an employee, the managing agent shall also be deemed an operator for the purposes of this article and shall have the same duties and liabilities as his/her principal. Compliance with the provisions of this article by either the principal or the managing agent shall, however, be considered to be compliance by both. (Ord. 453 § 1; amended during 2012 reformat. 1990 Code § 2-6301.)

3.10.280 Tax imposed.

(a) For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of eight percent of the rent charged by the operator. Commencing January 1, 2009, and continuing thereafter, the amount of tax shall be 10 percent of the rent charged by the operator. Said tax constitutes a debt owed by the transient to the city which is extinguished only by payment to the operator of the hotel at the time the rent is paid. If the rent is paid in installments, a proportionate share of the tax shall be paid with each installment. The unpaid tax shall be due upon the transient’s ceasing to occupy spaces in the hotel.

(b) If the sales and use taxes imposed pursuant to the Sales and Use Tax Law and the Bradley-Burns Uniform Sales and Use Tax Law are authorized in a total amount which exceeds seven percent, each transient shall pay a tax, in accord with the procedure set forth in subsection (a) of this section, in an amount equal to the total amount so authorized for such sales and use taxes, less the tax imposed by subsection (a) of this section. (Ord. 453 § 2; Ord. 909 § 1, 6-27-72; Ord. 999 § 1, 6-25-74; Ord. 1249 § 1, 5-23-78; Ord. 1254 § 1, 6-27-78; Ord. 1685 § 1, 8-27-85; Ord. 2059 § 1, 1-25-94; Ord. 23-2008 § 1, 12-2-08. 1990 Code § 2-6302.)

3.10.290 Exemptions.

No tax shall be imposed upon:

(a) Any person as to whom, or any occupancy as to which, it is beyond the power of the city to impose the tax herein provided;

(b) Any federal or state of California officer or employee when on official business;

(c) Any officer or employee of a foreign government who is exempt by reason of express provision of federal law or international treaty.

No exemption shall be granted except upon a claim therefor made at the time rent is collected and under penalty of perjury upon a form prescribed by the director of finance. (Ord. 453 § 1. 1990 Code § 2-6303.)

3.10.300 Operator’s duties.

Each operator shall collect the tax imposed by this article to the same extent and at the same time as the rent is collected from every transient. The amount of tax shall be separately stated from the amount of the rent charged, and each transient shall receive a receipt for payment from the operator. No operator of a hotel shall advertise or state in any manner, whether directly or indirectly, that the tax or any part thereof will be assumed or absorbed by the operator, or that it will not be added to the rent, or that, if added, any part will be refunded except in the manner hereinafter provided. (Ord. 453 § 1. 1990 Code § 2-6304.)

3.10.310 Registration.

Prior to commencing or carrying on any business, which the operator is responsible, language for the collection of the tax imposed by this article, said operator shall register its hotel with the director of finance and obtain from the director a “transient occupancy registration certificate” to be at all times posted in a conspicuous place on the premises. Said certificate shall, among other things, state the following:

(a) The name of the operator;

(b) The address of the hotel;

(d) “This Transient Occupancy Registration Certificate signifies that the person named on the face hereof has fulfilled the requirements of the Uniform Transient Occupancy Tax Ordinance by registering with the director of finance for the purpose of collecting from transients the Transient Occupancy Tax and remitting said tax to the director of finance. This certificate does not authorize any person to conduct any unlawful business or to conduct any lawful business in an unlawful manner, nor to operate a hotel without strictly complying with all local applicable laws, including but not limited to those requiring a permit from any board, commission, department or office of this city. This certificate does not constitute a permit.” (Ord. 453 § 1; Ord. 2059 § 2, 1-25-94. 1990 Code § 2-6305.)

3.10.320 Reporting and remitting.

Each operator shall, on or before the last day of the month following the close of each month, or at the close of any shorter reported period which may be established by the director of finance, make a return to the director of finance, on forms provided by him/her, of the total rents charged and received and the amount of tax collected for transient occupancies. At the time the return is filed, the full amount of the tax collected shall be remitted to the director of finance. Returns and payments are due immediately upon cessation of business for any reason. All taxes collected by operators pursuant to this article shall be held in trust for the account of the city until payment thereof is made to the director of finance. (Ord. 453 § 1; Ord. 2059 § 3, 1-25-94; amended during 2012 reformat. 1990 Code § 2-6306.)

3.10.330 Penalties and interest.

(a) Penalties. Any operator who fails to remit any tax imposed by this article within the time required shall pay a penalty of 10 percent per month of the amount of the tax due, but in no event shall the penalty exceed 50 percent of the tax due. Any penalty imposed herein by this article is in addition to the tax imposed by this article.

(b) Fraud. If the director of finance determines that the nonpayment of any remittance due under this article is due to fraud, a penalty of 25 percent of the amount of the tax shall be added thereto in addition to the penalties stated in subsection (a) of this section.

(c) Interest. In addition to the penalties imposed, any operator who fails to remit any tax imposed by this article shall pay interest at the rate of one percent per month or fraction thereof on the amount of the tax, exclusive of penalties, from the date on which the remittance first became delinquent until paid.

(d) Penalties Merged with Tax. Every penalty imposed and such interest as accrues under the provisions of this section shall become a part of the tax herein required to be paid. (Ord. 453 § 1; Ord. 2059 § 4, 1-25-94. 1990 Code § 2-6307.)

3.10.340 Failure to collect and report tax – Determination of tax by director of finance.

If any operator shall fail or refuse to collect said tax and to make, within the time provided in this article, any report and remittance of said tax or any portion thereof required by this article, the director of finance shall proceed in such manner as he/she may deem best to obtain facts and information on which to base his/her estimate of the tax due. As soon as the director of finance shall procure such facts and information as he/she is able to obtain upon which to base the assessment of any tax imposed by this article and payable by any operator who has failed or refused to collect the same and to make such report and remittance, he/she shall proceed to determine and assess against such operator the tax, interest and penalties provided for by this article. In case such determination is made, the director of finance shall give a notice of the amount so assessed by serving it personally or by depositing it in the United States mail, postage prepaid, addressed to the operator so assessed at his/her last known place of address. Such operator may within 10 days after the service or mailing of such notice make application in writing to the director of finance for a hearing on the amount assessed. If application by the operator for a hearing is not made within the time prescribed, the tax, interest and penalties, if any, determined by the director of finance shall become final and conclusive and immediately due and payable. If such application is made, the director of finance or the director of finance’s designee shall give not less than five days’ written notice in the manner prescribed herein to the operator to show cause at a time and place fixed in said notice why said amount specified therein should not be fixed for such tax, interest and penalties. At such hearing, the operator may appear and offer evidence why such specified tax, interest and penalties should not be so fixed. After such hearing the director of finance, or the director of finance’s designee, shall determine the proper tax to be remitted and shall thereafter give written notice to the person in the manner prescribed herein of such determination and the amount of such tax, interest and penalties. The amount determined to be due shall be payable after 15 days unless an appeal is taken as provided in Section 3.10.350. (Ord. 453 § 1; Ord. 2059 § 5, 1-25-94; amended during 2012 reformat. 1990 Code § 2-6308.)

3.10.350 Appeal.

(a) Any operator aggrieved by the decision of the director of finance or the director of finance’s designee, with respect to the amount of such tax, interest and penalties, if any, may appeal to the board of review by filing a notice of appeal with the city clerk within 10 days of the serving or mailing of the determination of tax due. The board of review shall thereupon fix a time and place for hearing such appeal. The board of review shall be composed of the city attorney, the city clerk and the city manager. The city clerk shall give written notice to such person of the time and place of hearing by serving it personally or by depositing it in the United States Post Office at Fremont, California, postage prepaid, addressed to such person at his/her last known address. The board of review shall have the authority to determine all questions raised on such appeal. No such determination shall conflict with any substantive provision of this article.

The board of review shall consider all evidence offered by the operator and by the director of finance. It may continue the hearing from time to time. It shall make its findings in writing and serve a copy on the operator in the same manner prescribed for giving notice of the hearing.

The board of review may increase or decrease the amount of the assessment as the evidence introduced may require; but the amount of the assessment shall not be increased unless the claim for the increase is asserted on behalf of the city either before or during the hearing.

The amount determined to be due by the board of review shall be payable after 10 days of service of notice of the findings of the board, unless an appeal is taken to the city council as provided in subsection (b) of this section.

(b) Any operator aggrieved by a final decision of the board of review made pursuant to subsection (a) of this section may appeal to the city council pursuant to Chapter 1.25. The findings of the city council on appeal shall be final and conclusive and shall be served upon the appellant in the manner prescribed for service of notice of hearing. Any amount found to be due shall be immediately due and payable upon service of notice. (Ord. 453 § 1; Ord. 1078 § 2, 12-9-75; Ord. 2059 § 6, 1-25-94; amended during 2012 reformat. 1990 Code § 2-6309.)

3.10.360 Records.

It shall be the duty of every operator liable for the collection and payment to the city of any tax imposed by this article 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/she may have been liable for the collection of and payment to the city, which records the director of finance or the director of finance’s designee shall have the right to inspect at all reasonable times. (Ord. 453 § 1; Ord. 2059 § 7, 1-25-94; amended during 2012 reformat. 1990 Code § 2-6310.)

3.10.370 Refunds.

(a) Whenever the amount of any tax, interest or penalty has been overpaid or paid more than once or has been erroneously or illegally collected or received by the city under this article, it may be refunded as provided in subsections (b) and (c) of this section provided a claim in writing therefor, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the director of finance within one year of the date of payment. The claim shall be on forms furnished by the director of finance.

(b) An operator 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 director of finance that the person from whom the tax has been collected was not a transient; 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 transient or credited to rent subsequently payable by the transient to the operator.

(c) A transient may obtain a refund of taxes overpaid or paid more than once or erroneously or illegally collected or received by the city by filing a claim in the manner provided in subsection (a) of this section, but only when the tax was paid by the transient directly to the director of finance, or when the transient, having paid the tax to the operator, establishes to the satisfaction of the director of finance that the transient has been unable to obtain a refund from the operator who collected the tax.

(d) No refund shall be paid under the provisions of this section unless the claimant establishes his/her right thereto by written records showing entitlement thereto. (Ord. 453 § 1; Ord. 2059 § 8, 1-25-94; amended during 2012 reformat. 1990 Code § 2-6311.)

3.10.380 Actions to collect.

Any tax required to be paid by any transient under the provisions of this article shall be deemed a debt owed by the transient to the city. Any such tax collected by an operator which has not been paid to the city shall be deemed a debt owed by the operator to the city. Any person owing money to the city under the provisions of this article shall be liable to an action brought in the name of the city of Fremont for the recovery of such amount. (Ord. 453 § 1. 1990 Code § 2-6312.)

3.10.390 Violations.

No operator or other person shall fail or refuse to register as required herein, or to furnish any return required to be made, or fail or refuse to furnish a supplemental return or other data required by the director of finance, or render a false or fraudulent return or claim. No person required to make, render, sign or verify any report or claim shall make any false or fraudulent report or claim with intent to defeat or evade the determination of any amount due required by this article to be made. (Ord. 453 § 1. 1990 Code § 2-6313.)

Article IV. Real Property Transfer Tax

3.10.400 Title and authority.

This article shall be known as the “real property transfer tax ordinance of the city of Fremont.” It is adopted pursuant to the authority contained in Cal. Rev. & Tax. Code Division 2, Part 6.7 (commencing with Section 11901). (Ord. 643 § 1. 1990 Code § 2-6400.)

3.10.410 Tax imposed.

There is hereby imposed on each deed, instrument or writing by which any lands, tenements, or other realty sold within the city of Fremont shall be granted, assigned, transferred or otherwise conveyed to, or vested in, the purchaser or purchasers, or any other person or persons, by his/her or their direction, when the consideration or value of the interest or property conveyed (exclusive of the value of any lien or encumbrances remaining thereon at the time of sale) exceeds $100.00, a tax at the rate of $0.275 for each $500.00 or fractional part thereof. (Ord. 643 § 1; amended during 2012 reformat. 1990 Code § 2-6401.)

3.10.420 Persons liable for tax.

Any tax imposed pursuant to Section 3.10.410 shall be paid by any person who makes, signs or issues any document or instrument subject to the tax, or for whose use or benefit the same is made, signed or issued. (Ord. 643 § 1. 1990 Code § 2-6402.)

3.10.430 Exemption – Instrument in writing to secure debt.

Any tax imposed pursuant to this article shall not apply to any instrument in writing given to secure a debt. (Ord. 643 § 1. 1990 Code § 2-6403.)

3.10.440 Exemption – United States, states and political subdivisions.

Any deed, instrument or writing to which the United States or any agency or instrumentality thereof, any state or territory, or political subdivision thereof is a party shall be exempt from any tax imposed pursuant to this article when the exempt agency is acquiring title. (Ord. 643 § 1; Ord. 760 § 1, 1-20-70. 1990 Code § 2-6404.)

3.10.450 Exemption – Bankruptcy proceedings.

Any tax imposed pursuant to this article shall not apply to the making, delivering or filing of conveyances to make effective any plan of reorganization or adjustment:

(a) Confirmed under the Federal Bankruptcy Act, as amended;

(b) Approved in an equity receivership proceeding in a court involving a railroad corporation, as defined in United States Code Title 11, Section 205(m), as amended;

(c) Approved in an equity receivership proceeding in a court involving a corporation, as defined in United States Code, Title 11, Section 506(3), as amended; or

(d) Whereby a mere change in identity, form or place of organization is effected.

Subsections (a) through (d), inclusive, of this section shall only apply if the making, delivery or filing of instruments of transfer or conveyances occurs within five years from the date of such confirmation, approval or change. (Ord. 643 § 1. 1990 Code § 2-6405.)

3.10.460 Exemption – Instruments delivered pursuant to order of S.E.C.

Any tax imposed pursuant to this article shall not apply to the making or delivery of conveyances to make effective any order of the Securities and Exchange Commission, as defined in Internal Revenue Code Section 1083(a), but only if:

(a) The order of the Securities and Exchange Commission, in obedience to which such conveyance is made, recites that such conveyance is necessary or appropriate to effectuate the provisions of United States Code Title 15, Section 79k, relating to the Public Utility Holding Company Act of 1935;

(b) Such order specifies the property which is ordered to be conveyed;

3.10.470 Exemption – Partnerships.

(a) In the case of any realty held by a partnership, no levy shall be imposed pursuant to this article by reason of any transfer of an interest in a partnership or otherwise, if:

(1) Such partnership (or another partnership) is considered a continuing partnership within the meaning of Internal Revenue Code Section 708; and

(2) Such continuing partnership continues to hold the realty concerned.

(b) If there is a termination of any partnership within the meaning of Internal Revenue Code Section 708, for purposes of this article, such partnership shall be treated as having executed an instrument whereby there was conveyed, for fair market value (exclusive of the value of any lien or encumbrance remaining thereon), all realty held by such partnership at the time of such termination.

(c) Not more than one tax shall be imposed pursuant to this article by reason of a termination described in subsection (b) of this section, and any transfer pursuant thereto, with respect to the realty held by such partnership at the time of such termination. (Ord. 643 § 1. 1990 Code § 2-6407.)

3.10.480 County recorder to administer article.

The county recorder shall administer this article in conformity with the provisions of Cal. Rev. & Tax. Code Division 2, Part 6.7, and the provisions of any county ordinance adopted pursuant thereto. (Ord. 643 § 1. 1990 Code § 2-6408.)

3.10.490 Claims for refunds.

Claims for refund of taxes imposed pursuant to this article shall be governed by the provisions of Cal. Rev. & Tax. Code Division 1, Part 9, Chapter 5 (commencing with Section 5096). (Ord. 643 § 1. 1990 Code § 2-6409.)