CHAPTER 3.36
UTILITY USERS TAX
SECTION:
3.36.010: Authority And Purpose
3.36.040: Conflicts With State Provisions
3.36.050: Effective Date Of Tax
3.36.060: Electricity Users Tax
3.36.080: Direct Purchase Of Gas Or Electricity
3.36.110: Delinquent Taxes; Service Supplier
3.36.120: Failure To Collect And Report On Tax
3.36.140: Maximum Gas And Electric Tax For Nonresidential Users
3.36.010 AUTHORITY AND PURPOSE:
This chapter is adopted pursuant to the provisions of California Government Code section 37100.5 for the purpose of raising revenue to be used for general municipal purposes. (1972 Code § 3.40.010)
3.36.020 DEFINITIONS:
Except where the context otherwise requires, the definitions contained in this section shall govern the construction of this chapter.
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CITY: |
The city of Gonzales, California, including all the territory and jurisdiction thereof as presently constituted, and any and all of the same which shall later come into existence by any manner or means whatsoever. |
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COLLECTOR: |
The city manager of the city. |
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ELECTRICAL CORPORATION, GAS CORPORATION AND TELEPHONE CORPORATION: |
Shall have the same meanings, except as hereafter provided, as defined in California Public Utilities Code sections 218, 222 and 234, respectively, except, "electrical corporation" and "gas corporation" shall also be construed to include any municipality, public agency or person engaged in the selling or supplying of electrical power or gas to a service user. |
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MONTH: |
A calendar month. |
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PERSON: |
Any domestic and foreign corporation, association, syndicate, joint stock company, partnership of any kind, joint venture, club, Massachusetts business or common law trust, society, individual or municipal corporation. |
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SERVICE SUPPLIER: |
A person required to collect and remit a tax imposed under the provisions of this chapter. |
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SERVICE USER: |
A person required to pay a tax imposed under the provisions of this chapter. |
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UTILITY TAX YEAR: |
The fiscal year of the city of Gonzales; provided, that the initial utility tax year shall be the effective date of this chapter, through June 30, 1994, inclusive (ordinance 485, adopted July 6, 1993). (1972 Code § 3.40.030) |
3.36.030 TAX IMPOSED:
There is hereby imposed an annual utility users tax in the amount set forth in sections 3.36.060, 3.36.070 and 3.36.090 of this chapter to raise revenues for the general governmental purposes of the city. Such general tax shall be levied for each fiscal year by the city. (1972 Code § 3.40.020)
3.36.040 CONFLICTS WITH STATE PROVISIONS:
Nothing contained in this chapter is intended to conflict with applicable rules, regulations and tariffs of any service supplier subject to the jurisdiction of the California public utilities commission. In the event of any conflict, the provision of said rules, regulations and tariffs shall control. (1972 Code § 3.40.040)
3.36.050 EFFECTIVE DATE OF TAX:
The taxes imposed by this chapter shall be imposed on the effective date of this chapter, or at the beginning of the first regular billing period thereafter which includes service only from the effective date of this chapter, and thereafter. (1972 Code § 3.40.050)
3.36.060 ELECTRICITY USERS TAX:
A. Tax Imposed: There is hereby imposed a tax upon every person using electrical energy in the city. This tax shall not be imposed upon electric or gas corporations within the city. The tax imposed by this section shall be at the rate of four percent (4%) of the charges made to residential users for electrical energy and two percent (2%) of the charges for such service to nonresidential users.
B. Exclusions: As used in this section, the phrase "using electrical energy" shall not be construed as to mean:
1. The storage of such energy by a person in a battery owned or possessed by such person for use in an automobile or other machinery or device apart from the premises upon which the energy was received of such energy for the purpose of using it in the charging of batteries; or
2. The mere receiving of such energy by an electrical corporation or a government agency at a point within the city for resale.
C. Tax Collection: The tax imposed in this section shall be collected from the service user by the person selling such electrical energy. The amount of the tax collected in one month shall be remitted to the collector on or before the last day of the following month. (1972 Code § 3.40.060)
3.36.070 GAS USERS TAX:
A. Tax Imposed: There is hereby imposed a tax upon every person in the city other than a gas corporation or electrical corporation, using, in the city, gas which is transported through mains or pipes or by mobile transport. The tax imposed by this section shall be at the rate of four percent (4%) of the charges made to residential users for gas service and two percent (2%) of the charges made for such service to nonresidential users. Said tax shall be billed to and paid by the person using the gas. The tax applicable to gas or gas transportation provided by nonutility suppliers 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 city. "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 regulation commission.
B. Exclusions: 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 California Vehicle Code.
C. Tax Collection: The tax imposed by 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 person selling or transporting the gas shall, on or before the twentieth of each calendar month, commencing on the twentieth day of the calendar month after the effective date hereof, make a return to the collector stating the amount of taxes billed during the preceding calendar month. At the time such returns are filed, the person selling or transporting the gas shall remit tax payments to the collector in accordance with schedules established or approved by the collector. The tax imposed in this section on use supplied by self-production or a nonutility supplier not subject to the jurisdiction of this chapter shall be collected and remitted to the collector in the manner set forth in section 3.36.080 of this chapter. (1972 Code § 3.40.070)
3.36.080 DIRECT PURCHASE OF GAS OR ELECTRICITY:
A. Report To City Collector: Notwithstanding any other provision of this chapter, a service user receiving gas or electricity directly from a nonutility 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 city directly billed and collected by the service supplier, shall report said fact to the collector within thirty (30) days of said use and shall directly remit to the city the amount of tax due.
B. Provide Filed Tax Returns: The collector may require said service user to provide, subject to audit, filed tax returns or other satisfactory evidence documenting the quantity of gas or electricity used and the price thereof. (1972 Code § 3.40.080)
3.36.090 TELEPHONE USERS TAX:
A. Tax Imposed: There is hereby imposed a tax on the amounts paid for any intrastate, interstate or international telephone services by every person in the city, other than a telephone corporation, using such services. The tax imposed by this section shall be at the rate of four percent (4%) of the charges made for such services for residential users and four percent (4%) of the charges made for such services for nonresidential users and shall be paid by the person paying for such services.
B. Exclusions:
1. 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 services 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 city, irrespective of whether a particular communication service originates and/or terminates within the city.
2. Notwithstanding the provisions of subsection A of this section, the tax imposed under this section shall not be imposed upon any person for using intrastate, interstate or international 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,1 or the tax imposed under section 4251 of the internal revenue code.
C. Tax Collection: 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 month shall be remitted to the collector 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 bill in the previous month, shall be remitted to the collector on or before the last day of each month. (1972 Code § 3.40.090)
3.36.100 COLLECTION OF TAX:
A. Action By City: Any tax required to be paid by a service user under the provisions of this chapter 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 collector 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 chapter shall be liable to an action brought in the name of the city for the recovery of such amount.
B. Duty To Collect; Procedures: The duty to collect and remit the taxes imposed by this chapter shall be performed as follows:
1. The tax shall be collected insofar as practicable at the same time as and along with the charges made in accordance with regular billing practice of the service supplier. Except in those cases where a service user pays the full amount of said charges but does not pay any portion of a tax imposed by this chapter, or where a service user has notified a service supplier that he is refusing to pay a tax imposed by this chapter which said tax the service supplier is required to collect, if the amount paid by the service user is less than the full amount of the charge and tax which has accrued for the billing period, a proportionate share of both the charge and the tax shall be deemed to have been paid.
2. The duty to collect tax from a service user shall commence with the beginning of the first regular billing period applicable to that person which starts on or after the one billing, one or more being for different periods than another, the duty to collect shall arise separately for each billing period.
C. Powers And Duties Of Collector: The collector shall have the power and duty, and is hereby directed to enforce each and all of the provisions of this chapter. The collector shall have the power to adopt rules and regulations not inconsistent with the provisions of this chapter for the purpose of carrying out and enforcing the payment, collection and remittance of the taxes herein imposed; and a copy of such rules and regulations shall be on file and available for public examination in the collector’s office.
D. Administrative Agreements: The collector may make administrative agreements to vary the strict requirements of this chapter so that the collection and remittance on any tax imposed herein may be made in compliance with the billing procedures of a particular service supplier so long as the overall result of said agreements results in collection of the tax in compliance with the general purpose and scope of this chapter. A copy of each agreement shall be on file and available for public examination in the collector’s office. (1972 Code § 3.40.100)
3.36.110 DELINQUENT TAXES; SERVICE SUPPLIER:
Taxes collected from a service user which are not remitted to the collector on or before the due dates provided in this chapter are delinquent.
A. General Penalty: In addition to remitting the amount of the tax, any service supplier who fails to remit any tax imposed by this chapter within the time required and upon ten (10) days’ written notice to the service supplier of its failure to remit, shall pay a penalty of ten percent (10%) of the amount of the tax which shall be added on the last day of each month following the date on which remittance was due until the tax and penalties are remitted.
B. Penalty For Fraud: If the collector determines that the nonpayment by any service supplier of any remittance due under this chapter is due to fraud, a penalty of twenty five percent (25%) of the amount of the tax shall be added to the penalty imposed by subsection A of this section.
C. Interest: In addition to the penalties imposed by subsections A and B of this section, any service supplier who fails to remit any tax imposed by this chapter shall pay interest at the rate of one percent (1%) 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. Penalty And Interest Part Of Tax: Every penalty imposed upon a service supplier and such interest as accrues under the provisions of subsections A to C, inclusive, of this section, shall become a part of the tax required to be remitted.
E. Collection Of Penalty And Interest: Every penalty imposed upon a service user and such interest as accrues under the provisions of subsections A to C, inclusive, of this section, shall become a part of the tax imposed by this chapter. (1972 Code § 3.40.110)
3.36.120 FAILURE TO COLLECT AND REPORT ON TAX:
A. Collector To Estimate Tax Due: If any service supplier shall fail to make, within the time provided in this chapter, any report and remittance of said tax or any portion thereof required by this chapter, the collector shall proceed in such manner as he may deem best to obtain facts and information on which to base his estimate of the tax due. As soon as the collector 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 chapter and payable by any service supplier who has failed or refused to make such report and remittance, he/she shall proceed to determine and assess against such service supplier the tax, interest and penalties provided for by this chapter. In case such determination is made, the collector shall give a notice of the amount to be assessed by serving it personally or depositing it in the United States mail, postage prepaid, addressed to the service supplier so assessed at his last known place of address.
B. Hearing On Determination Of Tax: The service supplier may within twenty (20) days after the serving or mailing of the notice referred to in subsection A of this section make application, in writing, to the collector for a hearing on the amount assessed. If application by the service supplier for hearing is not made within the time prescribed, the tax, interest and penalties, if any, determined by the collector shall become final and conclusive and immediately due and payable. If such application is made, the collector shall give not less than ten (10) days’ written notice in the manner prescribed herein to the service supplier 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 service supplier may appear and offer evidence why such specified tax, interest and penalties should not be so fixed.
C. Determination Of Tax Following Hearing; Notice When Due: After a hearing on the amount of tax assessed, the collector shall determine the proper tax to be remitted, and shall thereafter give written notice to the service supplier in the manner prescribed in subsection B of this section of such determination and the amount of such tax, interest and penalties. The amount determined to be due shall be payable after fifteen (15) days unless an appeal is taken as provided in this chapter.
D. Collection Of Taxes From Service User: Whenever the collector determines that a service user has deliberately withheld the amount of any tax imposed on him by the provisions of this chapter from the amounts remitted to a service supplier required to collect the tax, or that a service user has failed to pay the amount of the tax to such service supplier for a period of four (4) or more billing periods, or whenever the collector deems it in the best interest of the city, he may relieve such service supplier of the obligation to collect taxes due under this chapter from certain named service users for specified billing periods. The collector 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, plus any penalty imposed and such interest as may be due pursuant to the provisions of section 3.36.110 of this chapter. The notice shall be served on the service user by serving him personally or by deposit of the notice in the United States mail, postage prepaid thereon, addressed to the service user at the address to which billing was made by the service supplier required to collect the tax; or, should the service user have changed his address, to his last known address. (1972 Code § 3.40.120)
3.36.130 APPEALS:
A. Right To Appeal: Any person aggrieved by any decision of the collector pursuant to this chapter may appeal to the city council by filing a notice of appeal with the collector within fifteen (15) days of the serving, by mail, of the decision.
B. Hearing Notice: The city council shall fix a time and place for hearing such appeal. The collector shall give notice thereof, in writing, to such person by serving it personally or by depositing it in the United States mail, postage prepaid, addressed to such person at his last known place of address.
C. Hearing; Determination: The city council shall have authority to determine all questions raised on such appeal at the time of the hearing. No determinations made by the council shall conflict with any substantive provision of this chapter. (1972 Code § 3.40.130)
3.36.140 MAXIMUM GAS AND ELECTRIC TAX FOR NONRESIDENTIAL USERS:
A. Maximum Amount Established: Notwithstanding any other provision of this chapter, the combined annual utility taxes for gas and electric service imposed upon a nonresidential service user shall not exceed twelve thousand dollars ($12,000.00). Any nonresidential user who anticipates that its combined gas and electric taxes will exceed twelve thousand dollars ($12,000.00) within a fiscal year, based on tax receipts or other documents from the previous fiscal year, shall notify the city manager, in writing, at least sixty (60) days prior to the commencement of the subsequent fiscal year. The user shall also provide the city manager with all evidence necessary to substantiate a claim that its gas and electric utility taxes will exceed twelve thousand dollars ($12,000.00). Upon confirming that a given nonresidential user’s gas and electric taxes will exceed the twelve thousand dollars ($12,000.00) maximum, the city manager shall be responsible for notifying the relevant service providers to refrain from imposing gas and electric taxes on said user.
B. Direct Payment To City: Thereafter, gas and electric utility taxes, in the combined sum of one thousand dollars ($1,000.00) per month, shall be paid directly by the user to the city. Any nonresidential user who has not notified the city manager at least sixty (60) days prior to the beginning of a new fiscal year of its desire to pay gas and electric utility taxes in accordance with the provisions of this section shall continue to pay such taxes in the manner established in other sections of this chapter. Any gas and electric taxes collected from such a user in excess of the twelve thousand dollars ($12,000.00) maximum during said year may be reimbursed pursuant to the procedure established in section 3.36.160 of this chapter. (1972 Code § 3.40.140)
3.36.150 RECORDS:
It shall be the duty of every service supplier required to collect and remit to the city 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 that such service supplier may have been requested to collect and remit to the city, which records the collector shall have the right to inspect at all reasonable times. (1972 Code § 3.40.150)
3.36.160 REFUNDS:
A. Conditions For Refund: 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 chapter, it may be refunded as provided in this section.
B. Filing Of Claim:
1. No refund may be made except upon a written claim verified by the person who paid the tax or by his or her guardian or conservator or the executor or administrator of his or her will or estate and stating the grounds upon which the claim is made.
2. A service supplier may claim a refund or claim a credit against taxes collected but not yet remitted to the city of the amount overpaid, paid more than once or erroneously or illegally collected or received; however, in the case of a tax erroneously or illegally collected by the service supplier, no refund shall be allowed unless the service user or other person from whom the amount was collected has submitted a written claim to the service supplier in the form prescribed above and the amount thereof has either been refunded by the service supplier to the service user or other person from whom the amount was collected, or credited against charges subsequently payable by such service user or other person.
3. All claims filed pursuant to this subsection must be presented within one year after payment of the amount sought to be refunded.
C. Action Upon Claim:
1. No order of a refund may be made until a written claim therefor has been presented in accordance with this section.
2. No suit for money, damages or a refund may be brought against the city until a written claim therefor has been presented to the city and has been acted upon or has been deemed rejected by the city, in accordance with this section.
3. Only the person who filed the claim may bring such a suit and if another person should do so, judgment shall not be rendered for the plaintiff.
D. Refund By Service Supplier: 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 chapter on the amount of such refunded service charges may also be refunded to service users by the service supplier, and the service supplier can claim credit for such refunded taxes against the amount which is due upon any monthly returns. In the event this chapter has been repealed as of the time such refund is to be made, the amount of any refundable taxes will be borne by the city. (Ord. 2001-10, 9-17-2001)
3.36.170 EXEMPTIONS:
Nothing in this chapter shall be construed as imposing a tax upon any person if the imposition of such tax upon that person would be in violation of the constitution of the United States or the constitution of this state. (1972 Code § 3.40.170)
3.36.180 SEVERABILITY:
If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this chapter or any part hereof is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions of this chapter or any part hereof. The city council hereby declares that it would have passed each section, subsection, paragraph, sentence, clause or other phrase hereof, irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases be declared unconstitutional. (1972 Code § 3.40.180)
3.36.190 URGENCY MEASURE:
This chapter is hereby declared to be an urgency chapter and pursuant to California Government Code section 36937, shall take effect immediately because it relates to taxes for the usual and current expenses of the city. The tax imposed under this chapter shall apply to bills rendered on or after the date of adoption, or as soon thereafter as the respective utilities are physically and mechanically able to administer the imposition and collection of the relevant charges. In no event shall said period exceed more than sixty (60) days from the date of adoption of ordinance 485, passed July 6, 1993. (1972 Code § 3.40.190)
Rev. & T.C. § 41020 et seq.