Chapter 5.05
ADMINISTRATIVE PROVISIONS FOR CERTAIN TAXES
5.05.000 Chapter Contents
Sections:
I. General
5.05.010 Purpose.
5.05.015 Application of Chapter.
5.05.020 Definitions.
5.05.021 Definitions -- References to Chapter 82.32 RCW.
5.05.025 Business Registration Required.
5.05.030 Suspension or Revocation of Business Registration.
II. Payment of Tax, Interest, and Penalty
5.05.040 When Due and Payable -- Reporting Periods -- Monthly, Quarterly, and Annual Returns -- Threshold Provisions of Relief from Filing Requirements -- Computing Time Periods -- Failure to File Returns.
5.05.050 Payment Methods -- Mailing Returns or Remittances -- Time Extension -- Deposits -- Recording Payments -- Payment Must Accompany Return -- NSF Checks.
5.05.060 Records to be Preserved -- Examination -- Estoppel to Question Assessment.
5.05.070 Accounting Methods.
5.05.080 Public Work Contracts -- Payment of Fee and Tax Before Final Payment for Work.
5.05.090 Underpayment of Tax, Interest, or Penalty -- Interest -- Limitations
5.05.100 Over Payment of Tax, Penalty, or Interest -- Credit or Refund -- Interest Rate -- Statute of Limitations.
5.05.110 Late Payment -- Disregard of Written Instructions -- Evasion -- Penalties
5.05.120 Cancellation of Penalties.
5.05.130 Taxpayer Quitting Business -- Liability of Successor.
5.05.140 Tax Declared Additional.
5.05.150 Public Disclosure -- Confidentiality -- Information Sharing.
5.05.160 Tax Constitutes Debt.
5.05.170 Unlawful Actions -- Violation -- Penalties.
5.05.180 Closing Agreement Provisions.
5.05.190 Charge-off of Uncollectible Taxes.
III. Appeals
5.05.200 Administrative Appeal.
5.05.210 Administrative Appeal Hearing.
5.05.220 Decision on Administrative Appeal.
5.05.230 Judicial Review of Administrative Appeal Decision.
5.05.240 Tax Hearing Examiner Selection
5.05.250 Qualification and Removal of Tax Hearing Examiner.
5.05.260 Improper Influence, Conflict of Interest, and Appearance of Fairness.
5.05.270 Organization, Rules.
IV. Director’s Authority
5.05.280 Director to Make Rules
5.05.290 Ancillary Allocation Authority of Director.
V. Miscellaneous
5.05.300 Severability
5.05.310 Mailing Notices.
(Ord. 6493 §1, 2007, created new Section 5.05.021; Ord. 6329 §1, 2004, New Chapter).
5.05.010 Purpose
This Chapter is enacted based upon model administrative provisions developed by a coalition of Washington cities that have enacted a business and occupation tax. By enacting these administrative tax provisions, the City hopes to create greater uniformity and consistency among Washington municipal taxing jurisdictions and, to the extent feasible, make it easier for taxpayers working in multiple Washington taxing jurisdictions. However, the provisions of this Chapter are not intended to be exactly the same as other Washington taxing jurisdictions.
(Ord. 6329 §1, 2004).
5.05.015 Application of Chapter
The provisions of this chapter shall apply with respect to those taxes imposed under Olympia Municipal Code Chapter 5.04 and under other titles, chapters, and sections in such manner and to such extent as indicated in each such title, chapter or section.
(Ord. 6329 §1, 2004).
5.05.020 Definitions
For purposes of this chapter, the definitions contained in Olympia Municipal Code Chapter 5.04.040 shall apply equally to the provisions of this chapter unless the term is defined otherwise in this chapter. In addition, the following definitions shall apply:
“Code”: “Code” shall mean the Olympia Municipal Code.
“Records”: “Records” shall include any writing containing information relating to the conduct of business by a person, and prepared, owned, and/or retained by or for a person or business subject to OMC 5.04 or 5.05, regardless of physical form or characteristics. The term includes, but shall not be limited to, books, records, papers, invoices, vendor lists, inventories, stocks of merchandise, and other data in paper, electronic, magnetic or other form including federal income tax and state tax returns and reports.
“Reporting period”: “Reporting period” means:
1. a one-month period beginning the first day of each calendar month (“monthly”); or
2. a three-month period beginning the first day of January, April, July or October of each year (“quarterly”); or
3. a twelve-month period beginning the first day of January of each year (“annual”).
“Return”: “Return” means any document a person is required by the City to file to satisfy or establish a tax or fee obligation that is administered or collected by the City and that has a statutorily defined due date.
“Successor”: “Successor” means any person to whom a taxpayer quitting, selling out, exchanging, or disposing of a business sells or otherwise conveys, directly or indirectly, in bulk and not in the ordinary course of the taxpayer’s business, any part of the materials, supplies, merchandise, inventory, fixtures, or equipment of the taxpayer. Any person obligated to fulfill the terms of a contract shall be deemed a successor to any contractor defaulting in the performance of any contract as to which such person is a surety or guarantor.
“Tax year” or “taxable year”: “Tax year” or “taxable year” means the calendar year.
(Ord. 6493 §1, 2007; Ord. 6329, §1, 2004).
5.05.021 Definitions – References to Chapter 82.32 RCW
Where provisions of Chapter 82.32 RCW are incorporated in 5.05.090 of this Title, “Department” as used in the RCW shall refer to the “Director” as defined in 5.05.040 and “warrant” as used in the RCW shall mean “citation or criminal complaint.”
(Ord. 6493 §1, 2007).
5.05.025 Business registration required
A. On and after the effective date of this chapter, no person, whether subject to the payment of a tax or not, shall engage in any business or activity in the City for which a license fee or tax is imposed by this Title without having first obtained and being the holder of a valid and subsisting license to do so, to be known as a business license, issued under the provisions of this title, as hereinafter provided, and without paying the license fee or tax imposed by this title. The fee or tax for the business license shall be the license fee or tax imposed by this Title, and in addition, a registration fee shall accompany the application for the license as defined in OMC 5.02.015. Such registration heretofore issued pursuant to the provisions of any city ordinance, or any such registration hereafter issued pursuant to the provisions of this chapter shall be valid as long as the person to whom the same is issued continues in business and pays the license fees and/or occupation tax due pursuant to the provisions of this Title. Applications for the license shall be made to and issued by the State of Washington Master License Service on forms provided by him/her.
B. The license and registration shall be personal and nontransferable. In case business is transacted at two or more separate places by one taxpayer, a separate registration and license for each place at which business is transacted with the public shall be required, but for such additional registration no additional fee shall be required. Each license shall be numbered, shall show the name, place and character of business of the taxpayer, such other information as the Director shall deem necessary, and shall at all times be conspicuously posted in the place of business for which it is issued. Where a place of business of the taxpayer is changed, the taxpayer shall return to the Director the license, and a new license shall be issued for the new place of business free of charge.
C. No person to whom a license has been issued pursuant to any city ordinance or pursuant to this Title shall suffer or allow any other person for whom a separate license is required to operate under or display his license; nor shall such other person operate under or display such license.
D. The registration fee and tax levied in this chapter are additional to any license fee or tax imposed or levied under any law or any other ordinance of the City except as otherwise expressly provided in this chapter.
(Ord. 6694 §3, 2010; Ord. 6329 §1, 2004).
5.05.030 Suspension or revocation of business registration
A. The Director, or designee, shall have the power and authority to suspend or revoke any registration issued under the provisions of Title 5 of this Code. The Director, or designee, shall notify such taxpayer in writing by certified mail of the suspension or revocation of his or her registration and the grounds therefore. Any registration issued under Title 5 of this Code may be suspended or revoked based on one or more of the following grounds:
1. The registration was procured by fraud or false representation of fact.
2. The taxpayer failed to comply with any provisions of this Title 5 of the OMC.
3. The taxpayer failed to comply with any provisions of this Code.
4. The taxpayer is in default in any payment of any fee or tax under this Code.
5. The licensee or employee has been convicted of a crime involving the business.
B. Any taxpayer may, within 10 days from the date that the suspension or revocation notice was mailed to the taxpayer, appeal from such suspension or revocation by filing a written notice of appeal with the Tax Hearing Examiner in accordance with the procedures for administrative appeal set forth in this Chapter.
C. No suspension or revocation of a registration issued pursuant to the provisions of this subchapter shall take effect until 10 days after the mailing of the notice thereof by the Department, and if appeal is taken as herein prescribed the suspension or revocation shall be stayed pending final action by the Tax Hearing Examiner. All registrations that are suspended or revoked shall be surrendered to the City on the effective date of such suspension or revocation.
D. Upon revocation of any registration as provided in this subchapter no portion of the registration fee shall be returned to the taxpayer.
(Ord. 6329 §1, 2004).
5.05.040 When due and payable - Reporting periods - Monthly, quarterly, and annual returns Threshold provisions or Relief from filing requirements - Computing time periods - Failure to file returns
A. Other than any annual license fee or registration fee assessed under this Title, the tax imposed by this Title or Chapter 5.04 of the Code shall be due and payable in quarterly installments. At the Director’s discretion, businesses may be assigned to an annual or monthly reporting period depending on the tax amount owing or type of tax. Tax payments are due on or before the last day of the next month following the end of the assigned reporting period covered by the return.
B. Taxes shall be paid as provided in this chapter and accompanied by a return on forms as prescribed by the Director. The return shall be signed by the taxpayer personally or by a responsible officer or agent of the taxpayer. The individual signing the return shall swear or affirm that the information in the return is full and true.
C. Tax returns must be filed and returned by the due date whether or not any tax is owed. Returns not received on or before the due date are subject to penalties and interest in accordance with this chapter.
D. Notwithstanding subsection (A) of this section, a person shall not owe any tax under this chapter and Chapter 5.04 of this Code if the following conditions are met:
1. The person’s gross income of the business from all activities taxable under Chapter 5.04 of this Code is less than $20,000 dollars per year or is equal to or less than $5,000 during any quarter if reporting on a quarterly basis; and
2. The person is not required to collect or pay to the City any other tax or fee which the City is authorized to collect.
Regardless of reporting period assigned, any person whose value of products, gross proceeds of sales, or gross income of the business, subject to tax after all allowable deductions, does not exceed the threshold amount in the current calendar year or calendar quarter, shall file a return, declare no tax due on their return, and submit the return to the Director. The gross receipts and deduction amounts shall be entered on the tax return even though no tax may be due.
E. A taxpayer who commences to engage in business activity shall file a return and pay the tax or fee for the portion of the reporting period during which the taxpayer is engaged in business activity subject to the conditions set forth in subsection D above.
F. Except as otherwise specifically provided by any other provision of this chapter, in computing any period of days prescribed by this chapter the day of the act or event from which the designated period of time runs shall not be included. The last day of the period shall be included unless it is a Saturday, Sunday, or City or Federal legal holiday, in which case the last day of such period shall be the next succeeding day which is neither a Saturday, Sunday, or City or Federal legal holiday.
G. If any taxpayer fails, neglects or refuses to make a return as and when required in this chapter, the Director is authorized to determine the amount of the tax or fees payable by obtaining facts and information upon which to base the Director’s estimate of the tax or fees due. Such assessment shall be deemed prima facie correct and shall be the amount of tax owed to the City by the taxpayer. The Director shall notify the taxpayer by mail of the amount of tax so determined, together with any penalty, interest, and fees due; the total of such amounts shall thereupon become immediately due and payable.
(Ord. 6329 §1, 2004).
5.05.050 Payment methods - Mailing returns or remittances - Time extension - Deposits - Recording payments - Payment must accompany return - NSF checks
A. Taxes shall be paid to the Director in United States currency by bank draft, certified check, cashier’s check, personal check, money order, cash, or by wire transfer or electronic payment if such wire transfer or electronic payment is authorized by the Director. If payment so received is not paid by the bank on which it is drawn, the taxpayer, by whom such payment is tendered, shall remain liable for payment of the tax and for all legal penalties and administrative fees, the same as if such payment had not been tendered. Acceptance of any sum by the Director shall not discharge the tax or fee due unless the amount paid is the full amount due.
B. A return or remittance which is transmitted to the City by United States mail shall be deemed filed or received on the date shown by the cancellation mark stamped by the Post Office upon the envelope containing it. The Director may allow electronic filing of returns or remittances from any taxpayer. A return or remittance that is transmitted to the City electronically shall be deemed filed or received according to procedures set forth by the Director.
C. If the taxpayer submits a written request detailing the reasons for the requested extension that is received prior to the due date, the Director, for good cause, may grant, in writing, additional time within which to make and file returns.
D. The Director shall keep full and accurate records of all funds received or refunded. The Director shall apply payments first against all penalties and interest owing, and then upon the tax, without regard to any direction of the taxpayer.
E. For any return not accompanied by a remittance of the tax shown to be due thereon, the taxpayer shall be deemed to have failed or refused to file a return and shall be subject to the penalties and interest provided in this chapter.
F. Any payment made that is returned for lack of sufficient funds or for any other reason will not be considered received until payment by certified check, money order, or cash of the original amount due, plus a “non-sufficient funds” (NSF) charge in an amount as established and promulgated in writing by the Director is received by the Director. Any registration certificate issued upon payment with a NSF check will be considered void, and shall be returned to the Director.
G. The Director is authorized, but not required, to mail tax return forms to taxpayers, but failure of the taxpayer to receive any such forms shall not excuse the taxpayer from filing returns and making payment of the taxes or fees, when and as due under this chapter.
(Ord. 6329 §1, 2004).
5.05.060 Records to be preserved - Examination - Estoppel to question assessment
A. Every person liable for any fee or tax imposed by this Chapter or Chapter 5.04 shall keep and preserve, for a period of five (5) years after filing a tax return, such records as may be necessary to determine the amount of any fee or tax for which the person may be liable; which records shall include, but not be limited to, copies of all federal income tax and state tax returns and reports made by the person. All records shall be open for examination at any time during normal business hours by the City or its duly authorized agent.
B. If a person does not keep the necessary records within the City, it shall be sufficient if such person (a) produces within the City such records as may be required by the Director, or (b) bears the cost of examination by the Director’s agent at the place where such records are kept; provided that the person electing to bear such cost shall pay in advance to the Director the estimated amount thereof including round-trip fare, lodging, meals and incidental expenses, subject to adjustment upon completion of the examination.
C. Any person who fails, or refuses the Director’s request, to provide or make available records shall be forever barred from questioning in any administrative or court proceeding or action, the correctness of any assessment of taxes made by the City for any period for which such records have not been provided, made available or kept and preserved. The Director is authorized to determine the amount of the tax or fees payable by obtaining facts and information upon which to base the estimate of the tax or fees due. Such fee or tax assessment shall be deemed prima facie correct and shall be the amount of tax owing the City by the taxpayer. The Director shall notify the taxpayer by mail the amount of tax so determined, together with any penalty, interest, and fees due; the total of such amounts shall thereupon become immediately due and payable.
D. Any person who fails to pay all taxes and fees due to the City may be barred from contracting with the City until such time as all taxes and fees are paid in full.
(Ord. 6329 §1, 2004).
5.05.070 Accounting methods
A. A taxpayer may file tax returns in each reporting period with amounts based upon cash receipts only if the taxpayer’s books of account are kept on a cash receipts basis. A taxpayer that does not regularly keep books of account on a cash receipts basis must file returns with amounts based on the accrual method.
B. The taxes imposed and the returns required, hereunder, shall be upon a calendar year basis.
(Ord. 6329 §1, 2004).
5.05.080 Public work contracts - Payment of fee and tax before final payment for work
The Director may, before issuing any final payment to any person performing any public work contract for the City, as defined by RCW 39.04.010, require such person to pay in full all license fees or taxes due under this title from such person on account of such contract or otherwise, and may require such taxpayer to file with the Director a verified list of all subcontractors supplying labor and/or materials to the person in connection with said public work.
(Ord. 6329 §1, 2004).
5.05.090 Underpayment of tax, interest, or penalty - Interest - Limitations
A. If, upon examination of any returns, or from other information obtained by the Director, the Director determines that a tax or penalty less than that properly due has been paid, the Director shall assess the additional amount due and shall add thereto interest on the tax only. The Director shall notify the person by mail of the additional amount, which shall become due and shall be paid in full within thirty (30) days from the date of the notice, or within such time as the Director may provide in writing.
B. Interest Rate.
1. For tax periods ending December 31, 2004 and before:
a. Interest imposed after the effective date of this ordinance shall be computed from the last day of the month following the end of the reporting period and shall continue to accrue until payment is made. In case of an audit, the interest shall be computed from the first day of the month following each calendar year or portion thereof included in the audit period.
b. For the purposes of this section, the rate of interest to be charged to the taxpayer shall be an average of the federal short-term rate as defined in 26 U.S.C. Sec. 1274(d) plus two percentage points. The rate shall be computed by taking an arithmetical average to the nearest percentage point of the federal short-term rate, compounded annually, for the months of January, April, July, and October of the year immediately preceding the calendar year as published by the United States Secretary of the Treasury. The rate shall be adjusted on the first day of January of each year for use in computing interest for that calendar year.
2. For tax periods after December 31, 2004 the Director shall compute interest in accordance with RCW 82.32.050 as it now exists or as it may be amended.
3. If 5.05.090.B.2 is held to be invalid, then the provisions of RCW 82.32.050 existing at the effective date of this ordinance shall apply.
C. The Director shall not assess, or correct an assessment for, additional taxes, penalties, or interest due more than four years after the close of the calendar year in which they were incurred, except that the Director may issue an assessment:
1. Against a person who is not currently registered or licensed or has not filed a tax return as required by this chapter for taxes due within the period commencing 10 years prior to the close of the calendar year in which the person was contacted in writing by the Director.
2. Against a person that has committed fraud or who misrepresented a material fact;
OR
3. Against a person that has executed a written waiver of such limitations.
(Ord. 6493 §1, 2007; Ord. 6329 §1, 2004).
5.05.100 Over payment of tax, penalty, or interest - Credit or refund - Interest rate - Statute of limitations
A. If, upon receipt of an application for a refund, or during an audit or examination of the taxpayer’s records and tax returns, the Director determines that the amount of tax, penalty, or interest paid is in excess of that properly due, the excess amount shall be credited to the taxpayer’s account or shall be refunded to the taxpayer. Except as provided in subsection (B) of this section, no refund or credit shall be made for taxes, penalties, or interest paid more than four (4) years prior to the beginning of the calendar year in which the refund application is made or examination of records is completed.
B. The execution of a written waiver shall extend the time for applying for, or making a refund or credit of any taxes paid during, or attributable to, the years covered by the waiver if, prior to the expiration of the waiver period, an application for refund of such taxes is made by the taxpayer or the Director discovers that a refund or credit is due.
C. Refunds shall be made by means of vouchers approved by the Director and by the issuance of a City check or warrants drawn upon and payable from such funds as the City may provide.
D. Any final judgment for which a recovery is granted by any court of competent jurisdiction for tax, penalties, interest, or costs paid by any person shall be paid in the same manner as provided in subsection (C) of this section, upon the filing with the Director a certified copy of the order or judgment of the court.
E. Interest Rate.
1. For tax periods December 31, 2004 and before, for refunds or credits of amounts paid or other recovery allowed to a taxpayer after the effective date of the ordinance, the rate of interest shall be the federal short term interest rate as outlined for assessments under 5.05.090(B)(2) plus two percentage points.
2. For tax periods after December 31, 2004 the Director shall compute interest on refunds or credits of amounts paid or other recovery allowed a taxpayer in accordance with RCW 82.32.060 as it now exists or as it may be amended.
3. If 5.05.090.B.2 is held to be invalid, then the provisions of RCW 82.32.050 existing at the effective date of this ordinance shall apply.
(Ord. 6493 §1, 2007; Ord. 6329 §1, 2004).
5.05.110 Late Payment - Disregard of Written Instructions - Evasion - Penalties
A. If the Director does not receive a return or payment of any tax due on a return to be filed by a taxpayer by the due date, the Director shall add a penalty in accordance with RCW 82.32.090(1), as it now exists or as it may be amended.
B. If the Director determines that any tax has been substantially underpaid as defined in RCW 82.32.090(2), there shall be added a penalty in accordance with RCW 82.32.090(2), as it now exists or as it may be amended.
C. If a citation or criminal complaint is issued by the Director for the collection of taxes, fees, assessments, interest or penalties, there shall be added thereto a penalty in accordance with RCW 82.32.090(3), as it now exists or as it may be amended.
D. If the Director finds that a person has engaged in any business or performed any act upon which a tax is imposed under this title and that person has not obtained from the Director a license as required by 5.05.025, the Director shall impose a penalty in accordance with RCW 82.32.090(4), as it now exists or as it may be amended. No penalty shall be imposed under this subsection (D) if the person who has engaged in business without a license obtains a license prior to being notified by the Director of the need to be licensed.
E. If the Director determines that all or any part of a deficiency resulted from the taxpayer’s failure to follow specific written tax reporting instructions, there shall be assessed a penalty in accordance with RCW 82.32.090(5), as it now exists or as it may be amended.
F. If the Director finds that all or any part of the deficiency resulted from an intent to evade the tax payable, the Director shall assess a penalty in accordance with RCW 82.32.090(6), as it now exists or as it may be amended.
G. The penalties imposed under subsections (A) through (E) above of this section can each be imposed on the same tax found to be due. This subsection does not prohibit or restrict the application of other penalties authorized by law.
H. The Director shall not impose both the evasion penalty and the penalty for disregarding specific written instructions on the same tax found to be due.
I. For the purposes of this section, “return” means any document a person is required by the City of Olympia to file to satisfy or establish a tax or fee obligation that is administered or collected by the City, and that has a statutorily defined due date.
J. If incorporation into the City of Olympia code of future changes to RCW 82.32.090 is deemed invalid, then the provisions of RCW 82.32.090 existing at the time this ordinance is effective shall apply.
(Ord. 6493 §1, 2007; Ord. 6329 §1, 2004).
5.05.120 Cancellation of penalties
A. The Director may cancel any penalties imposed under subsections 5.05.110(A) and (B) if the taxpayer shows that its failure to timely file or pay the tax was due to reasonable cause and not willful neglect, or if no tax was due. Willful neglect is presumed unless the taxpayer shows that it exercised ordinary business care and prudence in making arrangements to file the return and pay the tax but was, nevertheless, due to circumstances beyond the taxpayer’s control, unable to file or pay by the due date. The Director has no authority to cancel any other penalties or to cancel penalties for any other reason except as provided in subsection C of this section.
B. A request for cancellation of penalties must be received by the Director within 30 days after the date the Department mails the notice that the penalties are due. The request must be in writing and contain competent proof of all pertinent facts demonstrating that the failure to timely file or pay the tax was due to reasonable cause and not to the taxpayer’s willful neglect. In all cases the burden of proving the facts rest upon the taxpayer.
C. The Director may cancel the penalties in subsections 5.05.110(A) and (B) one time if a person:
1. is not currently licensed and filing returns; and,
2. had a good faith unawareness of its responsibility to file and pay tax; and,
3. obtained business licenses and filed past due tax returns within 30 days after being notified by the Department.
D. The Director shall not cancel any interest charged upon amounts due.
(Ord. 6329 §1, 2004).
5.05.130 Taxpayer quitting business - Liability of successor
A. Whenever any taxpayer quits business, sells out, exchanges, or otherwise disposes of his business or his stock of goods, any tax payable hereunder shall become immediately due and payable. Such taxpayer shall, within ten (10) days thereafter, make a return and pay the tax due.
B. Any person who becomes a successor shall become liable for the full amount of any tax owing. The successor shall withhold from the purchase price a sum sufficient to pay any tax due to the city from the taxpayer until such time as: 1) the taxpayer shall produce a receipt from the City showing payment in full of any tax due or a certificate that no tax is due, or 2) more than six (6) months has passed since the successor notified the Director of the acquisition and the Director has not issued and notified the successor of an assessment.
C. Payment of the tax by the successor shall, to the extent thereof, be deemed a payment upon the purchase price. If such payment is greater in amount than the purchase price, the amount of the difference shall become a debt due such successor from the taxpayer.
D. Notwithstanding the above, if a successor gives written notice to the Director of the acquisition, and the Department does not within six (6) months of the date it received the notice issue an assessment against the taxpayer and mail a copy of that assessment to the successor, the successor shall not be liable for the tax.
(Ord. 6329 §1, 2004).
5.05.140 Tax declared additional
The fee and tax levied under OMC 5.04 shall be additional to any other fee or tax imposed or levied under any law or any other ordinance of the City of Olympia except as otherwise expressly provided.
(Ord. 6329 §1, 2004).
5.05.150 Public disclosure - Confidentiality - Information sharing
A. The City shall not disclose any tax information that is exempt from disclosure under the Washington state Public Disclosure Act (Chapter 42.17 of the Revised Code of Washington) or where disclosure would violate any other law prohibiting disclosure of tax information, as that term may be defined by law.
B. For purposes of this section, unless a different meaning is clearly established by context, the following definitions apply:
1. “Disclose” means to make known to any person in any manner.
2. “Tax information” means:
a. A taxpayer’s identity;
b. The nature, source, or amount of the taxpayer’s income, payments, receipts, deductions, exemption, credits, assets, liability, net work, tax liability deficiencies, over assessments, or tax payments, whether taken from the taxpayer’s records or any other source;
c. Whether the taxpayer’s return was, is being, or will be examined or subject to other investigation or processing; or
d. Other records received by, recorded by, prepared by, or provided to the Director with respect to a taxpayer; PROVIDED, that tax information shall not include records that do not disclose information related to a specific or identifiable taxpayer.
e. Tax returns and tax information may be “public records” as that term is defined in RCW 42.17.020.
C. Tax information may be disclosed to the following:
1. The Mayor, City Manager, members of the City Council, City Attorney, City Clerk Treasurer, or their authorized designees, for official purposes;
2. Any agency or officer of the United States of America, the State of Washington, or a tax department of any state, county, city, or town, if required by law or, if not required, on the condition that the agency or officer grants substantially similar privileges to the City, and further provided that the agency or officer shall not further disclose the tax information except as authorized in this section.
D. RCW 82.32.330(3)(i), as currently enacted, allows disclosure of taxpayer information to other certain designated governmental entities for official purposes but only if those governmental entities grant substantially similar disclosure privileges to the City of Olympia. Accordingly, this subsection grants reciprocity to those governmental entities identified in RCW 82.32.330(3)(i), as that section is currently enacted or as it may hereafter be modified, that grant reciprocity to the City of Olympia, provided that those governmental entities shall not further disclose the tax information except as authorized by law.
E. Nothing in this section shall prevent the use of tax information by the City or any other agency in any civil or criminal action involving any license, tax, interest, or penalty or as otherwise may be authorized by law.
(Ord. 6329 §1, 2004).
5.05.160 Tax constitutes debt
Any fee or tax due and unpaid under this chapter, and all interest and penalties thereon, shall constitute a debt to the City of Olympia and may be collected in the same manner as any other debt in like amount, which remedy shall be in addition to all other existing remedies.
(Ord. 6329 §1, 2004).
5.05.170 Unlawful actions - Violation - Penalties
A. It shall be unlawful for any person under this Code:
1. To violate or fail to comply with any of the provisions of this chapter or any other lawful rule or regulation adopted by the Director; or,
2. To make any false statement on any license application or tax return; or,
3. To aid or abet any person in any attempt to evade payment of a fee or tax; or,
4. To fail to appear or testify in response to a subpoena issued pursuant to OMC 5.05.270; or,
5. To testify falsely in any investigation, audit, or proceeding conducted pursuant to this Chapter; or
6. To continue to engage in business after the revocation of a business registration certificate.
B. Violation of any of the provisions of this chapter is a gross misdemeanor. Any person convicted of a violation of this chapter may be punished by a fine not to exceed $1,000, imprisonment not to exceed one year, or both fine and imprisonment. Penalties or punishments provided in this chapter shall be in addition to all other fines, penalties or remedies provided by law.
C. Any person, or officer of a corporation, convicted of continuing to engage in business after the revocation of a license shall be guilty of a gross misdemeanor and may be punished by a fine not to exceed $5,000, or imprisonment not to exceed one year, or both fine and imprisonment.
(Ord. 6329 §1, 2004).
5.05.180 Closing agreement provisions
The Director may enter into an agreement in writing with any person relating to the liability of such person in respect of any tax imposed by any of the chapters within this title and administered by this chapter for any taxable period(s). Upon approval of such agreement, evidenced by execution thereof by the Director and the person so agreeing, the agreement shall be final and conclusive as to the tax liability or tax immunity covered thereby, and, except upon a showing of fraud or malfeasance, or misrepresentation of a material fact:
A. The case shall not be reopened as to the matters agreed upon, or the agreement modified, by the Director or the taxpayer, and
B. In any suit, action or proceeding, such agreement, or any determination, assessment, collection, payment, abatement, refund, or credit made in accordance therewith, shall not be annulled, modified, set aside, or disregarded.
(Ord. 6329 §1, 2004).
5.05.190 Charge-off of uncollectible taxes
The Director may charge off any tax, penalty, or interest that is owed by a taxpayer, if the Director ascertains that the cost of collecting such amounts would be greater than the total amount that is owed or likely to be collected from the taxpayer. Any charge off greater than $15,000 must receive prior City Council approval.
(Ord. 6329 §1, 2004).
5.05.200 Administrative Appeal
A. Filing of Appeal. Any taxpayer, except one who has failed to comply with section 5.05.060 of this Code, who feels aggrieved by the amount of the fee, tax or penalty determined by the Director to be required under the provisions of this chapter, or who was aggrieved by the Director’s determination to suspend or revoke a business registration under section 5.05.030, may appeal from such determination by filing a written notice of appeal with the City Clerk/Treasurer within 30 days from the time such taxpayer was given notice of such amount. A filing fee determined by the Director shall be submitted with the appeal, which filing fee is required to process the appeal. The taxpayer must pay the amount assessed, or cause the same to be paid, before the appeal may be heard. The Clerk/Treasurer shall forward a copy of the appeal to the Tax Hearing Examiner.
B. Basis of Appeal and Relief Sought. Every appeal shall be on a form provided by the Clerk/Treasurer and shall state in writing:
1. How the appellant is or is likely to be harmed or prejudiced by the decision appealed from;
2. How or in what particular factual and/or legal respect the Director erred in determining the amount of fee, tax or penalty, or in suspending or revoking the business registration; and
3. What relief or ruling is sought, including the amount of fee, tax or penalty the appellant contends is correctly due, and how such ruling would eliminate or reduce harm to the appellant.
C. Dismissal. Failure to comply with the requirements of subsection (B)(1) - (3) above shall subject the appeal to dismissal without a hearing. The city staff or any party may request dismissal of an appeal at any time with notice to all parties, or the Tax Hearing Examiner may sua sponte determine that the appeal fails to comply with subsection (B)(1) - (3) above. If the Tax Hearing Examiner so determines, the Tax Hearing Examiner shall dismiss the appeal, and shall state whether such dismissal is with or without prejudice, as appropriate, depending upon whether the errors can be corrected within the appeal period set forth in subsection (A) above.
(Ord. 6329 §1, 2004).
5.05.210 Administrative Appeal Hearing
A. Notice and Record. Upon concluding that an appeal complies with OMC 5.05.200(B)(1)-(3), the Tax Hearing Examiner shall set the time and place at which the appeal will be heard, and shall cause a notice of the time and place to be delivered or mailed to the parties and to the Director at least ten (10) days in advance of the hearing date. The Director shall transmit to the Hearing Examiner a copy of all of the records pertaining to the decision being appealed, together with written reports as the Hearing Examiner deems pertinent.
B. Appeal Hearing Postponement or Waiver. After written notice of the public hearing date has been mailed to interested parties, such hearing shall not be postponed except for good cause as determined by the Tax Hearing Examiner. Any request for such postponement shall be for a specific period and be submitted in writing to the Tax Hearing Examiner and to the Director. If after considering the request and any response from the Director, the Tax Hearing Examiner determines that good cause is presented, the Examiner shall postpone such hearing to a date certain and shall order that all costs of new notice of such hearing shall be paid to the City by the party requesting that the hearing be postponed. By agreement of all parties thereto, the appeal hearing may be waived, with the appeal decided by the Examiner on the basis of written briefs or memoranda.
C. Appeal Hearing. The hearing shall be conducted in accordance with the rules adopted by the Tax Hearing Examiner under OMC 5.05.270. During the hearing, the Tax Hearing Examiner may hear any relevant testimony and receive and consider any other evidence that the Tax Hearing Examiner determines is relevant and bears on the issues to be decided. City staff shall keep a record of the appeal proceedings, which shall consist of the following: (1) a sound recording of the appeal hearing, including all testimony given under oath and oral argument during the appeal hearing, or a written verbatim transcript of the same; (2) all documentary or non-testimonial evidence or exhibits admitted by the Tax Hearing Examiner; and (3) a sound recording or written verbatim transcript of any other proceedings such as prehearing conferences, motion hearings, and the like.
(Ord. 6329 §1, 2004).
5.05.220 Decision on Administrative Appeal
A. Standard of Review. After giving the Director’s decision substantial weight, the Tax Hearing Examiner shall grant the relief requested by the appellant only upon finding that the appellant has established that:
1. The Director engaged in unlawful procedures or failed to follow a prescribed procedure;
2. The Director’s determination was an erroneous interpretation of the law;
3. The Director’s determination is not supported by substantial evidence within the context of the whole record made during the appeal hearing or via written memoranda or briefs if a hearing was waived;
4. The Director’s determination is a clearly erroneous application of the law to the facts;
5. The Director’s determination was outside the Director’s authority or jurisdiction;
B. Decision.
1. Contents. Within fourteen (14) days of the conclusion of the appeal hearing, unless a longer period is agreed to in writing by the appellant and the Director, the Hearing Examiner shall render a written decision which shall include at least the following:
a. Findings of fact based upon the record and conclusions of law therefrom, which support a decision indicating the correct amount of the fee or tax owing. Such findings and conclusions shall address any and all specific issues raised by the appellant, the Director, or any party of record. In lieu of original findings and conclusions regarding uncontested matters, the Examiner may adopt findings and conclusions recommended by the appellant, the Director, or any party of record. In adopting findings of fact, conclusions of law and a decision, the Tax Hearing Examiner is authorized to take judicial notice of all duly-adopted rules, ordinances, regulations, laws and policies of the City of Olympia and other public agencies.
b. A decision on the appeal, which may be to grant or deny the appeal.
c. A statement that the decision will become final in twenty-one (21) days unless appealed to the Thurston County Superior Court under section 5.05.230, along with a description of the appeal process provided thereunder.
2. Limitations. The decision of the Tax Hearing Examiner shall be limited to those issues timely raised on appeal. The Tax Hearing Examiner may not reconsider or modify aspects of a project previously considered and settled by another final decision of the City. In exercising the powers granted herein, the Tax Hearing Examiner may, in conformity with this title, reverse or affirm, wholly or in part, or may modify the order, requirements, decision or determination appealed, and may make such order, requirement, decision or determination as should be made, and, to that end, shall have all the powers of the Director from whom the appeal is being taken, insofar as the decision on the particular issue is concerned.
3. Reconsideration / Clarification. Decisions of the Tax Hearing Examiner, either on prehearing matters or resolving an appeal, shall not be reconsidered. Decisions may be clarified as provided below.
a. Any interested party believing that the decision of the Tax Hearing Examiner is ambiguous, vague, or internally inconsistent may within twenty-one (21) days of the date of issue request clarification of the decision by the Tax Hearing Examiner. Such shall set forth the specific provision for which clarification is sought, along with any factual or legal support justifying the request. A copy of the request shall be submitted to the Director.
b. A request for clarification shall not provide an opportunity for reconsideration of a decision nor for introduction of new evidence. Except as ordered by the Examiner, the filing of a request for clarification shall not toll the appeal period under section 5.05.230.
c. If, after allowing a reasonable time for response by the Director, the Tax Hearing Examiner determines that a clarification warranted, he or she may issue a supplemental or clarified decision, which may be subject to appeal under section 5.05.230 if so indicated by the Tax Hearing Examiner.
(Ord. 6329 §1, 2004).
5.05.230 Judicial Review of Administrative Appeal Decision
The City, or any taxpayer (except one who has failed to comply with section 5.05.060 of this Code) who has paid any tax as required, who feels aggrieved by a decision of the Tax Hearing Examiner and has first exhausted the right of administrative appeal set forth in this chapter, may seek judicial review via a petition for statutory writ of review in the Thurston County Superior Court within 21 days of the entry of the City’s final administrative decision. The taxpayer shall set forth the amount of the tax imposed upon the taxpayer that the taxpayer concedes to be the correct amount of tax and the reason why the tax imposed should be reduced or abated. The appealing party shall serve a copy of the application for writ upon the opposing party within the time herein specified and shall file proof of service thereof with the Thurston County Superior Court Clerk. Proceedings in the Superior Court on appeal shall be based upon the administrative record compiled by the Tax Hearing Examiner. The burden shall rest upon the taxpayer to prove that the Tax Hearing Examiner’s decision and the tax as paid by the taxpayer are incorrect, either in the whole or in part, and to establish the correct amount of the tax.
The cost of preparing and certifying the administrative record of the Tax Hearing Examiner shall be borne by appellant.
(Ord. 6329 §1, 2004).
5.05.240 Tax Hearing Examiner Selection
The Tax Hearing Examiner shall be selected by the Council. The Tax Hearing Examiner may be retained on a professional service contract for a term and on conditions determined appropriate by the Council. Such contract may provide that the Tax Hearing Examiner may retain the services of masters to hold hearings as are needed to render aid and advice regarding technical or specialized issues that may be presented. Said contract may also provide for a Tax Hearing Examiner(s) pro tem to serve in the absence of the Tax Hearing Examiner on such terms and conditions deemed appropriate by the Council.
(Ord. 6329 §1, 2004).
5.05.250 Qualification and removal of Tax Hearing Examiner
The Tax Hearing Examiner shall be appointed solely with regard to his or her training and experience in conducting administrative or quasi-judicial hearings on tax and license-related matters, and in discharging the other functions conferred upon the Tax Hearing Examiner by ordinance. The Tax Hearing Examiner shall hold no other elective or appointive office or position with the City of Olympia. A Tax Hearing Examiner may be removed from office for cause by majority vote of the Council.
(Ord. 6329 §1, 2004).
5.05.260 Improper influence, conflict of interest and appearance of fairness
A. No City official, elective or appointive, shall attempt to influence the Hearing Examiner in any matter officially before him so as to constitute misconduct of a public office under RCW 42.20 or a violation of the Appearance of Fairness Doctrine.
B. The Hearing Examiner shall conduct all proceedings in a manner to avoid conflicts of interest or other misconduct and to avoid violations of the Appearance of Fairness Doctrine. If such conflicts or violations cannot be avoided in a particular case, the Hearing Examiner shall assign a Hearing Examiner pro tem to act in his or her absence.
(Ord. 6329 §1, 2004).
5.05.270 Organization, Rules
A. The Office of the Tax Hearing Examiner shall be under the administrative supervision of the Tax Hearing Examiner and shall be separate from the Director.
B. The Tax Hearing Examiner shall be empowered to adopt rules for the scheduling and conduct of hearings and other procedural matters related to the duties of the office. Such rules may provide for cross examination of witnesses. Further, such rules shall provide for recording of the proceedings and for compliance with the State, Federal and City laws which may govern such a proceeding. The Tax Hearing Examiner shall also be empowered to issue subpoenas, at the request of a party, to compel testimony from a witness as part of an appeal hearing.
(Ord. 6329 §1, 2004).
5.05.280 Director to make rules
The Director shall have the power, from time to time, to adopt, publish and enforce rules and regulations not inconsistent with this chapter or with law for the purpose of carrying out the provisions of this chapter and it shall be unlawful to violate or fail to comply with, any such rule or regulation.
(Ord. 6329 §1, 2004).
5.05.290 Ancillary allocation authority of Director
The Director is authorized to enter into agreements with other Washington cities which impose an “eligible gross receipts tax,” as defined in OMC 5.05.040, to do any of the following:
A. Conduct a joint audit of a taxpayer by using an auditor employed by the City of Olympia, another city, or a contract auditor;
B. Allocate or apportion the gross proceeds of sales, gross receipts, or gross income of the business, or taxes due from any person that is required to pay an eligible gross receipts tax to more than one Washington city;
C. Apply the City’s tax prospectively where a taxpayer has no office or place of business within the City and has paid tax on all gross income to another Washington city where the taxpayer is located; provided that the other city maintains an eligible gross receipts tax, and the income was not derived from contracts with the City.
(Ord. 6329 §1, 2004).
5.05.300 Severability
If any provision of this chapter or its application to any person or circumstance is held invalid for any reason, the remainder of the chapter or the application of the provision or chapter to other persons or circumstances shall not be affected.
(Ord. 6329 §1, 2004).
5.05.310 Mailing of Notices
Any notice required by this chapter to be mailed to any taxpayer or licensee shall be sent by ordinary mail, addressed to the address of the taxpayer or licensee as shown by the records of the Director. Failure of the taxpayer or licensee to receive any such mailed notice shall not release the taxpayer or licensee from any tax, fee, interest, or any penalties thereon, nor shall such failure operate to extend any time limit set by the provisions of this chapter. It is the responsibility of the taxpayer to inform the Director in writing about a change in the taxpayer’s address.
(Ord. 6329 §1, 2004).