(A) Purpose of special tax and use of proceeds. The tax imposed by this section is exclusively for the purpose of raising revenues for the reconstruction, repaving and repair of streets and public ways within the city, and for the reconstruction and repair of public facilities within or related to the public ways, including, but not limited to, the repair or replacement of curbs, gutters, sidewalks, driveway approaches and storm drains or sewers. All of the proceeds from the tax imposed by this section shall be placed in a special fund to be used only for the costs of engineering, administration and construction which are directly related to the reconstruction and repair of the described public facilities.
(B) Definitions. For the purpose of this section, the following definitions apply unless the context clearly indicates or requires a different meaning.
CITY. The City of San Joaquin.
GAS. Natural or manufactured gas or any
alternate hydrocarbon fuel which may be substituted therefor.
MONTH. A calendar month.
NON-UTILITY SUPPLIER.
(a) A service supplier, other than an electrical corporation serving within the city, which generates electrical energy in capacities of at least 50 kilowatts for its own use or for sale to others; or
(b) A gas supplier other than a gas corporation, that sells or supplies gas to users within the city.
PERSON. Any domestic or foreign corporation, firm, association, syndicate, joint stock company, partnership of any kind, joint venture, club, Massachusetts business or common law trust, society or individuals.
SERVICE SUPPLIER. Any entity required to collect or self-impose and remit a tax as imposed by this section.
SERVICE USER. A person required to pay a tax imposed by this section.
TAX ADMINISTRATOR. The person in charge of the Finance Department of the city.
TELEPHONE CORPORATION, ELECTRICAL CORPORATION, GAS CORPORATION, WATER CORPORATION, CABLE TELEVISION CORPORATION. The same meanings as defined in Cal. Public Utilities §§ 234, 218, 222, 241 and 215.5, respectively, except, "electrical corporation", "gas corporation" and "water corporation" shall also be construed to include any municipality, public agency or person engaged in the selling or supplying of electrical power or gas or water to a service user.
(C) Exemptions.
(1) Nothing in this section shall be construed as imposing a tax upon any person when imposition of the tax upon that person would be in violation of the Constitution of the United States or that of the state.
(2) The City Council may, by order or resolution, establish one or more classes of persons or one or more classes of utility service otherwise subject to payment of a tax imposed by this section and provide that the classes of persons or service shall be exempt, in whole or in part from the tax.
(3) The Tax Administrator shall prepare a list of the persons exempt from the provisions of this section by virtue of this division and furnish a copy thereof to each service supplier.
(D) Telephone user's tax.
(1) There is hereby imposed a tax on the amounts paid for any intrastate telephone services by every person in the city using the services. The tax imposed by this division shall be at the rate of 10% of the charges made for the services and shall be paid by the person paying for the services.
(2) As used in this division, the term
CHARGES shall not include charges for services paid for by inserting coins in coin-operated telephones except that where the coin-operated service is furnished for a guaranteed amount, the amounts paid under the 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 47 C.F.R. § 2.1, as the subsection existed on 1-1-1970. 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 the 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.
(3) The tax imposed by this division shall be collected from the service user by the person providing the intrastate telephone communication services, or the person receiving payment for the services. The amount of the tax collected in one month shall be remitted to the Tax Administrator on or before the last day of the following month; or at the option of the person required to collect and remit the tax, an estimated amount of tax collected, measured by the tax bill in the previous month, shall be remitted to the Tax Administrator on or before the last day of each month.
(4) Notwithstanding the provisions of division (D)(1) above, the tax imposed under this division shall not be imposed upon any person for using intrastate telephone communication services to the extent that the amounts paid for the services are exempt from or not subject to the tax imposed under Cal. Revenue and Taxation Code Division 2, Part 20, or the tax imposed under I.R.C. § 4251.
(E) Electricity user's tax.
(1) There is hereby imposed a tax upon every person other than an electric or gas corporation using electrical energy in the city. The tax imposed by this subsection shall be at the rate of 10% of the charges made for the energy by an electrical corporation providing service in the city and shall be billed to and paid by the person using the energy. The tax applicable to electrical energy provided by a non-utility supplier shall be determined by applying the tax rate to the equivalent charge the service user would have incurred if the energy used had been provided by the electrical corporation franchised by the city. Rate schedules for this purpose shall be available from the city. Non-utility suppliers shall install, maintain and use an appropriate utility-type metering system which will enable compliance with this section.
CHARGES, as used in this division, shall include charges made for metered energy and minimum charges for service, including customer charges, service charges, demand charges, standby charges and all other annual and monthly charges, fuel or other cost adjustments, authorized by the State Public Utilities Commission or the Federal Energy Regulatory Commission.
(2) As used in this section, the term
USING ELECTRICAL ENERGY shall not be construed to mean the storage of the energy by a person in a battery owned or possessed by him or her for use in an automobile or other machinery device apart from the premises upon which the energy was received; provided, however, that, the term shall include the receiving of the energy for the purpose of using it in the charging of batteries; nor shall the term include electricity used and consumed by an electric utility supplier or governmental agency in the conduct of its business; nor shall the term include electricity used and consumed by an electric utility corporation or governmental agency at a point within the city for resale; nor shall the term include the use of the energy in the production or distribution of water by a water utility or a governmental agency.
(3) The tax imposed in this section shall be collected from the service user by the service supplier or non-utility supplier. The tax imposed in this section on use supplied by self-generation or from a non-utility supplier not subject to the jurisdiction of this section, shall be collected and remitted to the Tax Administrator in the manner set forth in division (G) below. The amount of tax collected by a service supplier or a non-utility supplier in one month shall be remitted by United States mail to the Tax Administrator, postmarked on or before the last day of the following month; or at the option of the person required to collect and remit the tax, an estimated amount of tax measured by the tax billed in the previous month, shall be remitted by U.S. mail, to the Tax Administrator, postmarked on or before the last day of each month.
(F) Gas user's tax.
(1) 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 10% of the charges made for the gas and shall be billed to and paid by the person using the gas. The tax applicable to gas or gas transportation provided by non-utility 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 has been provided by the gas corporation. If franchised by the city.
CHARGES, as used in this division, shall include that billed for gas which is delivered through mains or pipes; gas transportation charges; and demand charges, service charges, customer charges, minimum charges, annual and monthly charges and any other charge authorized by the State Public Utilities Commission or the Federal Energy Regulatory Commission.
(2) The tax otherwise imposed by this division is not applicable to charges made for gas which is to be resold and delivered through mains and pipes, charges made for gas used and consumed by a public utility or governmental agency in the conduct of its business or, charges made by a gas public utility or gas used and consumed in the course of its public utility business, and charges made for gas used in the propulsion of a motor vehicle, as authorized in the Vehicle Code of the state.
(3) The tax imposed in this division shall be collected from the service user by the person selling or transporting the gas. A person selling only transportation services to use 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 of this section, make a return to the Tax Administrator stating the amount of taxes billed during the preceding calendar month. At the time the returns are filed, the person selling or transporting the gas shall remit tax payments to the Tax Administrator in accordance with schedules established or approved by the Tax Administrator. The tax imposed in this division on use supplied by self-production or a non-utility supplier not subject to the jurisdiction of this section, shall be collected and remitted to the Tax Administrator in the manner set forth in division (G) below.
(G) Service users receiving direct purchase of gas or electricity.
(1) Notwithstanding any other provision of this section, a service user receiving gas or electricity directly from a non-utility supplier not under the jurisdiction of this section, 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 the fact to the Tax Administrator within 30 days of use and shall directly remit to the city the amount of tax due.
(2) The Tax Administrator may require the 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.
(H) Water user's tax.
(1) There is hereby imposed a tax upon every person in the city using water which is delivered through mains or pipes. The tax imposed by this division shall be at the rate of 10% of the charges made for the water and shall be paid by the person paying for the water.
(2) There shall be excluded from the base on which the tax imposed in this division is computed charges made for water which is to be resold and delivered through mains or pipes; and charges made by a municipal water department, public utility or a city or municipal water district for water used and consumed by the department, utility or district.
(3) The tax imposed in this division shall be collected from the service user by the person supplying the water. The amount collected in one month shall be remitted to the Tax Administrator on or before the last day of the following month.
(I) Cable television user's tax.
(1) There is hereby imposed a tax upon every person in the city using cable television service. The tax imposed by this division shall be at the rate of 10% of the charges made for the cable television service and shall be paid by the person paying for the service.
(2) The tax imposed in this division shall be collected from the service user by the person furnishing the cable television service. The amount collected in one month shall be remitted to the Tax Administrator on or before the last day of the following month.
(J) Remittance of tax; delinquency. Taxes collected from a service user which are not remitted to the Tax Administrator on or before the due dates provided in this section are delinquent. Should be due date occur on a weekend or legal holiday, the return may be postmarked on the first regular working day following a Saturday, Sunday or legal holiday.
(K) Actions to collect. Any tax required to be paid by a service user under the provisions of this section shall be deemed a debt owed by the service user to the city. Any tax collected from a service user which has willfully been withheld from the Tax Administrator 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 section shall be liable to an action brought in the name of the city for the recovery of the amount.
(L) Duty to collect; procedures. The duty to collect and remit the taxes imposed by this section shall be performed as follows:
(1) Notwithstanding the provisions of division (G) above, the tax shall be collected insofar as practicable at the same time as and along with the charges made in accordance with the regular billing practices of the service supplier. Where the amount paid by a service user to a service supplier is less than the full amount of the service charge amount, any subsequent payments by a service user shall be applied to the utility charge first until the charge has been fully satisfied. Any remaining balance shall be applied to taxes due. In those cases where a service user has notified the service supplier of his or her refusal to pay the tax imposed on the energy charges, division (M) below will apply.
(2) The duty to collect tax from a service user shall commence with the beginning of the first full regular billing period applicable to the service user where all charges normally included in the regular billing are subject to the provisions of this section. Where a person receives more than one billing, one or more being for different periods than another, the duty to collect shall arise separately for each billing.
(M) Additional powers and duties of Tax Administrator.
(1) The Tax Administrator shall have the power and duty, and is hereby directed, to enforce each and all of the provisions of this section.
(2) The Tax Administrator shall have the power to adopt rules and regulations not inconsistent with provisions of this section for the purpose of carrying out and enforcing the payment, collection and remittance of the taxes herein imposed. A copy of the rules and regulations shall be on file in the Tax Administrator's office.
(3) The Tax Administrator may make administrative agreements to vary the strict requirements of this section so that collection of any tax imposed here may be made in conformance with the billing procedures of particular service supplier so long as the agreements result in collection of the tax in conformance with the general purpose and scope of this section. A copy of each agreement shall be on file in the Tax Administrator's office.
(4) The Tax Administrator shall determine the eligibility of any person who asserts a right to exemption from the tax imposed by this section. The Tax Administrator shall provide the service supplier with the name of any person who the Tax Administrator determines is exempt from the tax imposed hereby, together with the address and account number to which service is supplied to any exempt person. The Tax Administrator shall notify the service supplier of termination of any person's right to exemption hereunder, or the change of any address to which service is supplied to any exempt person.
(5) The Tax Administrator shall provide notice to all service suppliers, at least 90 days prior to any annexation or other change in the city's boundaries. The notice shall set forth the revised boundaries by street and address, along with a copy of the final annexation order from LAFCO.
(N) Assessment; service user administrative remedy.
(1) Whenever the Tax Administrator determines that a service user has deliberately withheld the amount of the tax owed by him or her from the amounts remitted to a person required to collect the tax, or that a service user has refused to pay the amount of tax, the person may be relieved of the obligation to collect taxes due under this section from certain named service users for specified billing periods as set forth below.
(2) The service supplier shall provide the city with amounts refused and/or unpaid along with the names and addresses of the service users neglecting to pay the tax imposed under provisions of this section. Whenever the service user has failed to pay the amount of tax for a period of two or more billing periods, the service supplier shall be relieved of the obligation to collect taxes due.
(3) The Tax Administrator shall notify the service user that the Tax Administrator assumed responsibility to collect the taxes due for the stated periods and demand payment of the taxes. The notice shall be served on the service user by handing it to him or her personally or by deposit of the notice in the United States mail, postage prepaid thereon, addressed to the service user at the address to which billing was made by the person required to collect the tax; or, should the service user's address change, to the last known address. If a service user fails to remit the tax to the Tax Administrator within 15 days from the date of the service of the notice upon him or her, which shall be the date of the service of the notice upon him or her, which shall be the date of mailing if service is not accomplished in person, a penalty of 25% of the amount of the tax set forth in the notice shall be imposed, but not less than $5. The penalty shall become part of the tax herein required to be paid.
(O) Records. It shall be the duty of every person required to collect and remit to the city any tax imposed by this section to keep and preserve, for a period of three years, all records as may be necessary to determine the amount of the tax as he or she may have been liable for the remittance to the Tax Administrator, which records the Tax Administrator shall have the right to inspect at all reasonable times.
(P) Refunds.
(1) Whenever the amount of any tax has been overpaid or paid more than once or has been erroneously or illegally collected or received by the Tax Administrator under this section, it may be refunded as provided in this division.
(2) Notwithstanding the provisions of division (P)(1) above, a service supplier may claim a refund; or take as credit against taxes remitted the amount overpaid, paid more than once, or erroneously or illegally collected or received when it is established that the service user from whom the tax has been collected did not owe the tax; provided, however, that, neither a refund nor a credit shall be allowed unless the amount of the tax erroneously or illegally collected has either been refunded to the service user or credited to charges subsequently payable by the service user to the person required to collect and remit. A service supplier that has collected any amount of tax in excess of the amount of tax imposed by this section and actually due from a service user, may refund the amount to the service user and claim credit for the overpayment against the amount of tax which is due upon any other monthly returns, provided the credit is claimed in a return dated no later than three years from the date of overpayment.
(3) Notwithstanding other provisions of this division, whenever a service supplier, pursuant to an order of the State 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 section on the amount of the refunded charges shall also be refunded to service users, and the service supplier shall be entitled to claim a credit for the refunded taxes against the amount of tax which is due upon the next monthly returns. In the event this section is repealed, the amounts of any refundable taxes will be borne by the city.
(4) A service supplier may refund the taxes collected to the service user in accordance with this division or by the service supplier's customary practice.
(5) Any claims for refunds of taxes imposed by this section must be presented to the city no later than three years after the date of payment for which a refund is claimed to be due.
(Q) Termination or suspension of utility user's tax.
(1) The service supplier shall, upon notification, terminate or suspend collection of any utility user's tax commencing with the first full billing period which occurs after the effective date of the action by the City Council.
(2) Collection of the tax imposed in this section shall terminate on the twentieth anniversary of the date on which the provisions of this chapter became effective.
(R) Operative date. The tax imposed under this ordinance shall apply to bills rendered on the thirtieth day following a declaration by the City Council that not less than two-thirds of the voters voting on the measure voted in favor of the adoption of this section or as soon thereafter as the respective utilities are physically and mechanically able to get "on line" for the imposition of charges (not more than 60 days).
(Ord. 99-101, passed 11-23-1999)
Editor's note:
This section is currently undergoing review and revision by the city