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The following words and phrases whenever used in this chapter shall be construed as defined in this section.
ANCILLARY TELECOMMUNICATION SERVICES. Services that are associated with or incidental to the provision, use or enjoyment of telecommunications services, including but not limited to the following services:
(1) CONFERENCE BRIDGING SERVICE. An ancillary service that links two or more participants of an audio or video conference call and may include the provision of a telephone number. CONFERENCE BRIDGING SERVICE does not include the telecommunications services used to reach the conference bridge.
(2) DETAILED TELECOMMUNICATIONS BILLING SERVICE. An ancillary service of separately stating information pertaining to individual calls on a customer’s billing statement.
(3) DIRECTORY ASSISTANCE. An ancillary service of providing telephone number information, and/or address information.
(4) VERTICAL SERVICE. An ancillary service that is offered in connection with one or more telecommunications services, which offers advanced calling features that allow customers to identify callers and to manage multiple calls and call connections, including conference bridging services.
(5) VOICE MAIL SERVICE. An ancillary service that enables the customer to store, send or receive recorded messages. VOICE MAIL SERVICE does not include any vertical services that the customer may be required to have in order to utilize the voice mail service.
ANCILLARY VIDEO SERVICES. Services that are associated with or incidental to the provision or delivery of video services, including but not limited to electronic program guide services, search functions, or other interactive services or communications that are associated with or incidental to the provision, use or enjoyment of video programming.
BILLING ADDRESS. The mailing address of the service user where the service supplier submits invoices or bills for payment by the customer.
CITY. The City of Tulare.
COMMUNICATION SERVICES. Means: “telecommunication services,” “ancillary telecommunication services,” “video services” and “ancillary video services.”
MOBILE TELECOMMUNICATIONS SERVICE. Has the same meaning and usage as set forth in the Mobile Telecommunications Sourcing Act (4 U.S.C. § 124) and the regulations thereunder.
MONTH. A calendar month.
MUNICIPAL ORGANIZATION. An organization or association created by statute or by voluntary action, whose purpose is to facilitate the development and dissemination of uniform rulings or interpretations regarding the application of utility users taxes to communication services in the State of California.
PERSON. Without limitation, any natural individual, firm, trust, common law trust, estate, partnership of any kind, association, syndicate, club, joint stock company, joint venture, limited liability company, corporation (including foreign, domestic, and non-profit), municipal district or municipal corporation (other than the city) cooperative, receiver, trustee, guardian, or other representative appointed by order of any court.
PLACE OF PRIMARY USE. The street address representative of where the customer’s use of the communications service primarily occurs, which must be the residential street address or the primary business street address of the customer.
POST-PAID TELECOMMUNICATION SERVICE. The telecommunication service obtained by making a payment on a communication-by-communication basis either through the use of a credit card or payment mechanism such as a bank card, travel card, credit card, or debit card, or by charge made to a service number which is not associated with the origination or termination of the telecommunication service.
PREPAID TELECOMMUNICATION SERVICE. The right to access telecommunication services, which must be paid for in advance and which enables the origination of communications using an access number or authorization code, whether manually or electronically dialed, and that is sold in predetermined units or dollars of which the number declines with use in a known amount.
PRIVATE TELECOMMUNICATION SERVICE. A telecommunication service that entitles the customer to exclusive or priority use of a communications channel or group of channels between or among termination points, regardless of the manner in which such channel or channels are connected, and includes switching capacity, extension lines, stations, and any other associated services that are provided in connection with the use of such channel or channels. A communications channel is a physical or virtual path of communications over which signals are transmitted between or among customer channel termination points (i.e., the location where the customer either inputs or receives the communications).
SERVICE ADDRESS. Either:
(1) The location of the service user’s communication equipment from which the communication originates or terminates, regardless of where the communication is billed or paid; or
(2) If the location in division (1) of this definition is unknown (e.g., mobile telecommunications service or VoIP service), the
SERVICE ADDRESS means the location of the service user’s place of primary use.
(3) For prepaid telecommunication service,
SERVICE ADDRESS means the location associated with the service number.
SERVICE SUPPLIER. Any entity or person, including the city, that provides communication service to a user of such service within the city.
SERVICE USER. A person required to pay a tax imposed under the provisions of this chapter.
STATE. The State of California.
TAX ADMINISTRATOR. The Finance Director/Treasurer of the city or his or her designee.
TELECOMMUNICATIONS SERVICES. The transmission, conveyance, or routing of voice, data, audio, video, or any other information or signals to a point, or between or among points, whatever the technology used, and includes broadband services (e.g., digital subscriber line (DSL), fiber optic, coaxial cable, and wireless broadband, including Wi-Fi, WiMAX, and Wireless MESH) to the extent federal and/or state law permits taxation of such broadband services, now or in the future. The term TELECOMMUNICATIONS SERVICES includes such transmission, conveyance or routing in which computer processing applications are used to act on the form, code or protocol of the content for purposes of transmission, conveyance or routing without regard to whether such services are referred to as voice over internet protocol (VoIP) services or are classified by the Federal Communications Commission as enhanced or value added, and includes video and/or data services that is functionally integrated with TELECOMMUNICATION SERVICES. TELECOMMUNICATIONS SERVICES include, but are not limited to the following services, regardless of the manner or basis on which such services are calculated or billed: ancillary telecommunication services; broadband service (to the extent federal and/or state law permits taxation of such service); mobile telecommunications service; prepaid telecommunication service; post-paid telecommunication service; private telecommunication service; paging service; 800 service (or any other toll-free numbers designated by the Federal Communications Commission); 911 service (or any other similar numbers designated by the Federal Communications Commission for services whereby subscribers who call in to pre-recorded or live service); and value-added non-voice data service.
VALUE-ADDED NON-VOICE DATA SERVICE. A service that otherwise meets the definition of telecommunications services in which computer processing applications are used to act on the form, content, code, or protocol of the information or data primarily for a purpose other than transmission, conveyance or routing.
VIDEO PROGRAMMING. Those programming services commonly provided to subscribers by a video service supplier including but not limited to basic services, premium services, audio services, video games, pay-per-view services, video on demand, origination programming, or any other similar services, regardless of the content of such video programming, or the technology used to deliver such services, and regardless of the manner or basis on which such services are calculated or billed.
VIDEO SERVICES. Any and all services related to the providing or delivering of video programming (including origination programming and programming using Internet Protocol, e.g., IP-TV and IP-Video) using one or more channels by a video service supplier, regardless of the technology used to deliver or provide such services, and regardless of the manner or basis on which such services are calculated or billed, and includes data services, telecommunication services, or interactive communication services that are functionally integrated with VIDEO SERVICES.
VIDEO SERVICE SUPPLIER. Any person, company, or service which provides or sells one or more channels of video programming, or provides or sells the capability to receive one or more channels of video programming, including any communications that are ancillary, necessary or common to the provision, use or enjoyment of the video programming, to or from a business or residential address in the city, where some fee is paid, whether directly or included in dues or rental charges for that service, whether or not public rights-of-way are utilized in the delivery of the video programming or communications. A VIDEO SERVICE SUPPLIER includes, but is not limited to, multichannel video programming distributors (as defined in 47 U.S.C. § 522(13)); open video systems (OVS) suppliers; and suppliers of cable television; master antenna television; satellite master antenna television; multichannel multipoint distribution services (MMDS); video services using internet protocol (e.g., IP-TV and IP-Video, which provide, among other things, broadcasting and video on demand); direct broadcast satellite to the extent federal law permits taxation of its video services, now or in the future; and other suppliers of video programming or communications (including two-way communications), whatever the technology.
(Ord. 07-05, passed 6-5-2007)
(A) Nothing in this chapter shall be construed as imposing a tax upon any person or service when the imposition of such tax upon such person or service would be in violation of a federal or state statute, the Constitution of the United States or the constitution of the state.
(B) (1) Any service user that is exempt from the tax imposed by this chapter pursuant to division (A) of this section shall file an application with the Tax Administrator for an exemption; provided, however, this requirement shall not apply to a service user that is a state or federal agency or subdivision with a commonly recognized name for such service. The application shall be made upon a form approved by the Tax Administrator and shall state those facts, declared under penalty of perjury, which qualify the applicant for an exemption, and shall include the names of all utility service suppliers serving that service user. If deemed exempt by the Tax Administrator, such service user shall give the Tax Administrator timely written notice of any change in utility service suppliers so that the Tax Administrator can properly notify the new utility service supplier of the service user’s tax exempt status. A service user that fails to comply with this section shall not be entitled to a refund of utility users’ taxes collected and remitted to the Tax Administrator from such service user as a result of such noncompliance.
(C) The City Council may, by 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 chapter and provide that such classes of persons or service shall be exempt, in whole or in part from such tax for a specified period of time.
(D) The Tax Administrator shall prepare a list of the persons exempt from the provisions of this chapter by virtue of this section and furnish a copy thereof to each service supplier.
(Ord. 07-05, passed 6-5-2007)
(A) There is hereby imposed a tax upon every person in the city using communication services. The maximum tax imposed by this section shall be at the rate of six percent of the charges made for such services and shall be collected from the service user by the communication services supplier or its billing agent. There is a rebuttable presumption that communication services, which are billed to a billing or service address in the city, are used, in whole or in part, within the city’s boundaries, and such services are subject to taxation under this chapter. If the billing address of the service user is different from the service address, the service address of the service user shall be used for purposes of imposing the tax. As used in this section, the term
CHARGES shall include the value of any other services, credits, property of every kind or nature, or other consideration provided by the service user in exchange for the communication services.
(B) Mobile telecommunications service shall be sourced in accordance with the sourcing rules set forth in the Mobile Telecommunications Sourcing Act (4 U.S.C. § 124). The Tax Administrator may issue and disseminate to communication service suppliers, which are subject to the tax collection requirements of this chapter, sourcing rules for the taxation of other communication services, including but not limited to post-paid communication services, prepaid communication services, and private communication services, provided that such rules are based upon custom and common practice that further administrative efficiency and minimize multi-jurisdictional taxation.
(C) The Tax Administrator may issue and disseminate to communication service suppliers, which are subject to the tax collection requirements of this chapter, an administrative ruling identifying those communication services, or charges therefore, that are subject to or not subject to the tax of division (A) above.
(D) As used in this section, the term
TELECOMMUNICATION SERVICES shall include, but are not limited to charges for: connection, reconnection, termination, movement, or change of telecommunication services; late payment fees; detailed billing; central office and custom calling features (including but not limited to call waiting, call forwarding, caller identification and three-way calling); voice mail and other messaging services; directory assistance; access and line charges; universal service charges; regulatory, administrative and other cost recovery charges; local number portability charges; and text messaging. As used in this section, the term TELECOMMUNICATION SERVICES shall not include separately stated charges for: installation or maintenance of wiring or equipment on a customer’s premises and wire maintenance fees; sale or rental of tangible personal property; digital products delivered electronically, such as software, downloaded music, ring tones and reading materials; 911 surcharge; and sales for resale.
(E) Charges for communication services (video) shall include, but are not limited to, charges for the following:
(1) Franchise fees and access fees (PEG);
(2) Initial installation of equipment necessary for provision and receipt of communication services;
(3) Late fees, collection fees, bad debt recoveries, and return check fees;
(4) Activation fees, reactivation fees, and reconnection fees;
(5) All video programming services (e.g., basic services, premium services, audio services, video games, pay-per-view services, or on demand programming);
(6) Ancillary programming services (e.g., electronic program guide services, search functions, or other interactive services or communications that are ancillary, necessary or common to the use or enjoyment of the video programming);
(7) Equipment leases (e.g., converters, remote devices); and
(8) Service calls, service protection plans, name changes, changes of services, and special services.
(F) To facilitate the uniform interpretation and application of similar ordinance provisions in other local jurisdictions in the state, the Tax Administrator may, prior to issuing and disseminating a sourcing rule or an administrative tax ruling, submit its proposed sourcing rule or administrative tax ruling to a municipal organization for review and comment, according to the rules and procedures of that municipal organization, or its successor organization.
(G) To prevent actual multi-jurisdictional taxation of communication services subject to tax under this section, any service user, upon proof to the Tax Administrator that the service user has previously paid the same tax in another state or city on such communication services, shall be allowed a credit against the tax imposed to the extent of the amount of such tax legally imposed in such other state or city; provided, however, the amount of credit shall not exceed the tax owed to the city under this section.
(H) The tax on communication services imposed by this section shall be collected from the service user by the service supplier. The amount of tax collected in one month shall be remitted to the Tax Administrator, and must be received by the Tax Administrator on or before the twentieth day of the following month.
(I) Upon a showing of hardship, the Tax Administrator may administratively delay the implementation of this section until no later than January 1, 2008. Prior to such time, the Tax Administrator may administratively permit the telecommunications tax to be applied to telecommunication services in the same manner as the federal excise tax was applied to communication services as defined in §§ 4251 and 4252 of the Internal Revenue Code, and the IRS regulations and rulings pertaining thereto, prior to May 25, 2006, and regardless of whether charges for such services are based on time, distance, or on any other basis, and as such sections are limited by the exceptions of §§ 4252(d) and 4253.
(J) Notwithstanding the provisions of division (A) hereinabove, the City Council may, by Resolution, to be adopted on or before May 15 of each year, reduce the tax rate of division (A) and/or adopt a maximum tax for certain classes of customers, for the ensuing fiscal year as set forth in said Resolution. Unless the City Council re-adopts said Resolution by May 15 of the subsequent year, the tax percentage reduction and any other actions taken (e.g. establishment of a maximum tax) shall automatically expire and be discontinued, and the original voter-approved tax percentage shall apply, without the necessity of a vote of the people.
(Ord. 09-04, passed 12-1-2009; Ord. 07-05, passed 6-5-2007)
Except as otherwise provided by applicable federal or state law, if any nontaxable charges are combined with and not separately stated from taxable service charges on the customer bill or invoice of a service supplier, the combined charge is subject to tax unless the service supplier identifies, by reasonable and verifiable standards, the portions of the combined charge that are nontaxable and taxable through the service supplier’s books and records kept in the regular course of business, and in accordance with generally accepted accounting principles, and not created and maintained for tax purposes. The service supplier has the burden of proving the proper apportionment of taxable and non-taxable charges.
(Ord. 07-05, passed 6-5-2007)
(A) For purposes of imposing a tax or establishing a duty to collect and remit a tax under this chapter, substantial nexus and minimum contacts shall be construed broadly in favor of the imposition, collection and/or remittance of the utility users tax to the fullest extent permitted by state and federal law, and as it may change from time to time by judicial interpretation or by statutory enactment. Any communication service (including VoIP) used by a person with a service address in the city, which service is capable of terminating a call to another person on the general telephone network, shall be subject to a rebuttable presumption that substantial nexus/minimum contacts exists for purposes of imposing a tax, or establishing a duty to collect and remit a tax, under this chapter. A service supplier shall be deemed to have sufficient activity in the city for tax collection and remittance purposes if its activities include, but are not limited to, any of the following: maintains or has within the city, directly or through an agent or subsidiary, a place of business of any nature; solicits business in the city by employees, independent contractors, resellers, agents or other representatives; solicits business in the city on a continuous, regular, seasonal or systematic basis by means of advertising that is broadcast or relayed from a transmitter with the city or distributed from a location with the city; or advertises in newspapers or other periodicals printed and published within the city or through materials distributed in the city by means other than the United States mail.
(B) The city shall make available, upon request, an accurate description of its jurisdictional boundaries based on street addresses and/or ZIP Plus Four, in an electronic format. If a service supplier relies upon such information provided by city, it shall not be responsible for any errors in taxation that may result.
(Ord. 07-05, passed 6-5-2007)
(A) Collection by service suppliers. The duty of service suppliers to collect and remit the taxes imposed by the provisions of this chapter shall be performed as follows.
(1) The tax shall be collected by service suppliers insofar as practicable at the same time as, and along with, the collection of the charges made in accordance with the regular billing practice of the service supplier. Where the amount paid by a service user to a service supplier is less than the full amount of the charge and tax which was accrued for the billing period, a proportionate share of both the charge and the tax shall be deemed to have been paid. In those cases where a service user has notified the service supplier of refusal to pay the tax imposed on the charges, § 5.74.120 shall apply.
(2) The duty of a service supplier to collect the tax from a service user shall commence with the beginning of the first regular billing period applicable to the service user where all charges normally included in such regular billing are subject to the provisions of this chapter. Where a service user receives more than one billing, one or more being for different periods than another, the duty to collect shall arise separately for each billing period.
(B) Filing return and payment. Each person required by this chapter to remit a tax shall file a return to the Tax Administrator, on forms approved by the Tax Administrator, on or before the due date. The full amount of the tax collected shall be included with the return and filed with the Tax Administrator. The Tax Administrator is authorized to require such additional information as he or she deems necessary to determine if the tax is being levied, collected, and remitted in accordance with this chapter. Returns are due immediately upon cessation of business for any reason. Pursuant to Cal. Revenue and Tax Code § 7284.6, the Tax Administrator, and its agents, shall maintain such filing returns as confidential information that is exempt from the disclosure provisions of the Public Records Act.
(Ord. 07-05, passed 6-5-2007)
(A) Taxes collected from a service user are delinquent if not received by the Tax Administrator on or before the due date. Should the due date occur on a weekend or legal holiday, the return must be received by the Tax Administrator on the first regular working day following the weekend or legal holiday. A direct deposit, including electronic fund transfers and other similar methods of electronically exchanging monies between financial accounts, made by a service supplier in satisfaction of its obligations under this division shall be considered timely if the transfer is initiated on or before the due date, and the transfer settles into the city’s account on the following business day.
(B) If the person required to collect and/or remit the utility users’ tax fails to collect the tax (by failing to properly assess the tax on one or more services or charges on the customer’s billing) or fails to remit the tax collected on or before the due date, the Tax Administrator shall attach a penalty for such delinquencies or deficiencies at the rate of 15% of the total tax that is delinquent or deficient in the remittance, and shall pay interest at the rate of and 0.75% per month, or any fraction thereof, on the amount of the tax, exclusive of penalties, from the date on which the remittance first became delinquent, until paid.
(C) The Tax Administrator shall have the power to impose additional penalties upon persons required to collect and remit taxes pursuant to the provisions of this chapter for fraud or gross negligence in reporting or remitting at the rate of 15% of the amount of the tax collected and/or required to be remitted, or as recomputed by the Tax Administrator.
(D) For collection purposes only, every penalty imposed and such interest that is accrued under the provisions of this section shall become a part of the tax herein required to be paid.
(E) Notwithstanding the foregoing, the Tax Administrator may, in his or her discretion, modify the due dates of this chapter to be consistent with any uniform standards or procedures that are mutually agreed upon by other public agencies imposing a utility users tax, or otherwise legally established, to create a central payment location or mechanism.
(Ord. 07-05, passed 6-5-2007)
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 Tax Administrator shall be deemed a debt owed to the city by the person required to collect and remit and shall no longer be a debt of the service user. 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, including penalties and interest as provided for in this chapter, along with any collection costs incurred by the city as a result of the person’s noncompliance with this chapter, including, but not limited to, reasonable attorneys fees. Any tax required to be collected by a service supplier or owed by a service user is an unsecured priority excise tax obligation under 11 U.S.C § 507(a)(8)(C).
(Ord. 07-05, passed 6-5-2007)
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