Chapter 3.18
UTILITY USER TAX
Sections:
3.18.050 Telecommunication users tax.
3.18.060 Electricity users tax.
3.18.080 Interest and penalty.
3.18.100 Duty to collect—Procedures.
3.18.110 Additional power and duties of tax administrator.
3.18.120 Assessment—Administrative remedy.
3.18.150 Audit of tax collection, remittance and expenditure.
3.18.010 Short title.
This chapter shall be known as the “utility user tax.” (Ord. 91-7 § 1 (part), 1991)
3.18.020 Definitions.
The following words and phrases whenever used in this chapter shall be construed as defined in this section.
A. “City” means the city of Dinuba.
B. “Cogenerator” means any corporation or person employing cogeneration technology for producing power from other than a conventional power source for the generation of electricity for sale to others.
C. “Month” means a calendar month.
D. “Person” means 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.
E. “Service supplier” means a utility company which receives taxes paid and remits same as imposed by this chapter.
F. “Service user” means a person required to pay a tax imposed by this chapter.
G. “Tax administrator” means the finance director of the city of Dinuba.
H. “Telephone corporation,” “electrical corporation,” and “gas corporation,” shall have the same meanings as defined in Sections 234, 218, and 222, respectively, of the California Public Utilities Code except, “electrical corporation” shall be construed to include any municipality or franchised agency engaged in the selling or supplying of electrical power to a service user, however, as specified by Section 218 of this Code, does not include a corporation or person employing cogeneration technology or producing power from other than a conventional power source for the generation of electricity.
I. “Telephone communication services” shall mean any telephonic type and quality of communication including that which is interconnected to the public switched network, which allows people to talk to each other without the necessity of conversing in person. In determining whether a service constitutes a telephone communication service, all technology used to transmit voice communications from one person to another shall be included irrespective of whether, for example, such technology utilizes computer processing applications on the form, code or protocol of the content of the communication or where the origination and/or termination points of the transmission, conveyance or routing are not fixed. Such means of transmission shall include, without limitation, for the purpose of transmitting messages or information (including but not limited to voice, telegraph, teletypewriter, data facsimile, video or test) by electronic, radio or similar means whether such transmission occurs by wire, cable, fiber-optic, light wave, laser, microwave, radio wave, including, but not limited to, cellular service, personal communications service (PCAS), specialized mobile radio (SMR), and other type of personal wireless service regardless of radio spectrum used, switching facilities, satellite or any other similar facilities. (Ord. 2009-03 § 1, 2009; Ord. 2006-07 § 1, 2009; Ord. 91-7 § 1 (part), 1991)
3.18.030 Purpose.
The city council declares that the ordinance codified in this chapter is adopted to achieve the following, among other, purposes, and directs that the provisions hereof be interpreted in order to accomplish these purposes:
A. To adopt a utility user tax ordinance which complies with California state law;
B. To adopt a utility user tax ordinance which imposes a tax and provides a measure therefor that can be administered and collected by the respective utilities in a manner that adapts itself as fully as practicable to, and requires the least possible deviation from the existing procedures followed by the utilities in administering and collecting the respective charges from the user;
C. To adopt a utility user tax ordinance which can be administered in a manner that will, to the degree possible, be consistent and minimize the burden of recordkeeping upon persons subject to taxation under provisions of this chapter;
D. To adopt a utility user tax ordinance to address the urgency of providing adequate police protection and services to ensure the health and well-being of the citizens of the city of Dinuba. (Ord. 91-7 § 1 (part), 1991)
3.18.040 Exemptions.
A. Nothing in this chapter shall be construed as imposing a tax upon any person when imposition of such tax upon that person would be in violation of the Constitution of the United States or that of the state of California.
B. 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 chapter and provide that such classes of persons or service shall be exempt, in whole or in part from such tax.
C. The tax administrator shall prepare a list of persons exempt from the provisions of this chapter by virtue of this section and furnish a copy thereof to each service supplier. (Ord. 91-7 § 1 (part), 1991)
3.18.050 Telecommunication users tax.
A. There is imposed a tax on the amounts paid for any intrastate, interstate and international telephone communications services by every person in the city other than a telephone corporation using such services.
B. There is imposed a tax upon every person, other than a telephone corporation, using interstate, international, and/or intrastate telephone communication services in the city. The tax shall not be based on network usage-related charges for cellular telephone services and other similar mobile services, for which the service provider cannot, as a practical matter, determine the origination or termination of the telecommunication. The tax collector may adopt administrative rules for assuring a reasonable and consistent allocation of the monthly cellular billing between network usage-related charges and non-usage-related charges. “Charges” shall also 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 telecommunication services, including charges to a service user by a hotel or motel for telephone communication services when such charges are incidental to the right of occupancy in such motel or hotel. The motel or hotel shall be responsible for collection of the tax. Charges shall also include charges to a service user in the city by an alternative or nontraditional telephone service provider, a private communication service provider, or a competitive access provider, for providing: (1) telecommunication services used in the city, and/or (2) access to telephone toll services of an interexchange carrier.
C. Notwithstanding the provisions of subsection (A) of this section, the tax imposed under this section shall not be imposed upon any of the following:
1. Service paid for by inserting coins in coin-operated telephones with respect to local telephone services, or with respect to toll telephone services if the charge for such toll telephone service is less than twenty-five cents; except that where such coin-operated telephone service is furnished for a guaranteed amount, the amounts paid under such guarantee plus any fixed monthly or periodic charge shall be subject to the tax.
2. Payment received from any person for services used in the collection of news for the public press, or a news ticker service furnishing a general news service similar to that of the public press, or radio broadcasting, or in the dissemination of news through the public press, or a news ticker service furnishing a general news service similar to that of the public press, or by means of radio broadcasting, if the charge for such service is billed in writing to such person.
3. Payment received for services furnished to an international organization, or to the American National Red Cross.
4. Payment received for any toll telephone call which originates within a combat zone from a member of the Armed Forces of the United States performing service in such combat zone, as determined under such section, provided a certificate setting forth such facts as the secretary may by regulations prescribe is furnished to the person receiving such payment.
5. The amount paid for any toll telephone service to the extent that the amount so paid is for use by a common carrier, telephone or telegraph company, or radio broadcasting station or network in the conduct of its business as such.
6. The amount paid by a nonprofit hospital for services furnished to such organization. For purposes of this subsection, the term “nonprofit hospital” means a hospital which is exempt from federal and state income tax under Section 501(a) of the Internal Revenue Code.
7. Any payment received for services or facilities furnished to the government of any state, or any political subdivision thereof, or the District of Columbia.
8. Any amount paid by a nonprofit educational organization for services or facilities furnished to such organization. For the purpose of this subsection, the term “nonprofit educational organization” means an educational organization which is exempt from income tax under Section 501(a) of the Internal Revenue Code. The term also includes a school operated as an activity of an organization which is exempt from income tax under Section 501(a) if such school normally maintains a regular faculty and curriculum and normally has a regularly enrolled body of pupils or students in attendance at the place where its educational activities are regularly carried on.
9. Private mobile radio service. For purposes of this chapter, “private mobile radio service” is a radio communication service which is not a commercial mobile service. A “mobile service” means a radio communication service carried on between mobile stations or receivers and land stations, and by mobile stations communicating among themselves, and includes (a) both one-way and/or two-way radio communications services, (b) a mobile service which provides a regularly interacting group base, mobile, portable, and associated control and relay stations (whether licensed on an individual, cooperative, or multiple basis) for private one-way or two-way land mobile radio communications by eligible users over designated areas of operation, and (c) any service for which a license is required in a personal communications service established pursuant to the proceeding entitled “Amendment to the Commission’s Rules to Establish New Personal Communications Services” (Gen. Docket No. 90-314; ET Docket No. 92-100), or any successor proceeding. A “commercial mobile service” is a mobile service that is provided for profit and makes interconnected service available (a) to the public or (b) to such classes of eligible users as to be effectively available to a substantial portion of the public.
D. The tax imposed by this section shall be collected from the service user by the person providing the telecommunication services, or by the motel or hotel owner in the case of subsection (B) of this section. The amount of tax collected in one month shall be remitted by U.S. mail, to the tax collector, and must be received by the tax collector on or before the last day of the following month; or, at the option of the person required to collect or remit the tax, such person shall remit an estimated amount of tax measured by the tax billed in the previous month or upon the payment pattern of the customer(s) of the service supplier, which must be received by the tax collector on or before the last day of the following month.
E. Notwithstanding the provisions of subsection (A) of this section, the tax imposed under this section shall not exceed the sum of two thousand five hundred dollars for any twelve-month period beginning July 1st and ending June 30th of the next succeeding year.
F. To prevent actual multi-jurisdictional taxation of telecommunication services subject to tax under this section, any service user, upon proof to the tax collector that the service user has previously paid the same tax in another state or city on such telecommunication service, 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. (Ord. 2009-03 § 2, 2009: Ord. 2006-07 § 2, 2009: Ord. 94-15 § 2, 1994; Ord. 91-7 § 1 (part), 1991)
3.18.060 Electricity users tax.
A. There is imposed a tax upon every person in the city using electrical energy in the city. The tax imposed by this section shall be at the rate of four percent of the charges made for such energy and shall be paid by the person paying for such energy. “Charges,” as used in this section, shall include charges made for: (1) metered energy, and (2) minimum charges for service, including customer charges, service charges, demand charges, standby charges and annual and monthly charges, fuel, cost adjustments, etc.
B. As used in this section, the term “using electrical energy” shall not be construed to mean the storage of such energy by a person in a battery owned or possessed by him for use in an automobile or other machinery or device apart from the premises upon which the energy was received, provided however, that the term shall include the receiving of such 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 in the conduct of its business as an electric public utility; nor shall the term include the mere receiving of such energy by an electric public utility or governmental agency at a point within the city for resale; or the use of such energy in the production or distribution of water by a public utility or a governmental agency.
C. The tax imposed in this section shall be collected from the service user by an energy service supplier. The amount of tax collected in one month shall be remitted by U.S. 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. Remittance of tax may be predicted on a formula based upon the payment pattern of the supplier’s customers.
D. Notwithstanding the provisions of subsection (A) of this section, if the amount paid by a service user is less than the full amount of the energy charge and tax which has accrued for the billing period, such amount and any subsequent payments by a service user shall be applied to the energy charge first until such charge has been fully satisfied. Any remaining balance shall be applied to taxes due.
E. Notwithstanding the provisions of subsection (A), the tax imposed under this section shall not exceed the sum of two thousand five hundred dollars for any twelvemonth period beginning July 1st, and ending June 30th of the next succeeding year. (Ord. 91-7 § 1 (part), 1991)
3.18.070 Gas users tax.
A. There is imposed a tax upon every person in the city, other than a gas corporation or electrical corporation, using in the city gas which is delivered through mains or pipes. The tax imposed by this section shall be at the rate of four percent of the charges made for such gas and shall be paid by the person paying for such gas. “Charges” as used in this section shall include: (1) gas which is delivered through mains or pipes (2) minimum charges for such services, including customer charges, service charges, transportation charges, and annual and monthly charges.
B. There shall be excluded from the base on which the tax imposed in this section is computed: (1) charges made for gas which is to be resold and delivered through mains or pipes; (2) charges made for gas sold for use in the generation or electrical energy or for the production or distribution of water by a public utility or governmental agency; (3) charges made by a gas public utility for gas used and consumed in the conduct of the business of gas public utilities; (4) charges made for gas used in the propulsion of a motor vehicle, as that phrase is defined in the Vehicle Code of the state of California, utilizing natural gas; and (5) charges related to late payments and returned checks.
C. The tax imposed in this section shall be collected from the service user by the person selling or transporting the gas. A person selling only transportation services to a user for delivery of gas through mains or pipes shall collect the tax from the service user based on the transportation charges. The person selling or transporting the gas shall, on or before the twentieth of each calendar month, commencing on the twentieth day of the calendar month after the effective date of the ordinance codified in this section, make a return to the tax administrator stating the amount of taxes billed during the preceding calendar month. At the time such returns are filed, the person selling or transporting the gas shall remit tax payments to the tax administrator in accordance with schedules established or approved by the tax administrator.
D. Notwithstanding the provisions of subsection (A) of this section, the tax imposed under this section shall not exceed the sum of two thousand five hundred dollars for any twelve-month period beginning July 1st, and ending June 30th of the next succeeding year. (Ord. 91-7 § 1 (part), 1991)
3.18.080 Interest and penalty.
A. Taxes collected from a service user which are not remitted to the tax administrator on or before the due dates provided in this chapter are delinquent.
B. Any violation of this chapter shall be punishable as provided in Chapter 1.16 of this code. (Ord. 91-7 § 1 (part), 1991)
3.18.090 Actions to collect.
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 wilfully 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 chapter shall be liable to an action brought in the name of the city for the recovery of such amount. (Ord. 91-7 § 1 (part), 1991)
3.18.100 Duty to collect—Procedures.
The duty to collect and remit the taxes imposed by this chapter shall be performed as follows:
A. Notwithstanding the provisions of Section 3.18.070(C), 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 charge and tax which has accrued for the billing period, such amount and any subsequent payments by a service user may be applied to the charge first until such charge has been fully satisfied. Any remaining balance shall be applied to the taxes due, except in those cases where a service user pays the full amount of the charges but notifies the service supplier of his refusal to pay the tax imposed on said charges.
B. 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 such regular billing are subject to the provisions of this chapter. 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 period. (Ord. 91-7 § 1 (part), 1991)
3.18.110 Additional power and duties of tax administrator.
A. The tax administrator shall have the power and duty, and is hereby directed to enforce each and all of the provisions of this chapter.
B. The tax administrator shall have power to adopt rules and regulations not inconsistent with provisions of this chapter for the purpose of carrying out and enforcing the payment, collection and remittance of the taxes herein imposed. A copy of such rules and regulations shall be on file in the tax administrator’s office.
C. The tax administrator may make administrative agreements to vary the strict requirements of this chapter so that collection of any tax imposed here may be made in conformance with the billing procedures of a particular service supplier so long as said agreements result in collection of the tax in conformance with the general purpose and scope of this chapter. A copy of each such agreement shall be on file in the tax administrator’s office.
D. The tax administrator shall determine the eligibility of any person who asserts a right to exemption from the tax imposed by this chapter. 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 such exempt person. The tax administrator shall notify the service supplier of the termination of any person’s right to exemption hereunder, or the change of any address to which service is supplied to any exempt person. (Ord. 91-7 § 1 (part), 1991)
3.18.120 Assessment—Administrative remedy.
A. The tax administrator may make an assessment for taxes not remitted by a person required to remit.
B. Whenever the tax administrator determines that a service user has deliberately withheld the amount of the tax owed by such user 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 to such person, or whenever the tax administrator deems it in the best interest of the city, he may relieve such person of the obligation to collect taxes due under this chapter from certain named service users for specified billing periods.
C. The service supplier shall provide the city with amounts refused along with the names, addresses and reasons of the service users refusing to pay the tax imposed under provisions of this chapter. 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.
D. The tax administrator shall notify the service user that he has assumed responsibility to collect the taxes due for the stated periods and demand payment of such taxes. The notice shall be served on the service user by handing it to him personally or by deposit of the notice in the United States mail, postage prepaid thereon, addressed to the service user at the address to which billing was made by the person required to collect the tax; or, should the service user have changed his address, to his last known address. If a service user fails to remit the tax to the tax administrator within fifteen days from the date of the service of the notice upon him, which shall be the date of mailing if service is not accomplished in person, a penalty of twenty-five percent of the amount of the tax set forth in the notice shall be imposed, but not less than five dollars. The penalty shall become part of the tax herein required to be paid. (Ord. 91-7 § 1 (part), 1991)
3.18.130 Records.
It shall be the duty of every person required to collect and remit to the city any tax imposed by this chapter to keep and preserve, for a period of three years, all records as may be necessary to determine the amount of such tax as he may have been liable for the collection of and remittance to the tax administrator, which records the tax administrator shall have the right to inspect at all reasonable times. (Ord. 91-7 § 1 (part), 1991)
3.18.140 Refund claims.
Any and all refunds claimed for taxes overpaid or paid more than once, or claimed to have been erroneously or illegally collected or received by the tax administrator pursuant to this chapter, as well as any claim of interest or penalty thereon, shall be subject to the provisions of Chapter 3.28 of this code in all respects. (Ord. 96-4 § 7, 1996)
3.18.150 Audit of tax collection, remittance and expenditure.
The city shall annually verify the taxes owed under this chapter have been properly applied, collected, and remitted in accordance with this chapter, and properly expended according to applicable municipal law. The form of annual verification shall be reasonably determined by the tax administrator. (Ord. 2009-03 § 3, 2009)