Chapter 6.10
TELEPHONE, GAS, ELECTRICITY AND TELEVISION CABLE USERS TAX

Sections:

6.10.010    Definitions.

6.10.020    Exemptions.

6.10.030    Telephone users tax.

6.10.040    Electricity users tax.

6.10.050    Gas users tax.

6.10.060    Water users tax.

6.10.070    Cable television users tax.

6.10.080    Administrative regulations.

6.10.090    Interest and penalty.

6.10.100    Actions to collect.

6.10.110    Duty to collect – Procedures.

6.10.120    Failure to collect and report tax – Determination of tax by tax administrator.

6.10.130    Appeal.

6.10.140    Records.

6.10.150    Refunds.

6.10.160    Enforcement.

6.10.010 Definitions.

The following words and phrases whenever used in this chapter shall be construed as defined in this section:

“Month” means a calendar month;

“Person” means all domestic and foreign corporations, associations, syndicates, joint stock companies, partnerships of every kind, joint ventures, clubs, Massachusetts, business or common law trusts, societies, and individuals, and shall include a municipal corporation;

“Operator” means any person required to collect a tax hereunder;

“Service user” means a person required to pay a tax imposed under the provisions of this chapter;

“Tax administrator” means the city clerk. [Ord. 605 N.S., 1968].

6.10.020 Exemptions.

(a) Eligibility. Any service user who is personally responsible for payment of the utility services subject to taxation under this chapter, and who personally pays for those services, and who has qualified for and is receiving benefits under the Social Security Administration’s Supplemental Security Income Program for the Aged, Blind and Disabled (Title XVI, Social Security Act, as amended) shall be eligible for an exemption from the taxes imposed by this chapter on service supplied to the service user’s residential living quarters. Provided, however, that if the aggregate gross income of all persons who share the service user’s residential living quarters exceeds $12,000 per annum the exemption shall not apply. Only one such residential exemption shall be allowed to any person.

(b) Application. Applications for exemption may be filed with the city at any time on forms approved by the tax administrator.

(c) Effective Date. The exemption will not be effective until 75 days after receipt of the application.

(d) Contents of Application. Applications shall be verified by declaration under penalty of perjury and shall contain such information as may be required by the tax administrator.

(e) Review and Certification. The tax administrator shall review each application and shall certify the service users as exempt if the eligibility requirements of subsection (a) of this section are met, except no exemption shall be granted to a service user who is receiving service from a service supplier through a master meter and no exemption shall be granted with respect to any tax imposed by this chapter which is or has been paid by a public agency or where the service user receives funds from a public agency specifically for the payment of such tax.

(f) Notice to Service Supplier. If a service user is certified as exempt, the tax administrator shall promptly notify the appropriate service supplier(s), stating the name of the service user, the address to which such exempt service is being supplied, the account number, if any, and such other information as may be necessary for the service supplier to remove the exempt service user from its tax billing procedure.

(g) Discontinuance of Tax. Upon receipt of notice given under subsection (f) of this section the service supplier shall within 60 days discontinue billing the service user for taxes imposed by this chapter, except as provided in subsection (h) of this section.

(h) Prior Taxes, Collection. Taxes billed by the service supplier to the service user prior to removing the service user from its tax billing procedure shall be collected from the service user and the service user shall pay such taxes to the service supplier. Taxes billed to and paid by the service user between the filing of the exemption application and removal of the service user from tax billing will not be refunded.

(i) Duration of Exemption. Exemptions certified by the tax administrator shall continue so long as the facts supporting the qualification for exemption shall exist; provided, the exemption shall automatically terminate with the change in the service address or residence of the exempted service user; provided, further, such service user may apply for a new exemption with each change of address or residence.

(j) Duty to Disclose Disqualification. Any service user who has been exempt under this section shall notify the tax administrator within 10 days of any change in fact or circumstance which disqualifies such service user from receiving an exemption. It shall be a misdemeanor, and may be enforced pursuant to Chapter 1.16 PGMC, for any person to knowingly receive the benefits of the exemption provided by this section when such person has knowledge that the basis or bases for such exemption does not or ceases to exist.

(k) Audit by Tax Administrator. The tax administrator shall have the authority to demand evidence of continued eligibility of a service user for exemption under this section. Such evidence may include, but need not be limited to, copies of business records, letters or statements from the Social Security Administration and state, county, city and private pension administrators or unemployment and welfare agencies, and such other evidence concerning the service user or other members of his or her household as may tend to prove or disprove such eligibility. Failure to provide such evidence as is within the control of a service user to provide, either directly or by his or her consent or the consent of a member of his or her household when such evidence is requested in writing by the tax administrator, shall be grounds for immediate discontinuance of the exemption under the provisions of this section. Evidence provided to the tax administrator at his or her request, or voluntarily provided to him or her by the service user without the tax administrator’s request, may not be used against the service user as evidence of violation of provisions of this section. Such evidence may only be used as grounds for termination of the exemption.

(l) Other Exemptions. Nothing in this chapter shall be construed as imposing a tax upon the city or any person when imposition of such tax upon the city or that person would be in violation of the Constitution of the United States or the constitution of the state of California. [Ord. 08-006 § 13, 2008; Ord. 1385 N.S. § 1, 1984; Ord. 605 N.S., 1968].

6.10.030 Telephone users tax.

(a) There is hereby imposed a tax upon every person in the city using intrastate telephone communication services in the city. The tax imposed by this section shall be at the rate of five percent of the charges made for such services, and shall be paid by the person paying for such services.

(b) As used in this section, the term “charges” shall not include charges for services paid for by inserting coins in coin-operated telephones except that where such coin operated telephone service is furnished for a guaranteed amount, the amounts paid under such guarantee plus any fixed monthly or other periodic charge shall be included in the base for computing the amount of tax due.

(c) The tax imposed in this section shall be collected from the service user by the person providing the intrastate telephone communication services. The amount of tax collected in one month shall be remitted to the city clerk on or before the last day of the following month, unless the city clerk has approved an alternate schedule for reporting and remitting.

(d) Notwithstanding the provisions of subsection (a) of this section, the tax imposed under this section shall not be imposed upon any person for using intrastate telephone communication services to the extent that the amounts paid for such services are exempt from or not subject to the tax imposed under Section 4251 of Title 26 of the United States Code, as said section existed on November 1, 1967, nor shall any tax be imposed upon any person for the use of mobile or marine telephone services. [Ord. 1870 N.S. § 1, 1992; Ord. 639 N.S. § 1, 1969; Ord. 605 N.S., 1968. Formerly 6.10.030.1].

6.10.040 Electricity users tax.

(a) There is hereby 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 five 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, includes 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.

(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 or her 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 the energy for the purpose of using it in the charging of batteries; nor shall the term include the mere receiving of energy by an electric public utility or governmental agency at a point within the city for resale.

(c) There shall be excluded from the provisions of this chapter charges made by a gas and electric public utility for electricity used and consumed by it in the conduct of its business.

(d) The tax imposed in this section shall be collected from the service user by the person supplying the energy. The amount of tax collected in one month shall be remitted to the city clerk on or before the last day of the following month. [Ord. 639 N.S. § 1, 1969; Ord. 605 N.S., 1968. Formerly 6.10.030.2].

6.10.050 Gas users tax.

(a) There is hereby imposed a tax upon every person in the city using in the city gas which is delivered through mains or pipes. The tax imposed by this section shall be at the rate of five percent of the charges made for such gas and shall be paid by the person paying for such gas.

(b) There shall be excluded from the provisions of this chapter charges made for gas which is to be resold and delivered through mains or pipes; charges made for gas sold for use in the generation of electrical energy by a public utility or a governmental agency; and charges made by a gas and electric public utility for gas used and consumed by it in the conduct of its business.

(c) The tax imposed in this section shall be collected from the service user by the person selling the gas. The amount collected in one month shall be remitted to the city clerk on or before the last day of the following month. [Ord. 639 N.S. § 1, 1969; Ord. 605 N.S., 1968. Formerly 6.10.030.3].

6.10.060 Water users tax.

(a) There is hereby imposed a tax upon every person in the city using in the city water which is delivered through mains or pipes. The tax imposed by this section shall be at the rate of five percent of the charges made for such water and shall be paid by the person paying for such water.

(b) The tax imposed in this section shall be collected from the service user by the person selling the water. The amount collected in one month shall be remitted to the city clerk on or before the last day of the following month. [Ord. 639 N.S. § 1, 1969; Ord. 605 N.S., 1968. Formerly 6.10.030.4].

6.10.070 Cable television users tax.

(a) There is hereby imposed a tax upon every person in the city using cable television service. The tax imposed by this section shall be at the rate of five percent of the charges made for such service and shall be paid by the person paying for such service.

(b) The tax imposed in this section shall be collected from the service user by the person supplying such service. The amount of tax collected in one month shall be remitted to the city clerk on or before the last day of the following month. [Ord. 639 N.S. § 1, 1969; Ord. 605 N.S., 1968. Formerly 6.10.030.5].

6.10.080 Administrative regulations.

Notwithstanding the provisions in PGMC 6.10.030 through 6.10.070 for remittance to the city clerk of tax collections per month, the tax administrator may make special administrative regulations to vary the strict requirements of this chapter so that collections may be made in conformance with the special billing procedures of the operator involved so long as the overall result of the regulations results in a collection of the tax in conformance with the general purpose and scope of this chapter. [Ord. 605 N.S., 1968. Formerly 6.10.030.6].

6.10.090 Interest and penalty.

(a) Taxes collected from a service user which are not remitted to the city clerk on or before the due dates provided in this chapter are delinquent.

(b) Interest and penalties for delinquency in remittance of any tax collected shall be assessed as follows:

(1) Original Delinquency. Any operator who fails to remit any tax imposed by this chapter within the time required shall pay a penalty of 10 percent of the amount of the tax in addition to the amount of the tax.

(2) Continued Delinquency. Any operator who fails to remit any delinquent remittance on or before a period of 30 days following the date on which the remittance first became delinquent shall pay a second delinquency penalty of 10 percent of the amount of the tax in addition to the amount of the tax and the 10 percent penalty first imposed.

(3) Fraud. If the tax administrator determines that the nonpayment of any remittance due under this chapter is due to fraud, a penalty of 25 percent of the amount of the tax shall be added hereto in addition to the penalties stated in subsection (b)(1) and (2) of this section.

(4) Interest. In addition to the penalties imposed, any operator who fails to remit any tax imposed by this chapter shall pay interest at the rate of one-half of one percent per month or fraction thereof on the amount of the tax, exclusive of penalties, from the date on which the remittance first became delinquent until paid.

(5) Penalties Merged With Tax. Every penalty imposed and such interest as accrues under the provisions of this section shall become a part of the tax herein required to be remitted.

(c) Failure to pay any tax herein imposed, by the service user shall result in the following interest and penalties on the service user:

(1) Original Delinquency. Any service user who fails to pay any tax imposed by this chapter within 30 days of the date of the receipt of notice of the amount of tax due from the operator shall pay a penalty of 10 percent of the amount of the tax in addition to the amount of the tax.

(2) Continued Delinquency. Any service user who fails to pay any delinquent remittance on or before a period of 60 days of the date of the receipt of notice of the amount of tax due from the operator shall pay a second delinquency penalty of 10 percent of the amount of the tax in addition to the amount of the tax and 10 percent penalty first imposed.

(3) Interest and Collection Charge. In addition to the penalties imposed, any service user who fails to pay any tax imposed by this chapter shall pay interest at the rate of seven percent per year, exclusive of penalties, from the date on which the remittance first became delinquent until paid, and a collection charge of $10.00 for each delinquent account.

(4) Penalties Merged With Tax. Every penalty imposed herein and such interest as accrues under the provisions of this section shall become a part of the tax herein required to be paid.

(5) The penalties, interest, and collection charges imposed in subsection (c) of this section shall not be collected by the operator directly, but under action by the city to collect the amount due as set forth in PGMC 6.10.100. [Ord. 605 N.S., 1968. Formerly 6.10.040].

6.10.100 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 tax collected from a service user which has not been remitted to the city clerk 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. 605 N.S., 1968. Formerly 6.10.050].

6.10.110 Duty to collect – Procedures.

The duty to collect and remit the taxes imposed by this chapter shall be performed as follows:

(a) 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 practice. If the amount paid by a service user is less than the full amount of the charge and tax which has accrued for the billing period, a proportionate share of both the charge and the tax shall be deemed to have been paid.

(b) The duty to collect tax from a service user shall commence with the beginning of the first regular billing period applicable to that person which starts on or after the operative date 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. 605 N.S., 1968. Formerly 6.10.060].

6.10.120 Failure to collect and report tax – Determination of tax by tax administrator.

If any operator shall fail or refuse to collect the tax and to make, within the time provided in this chapter, any report and remittance of the tax or any portion thereof required by this chapter, the tax administrator shall proceed in such manner as he or she may deem best to obtain facts and information on which to base his or her estimate of the tax due. As soon as the tax administrator shall procure such facts and information as he or she is able to obtain upon which to base the assessment of any tax imposed by this chapter and payable by any operator who has failed or refused to collect the same and to make the report and remittance, he or she shall proceed to determine and assess against the operator the tax, interest and penalties provided for by this chapter. In case the determination is made, the tax administrator shall give a notice of the amount so assessed by serving it personally or by depositing it in the United States mail, postage prepaid, addressed to the operator so assessed at his or her last known place of address. The operator may within 10 days after the serving or mailing of the notice, make application in writing to the tax administrator for a hearing on the amount assessed. If application by the operator for a hearing is not made within the time prescribed, the tax, interest and penalties, if any, determined by the tax administrator shall become final and conclusive and immediately due and payable. If the application is made, the tax administrator shall give not less than five days’ written notice in the manner prescribed herein to the operator to show cause at a time and place fixed in the notice why the amount specified therein should not be fixed for the tax, interest and penalties. At the hearing, the operator may appear and offer evidence why the specified tax, interest and penalties should not be so fixed. After the hearing the tax administrator shall determine the proper tax to be remitted and shall thereafter give written notice to the person in the manner prescribed herein of the determination and the amount of the tax, interest and penalties. The amount determined to be due shall be payable after 15 days unless an appeal is taken as provided in PGMC 6.10.130. [Ord. 605 N.S., 1968. Formerly 6.10.070].

6.10.130 Appeal.

Any operator aggrieved by any decision of the tax administrator with respect to the amount of such tax, interest and penalties, if any, may appeal to the council by filing a notice of appeal with the city clerk within 15 days of the serving or mailing of the determination of tax due. The council shall fix a time and place for hearing such appeal, and the city clerk shall give notice in writing to the operator at his or her last known place of address. The findings of the council shall be final and conclusive and shall be served upon the appellant in the manner prescribed above for service of notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of notice. [Ord. 605 N.S., 1968. Formerly 6.10.080].

6.10.140 Records.

It shall be the duty of every operator liable for the collection and payment to the city of 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 or she may have been liable for the collection of and payment to the city, which records the tax administrator shall have the right to inspect at all reasonable times. [Ord. 605 N.S., 1968. Formerly 6.10.090].

6.10.150 Refunds.

(a) Filing Claim. Whenever the amount of any tax, interest or penalty has been overpaid or paid more than once or has been erroneously or illegally collected or received by the city under this chapter it may be refunded as provided in subsections (b) and (c) of this section provided a claim in writing therefor is filed with the tax administrator. The claim shall conform in all respects to the requirements set forth for claims against the city in Chapter 6.06 PGMC.

(b) Refund to Operator. An operator may claim a refund, or take as credit against taxes collected and remitted the amount overpaid, paid more than once or erroneously or illegally collected or received when it is established in a manner prescribed by the tax administrator that the person from whom the tax has been collected was not a service user; provided, however, that neither a refund nor a credit shall be allowed unless the amount of the tax so collected has been refunded to the service user.

(c) Refund to Service User. Any service user may obtain a refund of taxes overpaid or paid more than once or erroneously or illegally collected or received by the city by filing a claim in the manner provided in subsection (a) of this section; but only when the service user, having paid the tax to the operator, establishes to the satisfaction of the tax administrator that the service user has been unable to obtain a refund from the operator who collected the tax.

(d) Proof Required. No refund shall be paid under the provisions of this section unless the claimant establishes his or her right thereto by written records showing entitlement thereto. [Ord. 02-28 § 3, 2002; Ord. 605 N.S., 1968. Formerly 6.10.100].

6.10.160 Enforcement.

The city attorney may prosecute, pursuant to Chapter 1.16 PGMC:

(a) Any person violating any of the provisions of this chapter or any person willfully refusing to pay any tax required hereunder;

(b) Any operator required to collect a tax under the provisions of this chapter who fails to furnish any return required to be made, or who fails or refuses to furnish a supplemental return or other data required by the tax administrator, or who renders a false or fraudulent return or claim; and/or

(c) Any person required to make, render, sign or verify any report or claim who makes any false or fraudulent report or claim with intent to defeat or evade the determination of any amount due required by this chapter to be made. [Ord. 08-006 § 14, 2008; Ord. 605 N.S., 1968. Formerly 6.10.110].