CHAPTER 3.
TAXES

Sections:

Article 1.    Property Taxes

3-3.101    Assessment and Collection: Transfer to County

3-3.102    Assessment and Collection: Compensation to the County

Article 2.    Real Property Transfer Taxes

3-3.201    Title: Authority

3-3.202    Administration

3-3.203    Imposed: Rate

3-3.204    Payment

3-3.205    Exemptions: Debt Security Instruments

3-3.206    Exemptions: Governmental Agencies

3-3.207    Exemptions: Bankruptcies, Receiverships and Reorganizations

3-3.208    Exemptions: Securities and Exchange Commission Orders

3-3.209    Exemptions: Partnerships

3-3.210    Refunds: Claims

3-3.211    Operative Date

Article 3.    Sales and Use Taxes

3-3.301    Title

3-3.302    Rate

3-3.303    Operative Date

3-3.304    Purpose

3-3.305    Contract With the State Board of Equalization

3-3.306    Sales Taxes Imposed

3-3.307    Sales Taxes: Place of Sale Defined

3-3.308    Use Taxes Imposed

3-3.309    Adoption of State Law Provisions

3-3.310    Adoption of State Law Provisions: Limitations

3-3.311    Sellers’ Permits

3-3.312    Exclusions and Exemptions

3-3.313A    Exclusions and Exemptions

3-3.313B    Exclusions and Exemptions

3-3.314    Exclusions and Exemptions: Operative Dates

3-3.315    State Law Provisions: Amendments

3-3.316    Collection: Enjoining

Article 3A.    Transactions and Use Tax

3-3.350    Title

3-3.351    Operative Date

3-3.352    Purpose

3-3.353    Permissible Uses

3-3.354    Contract with State

3-3.355    Transactions Tax Rate

3-3.356    Place of Sale

3-3.357    Use Tax Rate

3-3.358    Adoption of Provisions of State Law

3-3.359    Limitations on Adoption of State Law and Collection of Use Taxes

3-3.360    Permit Not Required

3-3.361    Exemptions and Exclusions

3-3.362    Amendments

3-3.363    Enjoining Collection Forbidden

3-3.364    Citizen Oversight

3-3.365    Termination Date

Article 4.    Transient Occupancy Taxes

3-3.401    Title

3-3.402    Definitions

3-3.403    Taxes Imposed

3-3.404    Exemptions

3-3.404.5    Temporary Airline Exemption

3-3.405    Operators: Collection Duties

3-3.406    Operators: Registration

3-3.407    Reporting and Remitting

3-3.408    Penalties and Interest

3-3.409    Failure to Collect and Report Taxes: Assessments by Tax Administrator

3-3.410    Appeals

3-3.411    Records

3-3.412    Refunds

3-3.413    Actions to Collect

3-3.414    Revenues: Accounting

3-3.415    Violations: Penalties

Article 5    Utility Users’ Tax

3-3.501    Short Title

3-3.502    Definitions

3-3.503    Constitutional, Statutory, and Other Exemptions

3-3.504    Maximum Amount Paid

3-3.505    Communication Users’ Tax

3-3.506    Electricity Users’ Tax

3-3.507    Gas Users’ Tax

3-3.508    Collection of Tax from Service Users Receiving Direct Purchase of Gas or Electricity

3-3.509    Bundling Taxable Items with Nontaxable Items

3-3.510    Substantial Nexus/Minimum Contacts

3-3.511    Duty to Collect – Procedures

3-3.512    Collection Penalties – Service Suppliers

3-3.513    Actions to Collect

3-3.514    Deficiency Determination and Assessment – Tax Application Errors

3-3.515    Administrative Remedy – Nonpaying Service Users

3-3.516    Additional Powers and Duties of the Tax Administrator

3-3.517    Records

3-3.518    Refunds

3-3.519    Appeals

3-3.520    No Injunction/Writ of Mandate

3-3.521    Notice of Changes to Article

3-3.522    Future Amendment to Cited Statute

3-3.523    No Increase in Tax Percentage or Change in Methodology without Voter Approval

3-3.524    Independent Audit of Tax Collection, Exemption, Remittance, and Expenditure

3-3.525    Remedies Cumulative

3-3.526    Interaction with Prior Tax

Article 6.    Bay Street – Shellmound Street Financing District

3-3.601    Establishment of Bay Street – Shellmound Street Extension Assessment District Integrated Financing District

Article 7    Real Property Transfer Tax

3-3.701    Title and Purpose

3-3.702    Tax Imposed

3-3.703    Definitions

3-3.704    Person on Whom Tax Imposed

3-3.705    Exception: Instrument to Secure Debt

3-3.706    Exception: Instruments of United States, State, Territory or Political Subdivision, Etc.

3-3.707    Exception: Conveyances under Reorganization or Adjustment Plans

3-3.708    Exception: Orders of the Securities and Exchange Commission

3-3.709    Exception: Transfer of Certain Partnership Property

3-3.710    Exception: Deed in Lieu of Foreclosure

3-3.711    Exception: Transfer of Restricted Affordable Units

3-3.712    Administration of Tax

3-3.713    Due Dates, Delinquencies, Penalties, Interest, Administrative Charges, and Lien Release Recordation Fees

3-3.714    Declaration May Be Required

3-3.715    Determination of Deficiency

3-3.716    Notice of Determination

3-3.717    Manner of Giving Notice

3-3.718    Petition for Redetermination

3-3.719    Consideration of Petition – Hearing

3-3.720    Determination of Petition

3-3.721    Finality of Determination

3-3.722    Tax a Debt

3-3.723    Refunds

3-3.724    Tax a Lien

3-3.725    Notice of Hearing on Lien

3-3.726    Collection of Delinquent Taxes by Special Tax Roll Assessment

Article 1.    Property Taxes

3-3.101 Assessment and Collection: Transfer to County.

Pursuant to the provisions of Sections 51500 through 51521 of the Government Code of the State, the Council hereby transfers the assessment and tax collection duties of the City Assessor and Tax Collector to the Assessor and Tax Collector of the County.

(Sec. 1, Ord. 371, thereafter codified in Sec. 25.1, E.T.C.)

3-3.102 Assessment and Collection: Compensation to the County.

The Council is hereby authorized to enter into agreement with the Board of Supervisors of the County for the amount of compensation to be charged by and paid to the County for the performance of the services of assessing and collecting taxes for the City in amounts not exceeding the amounts provided for by law.

(Sec. 2, Ord. 371, thereafter codified in Sec. 25.2, E.T.C.)

Article 2.    Real Property Transfer Taxes

3-3.201 Title: Authority.

This article shall be known as the “Real Property Transfer Tax Law of the City of Emeryville.” It is adopted pursuant to the provisions of Part 6.7 (commencing with Section 11901) of Division 2 of the Revenue and Taxation Code of the State.

(Sec. 25.20, E.T.C., as added by Ord. 67-012)

3-3.202 Administration.

The County Recorder shall administer the provisions of this article in conformity with the provisions of Part 6.7 of Division 2 of the Revenue and Taxation Code of the State and the provisions of any County ordinance adopted pursuant thereto.

(Sec. 25.28, E.T.C., as added by Ord. 67-012)

3-3.203 Imposed: Rate.

There is hereby imposed on each deed, instrument, or writing by which any lands, tenements, or other realty sold within the City shall be granted, assigned, transferred, or otherwise conveyed to, or vested in, the purchaser or any other person, by his direction, when the consideration or value of the interest or property conveyed (exclusive of the value of any lien or encumbrance remaining thereon at the time of the sale) exceeds one hundred dollars ($100.00), a tax at the rate of twenty-seven and one-half cents ($0.275) for each five hundred dollars ($500.00) or fractional part thereof.

(Sec. 25.21, E.T.C., as added by Ord. 67-012)

3-3.204 Payment.

The tax imposed by the provisions of Section 3-3.203 of this article shall be paid by any person who makes, signs or issues any document or instrument subject to the tax or for whose use or benefit such document is made, signed or issued.

(Sec. 25.22, E.T.C., as added by Ord. 67-012)

3-3.205 Exemptions: Debt Security Instruments.

The tax imposed by the provisions of this article shall not apply to any instrument in writing given to secure a debt.

(Sec. 25.23, E.T.C., as added by Ord. 67-012)

3-3.206 Exemptions: Governmental Agencies.

The United States, or any agency or instrumentality thereof, any state or territory or political subdivision thereof, or the District of Columbia, shall not be liable for any tax imposed by the provisions of this article with respect to any deed, instrument, or writing to which such governmental agency is a party, but the tax may be collected by assessment from any other party liable therefor.

(Sec. 25.24, E.T.C., as added by Ord. 67-012)

3-3.207 Exemptions: Bankruptcies, Receiverships and Reorganizations.

The tax imposed by the provisions of this article shall not apply to the making, delivering or filing of conveyances to make effective any plan of reorganization or adjustment:

(a)    Confirmed under the Federal Bankruptcy Act, as amended;

(b)    Approved in an equity receivership proceeding in a court involving a railroad corporation, as defined in subsection (m) of Section 205 of Title 11 of the United States Code, as amended;

(c)    Approved in an equity receivership proceeding in a court involving a corporation, as defined in subsection (3) of Section 506 of Title 11 of the United States Code, as amended; or

(d)    Whereby a mere change in identity, form or place of organization is effected.

The provisions of this section shall only apply if the making, delivery or filing of instruments of transfer or conveyances occurs within five (5) years after the date of such confirmation, approval, or change.

(Sec. 25.25, E.T.C., as added by Ord. 67-012)

3-3.208 Exemptions: Securities and Exchange Commission Orders.

The tax imposed by the provisions of this article shall not apply to the making or delivery of conveyances to make effective any order of the Securities and Exchange Commission, as defined in subsection (a) of Section 1083 of the Internal Revenue Code of 1954, but only if:

(a)    The order of the Securities and Exchange Commission in obedience to which such conveyance is made recites that such conveyance is necessary or appropriate to effectuate the provisions of Section 79k of Title 15 of the United States Code relating to the Public Utility Holding Company Act of 1935;

(b)    Such order specifies the property which is ordered to be conveyed; and

(c)    Such conveyance is made in obedience to such order.

(Sec. 25.26, E.T.C., as added by Ord. 67-012)

3-3.209 Exemptions: Partnerships.

(a)    In the case of any realty held by a partnership, no tax shall be imposed pursuant to the provisions of this article by reason of any transfer of an interest in a partnership or otherwise if:

(1)    Such partnership (or another partnership) is considered a continuing partnership within the meaning of the provisions of Section 708 of the Internal Revenue Code of 1954; and

(2)    Such continuing partnership continues to hold the realty concerned.

(b)    If there is a termination of any partnership within the meaning of the provisions of Section 708 of the Internal Revenue Code of 1954, for the purposes of this article such partnership shall be treated as having executed an instrument whereby there was conveyed, for fair market value (exclusive of the value of any lien or encumbrance remaining thereon), all realty held by such partnership at the time of such termination.

(c)    No more than one (1) tax shall be imposed by the provisions of this article by reason of a termination described in subsection (b) of this section, and any transfer pursuant thereto, with respect to the realty held by such partnership at the time of such termination.

(Sec. 25.27, E.T.C., as added by Ord. 67-012)

3-3.210 Refunds: Claims.

Claims for the refund of the taxes imposed by the provisions of this article shall be governed by the provisions of Chapter 5 (commencing with Section 5096) of Part 9 of Division 1 of the Revenue and Taxation Code of the State.

(Sec. 25.29, E.T.C., as added by Ord. 67-012)

3-3.211 Operative Date.

The provisions of this article shall become operative upon the operative date of any ordinance adopted by the County pursuant to the provisions of Part 6.7 (commencing with Section 11901) of Division 2 of the Revenue and Taxation Code of the State, or on December 18, 1967, whichever is later.

(Sec. 25.30, E.T.C., as added by Ord. 67-012)

Article 3.    Sales and Use Taxes

3-3.301 Title.

This article shall be known as the “Uniform Local Sales and Use Tax Law of the City of Emeryville.”

(Sec. 1, Ord. 73-012)

3-3.302 Rate.

The rate of the sales tax and use tax imposed by the provisions of this article shall be ninety-five one-hundredths of one percent (0.95%).

(Sec. 2, Ord. 73-012)

3-3.303 Operative Date.

The provisions of this article shall be operative on January 1, 1974.

(Sec. 3, Ord. 73-012)

3-3.304 Purpose.

The Council hereby declares that the provisions of this article are adopted to achieve the following, among other, purposes and directs that the provisions of this article be interpreted in order to accomplish those purposes:

(a)    To adopt a sales and use tax law which complies with the requirements and limitations set forth in Part 1.5 of Division 2 of the Revenue and Taxation Code of the State;

(b)    To adopt a sales and use tax law which incorporates provisions identical to those of the Sales and Use Tax Law of the State insofar as those provisions are not inconsistent with the requirements and limitations set forth in Part 1.5 of Division 2 of the Revenue and Taxation Code of the State;

(c)    To adopt a sales and use tax law which imposes a tax and provides a measure therefor that can be administered and collected by the State Board of Equalization in a manner that adapts itself as fully as practicable to, and requires the least possible deviation from, the existing statutory and administrative procedures followed by the State Board of Equalization in administering and collecting the sales and use taxes of the State; and

(d)    To adopt a sales and use tax law which can be administered in a manner that will, to the degree possible consistent with the provisions of Part 1.5 of Division 2 of the Revenue and Taxation Code of the State, minimize the cost of collecting City sales and use taxes and at the same time minimize the burden of recordkeeping upon persons subject to taxation under the provisions of this article.

(Sec. 4, Ord. 73-012)

3-3.305 Contract with the State Board of Equalization.

Prior to the operative date of this article, the City shall contract with the State Board of Equalization to perform all the functions incident to the administration and operation of this sales and use tax law. If the City shall not have contracted with the State Board of Equalization prior to such operative date, the City shall nevertheless so contract, and, in such a case, the operative date shall be the first day of the first calendar quarter following the execution of such contract rather than the first day of the first calendar quarter following the adoption of this article.

(Sec. 5, Ord. 73-012)

3-3.306 Sales Taxes Imposed.

For the privilege of selling tangible personal property at retail, a tax is hereby imposed upon all retailers in the City, at the rate set forth in Section 3-3.302 of this article, of the gross receipts of the retailer from the sale of all tangible personal property sold at retail in the City on and after the operative date of this article.

(Sec. 6, Ord. 73-012)

3-3.307 Sales Taxes: Place of Sale Defined.

For the purposes of this article, all retail sales are consummated at the place of business of the retailer, unless the tangible personal property sold is delivered by the retailer or his agent to an out-of-state destination or to a common carrier for delivery to an out-of-state destination. The gross receipts from such sales shall include delivery charges, when such charges are subject to the State sales and use tax, regardless of the place to which delivery is made. In the event a retailer has no permanent place of business in the State or has more than one place of business, the place at which the retail sales are consummated shall be determined under rules and regulations to be prescribed and adopted by the State Board of Equalization.

(Sec. 7, Ord. 73-012)

3-3.308 Use Taxes Imposed.

An excise tax is hereby imposed on the storage, use, or other consumption in the City of tangible personal property purchased from any retailer on and after the operative date of this article for storage, use, or other consumption in the City at the rate set forth in Section 3-3.302 of this article of the sales price of the property. The sales price shall include delivery charges when such charges are subject to the State sales or use tax, regardless of the place to which delivery is made.

(Sec. 8, Ord. 73-012)

3-3.309 Adoption of State Law Provisions.

Except as otherwise provided in this article, and except insofar as they are inconsistent with the provisions of Part 1.5 of Division 2 of the Revenue and Taxation Code of the State, all of the provisions of Part 1 of Division 2 of said Code are hereby adopted and made a part of this article as though fully set forth in this article.

(Sec. 9, Ord. 73-012)

3-3.310 Adoption of State Law Provisions: Limitations.

In adopting the provisions of Part 1 of Division 2 of the Revenue and Taxation Code of the State, wherever the State is named or referred to as the taxing agency, the name of the City shall be substituted therefor. Such substitution, however, shall not be made when the word “State” is used as part of the title of the State Controller, the State Treasurer, the State Board of Control, the State Board of Equalization, the State Treasury, or the Constitution of the State. Such substitution shall not be made when the result of that substitution would require action to be taken by or against the City, or any agency thereof, rather than by or against the State Board of Equalization, in performing the functions incident to the administration or operation of the provisions of this article. Such substitution shall not be made in those sections, including, but not necessarily limited to, sections referring to the exterior boundaries of the State, where the result of the substitution would be to provide an exemption from this tax with respect to certain sales, storage, use, or other consumption of tangible personal property which would not otherwise be exempt from this tax while such sales, storage, use, or other consumption remains subject to tax by the State under the provisions of Part 1 of Division 2 of said Code, or to impose this tax with respect to certain sales, storage, use or other consumption of tangible personal property which would not be subject to tax by the State under the said provisions of said Code. Such substitution shall not be made in Sections 6701, 6702 (except in the last sentence thereof), 6711, 6715, 6737, 6797, or 6828 of said Code. Such substitution shall not be made for the word “State” in the phrase “retailer engaged in business in this State” in Section 6203 of said Code or in the definition of that phrase in said Section 6203.

(Sec. 10, Ord. 73-012)

3-3.311 Sellers’ Permits.

If a seller’s permit has been issued to a retailer pursuant to the provisions of Section 6067 of the Revenue and Taxation Code of the State, an additional seller’s permit shall not be required by the provisions of this article.

(Sec. 11, Ord. 73-012)

3-3.312 Exclusions and Exemptions.

There shall be excluded from the measure of tax:

(a)    The amount of any sales or use tax imposed by the State upon a retailer or consumer;

(b)    The storage, use, or other consumption of tangible personal property, the gross receipts from the sale of which have been subject to sales tax under a sales and use tax ordinance enacted in accordance with the provisions of Part 1.5 of Division 2 of the Revenue and Taxation Code of the State by any city and county, county, or city in the State;

(c)    The gross receipts from sales to, and the storage, use, or other consumption of property purchased by, operators of common carriers and waterborne vessels to be used or consumed in the operation of such common carriers or waterborne vessels principally outside the City; and

(d)    The storage or use of tangible personal property in the transportation or transmission of persons, property, or communications, or in the generation, transmission, or distribution of electricity, or in the manufacture, transmission, or distribution of gas in intrastate, interstate, or foreign commerce by public utilities which are regulated by the Public Utilities Commission of the State.

(Sec. 12, Ord. 73-012)

3-3.313A Exclusions and Exemptions.

(a)    The amount subject to tax shall not include any sales or use tax imposed by the State of California upon a retailer or consumer.

(b)    The storage, use, or other consumption of tangible personal property, the gross receipts from the sale of which have been subject to tax under a sales and use tax ordinance enacted in accordance with Part 1.5 of Division 2 of the Revenue and Taxation Code by any city and county, county, or city, in this State shall be exempt from the tax due under this article.

(c)    There are exempted from the computation of the amount of the sales tax the gross receipts from the sale of tangible personal property to operators of aircraft to be used or consumed principally outside the city in which the sale is made and directly and exclusively in the use of such aircraft as common carriers of persons or property under the authority of the laws of this State, the United States, or any foreign government.

(d)    In addition to the exemptions provided in Sections 6366 and 6366.1 of the Revenue and Taxation Code, the storage, use, or other consumption of tangible personal property purchased by operators of aircraft and used or consumed by such operators directly and exclusively in the use of such aircraft as common carriers of persons or property for hire or compensation under a certificate of public convenience and necessity issued pursuant to the laws of this State, the United States, or any foreign government is exempted from the use tax.

(Sec. 13, Ord. 73-012, as amended by Sec. 1, Ord. 83-016)

3-3.313B Exclusions and Exemptions.

(a)    The amount subject to tax shall not include any sales or use tax imposed by the State of California upon a retailer or consumer.

(b)    The storage, use or other consumption of tangible personal property, the gross receipts from the sale of which have been subject to tax under a sales and use tax ordinance enacted in accordance with Part 1.5 of Division 2 of the Revenue and Taxation Code by any city and county, county, or city, in this State shall be exempt from the tax due under this article.

(c)    There are exempted from the computation of the amount of the sales tax the gross receipts from the sale of tangible personal property to operators of waterborne vessels to be used or consumed principally outside the city in which the sale is made and directly and exclusively in the carriage of persons or property in such vessels for commercial purposes.

(d)    The storage, use, or other consumption of tangible personal property purchased by operators of waterborne vessels and used or consumed by such operators directly and exclusively in the carriage of persons or property of such vessels for commercial purposes is exempted from the use tax.

(e)    There are exempted from the computation of the amount of the sales tax the gross receipts from the sale of tangible personal property to operators of aircraft to be used or consumed principally outside the city in which the sale is made and directly and exclusively in the use of such aircraft as common carriers of persons or property under the authority of the laws of this State, the United States, or any foreign government.

(f)    In addition to the exemptions provided in Sections 6366 and 6366.1 of the Revenue and Taxation Code, the storage, use, or other consumption of tangible personal property purchased by operators of aircraft and used or consumed by such operators directly and exclusively in the use of such aircraft as common carriers of persons or property for hire or compensation under a certificate of public convenience and necessity issued pursuant to the laws of this State, the United States, or any foreign government is exempted from the use tax.

(Sec. 13, Ord. 73-012, as amended by Sec. 2, Ord. 83-016)

3-3.314 Exclusions and Exemptions: Operative Dates.

(a)    Section 3-3.313A shall be operative January 1, 1984.

(b)    Section 3-3.313B shall be operative on the operative date of any act of the Legislature of the State of California which amends Section 7202 of the Revenue and Taxation Code or which repeals and reenacts Section 7202 of the Revenue and Taxation Code to provide an exemption from city sales and use taxes for operators of waterborne vessels in the same, or substantially the same, language as that existing in subdivisions (i)(7) and (i)(8) of Section 7202 as those subdivisions read on October 1, 1983.

(Sec. 14, Ord. 73-012, as amended by Secs. 3, 4, Ord. 83-016)

3-3.315 State Law Provisions: Amendments.

All subsequent amendments of the Revenue and Taxation Code of the State, which amendments relate to the sales and use tax and which are not inconsistent with the provisions of Part 1.5 of Division 2 of said Code, shall automatically become a part of this article.

(Sec. 15, Ord. 73-012)

3-3.316 Collection: Enjoining.

No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action, or proceeding in any court against the State or the City, or against any officer of the State or the City, to prevent or enjoin the collection of any tax or any amount of tax required to be collected under this article or Part 1.5 of Division 2 of the Revenue and Taxation Code of the State.

(Sec. 16, Ord. 73-012)

Article 3A.    Transactions and Use Tax

3-3.350 Title.

This article shall be known as the “City of Emeryville Transactions and Use Tax Ordinance.” The City of Emeryville hereinafter shall be called “City.” This article shall be applicable in the incorporated territory of the City.

(Sec. 1, Ord. 20-003, eff. April 7, 2020)

3-3.351 Operative Date.

“Operative date” means the first day of the first calendar quarter commencing more than one hundred ten (110) days after the adoption of the ordinance codified in this article, the date of such adoption being as set forth below.

(Sec. 2, Ord. 20-003, eff. April 7, 2020)

3-3.352 Purpose.

The ordinance codified in this article is adopted to achieve the following, among other purposes, and directs that the provisions hereof be interpreted in order to accomplish those purposes:

(a)    To impose a retail transactions and use tax in accordance with the provisions of Part 1.6 (commencing with Section 7251) of Division 2 of the Revenue and Taxation Code and Section 7285.91 of Part 1.7 of Division 2 which authorizes the City to adopt this tax ordinance which shall be operative if two-thirds (2/3) of the electors voting on the measure vote to approve the imposition of the tax at an election called for that purpose.

(b)    To adopt a retail transactions and use tax ordinance that incorporates provisions identical to those of the Sales and Use Tax Law of the State of California insofar as those provisions are not inconsistent with the requirements and limitations contained in Part 1.6 of Division 2 of the Revenue and Taxation Code.

(c)    To adopt a retail transactions and use tax ordinance that imposes a tax and provides a measure therefor that can be administered and collected by the California Department of Tax and Fee Administration in a manner that adapts itself as fully as practicable to, and requires the least possible deviation from, the existing statutory and administrative procedures followed by the California Department of Tax and Fee Administration in administering and collecting the California State sales and use taxes.

(d)    To adopt a retail transactions and use tax ordinance that can be administered in a manner that will be, to the greatest degree possible, consistent with the provisions of Part 1.6 of Division 2 of the Revenue and Taxation Code, minimize the cost of collecting the transactions and use taxes, and at the same time, minimize the burden of record keeping upon persons subject to taxation under the provisions of this article.

(Sec. 3, Ord. 20-003, eff. April 7, 2020)

3-3.353 Permissible Uses.

(a)    The revenues of the tax shall only be used to fund the following uses and purposes. Funding with tax revenues of any other uses and purposes is prohibited.

(1)    Additional firefighter positions.

(2)    Additional police officer positions.

(3)    Additional public safety support positions.

(4)    Additional code enforcement positions.

(5)    Additional engineering positions.

(6)    Funding the Emeryville Child Development Center and/or capital improvement projects.

(b)    Revenues from this measure may not be sufficient to fund all purposes described herein. Accordingly, the City Council is authorized to determine the funding priorities as part of its regular budget process in order to ensure that the costs of the services funded by revenues from this measure do not exceed the actual revenues received.

(c)    The general fund will not be used to supplement funding if the costs of the services to be funded by the measure exceed the revenues generated by the measure. If that occurs, the Council will develop an expenditure plan for the tax revenues such that sufficient revenues are available to sustain those services listed in the ordinance and approved by the voters.

(Sec. 4, Ord. 20-003, eff. April 7, 2020)

3-3.354 Contract with State.

Prior to the operative date, the City shall contract with the California Department of Tax and Fee Administration to perform all functions incident to the administration and operation of this transactions and use tax ordinance; provided, that if the City shall not have contracted with the California Department of Tax and Fee Administration prior to the operative date, it shall nevertheless so contract and in such a case the operative date shall be the first day of the first calendar quarter following the execution of such a contract.

(Sec. 5, Ord. 20-003, eff. April 7, 2020)

3-3.355 Transactions Tax Rate.

For the privilege of selling tangible personal property at retail, a tax is hereby imposed upon all retailers in the incorporated territory of the City at the rate of one-quarter percent (0.25%) of the gross receipts of any retailer from the sale of all tangible personal property sold at retail in said territory on and after the operative date of the ordinance codified in this article.

(Sec. 6, Ord. 20-003, eff. April 7, 2020)

3-3.356 Place of Sale.

For the purposes of this article, all retail sales are consummated at the place of business of the retailer unless the tangible personal property sold is delivered by the retailer or his agent to an out-of-state destination or to a common carrier for delivery to an out-of-state destination. The gross receipts from such sales shall include delivery charges, when such charges are subject to the State sales and use tax, regardless of the place to which delivery is made. In the event a retailer has no permanent place of business in the State or has more than one (1) place of business, the place or places at which the retail sales are consummated shall be determined under rules and regulations to be prescribed and adopted by the California Department of Tax and Fee Administration.

(Sec. 7, Ord. 20-003, eff. April 7, 2020)

3-3.357 Use Tax Rate.

An excise tax is hereby imposed on the storage, use or other consumption in the City of tangible personal property purchased from any retailer on and after the operative date of the ordinance codified in this article for storage, use or other consumption in said territory at the rate of one-quarter percent (0.25%) of the sales price of the property. The sales price shall include delivery charges when such charges are subject to state sales or use tax regardless of the place to which delivery is made.

(Sec. 8, Ord. 20-003, eff. April 7, 2020)

3-3.358 Adoption of Provisions of State Law.

Except as otherwise provided in this article and except insofar as they are inconsistent with the provisions of Part 1.6 of Division 2 of the Revenue and Taxation Code, all of the provisions of Part 1 (commencing with Section 6001) of Division 2 of the Revenue and Taxation Code are hereby adopted and made a part of this article as though fully set forth herein.

(Sec. 9, Ord. 20-003, eff. April 7, 2020)

3-3.359 Limitations on Adoption of State Law and Collection of Use Taxes.

In adopting the provisions of Part 1 of Division 2 of the Revenue and Taxation Code:

(a)    Wherever the State of California is named or referred to as the taxing agency, the name of this City shall be substituted therefor. However, the substitution shall not be made when:

(1)    The word “State” is used as a part of the title of the State Controller, State Treasurer, State Treasury, or the Constitution of the State of California.

(2)    The result of that substitution would require action to be taken by or against this City or any agency, officer, or employee thereof rather than by or against the California Department of Tax and Fee Administration in performing the functions incident to the administration or operation of this article.

(3)    In those sections, including, but not necessarily limited to, sections referring to the exterior boundaries of the State of California, where the result of the substitution would be to:

(i)    Provide an exemption from this tax with respect to certain sales, storage, use or other consumption of tangible personal property which would not otherwise be exempt from this tax while such sales, storage, use or other consumption remains subject to tax by the State under the provisions of Part 1 of Division 2 of the Revenue and Taxation Code; or

(ii)    Impose this tax with respect to certain sales, storage, use or other consumption of tangible personal property which would not be subject to tax by the State under the said provision of that code.

(4)    In Sections 6701, 6702 (except in the last sentence thereof), 6711, 6715, 6737, 6797 or 6828 of the Revenue and Taxation Code.

(b)    The word “City” shall be substituted for the word “State” in the phrase “retailer engaged in business in this State” in Section 6203 and in the definition of that phrase in Section 6203.

(1)    “A retailer engaged in business in the District” shall also include any retailer that, in the preceding calendar year or the current calendar year, has total combined sales of tangible personal property in this State or for delivery in the State by the retailer and all persons related to the retailer that exceed five hundred thousand dollars ($500,000.00). For purposes of this section, a person is related to another person if both persons are related to each other pursuant to Section 267(b) of Title 26 of the United States Code and the regulations thereunder.

(Sec. 10, Ord. 20-003, eff. April 7, 2020)

3-3.360 Permit Not Required.

If a seller’s permit has been issued to a retailer under Section 6067 of the Revenue and Taxation Code, an additional transactor’s permit shall not be required by this article.

(Sec. 11, Ord. 20-003, eff. April 7, 2020)

3-3.361 Exemptions and Exclusions.

(a)    There shall be excluded from the measure of the transactions tax and the use tax the amount of any sales tax or use tax imposed by the State of California or by any city, city and county, or county pursuant to the Bradley-Burns Uniform Local Sales and Use Tax Law or the amount of any State-administered transactions or use tax.

(b)    There are exempted from the computation of the amount of transactions tax the gross receipts from:

(1)    Sales of tangible personal property, other than fuel or petroleum products, to operators of aircraft to be used or consumed principally outside the county in which the sale is made and directly and exclusively in the use of such aircraft as common carriers of persons or property under the authority of the laws of this State, the United States, or any foreign government.

(2)    Sales of property to be used outside the City which is shipped to a point outside the City, pursuant to the contract of sale, by delivery to such point by the retailer or his agent, or by delivery by the retailer to a carrier for shipment to a consignee at such point. For the purposes of this subsection, delivery to a point outside the City shall be satisfied:

(i)    With respect to vehicles (other than commercial vehicles) subject to registration pursuant to Chapter 1 (commencing with Section 4000) of Division 3 of the Vehicle Code, aircraft licensed in compliance with Section 21411 of the Public Utilities Code, and undocumented vessels registered under Division 3.5 (commencing with Section 9840) of the Vehicle Code by registration to an out-of-City address and by a declaration under penalty of perjury, signed by the buyer, stating that such address is, in fact, his or her principal place of residence; and

(ii)    With respect to commercial vehicles, by registration to a place of business out-of-City and declaration under penalty of perjury, signed by the buyer, that the vehicle will be operated from that address.

(3)    The sale of tangible personal property if the seller is obligated to furnish the property for a fixed price pursuant to a contract entered into prior to the operative date of the ordinance codified in this article.

(4)    A lease of tangible personal property which is a continuing sale of such property, for any period of time for which the lessor is obligated to lease the property for an amount fixed by the lease prior to the operative date of the ordinance codified in this article.

(5)    For the purposes of subsections (b)(3) and (4) of this section, the sale or lease of tangible personal property shall be deemed not to be obligated pursuant to a contract or lease for any period of time for which any party to the contract or lease has the unconditional right to terminate the contract or lease upon notice, whether or not such right is exercised.

(c)    There is exempted from the use tax imposed by this article the storage, use or other consumption in this City of tangible personal property:

(1)    The gross receipts from the sale of which have been subject to a transactions tax under any State-administered transactions and use tax ordinance.

(2)    Other than fuel or petroleum products purchased by operators of aircraft and used or consumed by such operators directly and exclusively in the use of such aircraft as common carriers of persons or property for hire or compensation under a certificate of public convenience and necessity issued pursuant to the laws of this State, the United States, or any foreign government. This exemption is in addition to the exemptions provided in Sections 6366 and 6366.1 of the Revenue and Taxation Code of the State of California.

(3)    If the purchaser is obligated to purchase the property for a fixed price pursuant to a contract entered into prior to the operative date of the ordinance codified in this article.

(4)    If the possession of, or the exercise of any right or power over, the tangible personal property arises under a lease which is a continuing purchase of such property for any period of time for which the lessee is obligated to lease the property for an amount fixed by a lease prior to the operative date of the ordinance codified in this article.

(5)    For the purposes of subsections (c)(3) and (4) of this section, storage, use, or other consumption, or possession of, or exercise of any right or power over, tangible personal property shall be deemed not to be obligated pursuant to a contract or lease for any period of time for which any party to the contract or lease has the unconditional right to terminate the contract or lease upon notice, whether or not such right is exercised.

(6)    Except as provided in subsection (c)(7) of this section, a retailer engaged in business in the City shall not be required to collect use tax from the purchaser of tangible personal property, unless the retailer ships or delivers the property into the City or participates within the City in making the sale of the property, including, but not limited to, soliciting or receiving the order, either directly or indirectly, at a place of business of the retailer in the City or through any representative, agent, canvasser, solicitor, subsidiary, or person in the City under the authority of the retailer.

(7)    “A retailer engaged in business in the City” shall also include any retailer of any of the following: vehicles subject to registration pursuant to Chapter 1 (commencing with Section 4000) of Division 3 of the Vehicle Code, aircraft licensed in compliance with Section 21411 of the Public Utilities Code, or undocumented vessels registered under Division 3.5 (commencing with Section 9840) of the Vehicle Code. That retailer shall be required to collect use tax from any purchaser who registers or licenses the vehicle, vessel, or aircraft at an address in the City.

(d)    Any person subject to use tax under this article may credit against that tax any transactions tax or reimbursement for transactions tax paid to a district imposing, or retailer liable for, a transactions tax pursuant to Part 1.6 of Division 2 of the Revenue and Taxation Code with respect to the sale to the person of the property the storage, use or other consumption of which is subject to the use tax.

(Sec. 12, Ord. 20-003, eff. April 7, 2020)

3-3.362 Amendments.

All amendments subsequent to the effective date of the ordinance codified in this article to Part 1 of Division 2 of the Revenue and Taxation Code relating to sales and use taxes and which are not inconsistent with Part 1.6 and Part 1.7 of Division 2 of the Revenue and Taxation Code, and all amendments to Part 1.6 and Part 1.7 of Division 2 of the Revenue and Taxation Code, shall automatically become a part of this article; provided, however, that no such amendment shall operate so as to affect the rate of tax imposed by this article.

(Sec. 13, Ord. 20-003, eff. April 7, 2020)

3-3.363 Enjoining Collection Forbidden.

No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action or proceeding in any court against the State or the City, or against any officer of the State or the City, to prevent or enjoin the collection under this article, or Part 1.6 of Division 2 of the Revenue and Taxation Code, of any tax or any amount of tax required to be collected.

(Sec. 14, Ord. 20-003, eff. April 7, 2020)

3-3.364 Citizen Oversight.

No later than June 30, 2020, the City Council shall, under the authority of this article, assign oversight duties to the existing Budget Advisory Committee. The assignment of the duties shall be established by a resolution of the City Council. All meetings of the Budget Advisory Committee in its role as the oversight body shall comply with the provisions of the Ralph M. Brown Act (Government Code Section 34950 et seq.) as it does currently.

(Sec. 16, Ord. 20-003, eff. April 7, 2020)

3-3.365 Termination Date.

The authority to levy the tax imposed by this article shall expire when repealed by the voters.

(Sec. 18, Ord. 20-003, eff. April 7, 2020)

Article 4.    Transient Occupancy Taxes

3-3.401 Title.

This article shall be known as the “Uniform Transient Occupancy Tax Law of the City of Emeryville.”

(Sec. 25.50, E.T.C., as added by Ord. 72-09)

3-3.402 Definitions.

For the purposes of this article, unless otherwise apparent from the context, certain words and phrases used in this article are defined as follows:

(a)    “Hotel” shall mean any structure, or any portion of any structure, which is occupied, or intended or designed for occupancy, by transients for dwelling, lodging, or sleeping purposes and shall include any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodging house, roominghouse, apartment house, dormitory, public or private club, mobile home, or house trailer at a fixed location, or other similar structure, or portion thereof.

(b)    “Occupancy” shall mean the use or possession, or the right to the use or possession, of any room, or portion thereof, in any hotel for dwelling, lodging, or sleeping purposes.

(c)    “Operator” shall mean the person who is the proprietor of the hotel, whether in the capacity of owner, lessee, sublessee, mortgagee in possession, licensee, or any other capacity. Where the operator performs his functions through a managing agent of any type or character other than an employee, the managing agent shall also be deemed an operator for the purposes of this article and shall have the same duties and liabilities as his principal. Compliance with the provisions of this article by either the principal or the managing agent, however, shall be considered to be compliance by both.

(d)    “Person” shall mean any individual, firm, partnership, joint venture, association, social club, fraternal organization, joint stock company, corporation, estate, trust, business trust, receiver, trustee, syndicate, or any other group or combination acting as a unit.

(e)    “Rent” shall mean the consideration charged, whether or not received, for the occupancy of space in a hotel valued in money, whether received in money, goods, labor, or otherwise, including all receipts, cash, credits, property, and services of any kind or nature, without any deduction therefrom whatsoever.

(f)    “Tax Administrator” shall mean the City Treasurer.

(g)    “Transient” shall mean (i) any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, or other agreement for a period of thirty (30) consecutive calendar days or less, counting portions of calendar days as full days; or (ii) any individual who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, or other agreement between an operator and a person other than the individual for a period of thirty (30) consecutive calendar days or less, counting portions of calendar days as full days Any such person so occupying space in a hotel shall be deemed to be transient until the period of thirty (30) days has expired, unless there is an agreement in writing approved by the City of Emeryville between the operator and the person providing for a longer period of occupancy, in which case the person shall be deemed to be transient only for the first thirty (30) days of such period of occupancy.

(Sec. 25.51, E.T.C., as added by Ord. 72-09; Sec. 2, Ord. 00-006, eff. Aug. 31, 2000; Sec. 3,

Ord. 02-016, eff. Nov. 1, 2002; Sec. 3, Ord. 03-004, eff. May 15, 2003)

3-3.403 Taxes Imposed.

For the privilege of occupancy in any hotel, each transient shall be subject to and shall pay a tax in the amount of twelve percent (12%) of the rent charged by the operator.

(Sec. 25.52, E.T.C., as added by Ord. 72-09, as amended by Ord. 83-015; Sec. 2, Ord. 89-013, eff. Sept. 1, 1989; Sec. 2, Ord. 92-04, eff. Feb. 20, 1992; Sec 2, Ord. 01-007, eff. Nov. 6, 2001)

3-3.404 Exemptions.

No tax shall be imposed upon:

(a)    Any person as to whom, or any occupancy as to which, it is beyond the power of the City to impose the tax provided for in this article; or

(b)    Any officer or employee of a foreign government, which officer or employee is exempt by reason of express provision of Federal laws or international treaties.

No exemption shall be granted except upon a claim therefor made at the time the rent is collected and under penalty of perjury upon a form prescribed by the Tax Administrator.

(Sec. 25.53, E.T.C., as added by Ord. 72-09)

3-3.404.5 Temporary Airline Exemption.

No tax shall be imposed pursuant to this article after the first thirty (30) days of occupancy upon a person, who is a common carrier by air certified and licensed by the Federal Aviation Administration, whose employees exercise occupancy or are entitled to occupancy by reason of concession, permit, right of access, license, or other agreement entered into between an operator and such person after April 1, 2003, provided said person pays the rent on behalf of their employees directly to the operator. No more than twenty five percent (25%) of the rooms in the hotel of the operator may be subject to such an agreement with a common carrier by air at any one time. All such agreements entered into by an operator shall be filed with the Tax Administrator within five (5) business days after execution. This section and the tax exemption it provides shall automatically expire, terminate and be of no further force or effect as of June 30, 2006.

(Sec. 2, Ord. 03-004, eff. May 15, 2003; Sec. 2, Ord. 05-007, eff. Aug. 18, 2005)

3-3.405 Operators: Collection Duties.

Each operator shall collect the tax imposed by the provisions of this article to the same extent and at the same time as the rent is collected from every transient. The amount of tax shall be separately stated from the amount of the rent charged, and each transient shall receive a receipt for payment from the operator. No operator of a hotel shall advertise or state in any manner, whether directly or indirectly, that the tax, or any part thereof, will be assumed or absorbed by the operator, or that it will not be added to the rent, or that, if added, any part will be refunded, except in the manner provided in this article.

(Sec. 25.54, E.T.C., as added by Ord. 72-09)

3-3.406 Operators: Registration.

On or before September 11, 1972, or within thirty (30) days after commencing business, whichever is later, each operator of any hotel renting an occupancy to transients shall register such hotel with the Tax Administrator and obtain from him a Transient Occupancy Registration Certificate which shall at all times be posted in a conspicuous place on the premises. Such certificate, among other things, shall set forth the following information:

(a)    The name of the operator;

(b)    The address of the hotel;

(c)    The date upon which the certificate was issued; and

(d)    A statement as follows:

“This Transient Occupancy Registration Certificate signifies that the person named on the face hereof has fulfilled the requirements of the Uniform Transient Occupancy Tax Law by registering with the Tax Administrator for the purpose of collecting from transients the transient occupancy tax and remitting such tax to the Tax Administrator. This certificate shall not authorize any person to conduct any unlawful business or to conduct any lawful business in an unlawful manner, nor to operate a hotel without strictly complying with all local applicable laws, including, but not limited to, those requiring a permit from any board, commission, department, or office of this City. This certificate does not constitute a permit.”

(Sec. 25.55, E.T.C., as added by Ord. 72-09)

3-3.407 Reporting and Remitting.

Each operator, on or before the last day of the month following the close of each calendar quarter, or at the close of any shorter reporting period which may be established by the Tax Administrator, shall make a return to the Tax Administrator, on forms provided by him, of the total rents charged and received and the amount of taxes collected for transient occupancies. At the time the return is filed, the full amount of the taxes collected shall be remitted to the Tax Administrator. The Tax Administrator may establish shorter reporting periods for any certificate holder if the Tax Administrator deems it necessary in order to insure the collection of the tax, and he may require further information in the return. Returns and payments shall be due immediately upon the cessation of the business for any reason. All taxes collected by operators pursuant to the provisions of this article shall be held in trust for the account of the City until payment thereof is made to the Tax Administrator.

(Sec. 25.56, E.T.C., as added by Ord. 72-09)

3-3.408 Penalties and Interest.

(a)    Original Delinquencies. Any operator who shall fail to report and remit any tax imposed by the provisions of this article within the time required shall pay a penalty in the amount of ten percent (10%) of the tax in addition to the amount of the tax.

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

(c)    Fraud. If the Tax Administrator shall determine that the nonpayment of any remittance due pursuant to the provisions of this article is due to fraud, a penalty in the amount of twenty-five percent (25%) of the amount of the tax shall be added thereto, in addition to the penalties set forth in subsections (a) and (b) of this section.

(d)    Interest. In addition to the penalties imposed, any operator who shall fail to remit any tax imposed by the provisions of this article shall pay interest at the rate of one-half of one percent (0.5%) 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.

(e)    Penalties and Interest Merged with Tax. Every penalty imposed, and such interest as accrues, pursuant to the provisions of this section, shall become a part of the tax required to be paid by the provisions of this article.

(Sec. 25.57, E.T.C., as added by Ord. 72-09)

3-3.409 Failure to Collect and Report Taxes: Assessments by Tax Administrator.

(a)    Assessments. If any operator shall fail or refuse to collect such tax and to make, within the time provided in this article, any report and remittance of such tax, or any portion thereof, required by the provisions of this article, the Tax Administrator shall proceed in such manner as he may deem best to obtain the facts and information on which to base his estimate of the tax due. As soon as the Tax Administrator shall procure such facts and information as he is able to obtain upon which to base the assessment of any such tax imposed by the provisions of this article and payable by any operator who has failed or refused to collect the tax and to make such report and remittance, the Tax Administrator shall proceed to determine and assess against such operator the tax, interest, and penalties provided for by this article.

(b)    Assessments – Notices. In the event such determination is made, the Tax Administrator shall give 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 last known place of address. Such operator, within ten (10) days after the service or mailing of such notice, may make an application in writing to the Tax Administrator for a hearing on the amount assessed.

(c)    Assessments – Finality. If an 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.

(d)    Assessments – Hearings – Notices. If such an application for a hearing is made, the Tax Administrator shall give not less than five (5) days’ written notice in the manner prescribed in this section to the operator to show cause at a time and place fixed in such notice why the amount specified therein should not be fixed for such tax, interest, and penalties.

(e)    Assessments – Hearings. At such hearing the operator may appear and offer evidence why such specified tax, interest and penalties should not be so fixed.

(f)    Assessments – Hearings – Determinations – Notices. After such hearing the Tax Administrator shall determine the proper tax to be remitted and shall thereafter give written notice to the person in the manner set forth in this section of such determination and the amount of such tax, interest and penalties.

(g)    Assessments – Due Dates. The amount determined to be due shall be payable after fifteen (15) days, unless an appeal is filed as provided in Section 3-3.410 of this article.

(Sec. 25.58, E.T.C., as added by Ord. 72-09)

3-3.410 Appeals.

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 fifteen (15) days after the service or mailing of the determination of the tax due. The Council shall fix a time and place for hearing such appeal, and the City Clerk shall give notice in writing to such operator at his 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 set forth in Section 3-3.409 of this article for the service of a notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of such notice.

(Sec. 25.59, E.T.C., as added by Ord. 72-09)

3-3.411 Records.

It shall be the duty of every operator liable for the collection and payment to the City of any tax imposed by the provisions of this article to keep and preserve, for a period of three (3) years, all records as may be necessary to determine the amount of such tax as he may have been liable for the collection of any payment to the City, which records the Tax Administrator shall have the right to inspect at all reasonable times.

(Sec. 25.60, E.T.C., as added by Ord. 72-09)

3-3.412 Refunds.

(a)    No tax collected under the provisions of this article shall be refundable or prorated in any manner, unless the operator or transient subject to the tax:

(1)    Establishes that it has paid the tax more than once, the tax was erroneously or illegally collected, or it has paid in excess of the correct amount;

(2)    Establishes by written records its right to a refund, and;

(3)    Files a claim with the City within one (1) year from the date of the payment in accordance with all applicable statutes, regulations and ordinances.

(b)    If a claim filed by an operator in accordance with subsection (a) is accepted by the City Council, the City may refund the entire amount to the operator or credit the refund against any amounts then due and payable to the City from the operator. However, no refund shall be allowed unless the amount of the tax has either been refunded to the transient(s) or credited to rent subsequently payable by the transient(s) to the operator.

(c)    A transient may obtain a refund of taxes pursuant to subsection (a) of this section only when the tax was paid by the transient directly to the Finance Department, or when the transient, having paid the tax to the operator, establishes that the transient has been unable to obtain a refund from the operator who collected the tax and remitted the tax to the City.

(Sec. 25.61, E.T.C., as added by Ord. 72-09; as amended by Sec. 3, Ord. 96-001, eff. Mar. 19, 1996)

3-3.413 Actions to Collect.

Any tax required to be paid by any transient pursuant to the provisions of this article shall be deemed a debt owed by the transient to the City. Any such tax collected by an operator, which tax has not been paid to the City, shall be deemed a debt owed by the operator to the City. Any person owing money to the City pursuant to the provisions of this article shall be liable to an action brought in the name of the City for the recovery of such amount.

(Sec. 25.62, E.T.C., as added by Ord. 72-09)

3-3.414 Revenues: Accounting.

Net revenues to the City resulting from the tax imposed by the provisions of this article shall be placed in the General Fund and accounted for by the City Clerk.

(Sec. 25.63, E.T.C., as added by Ord. 72-09, as amended by Ord. 73-03)

3-3.415 Violations: Penalties.

Any operator or other person who fails or refuses to register as required by the provisions of this article, or 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 shall be guilty of a violation of the provisions of this article and punishable as set forth in Chapter 2 of Title 1 of this Code. Any person required to make, render, sign, or verify any report or claim and who makes any false or fraudulent report or claim with intent to defeat or evade the determination of any amount due required by the provisions of this article to be made shall be guilty of a violation of the provisions of this article and punishable as set forth in Chapter 2 of Title 1 of this Code.

(Sec. 25.64, E.T.C., as added by Ord. 72-09)

Article 5.    Utility Users’ Tax*

*    Editor’s Note: Ordinance 84-09, as amended by Ordinances 92-05, 93-005 and 93-010, were previously codified in this article, and superseded in their entirety by Ordinance 00-002, which was superseded in its entirety by Ordinance 07-014.

3-3.501 Short Title.

This Article shall be known as the “utility users’ tax ordinance” of the City.

(Sec. 1 (part), Ord. 07-014, eff. Nov. 6, 2007)

3-3.502 Definitions.

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

(a)    “Ancillary telecommunication services” means 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” means 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” means an ancillary service of separately stating information pertaining to individual calls on a customer’s billing statement.

(3)    “Directory assistance” means an ancillary service of providing telephone number information and/or address information.

(4)    “Vertical service” means 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” means 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.

(b)    “Billing address” shall mean the mailing address of the service user where the service supplier submits invoices or bills for payment by the customer.

(c)    “City” shall mean the City of Emeryville.

(d)    “Communication services” means telecommunication services and ancillary telecommunication services.

(e)    “Mobile telecommunications service” has the same meaning and usage as set forth in the Mobile Telecommunications Sourcing Act (4 U.S.C. Section 124) and the regulations thereunder.

(f)    “Month” shall mean a calendar month.

(g)    “Person” shall mean, 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 nonprofit), municipal district or municipal corporation (other than the City) cooperative, receiver, trustee, guardian, or other representative appointed by order of any court.

(h)    “Place of primary use” means 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.

(i)    “Post-paid telecommunication service” means 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.

(j)    “Prepaid telecommunication service” means 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.

(k)    “Private telecommunication service” means 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).

(l)    “Service address” means 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 subsection (l)(1) of this section 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.

(m)    “Service supplier” shall mean any entity or person, including the City, that provides communication service to a user of such service within the City.

(n)    “Service user” shall mean a person required to pay a tax imposed under the provisions of this Article.

(o)    “State” shall mean the State of California.

(p)    “Tax administrator” means the finance director of the City or his or her designee.

(q)    “Telecommunications services” means 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., T-1, digital subscriber line (eDSL), 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 are functionally integrated with “telecommunication services.” “Telecommunications services” includes, but is 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); and 911 service (or any other similar numbers designated by the Federal Communications Commission for services whereby subscribers call in to pre-recorded or live service). “Telecommunication services” shall not include digital downloads that are not ancillary telecommunication services, such as video programming, music, ringtones, games, and similar digital products.

(Sec. 1 (part), Ord. 07-014, eff. Nov. 6, 2007)

3-3.503 Constitutional, Statutory, and Other Exemptions.

(a)    Nothing in this Article 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)    Any service user that is exempt from the tax imposed by this Article pursuant to subsection (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. Said 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.

The decision of the Tax Administrator may be appealed pursuant to Section 3-3.519 of this Article. Filing an application with the Tax Administrator and appeal to the City Manager pursuant to Section 3-3.519 of this Article is a prerequisite to a suit thereon.

(c)    Residential Exemption.

(1)    Eligibility. Any service user who is personally responsible for the payment of the utility services subject to this tax and who personally pays for those services shall be eligible for an exemption from the taxes imposed by this Article on service supplied to the service user’s residential living quarters if the aggregate gross income of all persons who share the service user’s residential living quarters does not exceed the sum of twelve thousand dollars ($12,000) per year. Only one (1) such residential exemption shall be allowed to any person. The person in whose name the utility services are established with the utility companies will be deemed to be the person responsible for purposes of this section. The provisions of this exemption shall also apply to any individual who meets the criterion of disability, as established by the Social Security Administration’s Supplemental Income Program for the Aged, Blind and Disabled (Title XVI of the Social Security Act as amended).

(2)    Application. Applications for exemption may be filed with the Tax Administrator at any time on such forms as may be provided.

(3)    Effective Date. The application shall be approved or denied by the Tax Administrator within seventy-five (75) days of receipt.

(4)    Contents of the Application. Applications shall be verified by declaration under penalty of perjury and shall contain such information and shall certify the service users as exempt if the eligibility requirements of subsection (a) of this section are met, except that no exemption shall be granted to a service user who is receiving service from a service supplied through a master meter and no exemption shall be granted with respect of any tax imposed by this Article 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.

(5)    Notice to Service Supplier. If a service is certified as exempt, the Tax Administrator shall promptly notify the service user’s service suppliers 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.

(6)    Discontinuance of Tax. Upon receipt of such notice, the service supplier shall within sixty (60) days discontinue billing the service user for taxes imposed by this Article, except as otherwise provided in subsection (c)(7) of this section.

(7)    Prior Taxes to Be Collected. 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 who is eligible for exemption between the time when an application is submitted and when the service supplier removes the service user from its taxing procedure shall be refunded to the service user.

(8)    Duration of Exemption. Exemptions certified by the Tax Administrator shall continue so long as the facts supporting qualification for the exemption shall exist. The exemption will automatically terminate with any change in service address or residence of the exempt individual. The individual may apply for a new exemption with each change of address of residence.

(9)    Duty to Disclose Disqualification. Any service user who has been exempted under this section shall notify the City within ten (10) days of any change in fact or circumstance that might disqualify the individual from receiving such exemption. It shall be a misdemeanor for any person to knowingly receive the benefit of the exemption provided by this section when the basis for such exemptions does not exist or ceases to exist. Any service supplier who determines by any means that a new or nonexempt service user is receiving service through a meter or connection exempt by virtue of an exemption issued to a previous user or exempt user of the same meter or connection shall immediately notify the Tax Administrator of such fact and the Tax Administrator shall conduct an investigation to ascertain whether or not the provisions of this section have been complied with, and, when appropriate, order the service supplier to commence collecting the tax from the nonexempt service user.

(10)    Audit by the Tax Administrator. The Tax Administrator shall have the power and right to demand evidence of continued eligibility of a service user for exemption under the provisions of this section. Such evidence may include, but need not be limited to, copies of business records, letter or statements from the Social Security Administration and State, County, City and private pension administrators or unemployment or welfare agencies, and such other evidence concerning the service user or other member 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 consent of a member of the household, when such evidence is requested may be the basis for immediate discontinuance of the service user’s eligibility for exemption under the provisions of this section. Evidence provided to the Tax Administrator at the Tax Administrator’s request or voluntarily provided by the service user without the Tax Administrator’s request may not be used against such service user as evidence in violation of the provisions of this section. Such evidence may only be used as grounds for termination of the exemption herein provided. (Sec. 1 (part), Ord. 07-014, eff. Nov. 6, 2007)

3-3.504 Maximum Amount Paid.

No single service user at one location or multiple locations, provided there are not multiple users at such location or locations, shall pay more than seventy-five thousand dollars ($75,000.00) per year between July 1 and June 30, which shall be annually adjusted downward or upward according to the Bay Area Consumer Price Index, with 1994 serving as the base year.

(Sec. 1 (part), Ord. 07-014, eff. Nov. 6, 2007)

3-3.505 Communication Users’ Tax.

(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 five and one-half percent (5.5%) 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 Article. 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. Section 124). The Tax Administrator may issue and disseminate to communication service suppliers, which are subject to the tax collection requirements of this Article, sourcing rules for the taxation of other communication services, including but not limited to postpaid 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 multijurisdictional taxation.

(c)    The Tax Administrator may issue and disseminate to communication service suppliers, which are subject to the tax collection requirements of this Article, an administrative ruling identifying those communication services, or charges therefor, that are subject to or not subject to the tax of subsection (a) of this section.

(d)    As used in this section, the term “telecommunication services” shall include but is 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 (3) 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 and instant messaging. “Telecommunication services” shall not include digital downloads that are not “ancillary telecommunication services,” such as video programming, music, ringtones, games, and similar digital products.

(e)    To prevent actual multijurisdictional 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 local jurisdiction 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 local jurisdiction; provided, however, the amount of credit shall not exceed the tax owed to the City under this section.

(f)    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 (1) month shall be remitted to the Tax Administrator, and must be received by the Tax Administrator on or before the twentieth (20th) day of the following month.

(Sec. 1 (part), Ord. 07-014, eff. Nov. 6, 2007)

3-3.506 Electricity Users’ Tax.

(a)    There is hereby imposed a tax upon every person using electricity in the City. The tax imposed by this section shall be at the rate of five and one-half percent (5.5%) of the charges made for such electricity, and for any supplemental services or other associated activities directly related to and/or necessary for the provision of electricity to the service user, which are provided by a service supplier or nonutility service supplier to a service user. The tax shall be collected from the service user by the service supplier or nonutility service supplier, or its billing agent.

(b)    As used in this section, the term “charges” shall apply to all services, components and items that are: (i) necessary for or common to the receipt, use or enjoyment of electric service; or (ii) currently are or historically have been included in a single or bundled rate for electric service by a local distribution company to a class of retail customers. The term “charges” shall include, but is not limited to, the following charges:

(1)    Energy charges;

(2)    Distribution or transmission charges;

(3)    Metering charges;

(4)    Standby, reserves, firming, ramping, voltage support, regulation, emergency, or other similar charges for supplemental services to self-generation service users;

(5)    Customer charges, late charges, service establishment or reestablishment charges, demand charges, fuel or other cost adjustments, power exchange charges, independent system operator (ISO) charges, stranded investment or competitive transition charges (CTC), public purpose program charges, nuclear decommissioning charges, trust transfer amounts (bond financing charges), franchise fees, franchise surcharges, annual and monthly charges, and other charges, fees or surcharges which are necessary for or common to the receipt, use or enjoyment of electric service; and

(6)    Charges, fees, or surcharges for electricity services or programs which are mandated by the California Public Utilities Commission or the Federal Energy Regulatory Commission, whether or not such charges, fees, or surcharges appear on a bundled or line item basis on the customer billing.

(c)    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 electricity or services related to the provision of such electricity.

(d)    The Tax Administrator, from time to time, may survey the electric service suppliers to identify the various unbundled billing components of electric retail service that they commonly provide to residential and commercial/industrial customers in the City, and the charges therefor, including those items that are mandated by state or federal regulatory agencies as a condition of providing such electric service. The Tax Administrator, thereafter, may issue and disseminate to such electric service suppliers an administrative ruling identifying those components and items which are: (1) necessary for or common to the receipt, use or enjoyment of electric service; or (2) currently are or historically have been included in a single or bundled rate for electric service by a local distribution company to a class of retail customers. Charges for such components and items shall be subject to the tax of subsection (a) of this section.

(e)    As used in this section, the term “using electricity” shall not include the mere receiving of such electricity by an electrical corporation or governmental agency at a point within the City for resale.

(f)    The tax on electricity provided by self-production or by a nonutility service supplier not under the jurisdiction of this Article shall be collected and remitted in the manner set forth in Section 3-3.508 of this Article. All other taxes on charges for electricity imposed by this section shall be collected from the service user by the electric service supplier or its billing agent. The amount of tax collected in one (1) month shall be remitted to the Tax Administrator, and must be received by the Tax Administrator on or before the twentieth (20th) day of the following month; or, at the option of the person required to collect and/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 service user, which must be received by the Tax Administrator on or before the twentieth (20th) day of the following month; provided, that such person shall submit an adjusted payment or request for credit, as appropriate, within sixty (60) days following each calendar quarter. The credit, if approved by the Tax Administrator, may be applied against any subsequent remittance that becomes due.

(Sec. 1 (part), Ord. 07-014, eff. Nov. 6, 2007)

3-3.507 Gas Users’ Tax.

(a)    There is hereby imposed a tax upon every person using gas in the City which is transported and delivered through a pipeline distribution system. The tax imposed by this section shall be at the rate of five and one-half percent (5.5%) of the charges made for such gas, including all services related to the storage, transportation and delivery of such gas. The tax shall be collected from the service user by the service supplier or nonutility service supplier, or its billing agent.

(b)    As used in this section, the term “charges” shall apply to all services, components and items for gas service that are: (1) necessary for or common to the receipt, use or enjoyment of gas service; or (2) currently are or historically have been included in a single or bundled rate for gas service by a local distribution company to a class of retail customers. The term “charges” shall include, but is not limited to, the following charges:

(1)    The commodity charges for purchased gas, or the cost of gas owned by the service user (including the actual costs attributed to drilling, production, lifting, storage, gathering, trunkline, pipeline, and other operating costs associated with the production and delivery of such gas), which is delivered through a gas pipeline distribution system;

(2)    Gas transportation charges (including interstate charges to the extent not included in commodity charges);

(3)    Storage charges; provided, however, that the service supplier shall not be required to apply the tax to any charges for gas storage services when the service supplier cannot, as a practical matter, determine the jurisdiction where such stored gas is ultimately used; but it shall be the obligation of the service user to self-collect the amount of tax not applied to any charge for gas storage by the service supplier and to remit the tax to the appropriate jurisdiction;

(4)    Capacity or demand charges, late charges, service establishment or reestablishment charges, transition charges, customer charges, minimum charges, annual and monthly charges, and any other charges which are necessary for or common to the receipt, use or enjoyment of gas service; and

(5)    Charges, fees, or surcharges for gas services or programs which are mandated by the California Public Utilities Commission or the Federal Energy Regulatory Commission, whether or not such charges, fees, or surcharges appear on a bundled or line item basis on the customer billing.

(c)    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 gas or services related to the delivery of such gas.

(d)    The Tax Administrator, from time to time, may survey the gas service suppliers to identify the various unbundled billing components of gas retail service that they commonly provide to residential and commercial/industrial customers in the City, and the charges therefor, including those items that are mandated by state or federal regulatory agencies as a condition of providing such gas service. The Tax Administrator, thereafter, may issue and disseminate to such gas service suppliers an administrative ruling identifying those components and items which are: (1) necessary for or common to the receipt, use or enjoyment of gas service; or (2) currently are or historically have been included in a single or bundled rate for gas service by a local distribution company to a class of retail customers. Charges for such components and items shall be subject to the tax of subsection (a) of this section.

(e)    There shall be excluded from the calculation of the tax imposed in this section charges made for gas which is to be resold and delivered through a pipeline distribution system.

(f)    The tax on gas provided by self-production or by a nonutility service supplier not under the jurisdiction of this Article shall be collected and remitted in the manner set forth in Section 3-3.508 of this Article. All other taxes on charges for gas imposed by this section shall be collected from the service user by the gas service supplier or its billing agent. The amount of tax collected in one (1) month shall be remitted to the Tax Administrator, and must be received by the Tax Administrator, on or before the twentieth (20th) day of the following month; or, at the option of the person required to collect and/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 service user, which must be received by the Tax Administrator on or before the twentieth (20th) day of the following month; provided, that such person shall submit an adjusted payment or request for credit, as appropriate, within sixty (60) days following each calendar quarter. The credit, if approved by the Tax Administrator, may be applied against any subsequent remittance that becomes due.

(Sec. 1 (part), Ord. 07-014, eff. Nov. 6, 2007)

3-3.508 Collection of Tax from Service Users Receiving Direct Purchase of Gas or Electricity.

(a)    Any service user subject to the tax imposed by Section 3-3.506 or by Section 3-3.507 of this Article which produces gas or electricity for self-use (e.g., cogeneration or distributed generation), which receives gas or electricity, including any related supplemental services, directly from a nonutility service supplier not under the jurisdiction of this Article, or which, for any other reason, is not having the full tax collected and remitted by its service supplier, a nonutility service supplier, or its billing agent on the use of gas or electricity in the City, including any related supplemental services, shall report said fact to the Tax Administrator and shall remit the tax due directly to the Tax Administrator within thirty (30) days of such use. In lieu of paying said actual tax, the service user may, at its option, remit to the Tax Administrator within thirty (30) days of such use an estimated amount of tax measured by the tax billed in the previous month, or upon the payment pattern of similar customers of the service supplier using similar amounts of gas or electricity; provided, that the service user shall submit an adjusted payment or request for credit, as appropriate, within sixty (60) days following each calendar quarter. The credit, if approved by the Tax Administrator, may be applied against any subsequent tax bill that becomes due.

(b)    The Tax Administrator may require said service user to identify its nonutility service supplier and provide, subject to audit: invoices; books of account; or other satisfactory evidence documenting the quantity of gas or electricity used, including any related supplemental services, and the cost or price thereof. If the service user is unable to provide such satisfactory evidence, or if the administrative cost of calculating the tax in the opinion of the Tax Administrator is excessive, the Tax Administrator may determine the tax by applying the tax rate to the equivalent charges the service user would have incurred if the gas or electricity used, including any related supplemental services, had been provided by the service supplier that is the primary supplier of gas or electricity within the City. Rate schedules for this purpose shall be available from the City.

(Sec. 1 (part), Ord. 07-014, eff. Nov. 6, 2007)

3-3.509 Bundling Taxable Items with Nontaxable Items.

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 nontaxable charges.

(Sec. 1 (part), Ord. 07-014, eff. Nov. 6, 2007)

3-3.510 Substantial Nexus/Minimum Contacts.

For purposes of imposing a tax or establishing a duty to collect and remit a tax under this Article, “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 Article. 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.

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 the City, it shall not be responsible for any errors in taxation that may result.

(Sec. 1 (part), Ord. 07-014, eff. Nov. 6, 2007)

3-3.511 Duty to Collect – Procedures.

(a)    Collection by Service Suppliers. The duty of service suppliers to collect and remit the taxes imposed by the provisions of this Article 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 said charges, Section 3-3.515 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 Article. 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 Article 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 Article. Returns are due immediately upon cessation of business for any reason. Pursuant to Revenue and Tax Code Section 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.

(Sec. 1 (part), Ord. 07-014, eff. Nov. 6, 2007)

3-3.512 Collection Penalties – Service Suppliers.

(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 subsection 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 fifteen (15%) percent of the total tax that is delinquent or deficient in the remittance, and shall pay interest at the rate of 75/100ths percent (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 Article for fraud or gross negligence in reporting or remitting at the rate of fifteen (15%) percent 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 Article 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.

(Sec. 1 (part), Ord. 07-014, eff. Nov. 6, 2007)

3-3.513 Actions to Collect.

Any tax required to be paid by a service user under the provisions of this Article 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 Article 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 Article, along with any collection costs incurred by the City as a result of the person’s noncompliance with this Article, 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.A. Section 507(a)(8)(C).

(Sec. 1 (part), Ord. 07-014, eff. Nov. 6, 2007)

3-3.514 Deficiency Determination and Assessment – Tax Application Errors.

(a)    The Tax Administrator shall make a deficiency determination if he or she determines that any person required to pay or collect taxes pursuant to the provisions of this Article has failed to pay, collect, and/or remit the proper amount of tax by improperly applying or failing to apply the tax to one or more taxable services or charges.

(b)    The Tax Administrator shall mail a notice of such deficiency determination to the person required to pay or remit the tax, which notice shall refer briefly to the amount of the taxes owed, plus interest at the rate of 75/100ths percent (0.75%) per month, or any fraction thereof, on the amount of the tax from the date on which the tax should have been received by the City. Within fourteen (14) calendar days after the date of service of such notice, the person may request in writing to the Tax Administrator for a hearing on the matter.

(c)    If the person fails to request a hearing within the prescribed time period, the amount of the deficiency determination shall become a final assessment, and shall immediately be due and owing to the City. If the person requests a hearing, the Tax Administrator shall cause the matter to be set for hearing, which shall be scheduled within thirty (30) days after receipt of the written request for hearing. Notice of the time and place of the hearing shall be mailed by the Tax Administrator to such person at least ten (10) calendar days prior to the hearing, and, if the Tax Administrator desires said person to produce specific records at such hearing, such notice may designate the records requested to be produced.

(d)    At the time fixed for the hearing, the Tax Administrator shall hear all relevant testimony and evidence, including that of any other interested parties. At the discretion of the Tax Administrator, the hearing may be continued from time to time for the purpose of allowing the presentation of additional evidence. Within a reasonable time following the conclusion of the hearing, the Tax Administrator shall issue a final assessment (or nonassessment), thereafter, by confirming, modifying or rejecting the original deficiency determination, and shall mail a copy of such final assessment to person owing the tax. The decision of the Tax Administrator may be appealed to the City Manager pursuant to Section 3-3.519 of this Article. Filing an application with the Tax Administrator and appeal to the City Manager pursuant to Section 3-3.519 of this Article is a prerequisite to a suit thereon.

(e)    Payment of the final assessment shall become delinquent if not received by the Tax Administrator on or before the thirtieth (30th) day following the date of receipt of the notice of final assessment. The penalty for delinquency shall be fifteen percent (15%) on the total amount of the assessment, along with interest at the rate of 75/100ths percent (0.75%) per month, or any fraction thereof, on the amount of the tax, exclusive of penalties, from the date of delinquency until paid. The applicable statute of limitations regarding a claim by the City seeking payment of a tax assessed under this Article shall commence from the date of delinquency as provided in this subsection (e).

(f)    All notices under this section may be sent by regular mail, postage prepaid, and shall be deemed received on the third calendar day following the date of mailing, as established by a proof of mailing.

(Sec. 1 (part), Ord. 07-014, eff. Nov. 6, 2007)

3-3.515 Administrative Remedy – Nonpaying Service Users.

(a)    Whenever the Tax Administrator determines that a service user has deliberately withheld the amount of the tax owed by the service user from the amounts remitted to a person required to collect the tax, or whenever the Tax Administrator deems it in the best interest of the City, he or she may relieve such person of the obligation to collect the taxes due under this Article from certain named service users for specific billing periods. To the extent the service user has failed to pay the amount of tax owed for a period of two (2) or more billing periods, the service supplier shall be relieved of the obligation to collect taxes due. The service supplier shall provide the City with the names and addresses of such service users and the amounts of taxes owed under the provisions of this Article.

(b)    In addition to the tax owed, the service user shall pay a delinquency penalty at the rate of fifteen percent (15%) of the total tax that is owed, and shall pay interest at the rate of 75/100ths percent (0.75%) per month, or any fraction thereof, on the amount of the tax, exclusive of penalties, from the due date until paid.

(c)    The Tax Administrator shall notify the nonpaying service user that the Tax Administrator has assumed the responsibility to collect the taxes due for the stated periods and demand payment of such taxes, including penalties and interest. The notice shall be served on the service user by personal delivery or by deposit of the notice in the United States mail, postage prepaid, 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 a change of address, to his or her last known address.

(d)    If the service user fails to remit the tax to the Tax Administrator within thirty (30) days from the date of the service of the notice upon him or her, the Tax Administrator may impose an additional penalty of fifteen percent (15%) of the amount of the total tax that is owed.

(Sec. 1 (part), Ord. 07-014, eff. Nov. 6, 2007)

3-3.516 Additional Powers and Duties of the 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 Article.

(b)    The Tax Administrator may adopt administrative rules and regulations consistent with provisions of this Article for the purpose of interpreting, clarifying, carrying out and enforcing the payment, collection and remittance of the taxes herein imposed. A copy of such administrative rules and regulations shall be on file in the Tax Administrator’s office.

(c)    Upon a proper showing of good cause, the Tax Administrator may make administrative agreements, with appropriate conditions, to vary from the strict requirements of this Article and thereby: (1) conform to the billing procedures of a particular service supplier so long as said agreements result in the collection of the tax in conformance with the general purpose and scope of this Article; or (2) avoid a hardship where the administrative costs of collection and remittance greatly outweigh the tax benefit. A copy of each such agreement shall be on file in the Tax Administrator’s office, and are voidable by the Tax Administrator or the City at any time.

(d)    The Tax Administrator may conduct an audit, to ensure proper compliance with the requirements of this Article, of any person required to collect and/or remit a tax pursuant to this Article. The Tax Administrator shall notify said person of the initiation of an audit in writing. In the absence of fraud or other intentional misconduct, the audit period of review shall not exceed a period of three (3) years next preceding the date of receipt of the written notice by said person from the Tax Administrator. Upon completion of the audit, the Tax Administrator may make a deficiency determination pursuant to Section 3-3.514 of this Article for all taxes (and applicable penalties and interest) owed and not paid, as evidenced by information provided by such person to the Tax Administrator. If said person is unable or unwilling to provide sufficient records to enable the Tax Administrator to verify compliance with this Article, the Tax Administrator is authorized to make a reasonable estimate of the deficiency. Said reasonable estimate shall be entitled to a rebuttable presumption of correctness.

(e)    Upon receipt of a written request of a taxpayer, and for good cause, the Tax Administrator may extend the time for filing any statement required pursuant to this Article for a period of not to exceed forty-five (45) days; provided, that the time for filing the required statement has not already passed when the request is received. No penalty for delinquent payment shall accrue by reason of such extension. Interest shall accrue during said extension at the rate of 75/100ths percent (0.75%) per month, prorated for any portion thereof.

(f)    The Tax Administrator shall determine the eligibility of any person who asserts a right to exemption from, or a refund of, the tax imposed by this Article.

(g)    Notwithstanding any provision in this Article to the contrary, the Tax Administrator may waive any penalty or interest imposed upon a person required to collect and/or remit for failure to collect the tax imposed by this Article if the noncollection occurred in good faith. In determining whether the noncollection was in good faith, the Tax Administrator shall take into consideration industry practice or other precedents.

(Sec. 1 (part), Ord. 07-014, eff. Nov. 6, 2007)

3-3.517 Records.

(a)    It shall be the duty of every person required to collect and/or remit to the City any tax imposed by this Article to keep and preserve, for a period of at least three (3) years, all records as may be necessary to determine the amount of such tax as he/she 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 a reasonable time.

(b)    The City, through the City Council, may issue an administrative subpoena to compel a person to deliver, to the Tax Administrator, copies of all records deemed necessary by the Tax Administrator to establish compliance with this Article, including the delivery of records in a common electronic format on readily available media if such records are kept electronically by the person in the usual and ordinary course of business. As an alternative to delivering the subpoenaed records to the Tax Administrator on or before the due date provided in the administrative subpoena, such person may provide access to such records outside the City on or before the due date; provided, that such person shall reimburse the City for all reasonable travel expenses incurred by the City to inspect those records, including travel, lodging, meals, and other similar expenses, but excluding the normal salary or hourly wages of those persons designated by the City to conduct the inspection.

(c)    The Tax Administrator is authorized to execute a nondisclosure agreement approved by the City Attorney to protect the confidentiality of customer information pursuant to California Revenue and Tax Code Sections 7284.6 and 7284.7.

(d)    If a service supplier uses a billing agent or billing aggregator to bill, collect, and/or remit the tax, the service supplier shall: (1) provide to the Tax Administrator the name, address and telephone number of each billing agent and billing aggregator currently authorized by the service supplier to bill, collect, and/or remit the tax to the City; and (2) upon request of the Tax Administrator, deliver, or effect the delivery of, any information or records in the possession of such billing agent or billing aggregator that, in the opinion of the Tax Administrator, are necessary to verify the proper application, calculation, collection and/or remittance of such tax to the City.

(e)    If any person subject to record-keeping under this section unreasonably denies the Tax Administrator access to such records, or fails to produce the information requested in an administrative subpoena within the time specified, then the Tax Administrator may impose a penalty of $500 on such person for each day following: (1) the initial date that the person refuses to provide such access; or (2) the due date for production of records as set forth in the administrative subpoena. This penalty shall be in addition to any other penalty imposed under this Article.

(Sec. 1 (part), Ord. 07-014, eff. Nov. 6, 2007)

3-3.518 Refunds.

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 Article from a person or service supplier, it may be refunded as provided in this section:

(a)    The Tax Administrator may refund any tax that has been overpaid or paid more than once or has been erroneously or illegally collected or received by the Tax Administrator under this Article from a person or service supplier; provided, that no refund shall be paid under the provisions of this section unless the claimant or his or her guardian, conservator, executor, or administrator has submitted a written claim to the Tax Administrator within one year of the overpayment or erroneous or illegal collection of said tax. Such claim must clearly establish claimant’s right to the refund by written records showing entitlement thereto. Nothing herein shall permit the filing of a claim on behalf of a class or group of taxpayers unless each member of the class has submitted a written claim under penalty of perjury as provided by this subsection.

(b)    The Tax Administrator, or the City Council where the claim is in excess of the amount set by separate resolution of the City Council relating to the settlement of general liability claims against the City, shall act upon the refund claim within forty-five (45) days of the initial receipt of the refund claim. Said decision shall be final. If the Tax Administrator/City Council fails or refuses to act on a refund claim within the forty-five (45) day period, the claim shall be deemed to have been rejected by the Tax Administrator/City Council on the forty-fifth (45th) day. The Tax Administrator shall give notice of the action in a form which substantially complies with that set forth in Government Code Section 913.

(c)    The filing of a written claim pursuant to Government Code Section 935 is a prerequisite to any suit thereon. Any action brought against the City pursuant to this section shall be subject to the provisions of Government Code Sections 945.6 and 946.

(d)    Notwithstanding the notice provisions of subsection (a) of this section, the Tax Administrator may, at his or her discretion, give written permission to a service supplier, who has collected and remitted any amount of tax in excess of the amount of tax imposed by this Article, to claim credit for such overpayment against the amount of tax which is due the City upon a subsequent monthly return(s) to the Tax Administrator; provided, that: (1) such credit is claimed in a return dated no later than one year from the date of overpayment or erroneous collection of said tax; (2) the Tax Administrator is satisfied that the underlying basis and amount of such credit has been reasonably established; and (3) in the case of an overpayment by a service user to the service supplier that has been remitted to the City, the Tax Administrator has received proof, to his or her satisfaction, that the overpayment has been refunded by the service supplier to the service user in an amount equal to the requested credit.

(e)    Notwithstanding subsections (a) through (d) of this section, a service supplier shall be entitled to take any overpayment as a credit against an underpayment whenever such overpayment has been received by the City within the three (3) years next preceding a deficiency determination or assessment by the Tax Administrator in connection with an audit instituted by the Tax Administrator pursuant to Section 3-3.516(d). A service supplier shall not be entitled to said credit unless it clearly establishes the right to the credit by written records showing entitlement thereto. Under no circumstances shall an overpayment taken as a credit against an underpayment pursuant to this subsection qualify a service supplier for a refund to which it would not otherwise be entitled under the one- year written claim requirement of this section.

(Sec. 1 (part), Ord. 07-014, eff. Nov. 6, 2007)

3-3.519 Appeals.

(a)    The provisions of this section apply to any decision (other than a decision relating to a refund pursuant to Section 3-3.518 of this Article), deficiency determination, assessment, or administrative ruling of the Tax Administrator. Any person aggrieved by any decision (other than a decision relating to a refund pursuant to Section 3-3.518 of this Article), deficiency determination, assessment, or administrative ruling of the Tax Administrator, shall be required to comply with the appeals procedure of this section. Compliance with this section shall be a prerequisite to a suit thereon. (See Government Code Section 935(6).) Nothing herein shall permit the filing of a claim or action on behalf of a class or group of taxpayers.

(b)    If any person is aggrieved by any decision (other than a decision relating to a refund pursuant to Section 3-3.518 of this Article), deficiency determination, assessment, or administrative ruling of the Tax Administrator; he or she may appeal to the City Manager by filing a notice of appeal with the City Clerk within fourteen (14) days of the date of the decision, deficiency determination, assessment, or administrative ruling of the Tax Administrator which aggrieved the service user or service supplier.

(c)    The matter shall be scheduled for hearing before an independent hearing officer selected by the City Manager, no more than thirty (30) days from the receipt of the appeal. The appellant shall be served with notice of the time and place of the hearing, as well as any relevant materials, at least five (5) calendar days prior to the hearing. The hearing may be continued from time to time upon mutual consent. At the time of the hearing, the appealing party, the Tax Administrator, and any other interested person may present such relevant evidence as he or she may have relating to the determination from which the appeal is taken.

(d)    Based upon the submission of such evidence and the review of the City’s files, the hearing officer shall issue a written notice and order upholding, modifying or reversing the determination from which the appeal is taken. The notice shall be given within fourteen (14) days after the conclusion of the hearing and shall state the reasons for the decision. The notice shall specify that the decision is final and that any petition for judicial review shall be filed within ninety (90) days from the date of the decision in accordance with Code of Civil Procedures Section 1094.6.

(e)    All notices under this section may be sent by regular mail, postage prepaid, and shall be deemed received on the third calendar day following the date of mailing, as established by a proof of mailing.

(Sec. 1 (part), Ord. 07-014, eff. Nov. 6, 2007)

3-3.520 No Injunction/Writ of Mandate.

No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action, or proceeding in any court against this City or against any officer of the City to prevent or enjoin the collection under this Article of any tax or any amount of tax required to be collected and/or remitted.

(Sec. 1 (part), Ord. 07-014, eff. Nov. 6, 2007)

3-3.521 Notice of Changes to Article.

If a tax under this Article is added, repealed, increased, reduced, or the tax base is changed, the Tax Administrator shall follow the notice requirements of California Public Utilities Code Section 799.

(Sec. 1 (part), Ord. 07-014, eff. Nov. 6, 2007)

3-3.522 Future Amendment to Cited Statute.

Unless specifically provided otherwise, any reference to a state or federal statute in this Article shall mean such statute as it may be amended from time to time.

(Sec. 1 (part), Ord. 07-014, eff. Nov. 6, 2007)

3-3.523 No Increase in Tax Percentage or Change in Methodology without Voter Approval.

(a)    Regarding Sections 3-3.505 through 3-3.508 hereof, the City may not increase the tax percentage or change a methodology for calculating the tax so as to result in an increase in a tax imposed on a person without voter approval.

(b)    Notwithstanding subsection (a) of this section, pursuant to Government Code Section 53750, the City may make the following changes without voter approval:

(1)    Reduce the percentage rate, and at any time thereafter increase such percentage rate, so long as the subsequent increase does not exceed the rate previously approved by the voters in the enactment of the ordinance codified in this Article;

(2)    Change the methodology so as to reduce the amount of the tax being levied, and at any time thereafter change the methodology, so long as the subsequent change in methodology does not result in an increase in the amount being levied under the methodology previously approved by the voters in the enactment of the ordinance codified in this Article;

(3)    Change a methodology or definition so as to avoid or eliminate a discriminatory tax on taxpayers that are similarly situated, so long as the change does not result in an increase in the amount levied on such class of similarly situated taxpayers under the methodology or definition previously approved by the voters in the enactment of the ordinance codified in this Article;

(4)    Establish a class of persons that is exempt or excepted from one or more taxes hereunder, and at any time thereafter, discontinue such exemption or exception;

(5)    Decide that all or a part of a tax imposed under this Article should not be enforced for administrative reasons, and at any time thereafter decide to enforce the full amount of such tax as previously approved by the voters in the enactment of the ordinance codified in this Article; or

(6)    Establish, and at any time thereafter change, the value and/or apportionment (including a “safe harbor” percentage) of taxable and nontaxable services that are bundled or packaged under a combined charge, in response to changes in the marketing of combined services and the components thereof, or in reevaluating the values thereof. (See Section 3-3.509.)

(Sec. 1 (part), Ord. 07-014, eff. Nov. 6, 2007)

3-3.524 Independent Audit of Tax Collection, Exemption, Remittance, and Expenditure.

The City shall annually verify that the taxes owed under this Article have been properly applied, exempted, collected, and remitted in accordance with this Article, and properly expended according to applicable municipal law. The annual verification shall be performed by a qualified independent third party and the review shall employ reasonable, cost-effective steps to assure compliance, including the use of sampling audits. The verification shall not be required of tax remitters where the cost of the verification may exceed the tax revenues to be reviewed.

(Sec. 1 (part), Ord. 07-014, eff. Nov. 6, 2007)

3-3.525 Remedies Cumulative.

All remedies and penalties prescribed by this Article or which are available under any other provision of law or equity, including but not limited to the California False Claims Act (Government Code Section 12650 et seq.) and the California Unfair Practices Act (Business and Professions Code Section 17070 et seq.), are cumulative. The use of one or more remedies by the City shall not bar the use of any other remedy for the purpose of enforcing the provisions of this Article.

(Sec. 1 (part), Ord. 07-014, eff. Nov. 6, 2007)

3-3.526 Interaction with Prior Tax.

(a)    Collection of Tax by Service Providers. Service providers shall begin to collect the tax imposed by this amended Article 5 as soon as feasible after the effective date of the Article, but in no event later than permitted by Section 799 of the California Public Utilities Code.

(b)    Satisfaction of Tax Obligation by Service Users. Prior to April 1, 2008, any person who pays the tax levied pursuant to this Article, as it existed prior to its amendment as provided herein, with respect to any charge for a service shall be deemed to have satisfied his or her obligation to pay the tax levied pursuant to this Article, as amended herein, with respect to that charge. The intent of this paragraph is to prevent the imposition of multiple taxes upon a single utility charge during the transition period from the prior utility users’ tax ordinance to the amended utility users’ tax ordinance (which transition period ends April 1, 2008) and to permit service providers or other persons with an obligation to remit the tax hereunder, during that transition period, to satisfy their collection obligations by collecting either tax.

(Sec. 1 (part), Ord. 07-014, eff. Nov. 6, 2007)

Article 6    Bay Street – Shellmound Street Financing District

3-3.601 Establishment of Bay Street – Shellmound Street Extension Assessment District Integrated Financing District.*

There is hereby established an integrated financing district to be known as the Bay Street – Shellmound Street Extension Assessment District Integrated Financing District, having boundaries coterminous with the Bay Street – Shellmound Street Extension Assessment District, with contingent assessments to be calculated in accordance with Part G of the approved Amended Engineer’s Report of said Assessment District proceedings, as modified on April 20, 1993, and with said integrated financing district to function in accordance with the Integrated Financing District Act (Sections 53175 and following, California Government Code), as amended from time to time.

(Sec 1, Ord. 93-003, eff. May 4, 1993)

*    Editor’s Note: As originally adopted by Ord. 93-003, this section was designated 3-3.201. It was editorially renumbered to be Section 3-3.601 at the direction of the City Attorney at the time of the 1995 republication.

Article 7    Real Property Transfer Tax

3-3.701 Title and Purpose.

This article may be cited as the “Real Property Transfer Tax Ordinance of the City of Emeryville.” It is adopted pursuant to the authority contained in Part 6.7 (commencing with Section 11901) of Division 2 of the Revenue and Taxation Code of the State of California. It is also enacted pursuant to the authority of Article II of the Charter of the City of Emeryville and other authority held as a chartered city.

The tax imposed under this article is solely for the purpose of raising revenues for the general governmental purposes of the City. All of the proceeds from the tax imposed by this article shall be placed in the City’s general fund. This article is not enacted for regulatory purposes.

(Sec. 1 (part), Ord. 14-011, eff. Jan. 1, 2015)

3-3.702 Tax Imposed.

There is hereby imposed a tax on each deed, instrument, or writing, or any other document or change in control and ownership of legal entities, by which any lands, interests in lands, tenements, or other interests in real property located in the City of Emeryville is or are granted, assigned, transferred, or otherwise conveyed to or vested in the purchaser or purchasers, or any other person or persons, by his or her or their direction. The amount of the tax shall be based on the value of consideration or property conveyed (including the value of any lien or encumbrance remaining thereon at the time of sale), and shall be calculated at the rate of twelve dollars ($12.00) for each one thousand dollars ($1,000.00) or fractional part thereof.

Except as set forth in Sections 3-3.705 to 3-3.711, this tax shall apply regardless of the method by which the transfer is accomplished or the relationship of the parties to the transfer.

(Sec. 1 (part), Ord. 14-011, eff. Jan. 1, 2015)

3-3.703 Definitions.

As used in this article:

“Change in control and ownership of legal entities” means any direct or indirect acquisition or transfer of ownership interest or control in a legal entity that constitutes a change in ownership or transfer of the real property of the entity under California Revenue and Taxation Code Section 64, as such statute reads and is interpreted by the California Board of Equalization on November 4, 2014.

“Person” and “persons” mean any natural person, receiver, administrator, executor, assignee, trustee in bankruptcy, trust, estate, firm, co-partnership, joint venture, club, company, joint stock company, business trust, limited liability company, municipal corporation, political subdivision of the State of California, domestic or foreign corporation, association, syndicate, society, or any group of individuals acting as a unit, whether mutual, cooperative, fraternal, nonprofit, or otherwise, and the United States or any instrumentality thereof, and any natural person, who as an individual or with a spouse owns fifty-one percent (51%) or more of the capital stock of a corporation obligated to file a declaration and pay tax pursuant to this article; and in addition, is a person with the power to control the fiscal decision-making process by which the corporation allocates funds to creditors in preference to its tax obligations under the provisions of this article. A person as defined herein, who is also an officer or director of a corporation obligated to file declarations and pay tax pursuant to this article, shall be presumed to be a person with the power to control the fiscal decision-making process. Whenever the term “person” is used in any clause prescribing and imposing a penalty, the term as applied to association shall mean the owners or part owners thereof, and as applied to corporation, the officers thereof.

“Real property” and “realty” mean real property as defined by and under the laws of the State of California.

(Sec. 1 (part), Ord. 14-011, eff. Jan. 1, 2015)

3-3.704 Person on Whom Tax Imposed.

Any persons who make a transfer which is subject to the tax imposed under Section 3-3.702, and any persons to whom such a transfer is made, shall be jointly and severally liable for payment of the tax imposed under Section 3-3.702.

(Sec. 1 (part), Ord. 14-011, eff. Jan. 1, 2015)

3-3.705 Exception: Instrument to Secure Debt.

Any tax imposed pursuant to this article shall not apply to any instrument in writing given to secure a debt. Nothing in this article shall be deemed to exclude the amount of any such indebtedness from being included in the value of consideration in connection with any conveyance which is not made solely to secure an obligation or a debt.

(Sec. 1 (part), Ord. 14-011, eff. Jan. 1, 2015)

3-3.706 Exception: Instruments of United States, State, Territory or Political Subdivision, Etc.

Any deed, instrument, or writing to which the United States or any agency or instrumentality thereof, any state or territory, or political subdivision thereof, is a party shall be exempt from any tax imposed pursuant to this article when the exempt agency is acquiring title.

(Sec. 1 (part), Ord. 14-011, eff. Jan. 1, 2015)

3-3.707 Exception: Conveyances under Reorganization or Adjustment Plans.

Any tax imposed pursuant to this article shall not apply to the making, delivering, or filing of conveyances to make effective any plan of reorganization or adjustment that is any of the following:

(a)    Confirmed under the Federal Bankruptcy Code, as amended.

(b)    Approved in an equity receivership proceeding in a court involving a railroad corporation, as defined in Section 101 of Title 11 of the United States Code, as amended.

(c)    Approved in an equity receivership proceeding in a court involving a corporation, as defined in Section 101 of Title 11 of the United States Code, as amended.

(d)    Whereby a mere change in identity, form, or place of organization is effected.

Subsections (a) to (d), inclusive, of this section shall only apply if the making, delivery, or filing of instruments of transfer or conveyance occurs within five (5) years from the date of such confirmation, approval, or change.

(Sec. 1 (part), Ord. 14-011, eff. Jan. 1, 2015)

3-3.708 Exception: Orders of the Securities and Exchange Commission.

Any tax imposed pursuant to this article shall not apply to the making or delivery of conveyances to make effective any order of the Securities and Exchange Commission, as defined in subdivision (a) of Section 1083 of the Internal Revenue Code of 1954; but only if:

(a)    The order of the Securities and Exchange Commission in obedience to which such conveyance is made is necessary or appropriate to effectuate the provisions of Section 79k of Title 15 of the United States Code, relating to the Public Utility Holding Company Act of 1935;

(b)    Such order specifies the property which is ordered to be conveyed; and

(c)    Such conveyance is made in obedience to such order.

(Sec. 1 (part), Ord. 14-011, eff. Jan. 1, 2015)

3-3.709 Exception: Transfer of Certain Partnership Property.

(a)    In the case of any realty held by a partnership or other entity treated as a partnership for federal income tax purposes, no levy shall be imposed pursuant to this article by reason of any transfer of an interest in the partnership or other entity or otherwise, if both of the following occur:

(1)    The partnership or other entity treated as a partnership is considered a continuing partnership within the meaning of Section 708 of the Internal Revenue Code of 1986.

(2)    The continuing partnership or other entity treated as a partnership continues to hold the realty concerned.

(b)    If there is a termination of any partnership or other entity treated as a partnership for federal income tax purposes, within the meaning of Section 708 of the Internal Revenue Code of 1986, for purposes of this article, the partnership or other entity shall be treated as having executed an instrument whereby there was conveyed, for fair market value (including the value of any lien or encumbrance remaining thereon), all realty held by the partnership or other entity at the time of the termination.

(c)    Not more than one (1) tax shall be imposed pursuant to this article by reason of a termination described in subsection (b) of this section, and any transfer pursuant thereto, with respect to the realty held by a partnership or other entity treated as a partnership at the time of the termination.

(d)    No levy shall be imposed pursuant to this article by reason of any transfer between an individual or individuals and a legal entity or between legal entities that results solely in a change in the method of holding title to the realty and in which proportional ownership interests in the realty, whether represented by stock, membership interest, partnership interest, co-tenancy interest, or otherwise, directly or indirectly, remain the same immediately after the transfer.

(Sec. 1 (part), Ord. 14-011, eff. Jan. 1, 2015)

3-3.710 Exception: Deed in Lieu of Foreclosure.

Any tax imposed pursuant to this article shall not apply with respect to any deed, instrument, or writing to a beneficiary or mortgagee, which is taken from the mortgagor or trustor as a result of or in lieu of foreclosure; provided, that such tax shall apply to the extent that the consideration exceeds the unpaid debt, including accrued interest and cost of foreclosure. Consideration, unpaid debt amount, and identification of grantee as beneficiary or mortgagee shall be noted on said deed, instrument, or writing or stated in an affidavit or declaration under penalty of perjury for tax purposes.

(Sec. 1 (part), Ord. 14-011, eff. Jan. 1, 2015)

3-3.711 Exception: Transfer of Restricted Affordable Units.

Any tax imposed pursuant to this article shall not apply to transfers of real property where said real property is encumbered by a recorded and enforceable covenant executed in favor of the City restricting the ownership and occupancy of said real property, for a period of no less than thirty (30) years following the date of transfer, to “persons and families of low or moderate income” as defined in California Health and Safety Code Section 50093.

(Sec. 1 (part), Ord. 14-011, eff. Jan. 1, 2015)

3-3.712 Administration of Tax.

The City Treasurer (hereinafter referred to in this article as “Tax Administrator”) shall collect the tax imposed under this article and shall otherwise administer this article. The Tax Administrator may make such rules and regulations, not inconsistent with this article, as he or she may deem reasonably necessary or desirable to administer this article, as well as necessary forms and receipts.

(Sec. 1 (part), Ord. 14-011, eff. Jan. 1, 2015)

3-3.713 Due Dates, Delinquencies, Penalties, Interest, Administrative Charges, and Lien Release Recordation Fees.

The tax imposed under this article is due and payable at the time the deed, instrument, or writing effecting a transfer subject to the tax is delivered, and is delinquent if unpaid ninety (90) days later. In cases where a transfer is effected but not recorded with the County Recorder within ninety (90) days of the date on which the deed, instrument, or writing was delivered, all statutes of limitations regarding liability for the tax imposed by this article shall be tolled until the City has actual knowledge of the transfer, at which time the tax on the unrecorded transfer shall relate back to the date on which the deed, instrument, or writing was delivered. Penalties and interest shall be deemed to have begun accruing on the date the deed, instrument, or writing was delivered, and shall be the joint and several liability of the persons referred to in Section 3-3.704. In the event that the tax is not paid prior to becoming delinquent, a delinquency penalty of ten percent (10%) of the amount of the tax due shall accrue. In the event only a portion of the tax is unpaid prior to becoming delinquent, the penalty shall only accrue as to the unpaid portion. An additional penalty of fifteen percent (15%) of the amount of tax due shall accrue if the tax remains unpaid on the ninetieth day following the date of the original delinquency. Interest shall accrue at the rate of one percent (1%) per month or fraction thereof, on the amount of the tax, inclusive of penalties, from the date the tax becomes delinquent to the date of payment. Interest and penalties shall become part of the tax. An administrative charge and a release of lien filing fee equal to the amount charged by the Alameda County Recorder’s Office shall be added to the amount owed for each property approved for a tax lien by the City Council.

(Sec. 1 (part), Ord. 14-011, eff. Jan. 1, 2015)

3-3.714 Declaration May Be Required.

The tax imposed by this article shall be paid to the Tax Administrator by the persons referred to in Section 3-3.704. The Tax Administrator shall have the authority as part of any rules and regulations promulgated by him or her as authorized herein to require that the payment shall be accompanied by a declaration of the amount of tax due signed by the person paying the tax or by their duly authorized agent. The declaration shall include a statement that the value of the consideration on which the tax due was computed includes all indebtedness secured by liens, deeds of trust, or other encumbrances remaining or placed on the property transferred at the time of transfer, and also includes all special assessments on the property which a purchaser or transferee agrees to pay or which remains a lien on the property at the time of transfer. The declaration shall identify the deed, instrument, or writing effecting the transfer for which the tax is being paid. The Tax Administrator may require delivery to him or her of a copy of such deed, instrument, or writing whenever he or she deems such to be reasonably necessary to adequately identify such writing or to administer the provisions of this article. The Tax Administrator may rely on the declaration as to the amount of the tax due; provided, that he or she has no reason to believe that the full amount of the tax due is not shown on the declaration.

Whenever the Tax Administrator has reason to believe that the full amount of tax due is not shown on the declaration or has not been paid, he or she may, by notice served upon any person liable for the tax, require them to furnish a true copy of their records relevant to the value of the consideration or fair market value of the property transferred. Such notice may be served at any time within three (3) years after recordation of the deed, instrument, or writing which transfers such property.

(Sec. 1 (part), Ord. 14-011, eff. Jan. 1, 2015)

3-3.715 Determination of Deficiency.

If on the basis of such information as the Tax Administrator receives pursuant to Section 3-3.714, or on the basis of such other relevant information that comes into his or her possession, he or she determines that the amount of tax due as set forth in the declaration, or as paid, is insufficient, he or she may re-compute the tax due on the basis of such information.

If the declaration referenced in Section 3-3.714 is not submitted, the Tax Administrator may make an estimate of the value of the consideration for the property conveyed and determine the amount of tax to be paid on the basis of any information in his or her possession or that may come into his or her possession.

One (1) or more deficiency determinations may be made of the amount due with respect to any transfer.

(Sec. 1 (part), Ord. 14-011, eff. Jan. 1, 2015)

3-3.716 Notice of Determination.

The Tax Administrator shall give written notice to a person liable for payment of the tax imposed under this article of his or her determination made under Section 3-3.715. Such notice shall be given within three (3) years after the recordation of the deed, instrument, or writing effecting the transfer on which the tax deficiency determination was made.

(Sec. 1 (part), Ord. 14-011, eff. Jan. 1, 2015)

3-3.717 Manner of Giving Notice.

Any notice required to be given by the Tax Administrator under this article may be served personally or by mail. If service is made by mail, it shall be made by depositing the notice in the United States mail, in a sealed envelope with postage paid, addressed to the person on whom it is to be served at the address as it appears in the records of the City or as ascertained by the Tax Administrator. The service is complete at the time of the deposit of the notice in the United States mail, without extension of time for any reason.

(Sec. 1 (part), Ord. 14-011, eff. Jan. 1, 2015)

3-3.718 Petition for Redetermination.

Any person against whom a determination is made under this article or any person directly interested may petition the Tax Administrator for a redetermination within sixty (60) days after service upon the person of notice thereof. If a petition for redetermination is not filed in writing with the Tax Administrator, City of Emeryville, 1333 Park Avenue, Emeryville, California 94608, within the sixty (60) day period, the determination becomes final at the expiration of the period.

(Sec. 1 (part), Ord. 14-011, eff. Jan. 1, 2015)

3-3.719 Consideration of Petition – Hearing.

If a petition for redetermination is filed within the sixty (60) day period, the Tax Administrator shall reconsider the determination and, if the person has so requested in his or her petition, shall grant the person an oral hearing, and shall give him or her ten (10) days’ notice of the time and place of the hearing. The Tax Administrator may designate one (1) or more deputies for the purpose of conducting hearings and may continue a hearing from time to time as may be necessary.

(Sec. 1 (part), Ord. 14-011, eff. Jan. 1, 2015)

3-3.720 Determination of Petition.

The Tax Administrator may decrease or increase the amount of the determination before it becomes final, but the amount may be increased only if a claim for the increase is asserted by the Tax Administrator at or before the hearing.

(Sec. 1 (part), Ord. 14-011, eff. Jan. 1, 2015)

3-3.721 Finality of Determination.

The order or decision of the Tax Administrator upon a petition for redetermination becomes final thirty (30) days after service of notice thereof upon the petitioner or at the time of hearing of redetermination. There is no appeal of the Tax Administrator’s decision on a petition for redetermination to the City Council. Writs challenging the Tax Administrator’s decision must be filed with the appropriate court within ninety (90) days of the final date of such redetermination. (California Code of Civil Procedure Section 1094.6.)

(Sec. 1 (part), Ord. 14-011, eff. Jan. 1, 2015)

3-3.722 Tax a Debt.

The amount of any tax, penalty, and interest imposed under the provisions of this article shall be deemed a debt owed to the City. Any person owing money to the City under the provisions of this article shall be liable in an action brought in the name of the City for the recovery of such amount. In such action a reasonable attorney’s fee shall be awarded the plaintiff. The provisions of this section shall not be deemed a limitation upon the right of the City to bring any other action, whether criminal, legal, or equitable, based upon the failure to pay the tax, penalty, or interest imposed by this article or the failure to comply with any of the provisions hereof.

(Sec. 1 (part), Ord. 14-011, eff. Jan. 1, 2015)

3-3.723 Refunds.

Whenever the amount of any tax, penalty, or interest has been overpaid, or paid more than once, or has been erroneously collected or received by the City under this article, it may be refunded as provided in this section; provided, that a written claim stating under penalty of perjury the specific grounds on which the refund is claimed is filed with the Tax Administrator within one (1) year of the date of payment. The claim shall be submitted on forms furnished by the Tax Administrator. The Tax Administrator may make such refund if he or she is satisfied that the claimant is entitled to the refund under the provisions of this article. 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.

(Sec. 1 (part), Ord. 14-011, eff. Jan. 1, 2015)

3-3.724 Tax a Lien.

The amount of tax, penalty, and interest imposed under the provisions of this article is assessed against the property upon the transfer of which the tax is imposed, and if not paid when due, such tax shall constitute an assessment against such property and shall be a lien on the property for the amount thereof, which lien shall continue until the amount thereof including all penalties and interest are paid, or until it is discharged of record. Any person owing money to the City under the provisions of this article shall be liable to an action brought in the name of the City for the recovery of such amount.

(Sec. 1 (part), Ord. 14-011, eff. Jan. 1, 2015)

3-3.725 Notice of Hearing on Lien.

The Tax Administrator shall file with the City Manager a written notice of those persons on whom the City will file liens. Upon the receipt of such notice, the City Manager shall present the same to the City Council, and the City Council shall forthwith, by resolution, fix a time and place for a public hearing on such notice.

The Tax Administrator shall cause a copy of such resolution and notice to be served upon the persons referred to in Section 3-3.704 not less than ten (10) days prior to the time fixed for such hearing. Such service shall be made by mailing a copy of the resolution and notice to the transferor and transferee of property at their last known address. Service shall be deemed complete at the time of deposit in the United States mail.

(Sec. 1 (part), Ord. 14-011, eff. Jan. 1, 2015)

3-3.726 Collection of Delinquent Taxes by Special Tax Roll Assessment.

If the City Council authorizes the imposition of a lien following the hearing described in Section 3-3.725, any delinquent tax charges which remain unpaid by the transferor or transferee shall constitute a special assessment against said property, and shall be collected at such time as is established by the County Assessor for inclusion in the next property tax assessment.

The Tax Administrator shall turn over to the County Assessor for inclusion in the next property tax assessment the total sum of unpaid delinquent charges consisting of the delinquent transfer taxes, penalties, and interest at the rate of twelve percent (12%) per annum from the date of recordation to the date of lien.

Thereafter, said assessment may be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same penalties and the same procedure of sale as provided for delinquent, ordinary, municipal taxes. The assessment lien previously imposed upon the property is paramount to all other liens except for those of State, county, and municipal taxes with which it shall be upon parity. The lien shall continue until the assessment and all interest and charges due and payable thereon are paid. All taxes applicable to the levy, collection, and enforcement of municipal taxes shall be applicable to said special assessments.

(Sec. 1 (part), Ord. 14-011, eff. Jan. 1, 2015)