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5236FOLLOWS: Y ORDINANCE NO. 5236 AN ORDINANCE OF THE CITY OF ANAHEIM ADDING CHAPTER 2.13 TO TITLE 2 OF THE ANAHEIM MUNICIPAL CODE ESTABLISHING A UTILITY USERS' TAX THE CITY COUNCIL OF THE CITY OF ANAHEIM DOES ORDAIN AS SECTION 1. That Chapter 2.13 be, and the same is hereby, added to Title 2 of the Anaheim Municipal Code, to read as follows: "CHAPTER 2.13 UTILITY USERS' TAX 2.13.010 TITLE AND PURPOSE. This Chapter shall be known and cited as the 'utility users' tax.' The taxes imposed by this Chapter are established solely as revenue measures. This Chapter is required for the purpose of fixing the rate of taxation for the utility users' tax and for the purpose of providing a tax levy for the usual and current expenses of the City of Anaheim. 2.13.020 DEFINITIONS Except where the context otherwise requires, the definitions contained in this Section shall govern the construction of this Chapter. .010 'City' means the City of Anaheim. .020 'Month' means a calendar month. .030 'Person' means any domestic or foreign corporation, firm, association, syndicate, joint stock company, partnership of any kind, joint venture, club, trust, society, or individual. .040 'Service supplier' means a person required to collect and remit to the City a tax imposed by this Chapter. .050 'Service user' means a person required to pay a tax imposed by this Chapter. 1 .060 'Tax Collector' means the City Treasurer of the City of Anaheim. .070 'Electrical corporation,' 'telephone corporation, 'gas corporation,' 'water corporation,' and 'cable television corporation' shall have the same meanings as defined in Sections 218, 234, 222, 242 and 215.5, respectively, of the Public Utilities Code of the State of California as said Sections existed on January 1, 1991; except 'electrical corporation' 'gas corporation' and 'water corporation' shall also be construed to include any municipality, public agency or person engaged in the selling or supplying of electrical power or gas or water to a service user. .080 'Gross annual income' means all income regardless of source and includes, but is not limited to, income subject to federal and state income taxation, social security payments, pensions, welfare payments, interest on tax exempt investments, gifts and inheritances. 2.13.030 ELECTRICITY USERS' TAX .010 There is imposed a tax upon every person using electrical energy in the City. The tax imposed by this Section shall be at the rate of four percent (4%) of the charges made for such energy and shall be paid by the person paying for such energy or incurring such charges. 'Charges,' as used in this Section, shall include charges made for metered energy, customer charges, service charges, meter establishment charges, demand charges, standby charges, fuel cost adjustments, and all other annual and monthly charges or adjustments, authorized by the California Public Utilities Commission or the Federal Energy Regulatory Commission. .020 As used in this Section, the words 'using electrical energy' shall not include the storage of such energy by a person in a battery owned or possessed by him for use in an automobile or other machinery or device apart from the premises upon which the energy was received, but shall include the receiving of such energy for the purpose of using it in the charging of batteries. The term shall not include the receiving of such energy by an electrical corporation at a point within the City for purposes of resale. The term shall not include electricity used solely in the pumping of water by water corporations for the purpose of resale. There shall be excluded from the base on which this tax is imposed, charges made by a municipal electrical power and light department, or electric public utility for electrical energy used and consumed by such department or utility in the conduct of the business of such department or utility. 2 Y .030 The tax imposed by this Section shall be collected from the service user by the person supplying the electrical energy service or the person receiving payment for such service. The amount of the tax collected in one (1) month shall be remitted to the Tax Collector on or before the last day of the following month. 2.13.040 TELEPHONE USERS' TAX .010 There is imposed a tax upon every person in the City, other than a telephone or telegraph corporation, using telephone communication services including services for intrastate, interstate, or international calls, and using any teletypewriter exchange services in the City or mobile or cellular telephone communication when the owner or lessee of the telephone has a billing address in the City. The tax imposed by this Section shall be at the rate of four percent (4%) of all charges made for such service and shall be paid by the person paying for such service or incurring such charges. Interstate calls shall be deemed to include calls to or from the District of Columbia. .020 As used in this Section, the term 'charges' shall not include charges for services paid for by inserting coins in coin-operated telephones except that where such coin-operated telephone service is furnished for a guaranteed amount, the amounts paid under such guarantee plus any fixed monthly or other periodic charges shall be included in the base for computing the amount of tax due; nor shall the term 'charges' include charges for any type of service or equipment furnished by a service supplier subject to public utility regulation during any period in which the same or similar services or equipment is also available for sale or lease from persons other than a service supplier subject to public utility regulation; nor shall the words 'telephone communications services' include maritime mobile services as defined in Section 2.1 of Title 47 of the Code of Federal Regulations as such Section existed on January 1, 1970. The telephone users' tax is intended to, and does, apply to all intrastate, interstate and international charges billed to a telephone account having a situs in the City, irrespective of whether a particular communications service originates or terminates within the City. .030 The tax imposed by this Section shall be collected from the service user by the person providing the telephone communications service or the teletypewriter exchange service or the person receiving payment for such service. The amount of the tax collected in one (1) month shall be remitted to the Tax Collector on or before the last day of the following month. .040 Notwithstanding the provisions of subsection .010 of this Section, the tax imposed under this Section shall not be 3 A imposed upon any person for using telephone communications services or teletypewriter exchange services to the extent that the amounts paid for such services are exempt from or not subject to the tax imposed under Part 20 of Division 2 of the Revenue and Taxation Code of the State, or the tax imposed under Section 4251 of Title 26 of the Internal Revenue Code, or any successor provisions thereto. 2.13.050 GAS USERS' TAX .010 There is imposed a tax upon every person in the City using natural gas in the City which is delivered through mains or pipes. The tax imposed by this Section shall be at the rate of four percent (4%) of the charges made for such gas and shall be paid by the person paying for such gas or incurring such charges. .020 As used in this Section, the term 'charges' shall include gas which is delivered through mains or pipes, minimum charges for such service, customer charges, service charges, establishment fees, annual and monthly charges, and any other charges or adjustments authorized by the California Public Utilities Commission or the Federal Energy Regulatory Commission. .030 There shall be excluded from the base on which the tax imposed by this Section is computed charges made for gas sold for use in the generation of electrical energy or the production or distribution of water by a government agency or public utility; gas which is to be resold and delivered through mains or pipes; charges made by a gas public utility for gas used and consumed in the conduct of the business of gas public utilities; and charges made for gas used in the propulsion of a vehicle, as that phrase is defined in the Vehicle Code of the State of California, utilizing natural gas. .040 The tax imposed by this Section shall be collected from the service user by the person selling the gas and providing the service or the person receiving payment for such service. The amount of the tax collected in one (1) month shall be remitted to the Tax Collector on or before the last day of the following month. 2.13.060 WATER USERS' TAX .010 There is imposed a tax upon every person in the City using water which is delivered within the City through mains or pipes. The tax imposed by this Section shall be at the rate of four percent (4%) of the charges made for such water and shall be paid by the person paying for such water or incurring such charges. .020 As used in this Section, the term 'charges' shall 4 Y include water which is delivered through mains or pipes, minimum charges for such service, customer charges, service charges, establishment fees, and annual and monthly charges. .030 There shall be excluded from the base on which the tax imposed by this Section is computed charges made for water which is to be resold and delivered through mains or pipes and charges made by a municipal water department, public utility, county or municipal water district for water used and consumed by such department, utility or district in the conduct of the business of such department; and charges made for water used in the generation of electrical energy by an electrical corporation. .040 The tax imposed by this Section shall be collected from the service user by the person selling the water and providing the service or the person receiving payment for such service. The amount of the tax collected in one (1) month shall be remitted to the Tax Collector on or before the last day of the following month. 2.13.070 COLLECTION OF TAXES .010 Every person receiving payment of charges from a service user shall collect the amount of tax imposed by this Chapter from the service user. .020 The tax shall be collected insofar is practicable at the same time as, and along with, the collection of the charges made in accordance with the regular billing practices of the service supplier. If the amount paid by a service user is less than the full amount of the charge and the tax which has accrued for the billing period, a proportionate share of both the charge and the tax shall be deemed to have been paid. .030 The duty to collect the tax from a service user shall commence with the beginning of the first regular billing period applicable to that person which starts on or after the operative date of this ordinance. Where a person receives more than one billing for services supplied, the duty to collect shall arise separately for each billing. 2.13.080 ACTIONS TO COLLECT TAXES Any tax required to be paid by a service user under the provisions of this Chapter shall be deemed a debt owed by the service user to the City. Any such tax collected from a service user which has not been remitted to the Tax Collector is deemed a debt owed to the City by the person required to collect and remit such tax. Any person owing money to the City under the provisions of this Chapter shall be liable in an action brought in the name of the City for the recovery of such amount. 5 2.13.090 FAILURE OF SERVICE USER TO PAY Whenever the Tax Collector determines a service user has deliberately withheld the amount of the tax owned by him from the amounts remitted to a service supplier, or that a service user has failed to pay the amount of the tax for two or more consecutive billing periods, or whenever the Tax Collector deems it in the best interest of the City, he/she may relieve the service supplier of the obligation to collect taxes due under this Chapter from the service users for specified billing periods. The Tax Collector shall notify the service user that he/she has assumed responsibility to collect the taxes due for the stated periods and demand payment for such taxes. The notice shall be served on the service user by handing it to him personally or by deposit of the notice in the United States mail, postage prepaid thereon, addressed to the service user at the address to which billing was made by the service supplier; or should the service user have changed his address, to his last known address. If a service user fails to remit such tax to the Tax Collector within fifteen (15) days from the date of notice, which shall be the date of mailing if the notice is not accomplished in person, a penalty of twenty percent (20%) of the amount of tax set forth in the notice shall be imposed, but not less than ten dollars ($10.00); in addition, the service user shall pay interest to the City at the rate of one and one-half percent (1 1/2%) per month or fraction thereof in the amount of the tax due. The penalty and interest shall become part of the tax herein required to be paid. 2.13.100 CIVIL DEBT The taxes imposed by this Chapter shall be civil debts owing to the City from the service user. 2.13.110 REPORTING AND REMITTING Each service supplier shall, on or before the last day of each month, make a return to the Tax Collector, on forms provided by him/her, stating the amount of taxes billed by the service supplier during the preceding month. At the time the return is filed, the full amount of tax collected shall be remitted to the Tax Collector. The Tax Collector is authorized to require such further information as he/she deems necessary to properly determine if the tax herein imposed is being levied and collected in accordance with this Chapter. Returns and tax remittances are due immediately upon cessation of business for any reason. 2.13.120 INTEREST AND PENALTIES .010 Taxes collected from a service user which are not remitted to the Tax Collector on or before the due dates provided 11 Y in this Chapter are delinquent. .020 Any service supplier who fails to remit any tax imposed by this Chapter within the time required shall pay a penalty of ten percent (10%) of the amount of the tax in addition to the amount of the tax. .030 Any service supplier who fails 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 of ten percent (10%) of the amount of the tax in addition to the amount of the tax and the ten percent (10%) penalty first imposed. .040 If the Tax Collector determines that the nonpayment of any remittance due under this Chapter is due to fraud, a penalty of twenty-five percent (25%) of the amount of the tax shall be added thereto in addition to the penalties stated in subsections .020 and .030 of this Section. .050 In addition to the penalties imposed, any service supplier who fails to remit any tax imposed by this Chapter shall pay interest to the City at the rate of one and one-half percent (1 1/2%) 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. .060 Every penalty imposed and such interest as accrues under the provisions of this Section shall become a part of the tax herein required to be paid. 2.13.130 AUDIT BY CITY The City shall have the right to inspect all books, accounts and records, and the service supplier shall make available all books, accounts and records, and personnel, at a location with the City and during normal business hours, which may be deemed necessary by the City to properly determine if the tax herein imposed is being levied and collected in accordance with this Chapter. 2.13.140 MAINTENANCE OF RECORDS It shall be the duty of every person required to collect and remit to the City any tax imposed by this Chapter to keep and preserve for a period of not less than three (3) years, all books, accounts and records as may be necessary to determine the amount of such tax as he may have been liable for the collection of and remittance to the Tax Collector. 7 1 2.13.150 REFUNDS .010 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 Collector under this Chapter, it may be refunded as provided in this Section. .020 A person required to collect and remit taxes as imposed by this Chapter may claim a refund or take as credit against taxes collected and remitted the amount overpaid, paid more than once or erroneously or illegally collected or received when it is established in a manner prescribed by the Tax Collector that the service user from whom the tax has been collected did not owe the tax; provided, however, that neither a refund nor a credit shall be allowed to the service supplier unless the amount of the tax so collected has either been refunded to the service user by, or credited to charges subsequently payable to, the person required to collect and remit such tax to the City. .030 A service user who has not otherwise received a refund or a credit against future taxes from the service supplier pursuant to subsection .020 of this Section may claim a refund directly from the Tax Collector for any amount overpaid, paid more than once, or erroneously or illegally collected or received when it is established that the service user from whom the tax has been collected did not owe the tax. The Tax Collector shall notify the service supplier of his/her determination and the amount of any refund due to the service user which amount, if any, shall be promptly refunded or credited to the service user by the service supplier in accordance with subsection .020 above. .040 Notwithstanding other provisions of this Section, whenever a service supplier, pursuant to an order of the California Public Utilities Commission or a court of competent jurisdiction, makes a refund to service users of charges for past utility services, the taxes paid pursuant to this Chapter on the amount of such refunded charges shall also be refunded to such service users, and the service supplier shall be entitled to claim a credit for such refunded taxes against the amount of tax which is due upon the next monthly returns. In the event this Chapter is repealed, the amounts of any refundable taxes will be borne by the City. .050 A service supplier may refund any sums due to the service user in accordance with this Section or by the service supplier's customary practice. .060 No credit or refund shall be allowed or paid by the City under the provisions of this Section unless such claim is filed in writing with the Tax Collector not later than one (1) year following the dates of overpayment and the claimant 8 Y establishes his/her right thereto by written records showing entitlement thereto. 2.13.160 EXEMPTION -CONSTITUTIONAL .010 Nothing in this Chapter shall be construed as imposing a tax upon any person when the imposition of such tax upon such person would be in violation of the Constitution or laws of the United States or Constitution or laws of the State of California. .020 The Tax Collector shall prepare a list of the persons exempt from the provisions of this Chapter by virtue of this Section and furnish a copy thereof to each service supplier. 2.13.170 EXEMPTIONS - - OTHER .010 The City Council may, by order or resolution, establish one or more classes of persons or one or more classes of utility service otherwise subject to payment of a tax imposed by this Chapter and provide that such classes of persons or service shall be exempt, in whole or in part, from such tax. .020 Any exemption granted by this Section shall not eliminate the duty of the service supplier from collecting taxes from such exempt persons or the duty of such exempt persons from paying such fees to the service supplier unless an exemption is applied for by the service user and granted in accordance with the provisions of subsection .030 hereof. .030 Any service user exempt from the taxes imposed by this Chapter because of the provisions of subsection .010 above, may file an application with the Tax Collector for an exemption. Such applications shall be made upon forms supplied by the Tax Collector and shall recite facts under oath which qualify the applicant for an exemption. The Tax Collector shall review all such applications and certify as exempt those applicants determined to qualify therefor and shall notify all service suppliers affected that such exemption has been approved, stating the name of the applicant, 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 fee billing procedure. Upon receipt of such notice, the service supplier shall not continue to bill any further tax imposed by this Chapter from such exempt service user until further notice by the Tax Collector is given. The service supplier shall eliminate such exempt service user from its fee billing procedure no later than sixty days after receipt of such notice from the Tax Collector. .040 All exemptions shall continue and be renewed automatically by the Tax Collector so long as the prerequisite 9 Y facts supporting the initial qualification for exemption shall continue; provided, however, that the exemption shall automatically terminate with any change in the service address or residence of the exempt individual; further provided such individual may, nevertheless, apply for a new exemption with each change of address or residence. Any individual exempt from the tax shall notify the Tax Collector within ten days of any change in fact or circumstance which might disqualify said individual from receiving such exemption. It shall be a misdemeanor for any person to knowingly receive the benefits of the exemptions provided by this Section when the basis for such exemption either does not exist or ceases to exist. .050 Notwithstanding any of the provisions of this subsection, however, 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, such service supplier shall immediately notify the Tax Collector of such fact and the Tax Collector shall conduct an investigation to ascertain whether or not the provisions of this Section have been complied with, and, where appropriate, order the service supplier to commence collecting the tax from the nonexempt service user. .060 No exemption shall be granted to a service user who is receiving service from a service supplier through a master meter and no exemption shall be granted with respect to any tax imposed by this Chapter which is or has been paid by a public agency or where the service user receives funds from a public agency specifically for the payment of such tax. .070 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 for charges incurred between the time that the application for exemption is filed and the service supplier removes the service user from its taxing procedure shall be subject to credit or refund to the service user in accordance with the procedure set forth in Section 2.13.150 of this Chapter. .080 The Tax Collector shall have authority 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, birth certificate, driver's license, copies of business records, letters or statements from the Social Security Administration and state, county, city and private pension administrators or unemployment and welfare agencies, copies of income tax returns and such other evidence concerning the service user or other members of his household as may tend to 10 i prove or disprove such eligibility. Failure to provide such evidence as is within the control of a service user to so provide, either directly by him or by his consent, or the consent of a member of his household when such evidence is requested of the service user in writing by the Tax Collector, shall be grounds for denial or the immediate discontinuance of the service user's eligibility for exemption under the provisions of this Section. Evidence provided to the Tax Collector by the service user may only be used as grounds for denial or termination of the exemption herein provided. 2.13.180 ADDITIONAL POWERS AND DUTIES OF TAX COLLECTOR .010 The Tax Collector shall have the power and duty, and is hereby directed to enforce each and all of the provisions of this Chapter. .020 The Tax Collector shall have the power to adopt rules and regulations not inconsistent with provisions of this Chapter for the purpose of carrying out and enforcing the payment, collection and remittance of the taxes herein imposed. A copy of such rules and regulations shall be on file in the Tax Collector's Office. .030 The Tax Collector may make administrative agreements to vary the strict requirements of this Chapter so that collection of any tax imposed herein may be made in conformance with the billing procedures of particular service supplier so long as said agreements result in collection of the tax in conformance with the general purpose and scope of this Chapter. A copy of each such agreement shall be on file in the Tax Collector's Office. .040 The Tax Collector shall determine the eligibility of any person who asserts a right to exemption from or a refund of, the tax imposed by this Chapter. 2.13.190 APPEALS Any service supplier or service user aggrieved by any decision of the Tax Collector under the provisions of this Chapter may appeal such decision to the City Council by filing a notice of appeal with the City Clerk within fifteen (15) days of the serving or mailing of the decision of the Tax Collector. The City Council shall fix a time and place for hearing such appeal, and the City Clerk shall give notice in writing to such service supplier or service user at his last known place of address. The findings of the City Council shall be final and conclusive and shall be served upon the appellant in the manner prescribed above for service of notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of such 11 notice. 2.13.200 EFFECTIVE AND OPERATIVE DATES This Chapter shall become effective on the date of adoption. The taxes imposed by this Chapter shall apply to services furnished by any service supplier from the beginning of the first regular billing period commencing on or after September 1, 1991, or as soon thereafter as said service supplier is physically and mechanically able to get "on line" for the imposition of charges. SECTION 2. SEVERABILITY The City Council of the City of Anaheim hereby declares that should any Section, paragraph, sentence or word of this ordinance of the Code, hereby adopted, be declared for any reason to be invalid, it is the intent of the Council that it would have passed all other portions of this ordinance independent of the elimination herefrom of any such portion as may be declared invalid. SECTION 3. SAVINGS CLAUSE Neither the adoption of this ordinance nor the repeal of any other ordinance of this City shall in any manner affect the prosecution for violations of ordinances, which violations were committed prior to the effective date hereof, nor be construed as a waiver of any license or penalty or the penal provisions applicable to any violation thereof. The provisions of this ordinance, insofar as they are substantially the same as ordinance provisions previously adopted by the City relating to the same subject matter, shall be construed as restatements and continuations, and not as new enactments. THE FOREGOING ORDINANCE is approved and adopted by the City Council of the City of Anaheim this 18th day of Jimp , 1991. MAYOR OF THE CITY OF ANAHEIM V ATTEST: ., rpo rfm CITY CLERK OF THE CITY OF ANAHEIM JLW:lm 12 i STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that the foregoing Ordinance No. 5236 was introduced at a regular meeting of the City Council of the City of Anaheim, held on the 11th day of June, 1991, and that the same was duly passed and adopted at a regular meeting of said City Council held on the 18th day of June, 1991, by the following vote of the members thereof: AYES: COUNCIL MEMBERS: Simpson, Ehrle and Hunter NOES: COUNCIL MEMBERS: Daly, Pickler ABSENT: COUNCIL MEMBERS: None AND I FURTHER CERTIFY that the Mayor Pro Tem of the City of Anaheim signed said Ordinance No. 5236 on the 19th day of June, 1991. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Anaheim this 19th day of June, 1991. CITY CLERK OF THE CITY OF ANAHEIM (SEAL) I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that the foregoing is the original of Ordinance No. 5236 and was published once in the Anaheim Bulletin on the 28th day of June, 1991. CITY CLERK OF THE CITY OF ANAHEIM