HomeMy WebLinkAboutOrdinance #3390 ORDINANCE NO. 3390
AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH
AMENDING CHAPTER 3.36 OF THE
HUNTINGTON BEACH MUNICIPAL CODE
PERTAINING TO THE COLLECTION PROCEDURES
FOR THE UTILITY USERS TAX
WHEREAS, the City Council has determined that the collection procedures of the City's
utility users tax requires amendment to ensure that service suppliers efficiently and effectively
remit the tax due to the City,while providing an opportunity for service users and service
suppliers to challenge the tax assessment consistent with the due process clauses of the Federal
and State Constitutions;
NOW, THEREFORE, the City Council of the City of Huntington Beach ordains as
follows:
Section 1. Section 3.36.160 of the Huntington Beach Municipal Code is amended to
read as follows:
"3.36.160. Reporting and Remitting.
(a) Each service supplier shall make a return to the Tax Administrator, on
forms provided by him, 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 the tax collected shall be remitted to the Treasurer. The
Tax Administrator is authorized to require such further information as he
deems necessary to properly determine if the tax herein imposed is being
levied and collected in accordance with this chapter. Tax returns must be
postmarked with prepaid postage and properly addressed, or delivered to
the Treasurer on or before the 20th day of each month. Returns and tax
remittances are due immediately upon cessation of business for any
reason. Should the due date occur on a weekend or legal holiday,the
return must be received on the first regular working day following a
Saturday/Sunday, or legal holiday.
(b) Service suppliers and the Tax Administrator may enter into an agreement
to remit taxes by way of electronic funds transfer or similar means.
8F/s:SF-980rd:Ut11tax
Rev.2/19/98-47
3390
(c) The Tax Administrator, or the Tax Administrator's designated
representative, may request from a person providing transportation
services of gas or electricity to service users within the City a list of the
names and addresses of its transportation customers within the City
pursuant to Section 6354(e) of Chapter 2.5 of Division 3 of the California
Public Utilities Commission.
(d) If any person subject to record-keeping under this section unreasonably
denies the Tax Administrator, or the Tax Administrator's designated
representative, access to such records,then the Tax Administrator may
impose a penalty of$500 on such person for each day following the initial
date that the person refuses to provide such access."
Section 2. Section 3.36.180 of the Huntington Beach Municipal Code is amended to
read as follows:
"3.36.180. Interest and Penalties.
(a) Taxes collected from a service user which are not received by the
Treasurer on or before the due dates provided in this chapter are
delinquent.
(b) 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. Said penalty shall be paid in addition to the amount of
the tax.
(c) 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 tax in addition to the amount of the
tax and the penalty first imposed.
(d) If the Treasurer determines that the non-payment of any remittance due
under this chapter is due to fraud, a penalty of twenty-five percent(251/0)
of the amount of the tax shall be added thereto in addition to the penalties
stated in subsection(b) and (c) of this Section.
(e) 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 becomes delinquent until paid.
(f) 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
SF/s:SF-980rd:Utiltax
Rev.2/19/98-#7
3390
Section 3. Section 3.36.190 of the Huntington Beach Municipal Code is amended to
read as follows:
"3.36.190 Penalty--Imposed by administrator. The Tax Administrator shall
impose the penalties and interest upon persons required to pay and remit taxes
under the provisions of this Chapter."
Section 4. Section 3.36.210 of the Huntington Beach Municipal Code is amended to
read as follows:
"3.36.210 Actions to collect. Any tax required to be paid by a service user under
the provisions of this chapter shall be deemed a debt owed by the service user to
the City. Any such tax collected from a service user which has not been paid to
the Treasurer shall be deemed a debt owed to the City by the person required to
collect and pay. Any person owing money to the City under the provisions of this
chapter shall be liable to an action brought in the name of the City for the
recovery of such amount."
Section 5. Section 3.36.220 of the Huntington Beach Municipal Code is amended to
read as follows:
"3.36.220 Failure to pay--Administrative remedy. Whenever the Tax
Administrator determines that a service user has deliberately withheld the
amount of the tax owed 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 a
period of two or more billing periods, or whenever the Tax Administrator -
deems it in the best interest of the City,he may relieve the service supplier
of the obligation to collect taxes due under this chapter from certain named
service users for specified billing periods. The Tax Administrator shall
notify the service user that he has assumed responsibility to collect the
taxes due for the stated periods and demand payment of such taxes. The
notice shall be served on the service user by handing it to him personally
or by deposit of the notice in the United States mail,postage prepaid
thereon, addressed to the service user at the address to which billing was
made by the service supplier; or should the service user have changed his
address, to his last known address. If a service user fails to remit the tax to
the Treasurer within fifteen days from the date of the service of the notice
upon him, which shall be the date of mailing if service is not accomplished
in person; a penalty of twenty-five (25%) percent of the amount of the tax
set forth in the notice shall be imposed but not less than five dollars. The
penalty shall become part of the tax herein required to be paid."
3
SF/s:SF-980rd:Utiltax
Rev.2/19/98-97
f
3390
Section 6. Section 3.36.230 of the Huntington Beach Municipal Code is amended to
read as follows:
"3.36.230 Assessment-Administrative remedy. The Tax Administrator may
make an assessment for taxes not paid or remitted by a service supplier or service
user. The Tax Administrator shall mail a notice of the assessment which shall
refer briefly to the amount of the taxes and penalties imposed. The Tax
Administrator shall mail a copy of such notice to the supplier or the service user,
allowing fourteen(14) days to appeal the assessment."
Section 7. Section 3.36.240 of the Huntington Beach Municipal Code is amended to
read as follows:
"3.36.240 Appeals.
(a) City Administrator„Appeal. If the service user or service supplier is
aggrieved by any decision of the Tax Administrator, or with the failure
to grant a refund or exemption as provided for under this Chapter,he
may appeal to the City Administrator, or his or her duly authorized
designee, by filing a notice of appeal with the City Clerk within
fourteen(14) days of the decision which aggrieved the service user or
service supplier. The City Clerk shall thereupon fix a time and place
for a hearing of such appeal. The City Clerk shall give notice to such
person of the time and place of hearing as herein provided.
(b) City Admnistrator Decision. The decision of the City Administrator,or his or her duly authorized designee, shall be final unless appealed to
the City Council.
(c) Appeal to the City Council. An appeal from a decision by the City
Administrator may be filed no later than ten calendar days after the
date of the decision.
(1) Form of Notice on Appeal. The notice of appeal shall contain the
name and address of the person appealing the action,the decision
appealed from and the grounds for the appeal. A defect in the form
of the notice does not affect the validity or right to an appeal.
(2) Action on Appeal. The City Clerk shall set the matter for hearing
before the City Council and shall give notice of the hearing on the
appeal.
I
4
SF/s:SF-980rd:Uti1tax
Rev.2/19/98-#7
3390
(3) De Novo Hearing. The City Council shall hear the appeal as a new
matter. The original applicant has the burden of proof. The City
Council may act upon the appeal, either granting it, conditionally
granting it or denying it, irrespective of the precise grounds or
scope of the appeal. In addition to considering the testimony and
evidence presented at the hearing on the appeal, the City Council
shall consider all pertinent information from the file as a result of
the previous hearings from which the appeal is taken.
(4) Decision on Appeal. The City Council may reverse or affirm in
whole or in part, or may modify the decision, or determination that
is being appealed.
(5) Fee for Appeal. The notice of appeal shall be accompanied by the
fee fixed by resolution of the City Council.
(6) Appeal by City Council Member
A. A City Council member may appeal a decision of the City
Administrator. The appeal shall be processed in the same
manner as an appeal by any other person but need not be
accompanied by the fee prescribed for an appeal.
B. The City Council member appealing the decision is not
disqualified by that action from participating in the appeal
hearing and the deliberations nor from voting as a member of
the City Council."
Section S. Section 3.36.245 is hereby added to the Huntington Beach Municipal
Code to read as follows:
"3.36.245. Audit by City. The City shall have the right to inspect all books,
accounts and records of the service supplier which the City deems necessary to
properly determine if the tax herein imposed is being levied and collected in
accordance with this Chapter." The service supplier shall make available all -
books, accounts and records at a location within Los Angeles or Orange County
and during normal business hours."
Section 9. Section 3.36.250 of the Huntington Beach Municipal Code is hereby
amended to read as follows:
5
SF/s:SF-980rd:Utiltax
Rev.2/19/98-47
3390
"3.36.250 Records. It shall be the duty of every person required to collect
and remit to the City any tax imposed by this chapter to keep and preserve, for
a period of three years, all records as may be necessary to determine the
amount of such tax as he may have been liable for the collection of and
remittance to the Treasurer, which records the Treasurer shall have the right to
inspect at all reasonable times."
Section 10. Section 3.36.260 of the Huntington Beach Municipal Code is hereby
amended to read as follows:
"3.36.260. Refunds.
(a) 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 Chapter, it may be refunded as provided in this
Section.
(b) 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 Administrator 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.
(c) A service user who has not otherwise received a refund or a credit against
future taxes from the service supplier pursuant to subsection(b) of this
Section may claim a refund directly from the Tax Administrator 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
Administrator 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(b) above.
(d) 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
6
SF/s:SF-980rd:Utiltax
Rev.2119/98-47
s
3390
claim a credit for such refunded taxes against the amount of tax which is
due upon the next monthly returns.
(e) 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.
(f) No credit or refund shall be allowed or paid by the City under the
provisions of this Section unless the claimant 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. The submission of a written claim, which is acted
upon by the Tax Administrator, shall be a prerequisite to a suit thereon.
The Tax Administrator shall act upon the refund claim within the time
period set forth in Government Code Section 912.4. If the Tax
Administrator fails or refuses to act on a refund claim,within the time
prescribed by Government Code Section 912.4,the claim shall be deemed
to have been rejected by the Tax Administrator on the last day of the
period within which the Tax Administrator was required to act upon the
claim as provided in Government Code Section 912.4. It is the intent of
the Tax Administrator that the one year written claim requirement of this
subsection be given retroactive effect; provided, however, that any claims
which arose prior to the commencement of the one year claims period of
this subsection, and which are not otherwise barred by a then applicable
statute of limitations or claims procedure, must be filed with the Tax
Administrator as provided in this subsection within ninety(94) days
following the effective date of this ordinance. The above refund procedure has been adopted by the City pursuant to Government Code Section 935.
Section 11. Section 3.36.265 is hereby added to the Huntington Beach Municipal
Code to read as follows:
"3.36.265. Additional Powers and Duties of Tax Administrator.
(a) The Tax Administrator shall have the power and duty, and is hereby
directed to enforce each and all of the provisions of this Chapter.
(b) The Tax Administrator shall have 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 Administrator's Office.
7
SF/s:SF-980rd:Uti1tax
Rev.2/19/98-#7
3390
(c) The Tax Administrator 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
Administrator's Office.
(d) 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
Chapter."
Section 12. This ordinance shall become effective 30 days after it is adopted.
PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a
regular meeting thereof held on the 6 t h day of AP r i 1 , 1998.
t7
Mayor
ATTEST: APPROVED AS TO FORM:
4wt,�
City Clerk ity ' `ttorney !y�
REVIEWED AND APPROVED: ED:
City AdrKnistrator e p u ity A nis ator/
Administrative S rvices
8
SF/s:SF-980rd:Uti1tax
Rev.2/19/98-47
3
Ord. No. 3390
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss:
CITY OF HUNTINGTON BEACH }
I, CONNIE BROCKWAY,the duly elected, qualified City Clerk of the
City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do
hereby certify that the whole number of members of the City Council of the City of
Huntington Beach is seven; that the foregoing ordinance was read to said City Council
at a regular meeting thereof held on the 16th day of March., 1998, and was again read
to said City Council at a regular meeting thereof held on the 6th day of April, 1998,
and was passed and adopted by the affirmative vote of at least a majority of all the
members of said City Council.
AYES: Harman, Green, Dettloff, Bauer, Sullivan, Garofalo
NOES: None
ABSENT: Julien
ABSTAIN: None
I,Connie Brockway CITY CLERK of the City of
Huntington Beach and ex-officio Clerk of the City
Council,do hereby certify that a synapsis of this
ordinance has been published in the Independent on 0
0-PrJ 19 �6
In accordance with the City Charter of said City City Clerk and ex;-officio Clerk
onnnnie Brockwa City Clerk of the City Council City
C�{� r De Delmy City Clerk of Huntington Beach, California
Glordinanc/ordbkpg
4/7198