HomeMy WebLinkAboutCity Council - 2010-46 RESOLUTION NO. 2010-46
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON
BEACH SUBMITTING TO THE QUALIFIED ELECTORS OF THE CITY A
COMMUNICATIONS UTILITY USERS' TAX MEASURE; SETTING
PRIORITIES FOR FILING WRITTEN ARGUMENTS AND DIRECTING THE
CITY ATTORNEY TO PREPARE IMPARTIAL ANALYSIS
WHEREAS, City Council Resolution No. 2010-34 has called a General Municipal
Election to be held on Tuesday,November 2, 2010; and
The City Council also desires to submit to the voters at the election a measure
regarding the adoption of a modernized Communications Utility User Tax("UUT")ordinance;and
Residents of the City of Huntington Beach currently pay a UUT on electricity,water
gas, cable television and telecommunications which is used to fund essential City services such as
public safety 911 program services, and senior programs; and
The City Council desires to reduce the UUT rate on telecommunications and video
and modernize the telecommunications and video UUT ordinance to keep pace with technological
advances and changes in state and federal law; and
Proposed Ordinance No. 3883 , attached hereto and incorporated herein by
reference as Attachment"1"(the"Ordinance")will implement the proposed revisions to the tax;and
Pursuant to Government Code Section 53724 and Election Code Section 9222, and
California Constitution Article 13,the City Council desires to submit the Ordinance to the qualified
electors of the City at the Election; and
City Council wishes to authorize arguments in favor of and in opposition to they as
well as authorize impartial analysis of the measure identified herein,
NOW THEREFORE, THE CITY COUNCIL of the City of Huntington Beach does
hereby resolve, declare, determine and order as follows:
SECTION 1. The City Council finds and determines that each of the findings set
forth above are true and correct.
SECTION 2. Upon 30 days after voter approval, the general taxes as well as the
proposed change to the type of tax,the rate of the tax,and the method of tax collection as set forth in
the attached Ordinance shall become effective.
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Resolution No. 2010-46
SECTION 3. Pursuant to Elections Code Section 9222, the City Council hereby
submits the Ordinance to the voters at the on November 2, 2010 election and orders the following
question to be submitted to the voters at the Election:
Huntington Beach UUT Modernization/Reduction Measure To preserve YES
vital city services shall Huntington Beach's existing utility users' ordinance
be modernized and reduced by .1% to maintain 9-1-1 emergency response
times,police officers,firefighters,public safety communications/equipment, NO
senior services,storm drains and other city services,requiring equal treatment
of taxpayers regardless of technology used with low-income senior
exemptions,annual audits,local control of funds,and no rate increase without
voter approval?
This question requires the approval of a majority of those casting votes.
SECTION 4. The measure to be submitted to the voters is Ordinance No. 3883
to this Resolution hereto as Attachment"U'
SECTION 5. In all particulars not specified in this Resolution,the election shall be
held and conducted as provided by law for holding municipal elections.
SECTION 6. Notice of the time and place of holding the election is hereby given,
and the City Clerk is authorized, instructed and directed to give further or additional notice of the
election, in time, form and manner as required by law.
SECTION T Pursuant to California Elections Code Section 9280,the City Council
hereby directs the City Clerk to transmit a copy of the measure to the City Attorney. The City
Attorney shall prepare an impartial analysis of the measure, not to exceed 500 words in length,
showing the effect of the measure on the existing law and the operation of the measure,and transmit
such impartial analysis to the City Clerk within ten(10) days of the adoption of this Resolution.
SECTION 8. That with respect to the above entitled measure:
a. That the City Council authorizes
Joe Carchi o (Councilmember in Favor/Against)
Gil Coerper (Councilmember in Favor/Altai-Rst-)
Jill Hardy (Councilmember in Favor/Against
Keith Bohr (Councilmember in Favor/Against-)
Don Hansen (Councilmember in Favor/Agaifist-)
members of that body, to file a written argument regarding the Measure as specified above in
accordance with Article 4,Chapter 3,Division 9 of the Elections Code of the State of California and
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Resolution No. 2010-46
to change the argument until and including the date fixed by the City Clerk after which no arguments
for or against the Measure may be submitted to the City Clerk. Said argument to be accompanied by
the printed name(s) and signature(s) of the person(s) submitting it, or if submitted on behalf of an
organization,the name of the organization,and the printed name and signature of at least one of its
principal officers.
SECTION 9. The City Clerk shall certify to the passage and adoption of this
Resolution and enter it into the book of original Resolutions.
PASSED, APPROVED AND ADOPTED this 6th day of July, 2010.
Mayor
ATTEST: APPROVED AS TO FORM:
*ity Clerk `C%ty Attorn y ,vv 7_t-10
REVIEWED AND APPROVED:
Ci y "Administrator
Attachment"1",Resolution No.2010-46
PROPOSED ORDINANCE NO. 3883
AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING
THE HUNTINNGTON BEACH MUNICIPAL CODE BY ADDING CHAPTER
3.38 REGARDING COMMUNICATION USERS' TAX.
The City Council of the City of Huntington Beach does hereby ordain as follows:
SECTION 1. The Huntington Beach Municipal Code is hereby amended by adding
Chapter 3.38, said Chapter to read as follows:
3.38.010 Short Title. This chapter shall be known as the "Communication Users' Tax Law" of
the City of Huntington Beach.
3.38.020 Definitions. The following words and phrases whenever used in this Chapter 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) "Ancillary video services" means services that are associated with or incidental to
the provision or delivery of video services, including but not limited to electronic program guide
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services, recording services, search functions, or other interactive services or communications
that are associated with or incidental to the provision, use or enjoyment of video services.
(c) "Billing Address" means the mailing address of the service user where the service
supplier submits invoices or bills for payment by the customer.
(d) "City" means the City of Huntington Beach.
(e) "Communication Services" means: "telecommunications services", "ancillary
telecommunication services", "video services" and"ancillary video services".
(f) "Mobile Telecommunications Service" has the meaning and usage as set forth in
the Mobile Telecommunications Sourcing Act (4 U.S.C. Section 124) and the regulations
thereunder.
(g) "Month" means a calendar month.
(h) "Paging Service" means a "telecommunications service" that provides transmission
of coded radio signals for the purpose of activating specific pagers; such transmissions may
include messages and/or sounds.
(i) "Person" means, 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 non-profit),
municipal district or municipal corporation (other than the City) cooperative, receiver, trustee,
guardian, or other representative appointed by order of any court.
0) "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.
(k) "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.
(1) "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.
(m) "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
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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).
(n) "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(1) of this definition 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 or, if not known, the point of sale of
the services.
(o) "Service Supplier" means any entity or person, including the City, that provides
communication service to a user of such service within the City.
(p) "Service User" means a person required to pay a tax imposed under the provisions
of this Chapter.
(q) "State" means the State of California.
(r) "Streamlined Sales and Use Tax Agreement" means the multi-state agreement
commonly known and referred to as the Streamlined Sales and Use Tax Agreement, as it is
amended from time to time.
(s) "Tax Administrator" means the Finance Director, or his or her designee.
(t) "Telecommunications Service" 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. 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 is functionally integrated with "telecommunication
services". "Telecommunications services" include, but are not limited to the following services,
regardless of the manner or basis on which such services are calculated or billed: ancillary
telecommunication services; intrastate, interstate, and international telecommunication services;
mobile telecommunications service, prepaid telecommunication service; post-paid
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telecommunication service; private telecommunication service; paging service; 800 service(or any
other toll-free numbers designated by the Federal Communications Commission); 900 service (or
any other similar numbers designated by the Federal Communications Commission for services
whereby subscribers who call in to pre-recorded or live service).
(u) "Video Programming" means those programming services commonly provided to
subscribers by a "video service supplier" including but not limited to basic services, premium
services, audio services, video games, pay-per-view services, video on demand, origination
programming, or any other similar services, regardless of the content of such video
programming, or the technology used to deliver such services, and regardless of the manner or
basis on which such services are calculated or billed.
(v) "Video Services" means "video programming" and any and all services related to
the providing, recording, delivering, use or enjoyment of "video programming" (including
origination programming and programming using Internet Protocol, e.g., IP-TV and IP-Video)
using one or more channels by a "video service supplier", regardless of the technology used to
deliver, store or provide such services, and regardless of the manner or basis on which such
services are calculated or billed, and includes ancillary video services, data services,
"telecommunication services", or interactive communication services that are functionally
integrated with"video services".
(w) "Video Service Supplier" means any person, company, or service which provides
or sells one or more channels of video programming, or provides or sells the capability to receive
one or more channels of video programming, including any communications that are ancillary,
necessary or common to the provision, use or enjoyment of the video programming, to or from a
business or residential address in the City, where some fee is paid, whether directly or included
in dues or rental charges for that service, whether or not public rights-of-way are utilized in the
delivery of the video programming or communications. A"video service supplier" includes, but
is not limited to, multichannel video programming distributors [as defined in 47 U.S.C.A.
Section 522(13)]; open video systems (OVS) suppliers; and suppliers of cable television; master
antenna television; satellite master antenna television; multichannel multipoint distribution
services (AWDS); video services using internet protocol(e.g., IP-TV and IP-Video, which
provide, among other things, broadcasting and video on demand), direct broadcast satellite to the
extent federal law permits taxation of its video services, now or in the future; and other suppliers
of video services(including two-way communications), whatever their technology.
(x) "VOIP (Voice Over Internet Protocol)" means the digital process of making and
receiving real-time voice transmissions over any Internet Protocol network.
(y) "800 Service" means a"telecommunications service" that allows a caller to dial a
toll-free number without incurring a charge for the call. The service is typically marketed under
the name "800", "855", "866", "877", and "888" toll-free calling, and any subsequent numbers
designated by the Federal Communications Commission.
(z) "900 Service" means an inbound toll "telecommunications service" purchased by
a subscriber that allows the subscriber's customers to call in to the subscriber's prerecorded
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announcement or live service. "900 service" does not include the charge for: collection services
provided by the seller of the "telecommunications services" to the subscriber, or service or
product sold by the subscriber to the subscriber's customer. The service is typically marketed
under the name "900" service, and any subsequent numbers designated by the Federal
Communications Commission.
3.38.030 Constitutional, statutory, and other exemptions.
(a) Nothing in this Chapter 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 Chapter 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 communication 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 communication service suppliers so that the Tax Administrator
can properly notify the new communication 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 a
communication users' tax 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
3.38.150 of this Chapter. Filing an application with the Tax Administrator and appeal to the City
Manager pursuant to Section 3.38.150 of this Chapter is a prerequisite to a suit thereon.
(c) The City Council may, by 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
for a specified period of time.
(d) The senior citizen's exemption of Section 3.36.250 shall apply to the tax imposed under
Section 3.38.040.
3.38.040 Communication Users' Tax.
(a) There is hereby imposed a tax upon every person in the City using communication
services. The tax imposed by this section shall be at the rate of four and nine-tenths percent
(4.9%) 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
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Chapter. There is also a rebuttable presumption that prepaid telecommunication services sold
within the city are used, in whole or in part, within the City and are therefore subject to taxation
under this Chapter. 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 Chapter, sourcing rules for the taxation of other
communication services, including but not limited to post-paid communication services, prepaid
communication services, VoIP and private communication services, provided that such rules are
based upon custom and common practice that further administrative efficiency and minimize
multi-jurisdictional taxation(e.g., Streamlined Sales and Use Tax Agreement).
(c) The Tax Administrator may issue and disseminate to communication service suppliers,
which are subject to the tax collection requirements of this Chapter, an administrative ruling
identifying those communication services, or charges therefor, that are subject to or not subject
to the tax of subsection(a)above.
(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-
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 and instant messaging. "Telecommunication services"
shall not include digital downloads that are not "ancillary telecommunication services", such as
music, ringtones, games, and similar digital products.
(e) Charges for communication services (video) shall include, but are not limited to, charges
for the following:
(1) regulatory fees and surcharges, franchise fees and access fees(PEG);
(2) initial installation of equipment necessary for provision and receipt of video
services;
(3) late fees, collection fees, bad debt recoveries, and return check fees;
(4) activation fees, reactivation fees, and reconnection fees;
(5) video programming and video services;
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(6) ancillary video services (e.g., electronic.program guide services, recording
functions, search functions, or other interactive services or communications that are
ancillary, necessary or common to the use or enjoyment of video services);
(7) equipment leases (e.g., remote, recording or search devices, converters,
remote devices); and,
(8) service calls, service protection plans, name changes, changes of services,
and special services.
(f) To prevent actual multi jurisdictional 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 city 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 city; provided, however, the amount of credit shall not exceed the tax owed to
the City under this section.
(g) The tax on communication services imposed by this section shall be collected from
the service user by the service supplier. In the case of video service, the service user shall be
deemed to be the purchaser of the bulk video service (e.g., an apartment owner), unless such
service is resold to individual users, in which case the service user shall be the ultimate purchaser
of the video service. 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(2e) day
of the following month.
3.38.050 Bundling Taxable Items with Non-Taxable Items. 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 valuation and apportionment of taxable and
non-taxable charges_ If the service supplier offers a combination of taxable and non-
taxable services, and the charges are separately stated, then for taxation purposes, the
values assigned the taxable and non-taxable services shall be based on its 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 valuation of the taxable and non-taxable
services.
3.38.060 Substantial Nexus / Minimum Contacts. For purposes of imposing a tax or
establishing a duty to collect and remit a tax under this Chapter, "substantial nexus" and
"minimum contacts" shall be construed broadly in favor of the imposition, collection
and/or remittance of the communication 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 Volp) used by a person with
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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 Chapter. 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; or if there are activities
performed in the City on behalf of the service supplier that are significantly associated
with the service supplier's ability to establish and maintain a market in the City for the
provision of communication services that are subject to a tax under this Chapter.
3.38.070 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 Chapter 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 3.38.110
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 Chapter. 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 Chapter 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
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Chapter. 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.
3.38.080 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 communication 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 interest at the
rate of and 75/100ths (0.75%) percent 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 Chapter 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 Chapter 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.
3.38.090 Actions to Collect. Any tax required to be paid by a service user under the provisions
of this Chapter shall be deemed a debt owed by the service user to the City. Any such tax
collected from a service user which has 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
Chapter 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 Chapter, along with any
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collection costs incurred by the City as a result of the person's noncompliance with this Chapter,
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). Service suppliers who seek to collect charges for service in
bankruptcy proceedings shall also include in any such claim the amount of taxes due the City for
those services, unless the Tax Administrator determines that such duty is in conflict with any
federal or state law, rule, or regulation or that such action would be administratively impractical.
3.38.100 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
Chapter has failed to pay, collect, and/or remit the proper amount of tax by improperly or failing
to apply the tax to one or more taxable services or charges. Nothing herein shall require that the
Tax Administrator institute proceedings under this Section 3.38.100 if, in the opinion of the Tax
Administrator,the cost of collection or enforcement likely outweighs the tax benefit.
(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(0.75%) percent 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 non-assessment), 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
maybe appealed pursuant to Section 3.38.150 of this Chapter. Filing an application with the Tax
Administrator and appeal to the City Manager pursuant to Section 3.38.150 of this Chapter 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
10-2580/49120 10
Attachment"1",Resolution No.2010-46
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(0.75%) percent 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 Chapter 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.
3.38.110 Administrative Remedy-Nan-Paying 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
Chapter 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 Chapter. Nothing herein shall require that the Tax
Administrator institute proceedings under this Section 3.38.110 if, in the opinion of the Tax
Administrator,the cost of collection or enforcement likely outweighs the tax benefit.
(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(0.751/o)percent 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 non-paying 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.
3.38.120 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 Chapter.
10-2580/49120 1 1
Attachment"1",Resolution No.2010-46
(b) The Tax Administrator may adopt administrative rules and regulations consistent
with provisions of this Chapter for the purpose of interpreting, clarifying, carrying out and
enforcing the payment, collection and remittance of the taxes herein imposed. The
administrative ruling shall not impose a new tax, revise.an existing tax methodology as stated in
this Section, or increase an existing tax, except as allowed by California Government Code
Section 53750(h)(2). A copy of such administrative rules and regulations shall be on file in the
Tax Administrator's office. To the extent that the Tax Administrator determines that the tax
imposed under this chapter shall not be collected in full for any period of time from any
particular service supplier or service user, that determination shall be considered an exercise of
the Tax Administrator's discretion to settle disputes and shall not constitute a change in taxing
methodology for purposes of Government Code Section 53750 or otherwise. The Tax
Administrator is not authorized to amend the City's methodology for purposes of Government
Code Section 53750 and the City does not waive or abrogate its ability to impose the
communication users' tax in full as a result of promulgating administrative rulings or entering
into agreements.
(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 Chapter 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 Chapter; or, (2) to 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 Chapter, of any person required to collect and/or remit a tax pursuant to
this Chapter. 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 3.38.100 of this Chapter 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 Chapter, 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 Chapter 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(0.75%)percent per month, prorated for any portion thereof.
10-2580/49120 12
Attachment"1",Resolution No.201046
(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 Chapter.
(g) Notwithstanding any provision in this chapter 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 chapter if the non-collection occurred in
good faith. In determining whether the non-collection was in good faith, the Tax Administrator
shall take into consideration the uniqueness of the product or service, industry practice or other
precedence. The Tax Administrator may also participate with other UUT public agencies in
conducting coordinated compliance reviews with the goal of achieving administrative efficiency
and uniform tax application determinations, where possible. To encourage full disclosure and
on-going cooperation on annual compliance reviews, the Tax Administrator, and its agents, may
enter into agreements with the tax-collecting service providers and grant prospective only effect
on any changes regarding the taxation of services or charges that were previously deemed by the
service provider, in good faith and without gross negligence, to be non-taxable. In determining
whether the non-collection was in good faith and without gross negligence, the Tax
Administrator shall take into consideration the uniqueness of the product or service, industry
practice or other precedence.
3.38.130 Records.
(a) It shall be the duty of every person required to collect and/or remit to the City any
tax imposed by this Chapter 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 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 Chapter, 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 non-disclosure 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.
10-2590/49120 13
Attachment"1",Resolution No.2010-46
(d) If a service supplier uses a billing agent or billing aggregator to bill, collect,
and/or remit the tax, the service supplier shall: i) 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, ii)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, is
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: i) the initial date that the person refuses-
to provide such access; or, ii) 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 Chapter.
3.38.140 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
Chapter from a person or service supplier, it may be refunded as provided in this section as
follows:
(a) Written Claim for Refund. 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 Chapter 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) Compliance with Claims Act. 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. The Tax Administrator, or the City Council where the claim is in excess of five
thousand dollars ($5,000), shall act upon the refund claim within the time period set forth in
Government Code Section 912.4. If the Tax Administrator/City Council fails or refuses to act on
a refund claim within the time prescribed by Government Section 912.4, the claim shall be
deemed to have been rejected by the City Council on the last day of the period within which the
City Council was required to act upon the claim as provided in Government Code Section 912.4.
The Tax Administrator shall give notice of the action in a form which substantially complies
with that set forth in Government Code Section 913.
10-2580/49120 14
Attachment"1",Resolution No.201046
(c) Refunds to Service Suppliers. 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 Chapter, 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: i) such credit is claimed in a return dated no later than one year from the date of
overpayment or erroneous collection of said tax; ii) the Tax Administrator is satisfied that the
underlying basis and amount of such credit has been reasonably established; and, iii) 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.
3.38.150 Appeals.
(a) The provisions of this section apply to any decision(other than a decision relating
to a refund pursuant to Section 3.38.140 of this Chapter), 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 3.38.140 of this Chapter), 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(b)]. 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 3.38.140 of this Chapter), 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 Procedure
Section 1094.6.
10-2580/49120 15
Attachment"1",Resolution No.201046
(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.
3.38.160 No In 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 Chapter of any tax or
any amount of tax required to be collected and/or remitted.
3.38.170 Notice of changes to ordinance. If a tax under this Chapter 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.
3.38.180 Effect of State and Federal Reference/Authorization. Unless specifically
provided otherwise, any reference to a state or federal statute in this Chapter shall mean
such statute as it may be amended from time to time, provided that such reference to a
statute herein shall not include any subsequent amendment thereto, or to any subsequent
change of interpretation thereto by a state or federal agency or court of law with the duty
to interpret such law, to the extent that such amendment or change of interpretation would
require voter approval under California law, or to the extent that such change would result
in a tax decrease (as a result of excluding all or a part of a communication service, or
charge therefor, from taxation). Only to the extent voter approval would otherwise be
required or a tax decrease would result, the prior version of the statute (or interpretation)
shall remain applicable; for any application or situation that would not require voter
approval or result in a decrease of a tax, provisions of the amended statute (or new
interpretation) shall be applicable to the maximum possible extent.
To the extent that the City's authorization to collect or impose any tax imposed under this
Chapter is expanded or limited as a result of changes in state or federal law, no amendment or
modification of this Chapter shall be required to conform the tax to those changes, and the tax
shall be imposed and collected to the full extent of the authorization up to the full amount of the
tax imposed under this Chapter.
3.38.190 Independent Audit of Tax Collection, Exemption, Remittance, and Expenditure. The
City shall annually verify that the taxes owed under this Chapter have been properly applied,
exempted, collected, and remitted in accordance with this Chapter, and properly expended
according to applicable municipal law. The annual verification shall be performed by a qualified
independent third parry 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.
3.38.200 Interaction with Prior Tax.
(a) Satisfaction of Tax Obligation by Service Users. Any person who pays the tax
levied pursuant to Section 3.38.040 of this Chapter with respect to any charge for a
communication service shall be deemed to have satisfied his or her obligation to pay the tax
10-2580/49120 16
Attachment"1",Resolution No.201046
levied pursuant to Sections 3.36.020 and 3.36.070 of this Code with respect to that charge.
Likewise, prior to April I, 20I1, any person who pays the tax levied pursuant to Sections
3.36.020 and 3.36.070 of this Code with respect to any charge for a service subject to taxation
pursuant to this chapter shall be deemed to have satisfied his or her obligation to pay the tax
levied pursuant to Section 3.38.040 of this Chapter 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 telephone users tax and cable television users tax to the new
communication users' tax (which transition period ends April 1, 2011) and to permit
communications service providers, during that transition period, to satisfy their collection
obligations by collecting either tax.
(b) Collection of Tax by Service Providers. Service providers shall begin to collect
the tax imposed by this Chapter as soon as feasible after the effective date of the Chapter, but in
no event later than permitted by Section 799 of the California Public Utilities Code.
(c) Judicial Determinations. In the event that a final court order should determine that
the election enacting this Chapter 3.38 is invalid for whatever reason, or that any tax imposed
under this Chapter 3.38 is invalid in whole or in part, then the taxes imposed under Sections
3.36.020 and 3.36.070(unless repealed)shall automatically continue to apply with respect to any
service for which the tax levied pursuant to this Chapter has been determined to be invalid. Such
automatic continuation shall be effective beginning as of the first date of service (or billing date)
for which the tax imposed by this Chapter is invalid. However, in the event of an invalidation,
any tax (other than a tax that is ordered refunded by the court or is otherwise refunded by the
City) paid by a person with respect to a service and calculated pursuant to this Chapter shall be
deemed to satisfy the tax imposed under Sections 3.36.020 and 3.36.070 on that service, so long
as the tax is paid with respect to a service provided no later than six months subsequent to the
date on which the final court order is published.
SECTION 2. Effective Date. This chapter, if approved by the electorate of the City of
Huntington Beach at the Municipal Election of November 2, 2010, shall become effective
immediately upon the declaration of the results of that election by the City Council of the City of
Huntington Beach.
SECTION 3. Amendment or Repeal. Chapter 3.38 of the Huntington Beach Municipal
Code may be repealed or amended by the City Council without a vote of the people. However,
as required by Article XIHC of the California Constitution, voter approval is required for any
amendment provision that would increase the rate of any tax levied pursuant to this Ordinance.
The People of the City of Huntington Beach affirm that the following actions shall not constitute
an increase of the rate of a tax:
(1) The restoration of the rate of the tax to a rate that is no higher than that set
by this Ordinance, if the City Council has acted to reduce the rate of the tax;
(2) An action that interprets or clarifies the methodology of the tax, or any
definition applicable to the tax, so long as such interpretation or clarification (even if
10-2580(49120 17
Attachment"1",Resolution No.2010-46
contrary to some prior interpretation or clarification) is not inconsistent with the language
of this Ordinance;
(3) The establishment a class of persons that is exempt or excepted from the
tax or the discontinuation of any such exemption or exception (other than the
discontinuation of an exemption or exception specifically set forth in this Ordinance); and
(4) The collection of the tax imposed by this Ordinance, even if the City had,
for some period of time, failed to collect the tax.
SECTION 4. Severability. If any section, subsection, sentence, clause, phrase, or portion
of this Ordinance is for any reason held to be invalid or unenforceable by a court of competent
jurisdiction, the remaining portions of this Ordinance shall nonetheless remain in full force and
effect. The People hereby declare that they would have adopted each section, subsection,
sentence, clause, phrase, or portion of this Ordinance, irrespective of the fact that any one or
more sections, subsections, sentences, clauses, phrases, or portions of this Ordinance be declared
invalid or unenforceable.
SECTION 5. Ratification of Prior Tax. The People of the City of Huntington Beach
hereby ratify and approve Chapter 3.36 of the Huntington Beach Municipal Code as it existed
prior to the effective date of this Ordinance, and the past collection of the Telephone Users Tax
and the Video Users Tax thereunder.
SECTION 6. Execution. The Mayor is hereby authorized to attest to the adoption of this
Ordinance by the voters of the City by signing where indicated below.
PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a
regular meeting thereof held on the day of 120
ATTEST: Mayor
INITIATED AND APPROVED:
City Clerk
Director of Finance
REVIEWED AND APPROVED:
APPROVED AS TO FORM:
City Administrator
Hy
i Attorney M U
1,t- (0
10-2580/49120 18
Res. No. 2010-46
STATE OF CALIFORNIA
COUNTY OF ORANGE ) ss:
CITY OF HUNTINGTON BEACH )
I, JOAN L. FLYNN 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 resolution was passed and adopted
by the affirmative vote of at least a majority of all the members of said City Council
at a regular meeting thereof held on July 6, 2010 by the following vote:
AYES: Carchio, Coerper, Hardy, Green, Bohr, Hansen
NOES: None
ABSENT: Dwyer
ABSTAIN: None
d y Clerk and ex-offici Clerk of the
City Council of the City of
Huntington Beach, California