HomeMy WebLinkAboutAdopt Resolution No. 2015-49 authorizing the examination of Dept ID FN 15-014 Page 1 of 2
Meeting Date 9/8/2015
CITY OF HUNTINGTON BEACH
REQUEST FOR CITY COUNCIL ACTION
MEETING DATE: 9/8/2015
SUBMITTED TO: Honorable Mayor and City Council Members
SUBMITTED BY: Fred A Wilson, City Manager
PREPARED BY: Lori Ann Farrell, Director of Finance
SUBJECT: Adopt Resolution No 2015-49 authorizing the examination of Prepaid Mobile
Telephony Services Surcharges and Local Charge Records, and, adopt
Resolution No 2015-50 authorizing the City Manager to execute an Agreement
with the State Board of Equalization (BOE) for implementation of the Local
Prepaid Mobile Telephony Services Collection Act
Statement of Issue
Beginning January 1, 2016, a new State law, the Local Prepaid Mobile Telephony Services
Collection Act (Assembly Bill (AB) 1717), requires local jurisdictions to contract with the State Board
of Equalization (BOE) to receive revenue from local Utility Users Tax (UUT), local 911 charges, and
any other local charges imposed on consumers of prepaid mobile services
Financial Impact
The fiscal impact of AB 1717 on the City's UUT revenue cannot be estimated at this time Retail
stores and online retailers are entitled to two percent of the UUT collected and remitted In
addition, the BOE will determine its costs for the implementation and audit procedures necessary to
collect the UUT on behalf of local agencies, and will deduct these costs on a pro rata basis from
any local revenues collected The net UUT revenue received by the City, if any, will accrue to the
General Fund starting January 1, 2016
Recommended Action
A) Adopt Resolution No 2015-49, "A Resolution of the City Council of the City of Huntington
Beach, California, Authorizing the Examination of Prepaid Mobile Telephony Services Surcharge
and Local Charge Records," and,
B) Adopt Resolution No 2015-50, "A Resolution of the City of Huntington Beach Authorizing City
Manager to Execute Agreement With the State Board of Equalization for Implementation of the
Local Prepaid Mobile Telephony Services Collection Act "
Alternative Action(s)
Do not approve the recommended action and direct staff accordingly
® Analysis
Assembly Bill 1717 establishes a uniform, statewide collection mechanism for prepaid (non-
contract) wireless services by requiring California retail stores and online retailers to collect the
local Utility Users Tax when the sales tax is collected at the time of purchase Under AB 1717, the
UUT collections will be remitted to the BOE in the same manner as sales taxes, then, the BOE will
xB -1 01- Item 10. - 1
Dept ID FN 15-014 Page 2 of 2
Meeting Date 9/8/2015
distribute the revenue to cities and counties Wireless carriers will now collect the UUT on their
® prepaid sales and remit the revenue directly to the City
For administrative ease, the different UUT rates charged throughout the state have been reduced to
eight tiers The new rate for prepaid wireless services in the City of Huntington Beach will be 4 5
percent, and the City's existing UUT rate of 4 9 percent will continue to apply to postpaid, contract
wireless customers and other utility services
If a local jurisdiction does not enter into a collection agreement with the BOE, any local charges
imposed upon prepaid mobile telephone services (MTS) will not be collected by the sellers and the
local jurisdiction will not receive local charge revenue AB 1717 requires that California retailers
make the necessary changes to their sales systems to collect and remit state and local taxes
beginning on January 1, 2016
The California Revenue and Taxation Code sets forth certain requirements for the disclosure of
BOE records, and establishes criminal penalties for unlawful disclosure of this information BOE
requires the local legislative body to authorize, by Resolution, the employee or consultant
responsible for review of BOE records Authorization is requested for the City's utility users tax
auditing and revenue recovery consultant, MuniServices, LLC, to be allowed access to the records
to verify the collection and remittance of the City's UUT revenue
Environmental Status
Not Applicable
Strategic Plan Goal
® Strengthen Economic and Financial Sustainability
Attachment(s)
1 Resolution No 2015-49 Authorizing the Examination of Prepaid Mobile Telephony Services
Surcharge and Local Charge Records
2 Resolution No 2015-50 Authorizing the City Manager to Execute Agreement with the State
Board of Equalization for Implementation of the Local Prepaid Mobile Telephony Services
Collection Act
3 Agreement for State Collection and Administration of Local Charges
4 Ordinance No 3883 of the City of Huntington Beach
5 Certification Form
Item 10. - 2 HB -102-
� ATTACHMENT # 1
RESOLUTION NO 2015-49
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF HUNTINGTON BEACH, CALIFORNIA,
AUTHORIZING THE EXAMINATION OF PREPAID
MOBILE TELEPHONY SERVICES SURCHARGE
AND LOCAL CHARGE RECORDS
WHEREAS, pursuant to Ordinance No., 3883 of the City of Huntington Beach and the
Local Prepaid Mobile Telephony Services Collection Act, the City of Huntington Beach,
hereinafter called Local Jurisdiction, entered into a contract with the State Board of Equalization,
hereafter referred to as the Board, to perform all functions incident to the administration and
collection of the prepaid mobile telephony services surcharge and local charges (Rev. & Tax.
Code, § 42101.5), and
WHEREAS, the Local Jurisdiction deems it desirable and necessary for authorized
representatives of the Local Jurisdiction to examine confidential prepaid mobile telephony
services surcharge and local charge records pertaining to the prepaid mobile telephony services
surcharge and local charges collected by the Board for the Local Jurisdiction pursuant to that
contract; and
WHEREAS, the Board will make available to the Local Jurisdiction any information that
is reasonably available to the Board regarding the proper collection and remittance of a local
charge of the Local Jurisdiction by a seller, including a direct seller, subject to the confidentiality
requirements of Sections 7284.6, 7284.7 and 19542 of the Revenue and Taxation Code, and
WHEREAS, Sections 42110 and 42103 of the Revenue and Taxation Code sets forth
certain requirements and conditions for the disclosure of Board of Equalization records and
establishes criminal penalties for the unlawful disclosure of information contained in or derived
from the prepaid mobile telephony services surcharge and local charge records of the Board,
NOW, 'THEREFORE I'T IS RESOLVED AND ORDERED AS FOLLOWS:
Section 1. That the Director of Finance or Senior Administrative Analyst of the
Local Jurisdiction designated in writing by the City Manager to the Board is hereby appointed to
represent the Local Jurisdiction with authority to examine prepaid mobile telephony services
surcharge and local charge records of the Board pertaining to prepaid mobile telephony services
surcharge and local charges collected for the Local Jurisdiction by the Board pursuant to the
contract between the Local Jurisdiction and the Board. The information obtained by examination
of Board records shall be used only for purposes related to the collection of the Local
Jurisdiction's prepaid mobile telephony services surcharge and local charges by the Board
pur suant to the contract
15-4868/125155 1
Reso . No. 2015-49
Section 2. That the Director of Finance or Senior Administrative Analyst of the Local
Jurisdiction designated in writing by the City Manager to the Board is hereby appointed to
represent the Local Jurisdiction with authority to examine those prepaid mobile telephony
services surcharge and local charge records of the Board for purposes related to the following
governmental functions of the Local Jurisdiction:
a) compliance and enforcement of the utility users tax (local charge);
b) admvustiative functions set out in City's utility users tax ordinance,
c) legal interpretation and enforcement of utility users tax ordinance, including but not
limited to refiuids and defense of claims against ordinance.
The information obtained by examination of Board records shall be used only for those
governmental functions of the Local Jurisdiction listed above.
Section 3. That MuniServices LLC, is hereby designated to examine the prepaid mobile
telephony services surcharge and local charges records of the Board of Equalization pertaining to
prepaid mobile telephony services surcharge and local charges collected for the Local
Jurisdiction by the Board. The person or entity designated by this section meets all of the
following conditions (Rev.& Tax. Code, § 42110, subd (b)(2)):
a) has an existing contract with the Local Jurisdiction that authorizes the person to examine
the prepaid mobile telephony services surcharge and local charge records;
b) is required by that contract with the Local Jurisdiction to disclose information contained
in or derived from, those records only to an officer or employee of the Local Jurisdiction
authorized by the resolution to examine the information;
c) is prohibited by that contract from performing consulting services for a seller during the
team of that contract;
d) is prohibited by that contract fiom retaining information contained in, of derived from,
those prepaid mobile telephony services surcharge and local charge records, after that
contract has expired
The contract between the Local Jurisdiction and MuniServices, LLC, designated by the Local
Jurisdiction to request information fiom the Board shall be subject to the following limitations
(Rev. &Tax Code, § 42103, subd. (g)):
a) MuniServices, LLC, shall, to the same extent as the Board, be subject to Section 55381,
relating to unlawful disclosures,
b) the contract between the Local Jurisdiction and MuniServices, LLC, shall not provide, in
whole or in part, in any manner a contingent fee arrangement as payment for services
rendered
15-4868/125155 2
Reso . No . 2015-49
BE IT FURTHER RESOLVED THAT the infonnation obtained by examination of the Board
records shall only be used for purposes related to the collection of the Local Jurisdiction's
prepaid mobile telephony services surcharge and local charges by the Board pursuant to the
contract between the Local Jurisdiction and Board, or for purposes related to other governmental
functions of the Local Jurisdiction, as identified above in section 2.
Introduced, approved and adopted this 8 t h day of September , 2015.
r
REVIEWED AND APPROVED, APPROVED AS TO FORM
City M9 ha City oiney tL\./ -
INITIATED AND APPROVED:
Director of Finance
15-4868/125155 3
Res. No. 2015-49
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 September 8, 2015 by the following vote
AYES: Posey, O'Connell, Katapodis, Hardy, Sullivan, Delgleize, Peterson
NOES: None
ABSENT: None
ABSTAIN: None
City qprk and ex-officio Merk of the
City Council of the City of
Huntington Beach, California
[ATMom TACHMENT #2
RESOLUTION NO. 2015-50
A RESOLUTION OF THE City of Huntington Beach
Loe.l A—d.d—
AUTHORIZING City Manager TO EXECUTE
nne er Aid-med roamco
AGREEMENT WITH THE STATE BOARD OF EQUALIZATION FOR IMPLEMENTATION
OF THE LOCAL PREPAID MOBILE TELEPHONY SERVICES COLLECTION ACT
WHEREAS, on 09/08/2015, the City of Huntington Beach cei tified that Oi dinance No 3883 applies its
D.le Lacnl Wnadelu+n
local charge(s) (access to 911 or communication services and/oi utility uses tax)to prepaid mobile
telephony services; and
WHEREAS, the Local Prepaid Mobile Telephony Services Collection Act, mandates the Board of
Equalization (Board)to administer and collect the local charges for all applicable local jurisdictions
(Rev. &Tax Code section 42103); and
WHEREAS, the Board will perform all functions incident to administration and collection of the local
charges for the City of Huntington Beach ; and
Loeal A.W,.h.
WHEREAS, the Board i equires that the City of Huntington Beach enter into an "Agreement for State
Locol J—d,d—
Collection and Administration of Local Charges" prior to implementation of the Local Prepaid Mobile
Telephony Services Collection Act, and
Whereas, the Board requires that the City of Huntington Beach authorize the agreement;
Local J—dwhw
NOW,THEREFORE BE IT RESOLVED by the City of Huntington Beach that the attached"Agreement
Cowl Jwivd.c(,.
for State Collection and Administration of Local Charges" is hereby approved and the
City Manager is hereby authorized to execute the agreement.
I ills dAulh-md NO-
T
Reso . No . 2015-50
The foregoing i esolution was introduced and adopted at a i egular meeting of the City of Huntington Beach
Local Jundw—
held on 09/08/2015, by the following vote-
Dle
AYES. Posey , O ' Connell , Katapodis , Hardy , Sullivan , Delgleize, Peterson
NOES: None
ABSENT: None
DATED. September 8 , 2015
ATTEST* (s) S
1 , `° r" ' %ICI yor an ` . ynn/ i y Clerk
APPROVED AS TO FORM
By: —"�o —"�7 —
ichael Gates, City AttorneyCT)v, l-
Res. No. 2015-50
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 September 8, 2015 by the following vote
AYES: Posey, O'Connell, Katapodis, Hardy, Sullivan, Delgleize, Peterson
NOES: None
ABSENT: None
ABSTAIN: None
a
City rk and ex-offiao Ark of the
City Council of the City of
Huntington Beach, California
ATTACHMENT #3 I'l
Local Jurisdiction city flfxtmtmbKoaseAch
AGREEMENT FOR STATE COLLECTION AND ADMINISTRATION OF
LOCAL CHARGES
This Agreement is for the purpose of implementing the Local Prepaid Mobile Telephony
Services Collection Act(Part 21 1, commencing with Section 42100) of Division 2 of the
Revenue and Taxation Code), hereinafter referred to as the Local Charge Act. The
City of Huntington Bear-b and the State Board of Equalization,hereinafter called
the Board,do agree as follows:
ARTICLE I
DEFINITIONS
Unless the context requires otherwise, wherever the following terms appear in this
Agreement they shall be interpreted to mean the following-
A. "Administrative Expenses"means all expenses incurred by the Board in the
administration and collection of the local charges, including preparation and wind down
costs which are reimbursable to the Board from the revenues collected by the Board on
behalf of the local jurisdiction.
B. "Contingent Fee" includes, but is not Iimited to, a fee that is based on a
percentage of the tax liability reported on a return, a fee that is teased on a percentage of
the taxes owed.or a fee that depends on the specific tax result attained
C."Direct Seller"means a prepaid Mobile Telephony Service (MTS)provider or
service supplier, as defined in section 43007, that makes a sale of prepaid mobile
telephony services directly to a prepaid consumer for any purpose other than resale in the
regular course of business. A direct seller includes, but is not limited to, a telephone
corporation,a person that provides an interconnected Voice over Internet Protocol (VoIP)
service, and a retailer as described in section 42004(b)(1).
D. "Local Charges" means a utility user tax imposed on the consumption of
prepaid mobile telephony services, as described in section 42102, and charges for access
to communication services or to local "911" emergency telephone systems imposed by a
local jurisdiction,as described in section 42102 5.
E. "Local .Jurisdiction" or "local agency" means a city, county, or city and
county, which includes a charter city,county, or city and county of this State, which has
adopted an ordinance imposing a local charte of the kind described in Part 21.1 of
Division 2 of the Revenue and 'Taxation Code and has entered into a contract with the
Board to perform all fimchons incident to the collection of the local charges.
F. "Ordinance" means an ordinance of a local jurisdiction imposing a local
charge, including any local enactment relating to the filing of a refund or a claim arising
under the ordinance. attached hereto, as amended from time to time.
t
G. "Quarterly local charges" means the total amount of local charges
transmitted by the Board to a local jurisdiction for a calendar quarter, as set forth in
section 42106(a)(1).
H. "Refund" means the amount of local charges deducted by the Board from a
local jurisdiction's quarterly local charges in order to pay that jurisdiction's share of a
local charge refund due to one taxpayer.
I_ "Section"--all section references are to the Revenue and Taxation Code.
J. "Seller" means a person that sells prepaid mobile telephony service to a
person in a retail transaction.
ARTICLE H
BOARD ADMMSTRATION AND COLLECTION OF LOCAL CHARGES
A. Administration. The Board and the local jurisdiction agree that the Board
shall perform functions incident to the collection of the local charges from sellers that are
not direct sellers-
B. Collection.The Board shall collect the local charges in the same manner as it
collects the prepaid MTS Surcharge in the Prepaid Mobile Telephony Services Surcharge
Collection Act, subject to specified limitations in the Local Charge Act for which the
local jurisdiction is responsible, as set forth in Article Ill of this Agreement.
C. Audits_The Board's audit duties shall be limited to verification that the seller
that is not a direct seller complied with the Local Charge Act.
D. Other applicable laws. The Board and the local jurisdiction agree that all
provisions of law applicable to the administration and operation of the Local Charge Act,
Prepaid Mobile Telephony Services Surcharge Collection Act, and the Fee Collection
Procedures Law(FCPL) shall be applicable to the collection of local charges. References
in the FCPL to feepayer include a person required to pay the local charge, including the
seller. All future amendments to applicable laws are automatically incorporated into this
A"reement
E. Deposit of Local Charges. All local charges collected by the Board shall be
deposited in the Local Charges for Prepaid Mobile Telephony Services Fund in the State
Treasury to be held in trust for the local taxing jurisdiction. Local charges shall consist
of all taxes, charges, interest, penalties, and other amounts collected and paid to the
Board, less payments for refunds and reimbursement to the Board for expenses incurred
in the administration and collection of the local charges, including preparation and wind-
down costs.
F. Allocation of Expenses.The Board shall allocate the total combined annual
expenses incurred for administration and collection pursuant to the Prepaid Mobile
Telephony Services Surcharge Collection Act and the Local Charge Act on a pro rata
basis according to revenues collected for:(1)the emergency telephone users surcharge
portion of the prepaid MTS surcharge, (2)the Public Utilities Commission surcharges
2
portion of the prepaid MTS surcharge,and(3) local charges. The Board shall charge a
local jurisdiction its pro rata share of the Board's cost of collection and administration.
G. Transmittal of money. All local charges collected by the Board shall be
transmitted to the local jurisdiction once in each calendar quarter. Transmittals may be
made by mail or by deposit to the account of the local jurisdiction in a bank- designated
by that jurisdiction. The Board shall furnish a statement quarterly indicating the amounts
paid and withheld for expenses of the Board.
H. Rules. The Board shall prescribe and adopt such rules and regulations as in its
,judgment are necessary or desirable for the administration and collection of local charges
and the distribution of the local charges collected.
I. Security.The Board agrees that any security which it hereafter requires to be
furnished under the FCPL section 55022 will be upon such terms that it also will be
available for the payment of the claims of the local jurisdiction for local taxes owing to it
as its interest appears The Board shall not be required to change the terms of any security
now held by it, and the local jurisdiction shall not participate in any security now held by
the Board.
J. Records of the Board.
I. Information obtained by the local jurisdiction from the examination of the
Board's records shall be used by the Iocal jurisdiction only for purposes related to the
collection of the prepaid mobile telephony services surcharge and local charges by the
Board pursuant to this Agreement.
2.When requested by resolution of the legislative body of local jurisdiction,the
Board shall permit any duly authorized officer or employee or other person designated by
that resolution to examine any information for its own jurisdiction that is reasonably
available to the Board regarding the proper collection and remittance of a local charge of
the local jurisdiction by a seller,including a direct seller,subject to the confidentiality
requirements of sections 7284.6,7284.7 and 19542 (sections 42110(b),42103(e).)
3-The resolution of the local jurisdiction shall certify that any person designated
by the resolution,other than an officer and an employee.meets all of the following
conditions:
a. Has an existing contract with the local jurisdiction that authorizes the person
to examine the prepaid MTS surcharge and local charge records.
b. Is required by that contract with the local jurisdiction to disclose information
contained in or derived from,those records only to an officer or employee of
the local jurisdiction authorized by the resolution to examine the information.
c. Is prohibited by that contract from performing consulting services for a seller
during the term of that contract.
d. Is prohibited by that contract from retaining information contained in, or
derived from, those prepaid MTS surcharge and local charge records. after
that contract has expired-
3
4. Any third party contract between the local jurisdiction and an entity or person
authorized by the locat jurisdiction to request information from the Board shall be subject
to the following limitations:
a. Any third party shall,to the same extent as the Board, be subject to Section
55381,relating to unlawful disclosures
b. A third party contract shall not provide,in whole or in part,in any manner a
contingent fee arrangement as payment for services rendered.
5 Information obtained by examination of Board records shall be used only for
purposes related to the collection of the prepaid MTS surcharge and local charges by the
board pursuant to the contract, or for purposes related to other govemmental functions of
the local Jurisdiction set forth in the resolution.
6 If the Board believes that any information obtained from the Board's records
related to the collection of the prepaid MTS surcharge and local charges has been
disclosed to any person not authorized or designated by the resolution of the local
jurisdiction,or has been used for purposes not permitted by section 4211 oft the board
may impose conditions on access to its local charge records that the board considers
reasonable, in order to protect the confidentiality of those records.(section 42110(c))
7. The costs incurred by the Board in complying with a request for information
shall be deducted by the Board from those revenues collected by the Board on behalf of
the local Jurisdiction making the request, as authorized by section 42110(b)(1).
ARTICLE III
LOCAL JURISDICTION
ADNIINISTRATION AND RESPONSIBILITIES
A. The local jurisdictions shall be solely responsible for all of the following:
l_ Defending any claim regarding the validity of the ordinance in its application
to prepaid mobile telephony service. The claim shall be processed in accordance with the
provisions of the local ordinance that allows the claim to be filed.
2_ Interpreting any provision of the ordinance, except to the extent specifically
superseded by section 42105 of the Local Charge Act. The claim shall be processed in
accordance with the provisions of the local enactment that allows the claim to be filed.
3. Responding to specified consumer claims for refund involving: (1) rebutting
the presumed location of the retail transaction; (2) a consumer claim of exemption from
the local charge under the ordinance; or (3) any action or claim challenging the validity
of a local tax, ordinance, in whole or part The claim shall be processed in accordance
with the provisions of the local enactment that allows the claim to be filed.
4. Refunding the taxes in the event a local Jurisdiction or local government is
ordered to refund the tax under the local ordinance
4
5. Reallocating local charges as a result of correcting errors relating to the
location of the point of sale of a seller or the known address of a consumer,for up to two
past quarters from the date of knowledge.
6. Collecting local charges on prepaid mobile telephony service and access to
communication services or access to local 911 emergency telephone systems imposed on
direct sellers.
7. Enforcement, including audits, of the collection and remittance of local
charges by direct sellers pursuant to the ordinance.
8. The local jurisdiction shall be the sole necessary party defendant on whose
behalf the local charge is collected in any action seeking to enjoin collection of a local
charge by a seller, in any action seeking declaratory relief concerning a local charge, in
any action seeking a refund of a local charge, or in any action seeking to otherwise
invalidate a local charge. There shall be no recovery from the State for the imposition of
any unconstitutional or otherwise invalid local charge that is collected under the Local
Act.
9. Entering into an agreement with the Board to perform the functions incident to
the collection of the local charges imposed on sellers that are not direct sellers.
10.Submitting an executed Certification to the Board,certifying that:
(a) the local,jurisdiction's ordinance applies the local charge to prepaid mobile
telephony services,
(b) the amount of the rate charged for access to local 911 emergency telephone
systems or access to communications services complies with the requirements of section
42102.5; and/or applies the tiered rate for the utility user tax, as identified in section
42102.
(c) The local jurisdiction shall further certify that it agrees to indemnify and to
hold harmless the Board, its officers, agents, and employees for any and all liability for
damages that may result from the Board's collection pursuant to this Agreement.
11. Submitting signed documents to the Board to include agreement(s),
certification, copy ofordinance(s),and resolution(s)_
12.Providing payment to the Board of the local jurisdiction's pro rata share of the
Board's cost of collection and administration as established pursuant to subdivision (e)of
section 42020
5
ARTICLE IV
LOCAL CHARGES
A. Local Charges — Timeliness — This part shall remain in effect until
proposed California Code of Regulations, title 18, section 2460 is adopted by the
Board and approved by the Office of Administrative Law,
1. Ordinances in effect as of September 1,2015.
On or after January 1, 2016, a local charge imposed by a local jurisdiction on prepaid
mobile telephony services shall be collected from the prepaid consumer by a seller at the
same time and in the same manner as the prepaid MTS surcharge is collected under Part
21 (commencing with section 42001) provided that. on or before September 1, 2015,the
local jurisdiction enters into a contract with the Board pursuant to section 42101.5.
Thereafter, all subsequently enacted local charges, increases to local charges, or other
changes thereto,shall become operative pursuant to paragraphs(2).(3),and(4).
2. New charges. When a local jurisdiction adopts a new local charge after
September 1, 2015, the local jurisdiction shall enter into a contract with the Board,
pursuant to section 42101.5. on or before December I", with collection of the local
charge to commence April 1"of the next calendar year.
3. Increases in local charges. When a local jurisdiction increases an existing
local charge after September 1, 2015, the local jurisdiction shall provide the Board
written notice of the increase, on or before December I", with collection of the local
charge to commence April 1"of the next calendar year_
4. Inaccurate rate posted on the Board's website. When a local jurisdiction
notifies the Board in writing that the rate posted on the Board's Internet Web site(posted
rate) for a local charge imposed by that local jurisdiction is inaccurate, including
scenarios where the local charge was reduced or eliminated, the recalculated rate
applicable to the local jurisdiction shall become operative on the first day of the calendar
quarter commencing more than 60 days from the date the Board receives the local
jurisdiction's written notification that the posted rate is inaccurate.
A. Local Charges — Timeliness— This part shall take effect and supersede
the above "Local Charges — Timeliness section when California Code of
Regulations, title 18, section 2460 is adopted by the Board and approved by the
Office of Administrative Law.
1. Ordinances in effect as of September 1,2015. On or after January 1, 2016,
a local charge imposed by a local jurisdiction on prepaid mobile telephony services shall
be collected from the prepaid consumer by a seller at the same time and in the same
manner as the prepaid NITS surcharge is collected under Part 21 (commencing with
section 42001)provided that on or before September 1, 2015,the local jurisdiction enters
into a contract with the Board pursuant to section 42101.5.
In the event a local jurisdiction does not enter into a contract with the Board by
September 1, 2015, the local jurisdiction may enter into a contract with the Board,
pursuant to section 42101.5, on or before December I", with collection of the local
charge to commence April Vt of the next calendar year. Thereafter. all subsequently
G
enacted local charges, increases to local charges, or other changes thereto, shall become
operative pursuant to paragraphs(2), (3),(4)and(5)of this subdivision.
2. New charges. When a local jurisdiction adopts a new local charge after
September 1, 2015, the local jurisdiction shall enter into a contract vkqth the Board,
pursuant to section 42101.5. on or before December 1st, with collection of the local
charge to commence April 1st of the next calendar year.
3. Increases in Focal charges. When a local jurisdiction increases an existing
local charge after September 1, 20151 the local ,jurisdiction shall provide the Board
written notice of the increase, on or before December l", with collection of the local
charge to commence April I'of the next calendar year.
4. Advance written notification. When a local charge is about to expire or
decrease in rate, the local jurisdiction imposing the local charge shall notify the Board in
writing of the upcoming change, not less than 110 days prior to the date the local charge
is scheduled to expire or decrease The change shall become operative on the first day of
the calendar quarter commencing after the specified date of expiration or decrease in rate.
If advance written notice is provided less than 110 days prior to the specified date
of expiration or decrease in rate,the change shall become operative on the first day of the
calendar quarter commencing more than 60 days after the specified date of expiration or
decrease.
5. Inaccurate Rate Posted on the Board's Web site. When a local jurisdiction
notifies the Board in writing that the rate pasted on the Board's Internet Web site(posted
rate) for a local charge imposed by that local _jurisdiction is inaccurate, including
scenarios where the local charge was reduced or eliminated and the local jurisdiction
failed to provide advance written notice pursuant to paragraph 4 of this subdivision, the
recalculated rate applicable to the local_jurisdiction shall become operative on the first
day of the calendar quarter commencing more than 60 days from the date the Board
receives the local jurisdiction's written notification that the posted rate is inaccurate. The
local jurisdiction shall promptly notify the Board in writing of any such discrepancies
with the posted rate that are known or discovered by the local jurisdiction.
ARTICLE V
COMPENSATION
The local,jurisdiction agrees to pay the Board its pro rata share of the Board's cost of
collection and administration of the local charges,as established pursuant to section
42020, subdivision(e) Such amounts shall be deducted from the local charges collected
by the Board for the local,jurisdiction.
ARTICLE VI
MISCELLANEOUS PROVISIONS
A. Communications. Communications and notices may be sent by first-class
United States Mail. A notification is complete when deposited in the mail
Communications and notices to be sent to the Board shall be addressed to:
7
State Board of Equalization
P O Box 942879 MIC 27
Sacramento, California 94279-0001
Attention Supervisor,
Local Revenue Allocation Unit
Communications and notices to be sent to the local jurisdiction shall be addressed to
Lori Ann Farrell
Director of Finance
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
B. Term. The date of this Agreement is the date on which it is approved by the
Department of General Services The Agreement shall take effect on the first day of the
calendar quarter next succeeding the date of such approval, but in no case before the
operative date of the local jurisdiction's ordinance, nor on a day other than the first day of
a calendar quarter This Agreement shall be renewed automatically from year to year
until January 1, 2020, when the Local Charge Act is repealed, unless a statute enacted
prior to that date extends that date In such event, this Agreement will continue to renew
automatically from year to year to the date authorized by statute
STATE BOARD OF EQUALIZATION
�
By
I A imstr or,
p ppRovF ����FORS Return Analysis and Allocation Section
` LOCAL
BY:------ w AttomeY JURISDICT ON City of Huntington Beach
Michael Gates C Y
By
This document memorializes the contractual
(S gnature on this lane)
agreement that was reached,for the
purposes of Revenue and Taxation Code Fred Wilson
section 42101 5,on or before September 1, (Type name here)
2015,to authorize collection of the prepaid
MTS surcharge City Manager
(Type title here)
8
CERTIFICATION
I, Fred Wilson am authorized to sign this certification on behalf of the city of Huntington Beach
(lose(t name of locallunsd"on)
I certify to the following
Please check all the following that apply to your jurisdiction
1 911 Charges/Access to Communication Services - Ordinance No 3883 of the
the City of Huntington Beach Imposes the local charge set forth in the ordinance to prepaid mobile
(Insert name of local lunsdichon)
telephony services for access to communication services or to local 911 emergency
telephone systems As required by section 42102.5, the percentage reflecting the rate for
access to the local 911 emergency telephone systems or access to communications
services Is
2 X Utility User Tax - Ordinance No 3883 of the the City of Huntington Beach Imposes the local
(Insert name of local junmhchon)
charge set forth in the ordinance to the consumption of prepaid mobile telephony
services The tiered rate for the utility user tax, as identified in section 42102 is
4 5%
3 The the City of Huntington Beach agrees to indemnify and to hold harmless the Board of
(Insert name of local lunsdicuon)
Equalization (Board), its officers, agents, and employees for any and all liability for
damages that may result from the Board's collection pursuant to this agreement
Executed in the City of Huntington Beach,California on September 8,2015
(Insert name of locallunsdwhon) (Add date)
Signature
Printed name Fred Wilson
Title of person City Manager
STATE OF CALIFORNIA
STATE BOARD OF EQUALIZATION RUNNER(RE7)
SEN GEORGE RUN
450 N STREET,SACRAMENTO,CALIFORNIA First DRUM Lancaster
(PO BOX 942879,SACRAMENTO,CALIFORNIA 94279-0027)
TELEPHONE(916)324-3000 FIONA MA CPA
FAX(916)322-0986 Second District San Francisco
www boe ca gov JEROME E HORTON
October 8, 2015 Third District Los Angeles County
DIANE L HARKEY
Fourth District Orange County
RECEIVED BETTY YEE
State Controller
City of Huntington Beach 0 C T 14 2015
CYNTHIA BRIDGES
Lon Ann Farrell Executive Director
Director of Finance Finance Department
2000 Main Street
Huntington Beach, CA 92648
Re Local Prepaid Mobile Telephony Services Surcharge—UUT Code 1035
Dear Ms Lori Ann Farrell,
The Board of Equalization (BOE) has completed processing the agreement for the
administration of the Local Prepaid Mobile Telephony Services Collection Act, the "Local
Charge Act" (Rev & Tax Code §§ 42 1 00-42 1 1 1, added by Stats 2014, Ch 885, Sec 9) for the
City of Huntington Beach A copy of the fully executed agreement is enclosed for your records
Based on City Ordinance 3883 for the City of Huntington Beach and section 42102 of the Local
Charge Act, the applicable local Utility User Tax rate is 4 5 percent The BOE's collection of
local charge revenue will commence on January 1, 2016
Payments will be transmitted at the end of each allocation quarter. The first payment process is
anticipated for August 2016 for the 1/1/2016 commencement date You will be contacted once
the allocation calendar has been finalized.
You will also be contacted to confirm your preference to receive payments through EFT or paper
warrants sent through the U S Postal Service
If you have any questions or concerns regarding the above, please contact me at (916) 3 24-13 86
Sincerely,
Tern Leach
Associate Tax Auditor
Local Revenue Allocation Unit
Enclosures
Cc file
ATTACHMENT #4
ORDINANCE NO. 3883
AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING
THE HUNTINGTON 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 tlus 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 kmd, 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 Califorma.
(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 nghts-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)1; open video systems (OVS) suppliers; and suppliers of cable television; master
antenna television; satellite master antenna television; multichannel multipomt distribution
services (MMDS); 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", 6486615, "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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Ordmance No.3883
® 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 falls 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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Ordinance No 3883
® (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(20t') 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
"mirumum 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 VoIP) used by a person with
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Ordmance No 3883
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.
3.3 8.090 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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Ordinance No 3883
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 falling
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 mall 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
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
(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
10-2580/55865 10
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Ordinance No 3883
® 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-Non-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 75%) 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.
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Ordinance No 3883
® (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.
10-2580/55865 12
HB -127- Item 10. - 27
Ordinance No 3883
. (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 admimstrative 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
10-2580/55865 13
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Ordinance No 3883
® (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 inthe
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
penury 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
l o-2580/55865 14
xB -129- Item 10. - 29
Ordinance No 3883
(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, u) 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
10-2580/55865 15
Item 10. - 30 HB -130-
Ordinance No 3883
(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 Injunction/Writ of Mandate. No injunction or writ of mandate or other legal or
equitable process shall issue in any suit, action, or proceeding in any court against this City or
against any officer of the City to prevent or enjoin the collection under this 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 party and the review shall employ reasonable, cost-effective steps to assure
compliance, including the use of sampling audits. The verification shall not be required of tax
remitters where the cost of the verification may exceed the tax revenues to be reviewed.
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 tlus Chapter with respect to any charge for a
® communication service shall be deemed to have satisfied his or her obligation to pay the tax
10-2580/55865 16
HB -131- Item 10. - 31
Ordinance No 3883
• levied pursuant to Sections 3.36 020 and 3.36 070 of this Code with respect to that charge
Likewise, prior to April 1, 2011, 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 XIIIC 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 clanfication (even if
10-2580/55865 17
Item 10. - 32 HB -132-
Ordinance No 3883
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 S 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 Fth day of npremher � 201Q
ATTEST
&Olt INITIATED AND APPROVED
CitfjlerkV a,,,,
Director of Finance
REVIE D ND APPROVED:
APPROVED AS TO FORM:
Ci A inistrator
(_CJty AttoAley M V is-► -�
10-2580/55865 18
HB -133- Item 10. - 33
Ord. No. 3883
® 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 foregoing ordinance was presented to the electorate of the City of
Huntington Beach on November 2, 2010 at the General Municipal Election, and a
majority of the electorate did hereby approve the foregoing ordinance also known as the
Communication Users' Tax Measure(Measure P) at the General Municipal Election held
on November 2, 2010 and that the foregoing ordinance was read to the whole number of
members of the City Council and was certified by the City Council at a regular meeting
thereof held on December 6,2010 and was passed and adopted by the affirmative vote of
at least a majority of all the members of said City Council.
® AYES: Carchio, Coerper, Hardy, Green, Bohr, Dwyer, Hansen
NOES: None
ABSENT: None
ABSTAIN: None
I,Joan L Flynn,CITY CLERK of the City of Huntington
Beach and ex-officio Clerk of the City Council,do hereby
certify that a synopsis of this ordinance and measure
presented to the electorate was published in five languages
(English,Spanish,Chinese,Korean and Vietnamese)with
due notice to the electorate in accordance with the law and
the City Charter
Joan L Fl nn, City Clerk
® Senior Dguty City Clerk Clerk and ex-offici Jerk
of the City Council of the City
of Huntington Beach, California
Item 10. - 34 HB -134-
ATTACHMENT #5
CERTIFICATION
1, Fred Wilson am authorized to sign this certification on behalf of the City of Huntington Beach
(Insert name of locallunsdmuon)
I certify to the following
Please check all the following that apply to your jurisdiction
1 _ 911 Charges/Access to Communication Services - Ordinance No. 3883 of the
the City of Huntington Beach imposes the local charge set forth in the ordinance to prepaid mobile
(Insert name of localjunsdxuon)
telephony services for access to communication services or to local 911 emergency
telephone systems As required by section 42102 5, the percentage reflecting the rate for
access to the local 911 emergency telephone systems or access to communications
services is
2 X Utility User Tax - Ordinance No 3883 of the the city of Huntington Beach imposes the local
(Insert name of local lunsd'cuon)
charge set forth in the ordinance to the consumption of prepaid mobile telephony
services The tiered rate for the utility user tax, as identified in section 42102 is
4 5%
3 The the city of Huntington Beach agrees to indemnify and to hold harmless the Board of
(Insert name of local lunsdtcuon)
Equalization (Board), its officers, agents, and employees for any and all liability for
damages that may result from the Board's collection pursuant to this agreement
Executed in the City of Huntington Beach,California on September 8,2015
(Insert name of local)unsdtcuon) (Add date)
Signature
Printed name Fred Wilson
Title of person City Manager
CITY OF HUNTINGTON BEA H
Finance Department
Lori Ann Farrell Harrison
Director of Finance
September 9, 2015 'Via Priority Mail
Board of Equalization
Attn: Local Revenue Allocation Unit/MTS Program
450 N Street, MIC27
Sacramento, CA 95814
Subject: MTS SURCHARGE PACKET CHECKLIST
Pursuant to confirmation received from Teri Leach, RAAD-Jurisdiction Services, enclosed
please find the following•
❑ Five (5) Original executed Local Charge Agreements. Please return one (1) original
agreement to City Clerk, City of Huntington Beach, 2000 Main Street, Huntington
Beach, CA 92648 after execution by the State Board of Equalization Administrator,
Return Analysis and Allocation Section.
❑ Four(4) Original executed Certification.
❑ Four (4) Certified Copies — Resolution No 2015-50 Authorizing City Manager to
Execute Agreement
❑ Four(4) Certified Copies—Ordinance No. 3883 Communication Users' Tax
❑ One (1) Copy Resolution No. 2015-49 —Authorizing Examination of MTS Surcharge
and Local Charge Records.
We would like to express our thanks and appreciation to the staff of the State Board of
Equalization, Ms. Teri Leach and Ms Donna Puchalski for their support and patience in
helping the City of Huntington Beach through this process
Should you have questions or require additional information, please do not hesitate to
contact me directly at (714) 536-5630 or loriann farrellla'7�surfcity-hb orq
Sincerely,
in
Lnn Farrell
Director of Finance
Enclosures
c* Fred A Wilson, City Manager
Joan Flynn, City Clerk
Janet Lockhart, Senior Administrative Analyst
Julie Erdkamp, MuniServices LLC
/mkl
2000 Main Street, California 92648-2702• Phone 714-536-5630• Fax 714-374-5365
www huntingtonbeachca gov