HomeMy WebLinkAbout2008/07/15 Additional Information
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350 10th Avenue, Suite 600
San Diego, CA 921 01
~.l~o~ 'k.of}
~onorable Mayor Cox
City Councilmembers
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Re: Proposed Changes To Utility Users Tax
Dear Mayor Cox and City Councilmembers:
On Wednesday, July 2, 2008, Cox received a copy of a staff report and ordinance putlining the
City of Chula Vista's proposed changes to its existing Utility User's Tax ("UUT"). This letter
provides comments on behalf of Cox Communications ("Cox") on the proposed ~hanges. Cox
recognizes that telecommunications sef\~ce has changed significantly since the initial adoption of
the UUT. While new communications technologies are put forth as a reason why tj1e tax should
now be re-written, they are also a reason why the City must tread carefully when proposing
changes. The changes must be as clear as possible to allow voters to know the impact the
changes will have and to allow companies like Cox to know to whom and how the tax must be
charged.
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Specifically, Cox's comments and concerns on the proposed changes to the UUT include:
I. Application ofthe Tax to Video Services
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The definition of "telecommunications sernces" in the proposed ordinance includes "the
transntission...of...video...to a point, or between or among points" Cox is concerned that this
language encompasses cable tele~sion sernces that are already subject to franchise fees paid to
the City. Although the staffs report on the proposed ordinance states on page 3 that the
ordinance is "designed to not collect both video/cable franchise fees and UUT from a single
telecommunication customer for the same service," .the proposed ordinance' contains no
exemptions for cable or video services that are also subject to franchise fees. Thus, customers
receiving cable or video sernces would be subject to existing franchise fees as well as the new,
revised UUT.
Contrast this to customers of direct broadcast satellite providers such as DirecT\' or DISH.
Under Federal law, such satellite providers are exempt from local taxes on satel.lite television
services. Thus, under the proposed ordinance, a Cox cable subscriber would pay approximately
10% in total City taxes and fees, while a satellite customer would pay no such taxes or fees. This
puts cable providers such as Cox at a competitive disadvantage and drives customers away from
local cable providers to the satellite companies, resulting in a loss of franchise ~fee and PEG
revenues to the City. .
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Cox has invested substantiallv in Chula Vista for decades as a telecommunications leader. Cox.
along with City residents ao"d businesses using Cox's sernces, are already amohg the largest
contributors to the tax base of this City. As reflected in Attachment A, just in the last year, Cox
paid nearly $460,000 dollars in UtilitY User Taxes, $2,400,000 in franchise fees, and fulfilled a
multitude of city and c.ommunity requests as part of our franchise. In additiori, Cox and its
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Iln harmony with thE' Cox ~onserves ec:o-friendly program, we are
proud to print on Forest S1f>wardship Councikcrtified paper.
current and potential competitors, NexHorizon and AT&T, all have plans to invest in expanding
video services in this City as well as other parts of the County. As currently proposed, the revised
UUT would punish the same companies that have invested in Chula Vista by taxing the valuable
telecommunications services we provide while leaving the satellite providers untpuched. This
discriminatory approach is neither fair to the members of the California Cable &
Telecommurucations Association, nor helpful to California consumers or its economy. The City
of Chula Vista is the only City in the County of San Diego that would add new taxes to video
services as described in the proposed definition of "telecommurucations services." If this
definition is adopted, it would likely steer investment dollars to other parts of the County where
higher taxes would not discourage use ofthese new services. Not only would City residents miss
out on the opporturuty for better sen~ces, but the City itself would miss out on franchise fee
revenue from tbese new and expanded services. '
In other communities, including the City of Los Angeles, cities made it clear that they did not
intend to apply their re\~sed Utility User's Tax to Bdeo sen~ces that are alreadYiheaBly taxed
through franchise fees. We hope that Chula Vista will follow the lead of these communities and
continue to limit its utility taxes to traditional utility services. Specifically, Cox asks that the
definition of "teleconu1mnications services" in the proposed ordinance be modified' bv addiug the
following language to the definition: : ~ -
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"Telecommunications services do not include cable or video television services that are subject
to a cable or video television franchise fee. "
TIns language is similar to language found in the recently enacted City 'of Los Angeles
Communications Users Tax (see Attachment B). Adopting this language is consistent with the
intent expressed in the staff s report and would ensure that cable customers are not unduly
discriminated against by being assessed both the UUT and franchise fees.
II. Effective Date
The proposed ordinance siguificantly increases the amount of services that will be subject to the
UUT. In the event that the vote on the proposed ordinance is successful. it \\~ll be critical that the
City provide adequate time to allow service proBders to update 'their billirig systems to
accommodate the changes. As currently written, the proposed ordinance calls for the tax to go
into effect inunediately upon voter approval. However, Cox \\~ll require at least 90, days from the
date of approval to create and implement billing system changes necessary to collect the newly
e""]landed tax. Thus, we respectfully request that the current language in "SECTION 2. Effective
Date" be replaced \,~th the follo\\~ng:
SECTION 2. Effective Date. This Chapter shall become effective February l, 2009.
III. Voter Approval
Currently, Chula Vista's UUT only applies to intrastate telephone services. The proposal would
expand the tax to interstate and international services, as well as to private line and related
sen'ices. These changes go beyond "clarifYing" the existing tax by appl)wg the tax to services
that have not been taxed in the past. The staff s report recognizes this and acknowledges that the
ordinance must be submitted to voters for approval. :
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In submitting the proposed ordinance for voter approval. it is paramount that voters have an
accurate understanding of the proposed changes. For ex~ple, the staff report sthtes on page 3
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that the proposed ordinance "[r]educes the current tax percentage on teJecommvnications and
video services from 5% to 4.75% for approximately 80% of Chula Vista's telecommunications
customers." TIlls statement is misleading. While the rate for intrastate telephone services would
decrease from 5% to 4.75%, the rate on interstate telephone services (among 'others) would
effectively increase from 0% to 4 75%. Since most if not aU of the "80% of Chula Vista"
customers referenced in the staff report are also interstate phone customers, the net result would
be a tax rate increase for all customers.
To ensure that voters have accurate and reliable information upon which to base their decision,
Cox requests that any information presented to public clearly list, in plain language, the services
that wiU be subject to a new or modified tax as proposed under the DUT ordinance.,
We appreciate the opportunity to comment on this proposal. If you have any questions about
Cox's concerns, do not hesitate to contact me at 619-266-5653.
anlAt~~
Vice President, Business Development & External Affairs
Cox Communications
enclosures
Attachment A
Taxes Paid to the City of Cbula Vista by Cox Communications in 2007
Franchise Fees $2,400,000
Utility Users Tax $457,328
Cable Property Taxes $515,902
Telecom Property Taxes $120,000
Attachment B
City of Los Anl!eles Communications Users Tax
LOS ANGELES MUNICIPAL CODE CHAPTER II. ARTICLE 1.1'
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SEC. 21.1.1. DEFINITIONS.
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The following words and phrases whenever used in this article shall be construed as
defined in this section:
(a) "Ancillary Telecommunications Services" shall mean services that are associated
with or incidental to the provision, use or enjoyment of Communications Services. :
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(b) "Communications Services" shall mean the transmission, conveyance, or routing
of voice, audio, video communications, data or any other communications information or signals
to a point, or between or among points, whatever the technology used, and whether or not that
information is transmitted through interconnected service with the public switched 'network, or
through fiber optic, coaxial cable, power line transmission, broadband, digital subscriber line or
other wireless transmission. The term "Communications Services" includes 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 those services are referred to as voice over internet protocol (YoIP) services or
are classified by the Federal Communications Commission as enhanced or value added, and
includes video and/or data services that are functionally integrated with "Communications
Services." "Communications Services" include, but are not limited to the following services,
regardless of the manner or basis on which those services are calculated or billed: central office
and custom calling features (including but not limited to 6all waiting, call forwarding, caller
identification and three-way calling); local number portability; text messaging; instant
messaging; Ancillary Telecommunications Services; prepaid and post-paid teleconununications
services (including but not limited to prepaid calling cards); mobile telecommunications
services; Private Communications Services; paging services; and 800 services (or any other toll-
free numbers designated by the Federal Communications Commission). "Communications
Services" does not include either digital downloads, such as downloads of books, music,
ringtones, games and similar digital products, or that portion of cable or video television services
subject to a cable or video television franchise fee.
(c) "Month" shall mean a calendar mon tho
(d) "Person" shall mean all individuals, domestic and foreign corporations,
associations, syndicates, joint stock companies, partnerships of every kind, joint ventures, clubs,
Massachusetts businesses or common law trusts, societies, and, shall include munib;pal
corporations.
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(e) "Private Communications Services" shall mean any dedicated ComIl1unications
Services that entitle the user to .the exclusive or priority use of communications chmmels.
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(f) "Service User" shall mean a Person required to pay a tax imposed under the
provisions ofthis article. '
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SEC.21.1.2. CONSTITUTIONAL EXEMPTIONS.
Nothing in this article shall be construed as imposing a tax upon any person when
imposition of such tax upon that person would be in violation of the Constitution of the United
Stales or that of the Stale of California.
SEe. 21.1.3. COMMUNICATIONS USERS TAX.
(a) There is hereby imposed a tax upon every Person with a billing or service address
in the City of Los Angeles who uses Communications Services, including services for intrastate,
interstate or international Communications Services, to the extent pelmitted by state and federal
law. The tax imposed by this section shall be at the rate of nine percent of the charges made for
those Communications Services and shall be paid by the Person paying for those services.
However, as to the charges made for services to any independent telemarketing agency, as
defined in Section 21.47(b) of this Code, incurred solely in performing the functions of an
independent telemarketing agency, the tax imposed by this section shall be at the rate of five
percent of the charges made for those services.
(b) The tax imposed in this section shall be collected from the Service User by lhe
Person providing the Communications Services. The amount of tax collected from the 26th day
of each Month through the 25th day of the following Month shall be remitted to the Director of
Finance on or before the 26th day of the following Month, or, at the option of the Person
required to collect and remit the tax, an estimated amount ,oftax collected, measured by the
billings of the previous Month, shall be remitted to the Director of Finance on or before the 20th
day of each Month.
(c) Charges subject to the Communications Users Tax include, but are not limited to,
the following: connection, reconnection, termination, movement, or change of
telecommunications services; late payment fees; detailed billing; voice mail and other messaging
services; directOlY assistance; access and line charges; universal service charges; and regulatory~
administrative and other cost recovery charges.
(d) Exemptions. Except as othenvise provided in this article: Communications
Services shall include all Communications Services for which there is a charge, regardless of the
means or technology used to provide those services. Notwithstanding the provisions of
Subsection (a), the tax imposed under this section shall not be imposed upon any Person for
using Communications Services under the circumstances set forth below:
1. News services. No tax shall be imposed under this section, except with respect to
Jocal telephone service, on any payment received from any Person for services used in the
collection of news for the public press, or a news ticker service furnishing a general news service
similar to that of the public press, or radio broadcasting, or in the dissemination of news through
the public press, or a news ticker service furnishing a general news service similar to that of the
public press, or by means of radio broadcasting, if the charge for that service is billed in writing
to that Person.
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2. International, etc., organizations. No tax shall be imposed under this ~ection on
any payment received for services furnished to a public international organization in which the
United States participates pursuant to treaty or Act of Congress, or to the American National Red
Cross.
3. Servicemen in combat zone. No tax shall be imposed under this section on any
payment received for any toll telephone service, which originates within a combat z?ne, as
defined in Section 112 of Title 26 of the United States Code, from a member of the Armed
Forces of the United States perfOlming service in the combat zone, as determined under Section
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4. Items otherwise taxed. Only one payment of tax under this scction sh,all be
required with respect to the tax on any service.
5. Common carriers and cOlmnunications companies. No tax shall be in\posed under
this section on the amount paid for any Communications Services to the extent that the amount
so paid is for use by a common carrier, telephone or telegraph company, or radio broadcasting
station or network in the conduct of its business.
6. Installation charges. No tax shall be imposed under this section on any amount
paid for the installation of any instrument, wire, pole, switchboard, apparatus, or equipment as is
properly attributable"to the installation. I
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7. Nonprofit hospitals. No tax shall be imposed under this section on any amount
paid by a nonprofit hospital for services furnished to that organization. For purposes of this
exemption, the tenn "nonprofit hospital" means a hospital referred to in Section 170(b)(l)(A)(iii)
ofTitle 26 of the United States Code, which is exempt from federal income tax under Section
501 (a) of Title 26 of the United Slales Code. !
8. Slate and local governments. No tax shall be imposed under this section upon any
payment received for services or facilities furnished to the government of any State,' or any of its
political subdivisions, or the District of Columbia.
9. Nonprofit educational organizations. No tax shall be imposed under this section
on any amount paid by a nonprofit educational organization for services or facilities furnished to
that organization. For purposes of this exemption, the term "nonprofit educational oi'ganization"
means an edncational organization described in Section 170(h)(J)(A)(ii) of Title 26 of the United
States Code, which is exempt from federal income tax under Section 501 (a) ofTitl~ 26 of the
United States Code. The term also includes a school operated as an activity of an organization
described in Section 50l(c)(3) of Title 26 of the United States Code, which is exempt from
federal income tax under Section 501 (a) of Title 26 of the United States Code, ifth,ll school
normally maintains a regular facility and curriculum and normally has a regularly eprolled body
of pupils or students in attendance at the place where its educational activities are regularly
ca~~on. :
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(e) To prevent actual multiple taxation of any Communications Services that are
subject to tax under Subsection (a) of this section, any Service User, upon proof that the Service
User owed and has paid a tax in another taxing jurisdiction on the Communications Services,
shall be allowed a credit against the tax imposed in Subsection (a) to the extent of the amount of
the tax properly due and paid in the other taxing jurisdiction. However, no credit may be allowed
for any tax paid to another taxing jurisdiction on any call to the extent that the call may not,
under the Constitution and statutes of the United States, be made the subject of taxation by the
other taxing jurisdiction. Nor shall the amount of credit exceed the tax owed to the City under
this section.
(f) Any person claiming to be an independent telemarketing agency, which has
charges subject to tax at the five percent rate, shall file an application for rate adjustment with the
Director of Finance. This application shall be made on forms provided by the Director of Finance
and shall recite facts under oath which qualify the applicant for the five percent tax rate.
Notwithstanding any other provision of this article, the five percent rate shall apply only to
charges for services that were necessarily incurred solely and exclusively for telemarketing
activities. The burden of maintaining records and establishing that this charge is subject to tax at
the five percent rate shall be on the applicant. Charges for all other services shall be subject to
tax at the nine percent rate.
(g) For purposes of imposing a tax or establishing a duty to collect and remit a tax
under this section, "substantial nexus" and "minimum contacts" shall be construed broadly in
favor of the imposition, collection and/or remittance of the communications 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 Communications Services used by a
Person with a service or billing address in the City 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 section. For communications services for which there
is no billing address or primary physical location for the provision of services, the service
address shall mean the point of sale of the services.
(h) If a non-taxable service and a taxable service are billed together under a single
charge, the entire charge shall be deemed taxable unless the service supplier or taxpayer
reasonably identifies actual charges for senJices not subject to the tax. The service supplier or
taxpayer seeking a reduction has the burden of proving the proper valuation and apportioml1ent
of taxable and nOl1-taxable charges based upon books and records that are kept in the regular
course of business and in a manner consistent with generally accepted accounting principles.
SEe. 21.1.4. ELECTRlCITY USERS TAX.
(a) There is hereby imposed a tax upon every person in the City of Los Angeles using
electrical energy in the City of Los Angeles. The tax imposed by this section shall be at the rate
of 10 percent of tbe charges made for such energy and shall be paid by the person paying for
such energy, provided, however, that commercial or industrial users of electrical energy shall be
subject to tax and a tax is hereby imposed upon them at the rate of 12.5 percent of the charges
made for such energy, but as to any non-profit educational institution, as defined in Subdivision
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3 of Subsection (c) of Section 21.190 of this Code, the tax imposed by this section shall be at the
rate of 10 percent of the charges made for such energy. "Charges" as used in tillS section, shall
include charges made for (J) metered energy, and (2) minimum charges for service, including
customer charges, service charges, demand charges, standby charges, and annual and monthly
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charges.
The term "conunercial or industrial users" as used in this section, is intended to include,
but shall not be limited to, any person who qualifies as a "conunercial or industrial" consumer of
electrical energy within the electric rate schedules ofthc Department of Water and Power of the
City of Los Angeles or the tariff schedules of the Southern California Edison company, provided
however, a user of electrical energy shall not be considered a "conunercial or industrial user" of
any electrical energy supplied to a single family accommodation separately metered or for
energy to two or more individual family acconunodations supplied as a unit, upon application
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under tbe provisions oftbe Department's Domestic' Service Schedule D-I, devoted primarily to
domestic, residential, household and related purposes, as distinguished from conunercial,
professional, and industrial purposes.
(b) As used in this section, the term "using electrical energy" shall not be construed
to mean that storage of sucb energy by a person in a battery owned or possessed by him for use
in an automobile or other machinery or device apart from the premises upon wbicb: the energy
was received, provided bowever, that the term sball include the receiving of such energy for the
purpose of using it in the charging ofbalteries, nor shall the term include the mere receiving of
such energy by an electric public utility or government agency at a point within the City of Los
Angeles for resale.
(c) The tax imposed in this section shall be collected from the service user by the
person supplying such energy. The amount of tax collected from the 26th day of eacb month
through the 25th day of the following montb shall be remitted to the Director of Finance on or
before the 26tb day of such following montil, or, at tbe option of tbe person required to collect
and remit the tax, an estimated amount of tax collected in each month shall be remitted to the
Director of Finance on or before the 26tb day of such month.
SEe. 21.1.5. GAS USER TAX
(a) There is hereby imposed a tax upon every person in the City of Los Angeles using
in tbe City gas whicb is delivered through mains or pipes. The tax imposed by this section sball
be at the rate of 10 percent of the charges made for such gas and shall be paid by tbe person
paying for such gas, provided, however, that as to any non-profit educational institUtion, as
defmed in subdivision 3 of Subsection (c) of Section 21.190 of this Code, the tax ilpposed by this
section shall be at the rate of 5 percent of the charges made for such gas. (When gas is
transported by, but not purchased from, a transporter, the charges subject to tax shall be
measured by (I) the transpoJ1ation cost and (2) the cost of tbe transported gas, which shall be
based on the volume of gas transported multiplied by the COre subscription weightdd average cost
of gas for the calendar month immediately preceding tbe calendar montb in which the billing
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penod termmates. i
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Notwithstanding the foregoing, the tax on the cost of transported gas may be detemlined
by applying the tax rate to the actual purchase cost, either by the service user applying to the
Director of Finance for a refund or the Director of Finance billing the service user, for the
amount which represents the difference between the tax paid by the service user to the
transporter and the tax determined by the actual purchase cost of the gas. In a claim for refund,
the service user shall provide the Director of Finance with satisfactory evidence of the quantity
and cost of the gas purchased from a party other than the transporter. When the Director of
Finance believes that direct collection of the tax from the service user is in the best interest of the
City, as provided in Subsection (b) of Section 21.1.10 of this Code, the transporter, upon request
from the Director of Finance, shall furnish the Director of Finance, with respect to each service
user for whom gas is transported, the name, mailing address, service address, gas meter number,
transportation cost, volume of gas transported and the core subscription weighted average cost of
gas for the calendar month immediately preceding the calendar month in which the billing period
terminates. This information shall be confidential and shall be used only for the purpose of
administering the tax.
(b) There shall be excluded from the base on which the tax imposed in this section is
computed charges made for gas which is to be resold and delivered through main or pipes,
cbarges made for gas sold for use in tbe generation of electrical energy by a public utility or a
governmental agency; and charges made by a gas public utility for gas used and consumed in tbe
conduct of the business of as public utilities.
(c) Tbe tax imposed in tbis section shall be collected from the service user by the
person selling gas or, wben gas is purchased from and transported by separate persons, tbe tax
shall be collected by tbe transporter. Tbe amount of tax collected from the 26th day of each
month through the 25tb day oftbe following month shall be remitted to tbe Director of Finance
on or before the 26th day of sucb following montb, or, at tbe option of tbe person required to
collect and remit tbe tax, an estimated amount of tax collected, measured by tbe billings oftbe
previous montb, shall be remitted to the Director of Finance on or before tbe 26th day of each
month.
(d) Tbere sball be exempt from tbe base on whicb tbe tax imposed in tbis section is
computed cbarges made for gas used for non-utility purposes. For the purposes of tbis
subsection, the term "gas used for non-utility purposes:: shall mean gas used as a raw material in
a manufactured product, and shall exclude gas used to produce ligbt, beat or power. Any service
user claiming an exemption under tbis subsection shall file an application with the Director of
Finance for sucb exemption. Sucb application sball be made upon forms supplied by tbe
Director of Finance and sball recite under oath facts wbich qualify the applicant for an
exemption. Tbe Director of Finance shall review eacb such application, certify as exempt such
service determined to qualify therefor and notify eacb affected service supplier that such
exemption bas been approved, stating the name of the applicant, the address to which sucb
exempt service is being supplied, tbe account number, if any, and sucb other information as may
be necessary for the service supplier to remove the exempt service from the tax billing
procedure. Upon receipt of such notice, the service supplier shall not be required to continue to
bill any further tax imposed by this section for such exempt service until given further notice by
the Director of Finance.
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(e) Notwithstanding the provisions of Subsection (a) of this section and Section
21 .1.8(b) of this article, the collection rate of the tax imposed in Subsection (a) of this section at
the rate of 10 percent shall be reduced temporarily for residential users to 6 percent for the first
fourregular billing periods ending on or after December 1, 200 I, and on or before April 15,
2002. For all subsequent regular billing periods, the collection rate for residential users shall
revert to the 10 percent rate imposed in Subsection (a) of this section. '
SEe. 21.1.6. lNTEREST AJ\TD PENALTY.
(a) Taxes collected from a service user which are not remitted to the Director of
Finance on or before the due dates provided in this article are delinquent.
(b) Interest and penalties for delinquency in remittance of any tax collected, or any
deficiency determination shall attach and be paid by the person required to collect and remit at
the rates and in the same manner as is provided in Sec. 21.05 of this chapter for delinquency in
payment of Business Tax.
(c) The Director of Finance shall have power to impose additional penalties upon
persons required to collect and remit taxes under the provisions of this article article for fraud
and negligence in reporting and relnitting in the same manner and at the same rates as are
provided in Sec. 2] .05 of this chapter for such penalties upon persons required (0 p~y Business
Tax.
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(d) For collection purposes only, every penalty imposed and such interest as accmes
under the provisions of this section shall become a part of the tax herein required to 'be remitted.
SEC.21.1.7. ACTIONS TO COLLECT.
Any tax required to be paid by a Service User under the provisions of this article shall be
deemed a debt owed by the Service User to the City. Any such tax collected from a 'Service User,
which has not been remitted to the Director of Finance, shall be deemed a debt owed to the City
by the Person required to collect and remit. Any Person owing money to the City ul)der the
provisions of this article shall be liable to an action brought in the name of the City for the
recovery of that amount. In the event that a service supplier required to collect and remit a tax
under the provisions of this article fails to do so in whole or in part, the amount of the umemitted
tax shall be deemed a debt owed by the service supplier to the City.
SEe.2l.] .8. DUTY TO COLLECT - PROCEDURES.
The duty to collect and remit the taxes imposed by this article shall be perfomed as set
forth in this section.
(a) The tax shall be collected insofar as practicable at the same time as and along
with the charges made in accordance with the regular billing practice. If the amount paid by a
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Service User is less than the full amount of the charge and tax that has accrued for the billing
period, a proportionate share of both the charge and the tax shall be deemed to have been paid.
(b) The duty to collect tax from a Service User shall commence with the beginning of
the first regular billing period applicable to that Person, which starts on or after the operative
date of this article. When the rate of the tax is increased or decreased, the duty to collect at the
new rate shall commence with the beginning of the first regular billing periods applicable to that
Person, which starts on or after the effective date of the new rate. \Vhere a Person 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.
SEC 2 1.]9 ADDITIONAL Po\VERS AND DUTIES OF DIRECTOR OF FINANCE, ETC
(a) The Director of Finance shall have the power and duty, and is hereby directed to
enforce all of the provisions of this article.
(b) In administering and enforcing the provisions oftllis article, the Director of
Finance shall have the same powers and duties with respect to collecting the tax provided in this
article as he or she has under Section 21.15 of this chapter with respect to collecting the Business
Tax.
( c) The provisions of Sections 2] .17, 21.20 and 21.21 of this chapter shall apply to
the administration and collection of the tax imposed under the provisions of this article in the
same manner as they apply to the administration and collel:;tion of the Business Tax.
(d) The Director of Finance may, from time to time, issue and disseminate
adnlinistrative agreements or rulings identifying those services or Persons that are subject to the
requirements imposed by this at1icle, deferring implementation or enforcement ofrequirements
imposed by this article or interpreting the provisions of this article. These administrative rulings
shall be consistent with federal, state and local law. To the extent that the Director of Finance, or
the City Attorney pursuant to Section 21.3 I, determines that the tax imposed under this article
shall not be collected in full for any period of time from any particular service suppliers or
Service Users, that determination shall be considered an exercise of the Director's discretion to
settle disputes and shall not constitute a change in taxing methodology for purposes of
Government Code section 53750 or otherwise. Neither the Director of Finance nor the City
A ttorney is 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 communications
users tax in full as a result of promulgating administrative rulings or entering into agreements.
SEC 21. J.1 O. ASSESSMENT - ADMINISTRA TlVE REMEDY.
(a) The Director of Finance may make an assessment for taxes not remitted by a
person required to remit for any reason specified in Sec. 21.16 of this chapter for making an
assessment for unpaid Business Tax. The manner of making and providing notice of such
assessment; the right to a hearing and the conduct of such hearing; the preparation and service of
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findings; filing exceptions; and passing upon exceptions shall be the same as provided in Sec.
21.16 of this chapter. i
(b) Whenever the Director of Finance determines that a service user has, deliberately
withheld the amount of the tax owed by him from the amonnts remitted to a person'required to
collect the tax, or that a service user has failed to pay the amount of the tax to such 'person for a
period of two or more billing periods, or whenever the Director of Finance deems it in the best
interests of the City, he may relieve such person of the obligation to collect taxes due under this
article from certain named service users for specified billing periods. The Office ot: Finance shall
,
notify the service user that he has assumed responsibility to collect the taxes due for the stated
periods and demand payment of such taxes. The notice shall be served on the service user by
handing it to him personally or by deposit of the notice in the United States mail, postage prepaid
thereon, addressed to the service user at the address to which billing was made by the person
required to collect the tax; or, should the service user have changed his address, to j-tis last known
address. Ifa service user fails to remit the tax to the Director of Finance within fift~en days from
the date of the service of the notice upon him, which shall be the date of mailing if service is not
,
accomplished in person, a penalty of twenty-five percent of the amount of the tax syt forth in the
notice shall be imposed, but not less than $5.00. The penalty shall become part of the tax herein
required to be paid. !
,
SEe. 2].1.11. RECORDS.
It shall be the duty of every person required to collect and remit to the City any tax
imposed by this article to keep and preserve, for a period of three years, all records 'as may be
necessary to determine the amount of such tax as he may liave been liable for the collection of
and remittance to the Director of Finance, which records the Clerk shall have the right to inspect
at all reasonable times. .
SEe. 21.1.12. EXEMPTIONS AND REFUNDS.
(a) The tax imposed by this article shall not apply to any individual 62 years of age or
older or any disabled individual who uses Communications Services, electric, or gas services in
or upon any premises occupied by that individual, provided the combined adjusted gross income
(as used for purposes of the California Personal Income Tax La',,\,) of all members of the
household in which the individual resided was less than the figure in effect on the preceding first
day of April as the "very low income" limitation for a family of two persons in the City of Los
Angeles under the Section 8 housing programs of the United States Housing Act of 1937, as
amended, as published by the United States Department of Housing and Urban Development.
For the purposes of this section, an individual shall be considered to be disabled ifhe or
she is unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment, which can be expected to result in de4th, or to be of
long-continued and indefinite duration. :
,
The exemption granted by this section shaJJ not eliminate the duty of the se~ice supplier
from collecting taxes from the exempt individuals or the duty of the exempt individuals from
,
,
9
87410.1
paying those taxes to the service supplier unless the Service User applies for an exemption and
the Director of Finance grants the exemption in accordance with the provisions of Subsection
(b)
For each fiscal year, the Director of Finance is directed to determine, and utilize as the
prior calendar year's adjusted gross income limitation, the figure in effect on the preceding first
day of April as the "very low income" limitation for a family of two persons in the City of Los
Angeles under the Section 8 housing programs of the United States Housing Act of ] 937, as
amended, as published by the United States Department of Housing and Urban Development.
(b) Any Service User exempt from the taxes imposed by this article because of the
provisions of Subsection (a) above or any other applicable exemption, may file an application
with the Director of Finance for an exemption. The applications shall be made upon fonns
supplied by the Director of Finance and shall recite facts under oath, which qualify the applicant
for an exemption. The Director of Finance shall review all applications and certify as exempt
those applicants determined to qualify and shall notify all service suppliers affected that the
exemption has been approved, stating the name of the applicant, the address to which the exempt
service is being supplied, the account number, if any, and any other information as may be
necessary for the service supplier to remove the exempt Service User from its tax billing
procedure. Upon receipt of this notice, the service supplier shall not be required to continue to
bill any further tax imposed by this article from the exempt Service User until further notice by
the Director of Finance is given. The service supplier shall eliminate the exempt Service User
from its tax billing procedure no later than 60 days after the receipt of the notice from the
Director of Finance.
All applications for exemption for any given fiscal year shall be filed with the Director of
Finance on or before the 30th day of April preceding the fiscal year. All exemptions shall
continue and be renewed automatically by the Director of Finance so long as the prerequisite
facts supporting the initial qualification for exemption shall continue. Upon any change in the
service address or residence of the exempt individual, the service supplier, at its option, may
either terminate the exemption immediately or continue the exemption until notified by the
Director of Finance that the exempt individual has not filed an application for continuation of
exemption within 90 days after the change in the service address or residence. Each individual
exempt from the tax may apply to the Director of Finance for a new or continued exemption with
each change of address or residence. Any individual exempt from the tax shall notify the
Director of Finance within ten days of any change of fact or circumstance, which might
disqualify the individual from receiving the exemption. It shall be a misdemeanor for any Person
to knowingly receive the benefits of the exemption provided by this section when the basis for
the exelnption does not exist or ceases to exist.
Notwithstanding any of the provisions of this subsection, however, any service supplier
who determines by any means that a new or nonexempt Service User is receiving service through
a lneter or connection exempt by virtue of an exemption issued to a previous user or exempt user
of the same meter or connection, that service supplier shall inm1ediately notify the Director of
Finance of that fact and the Director of Finance shall conduct an investigation to ascertain
10
S7410.1
whether or not the provisions of this section have been complied with, and where appropriate,
order the service supplier to commence collecting the tax from the nonexempt Service User.
Applications for exemptions may be filed during any given fiscal year, for the remaining
portion of the fiscal year, provided the application is filed not later than the 60th day prior to the
commencement of the billing period for the affected utility companies for which the exemption
is to commence and shall be valid through the remainder of that fiscal year, as set forth above.
(c) Individuals 62 years of age or older and disabled individuals, any individual
entitled to be exempt from the taxes imposed by this article pursuant to Subsection (a) who used
telephone, electric or gas services and paid more than $3.00 in those taxes may, within 12
Months of the date of payment, apply for a refund on forms provided by the Director of Finance.
The refund application shall contain a declaration ofthose facts, under oath that qualify thc
applicant for a refund, and shall also be accompanied by the customer's original bills showing the
amount of the taxes billed by service suppliers during the preceding year. Likewise, refund
claims may be filed by an individual ""ho used telephone, electric and gas service and paid the
taxes prescribed by this article either directly or indirectly to the Service User rather than the
service supplier.
In the event the applicant has lost or destroyed any relevant billings or statements
showing the amount of tax paid, or if the applicant indirectly paid the taxes in conjunction with
the occupation of any premises without receiving a specific billing from the Service User, or if
the applicant has been granted an exemption during the year preceding the filing ot the refund
claim, the maximum refund shall be $18.00, or $1.50 for sach full Month of service received by
the applicant, whichever is less. '
(d) Except as otherwise provided in this section, refunds of overpaid taxes shall be
made in the same manner as is provided in Section 21.07 of this chapter for refunds of
overpayments in Business Taxes.
(e) A Person required to collect and remit taxes in1posed under this arti6le may claim
a refund or take as credit against taxes collected and remitted the amounts overpaid, paid more
than once or erroneously or illegally collected or received when it is established in a manner
prescribed by the Director of Finance that the Service User from Wh01TI the tax has been
collected did not owe the tax; provided, however, that neither a refund nor a credit shall be
allowed unless the amount of the tax so collected has either been refunded to the Service User or
credited to charges subsequently payable by the Service User to the Person required to collect
and remit. '
(f) If any application for an exemption or refund as permitted to be filed by this
section is determined to be deficient by the Director of Finance for failure to set forth the facts
necessary to qualify the applicant for an exemption or refund or if the Director of ~inance has
reason to believe the applicant has failed to truthfully set forth those facts, the DireCtor may deny
the application by giving written notice of the denial and by stating in the notice th~ grounds for
the denial and mailing the notice in a sealed envelope, postage prepaid, addressed \0 the
. applicant at the address shown upon the application. The applicant shall thereafter pave a right to
11
87410.1
a hearing with the Director of Finance in accordance with a hearing procedure to be established
by the Director.
(g) No exemption or refund shall be granted pursuant to this section with respect to
any tax imposed by this article, which is or has been paid by a public agency or where the
applicant receives funds from a public agency specifically for the payment of the tax.
(h) If an individual is delinquent' in the payment of any utility users tax at the time his
claim for refund is filed, the Director of Finance shall apply the refund or as much of the refund
as may be necessary to satisfy the delinquency.
(i) The tax imposed by this article shall not apply to communication, electJic and gas
services acquired by any nonprofit corporation for the use of its tenants in any housing project in
which at Jeast 80 percent of the dwelling units are occupied by a person meeting the
requirements for exemption under Subsection (a) of this section.
(j) Upon request of the Director of Finance, a service supplier shall provide a list of
the names and addresses of those customers that, according to its billing records, are exempt
from a tax imposed by this articJe.
(k) To the extent that the City's authorization to impose or collect the tax imposed in
this article is expanded or limited as a result of changes in state or federal law, no amendment or
modification of this article shall be required to conform the tax to those changes, and the tax
shall be imposed and collected to the full extent of the Cil('s authorization up to the full amount
of the tax imposed by the terms of this article.
SEC. 21.1.13. AMENDMENT OR REPEAL.
This Communications Users Tax imposed by this article may be decreased, repealed or
amended by the City Council, but may not be increased without a vote of the people as required
in California Constitution Article XIIlC and California Government Code Section 53750(h).
SEe.21.1.l4. AUDIT OF COMMUNlCATIONS USERS TAX.
The City shall annually verify that the Communications Users Tax imposed by this article
has been properly collected and remitted in accordance with this article, and properly expended
according to applicable law. The annual verification shall be performed under the direction of the
Director of Finance by a qualified independent third party employing reasonable, cost-effective
procedures.
SEe. 21.1.15. SEVERABILITY.
If any 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 remain in effect.
The people of the City of Los Angeles hereby declare that they would have adopted each portion
12
87410.1
,
,
i
,
of this ordinance, notwithstanding the fact that anyone or more portions of this ordinance is
declared invalid or unenforceable and, to that end, the provisions of this ordinance ?re severable.
13
87410.1
07/15/2008 03:42
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5192347403
SDCTA
PAGE 02
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.' II san DIego 0Junty
lI'; '. ~yers
. Association
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52008
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110 West C Srreet Suite 71 4, Sa" Diego. CA 9210 I . P: (619)23.t-6423 . F; (619) 234.7403 . www.sdwl.ors
July 15, 2008
Honorable Mayor Cox
City Councilmembers
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
{~)~ (Q;fE 0 W ~
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Re: Proposed Changes to Utility Users' TaxfProposed Teleconununications Users' Tax
Dear Mayor Cox and Councilmembers:
The San Diego County Taxpayers Association (SDCT A) has a number of concerns regarding the
proposed amendments to the Utility Users' Tax.
While the measure is being portrayed as a one-quarter percent tax reduction (for intrastate
telephone services), the proposal would broaden the application of the tax to interstate and
international telecommunication services; private conimunication services (e.g. T-l lines);
paging; V olP and toll free numbers. Broadening the application of the tax results in a tax
increase from 0 to 4.75% for these additional services. It is my understanding that the net impact
of broadening the scope of telecommunication services subiect to Chula Vista's
Telecommunications Users' Tax is a tax increase for nearlv all customers. If the City has any
information to p.ispute this, we would request that you make it available to SDCT A, interested
parties and the public, as soon as possible.
The language in the proposed Ordinance to be submitted to voters is disingenuous at best. The
question that v,ill be presented to voters makes no reference to broadening or increasing the tax.
We strongly urge you to change the language of the proposed Ordinance to clarify that voters are
being asked to approve a tax increase for specific services.
If you have any questions regarding our comments and concerns, please don't hesitate to contact
me at (619) 234-6423.
Sincerely,
~~
Lani Lntar
President & CEO
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Christine Moore
Director
ExternalA/fafrs
AT&T Caliiornia
101 W. Broadway
Suite 1440
San Diego. CA 92101-8215
T: E19.237.3340
F: 619.231-0758
www.att.com
July 14,2008
I-Jonorable Mavor Cheryl Cox
o 0
Members of the City Council
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
, .,.j.-~1.;'
oJ
"'.~ ../
-.-~-
Re: Proposed Telecommunications Users' Tax
Dear Mayor Cox and Councilmembers,
AT&T is in receipt ofa staff report and ordinance language dated Friday, July 11,2008 detailing
the City ofChula Vista's proposed Telecommunications Users' Tax. This ordinance is slated for
a vote at the Council meeting to be held on Tuesday, July 15,2008. The City has indicated to us
that this ordinance is intended to update the existing Utility Users' Tax as much has changed in
the field of telecommlmications since the original ordinance was adopted.
vVhile a review of the existing legislation may be in' order,' we have two concems regarding the
language-in-the-proposed-ordi1 ance:-Specifi call y:
Section 3.42.010(1) "Service Address." TIle city's definition of "service address" is inadequate
to deal with certain types ofteleconummication services the city intends to tax. The cilY's
definition for service address works for basic residential and business dial services as welJ as
cellular telecommunications, however that definition does not address issues unique to
private teleconummications services. In keeping with the City's consistent use ofterms and
definitions from the Streamlined Sales Tax Project Agreement (SSTP), we respectfully request
that the City add a provision to the ordinance defining the sourcing language in accordance with
the SST1'. Specifically:
A sale of a private tcleconununication service is sourced as follows:
a. Service for a separate charge related to a customer channel termination point is sourced
to each level of jurisdiction in which such customer channel termination point is located.
b. Service where all cllstomer telmination points are located entirely within one
j misdiction or levels of jurisdiction is sourced in such jurisdiction in \vhich the customer channel
termination points are located.
USA
C{<R9 Proud Sconsor 0; the U.S. Olympic T~am
- ~
July 14, 2008
Page 2
c. Service for segments of a channel between two customer channel tennination
points located in different jurisdictions and which segment of channel me sepmately
charged is sourced fifty percent in each level of jurisdiction in which the customer
channel tennination points are located.
d. Service for segments of a channel located in more than one jurisdiction or
levels of jurisdiction and which segments are not separately billed is sourced in each
jurisdiction based on the percentage determined by dividing the number of customer
channel termination points in such jurisdiction by the total number of customer chmmeJ
termination points.
Section 3.42.010(r) "Definitions" states that "Telecommunications services.. . includes
video and/or data services that is functionally integrated with 'telecommunication
services.: 1:
As it is vaguely defined and open to interpretation, we respectftllly request that this
language be removed in its entirety.
We appreciate the opportunity to provide input to the City in creating legislation that is
wellc!c"fiTIedaffd-fainD all-jJTtrlies-invoWea:-C i t:y staWis-tol5econ:TIY1,,-nactl-for-allofits
hard work in ensuring that this ordinance has had the opportunity to be reviewed by the
teleconununications providers impacted by the proposal. It is our hope that you will
agree that oW" recommended changes are fair and rcasonable.
Please do not hesitate to contact me if you should have any questions or would like to
discuss this matter ftlrther.
Sincerely,
C,DL(l ~11VJ f\Lu~r0
Cc: David Garcia, City Manager
,:J