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HomeMy WebLinkAbout2008/07/23 Agenda Packet '.. " ,.,. " ",F p"'" "",r.,"'w that lam ~~i~~:b: ~~t~ ~IIZr~la~~~~a: Iti~~;:;~18 ~ ~ f?- t on the bulletin board according tD;;:~ . reqUiremente.~. ~~~.:;::- u/o8 SIGNED ~ '"'C;y "';);'" . - CHULA VISTA AJe~ Cheryl Cox, Mayor Rudy Ramirez, Councilmember David R. Garcia; City Manager John McCann, Councilmember Bart Miesfeld, Interim City Attorney Jerry R. Rindone, Council member Donna Norris, Jnterim City Clerk Steve Castaneda, Councilmemher Notice is hereby given that the Mayor of the City of Chula Vista has called and will convene a Special Meeting of the City Council on Wednesday, July 23, 2008 at 8:00 p.m. to be held in the COlU1cil Chambers, located at 276 Fourth Avenue; ChuJa Vista, California to consider the item on this agenda. SPECIAL MEETING ~"~ Ceryl Cox, Mayor July 23,2008 8:00 P.M. (Immediately following the 6:00 p.m. Adjourned Regular Meeting) Council Chambers City Hall 276 Fourth Avenue CALL TO ORDER ROLL CALL: Councilmembers Castaneda, McCann, Ramirez, Rindone, and Mayor Cox PUBLIC COMMENTS If you wish to ,Ipeak on any item on this agenda, please fill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to meeting. L CONSIDERATION OF PLACING A MEASURE RELATING TO THE CITY'S TELECOMMUNICATIONS UTILITY USERS' TAX ON THE BALLOT FOR THE SPECIAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY, NOVEMBER 4, 2008 Chula Vista's Utility Users' Tax (UUT) was adopted in 1970 as a means to help fund public services and capital improvement projects through the City's General Fund. The City receives UUT based on the usage of natural gas, electricity and telecommunications. In fiscal year 2006-07, the total UUT received was approximately $7.0 million, which represents 4.3% of General Fund revenues. The current rates charged are .00919 per thenn, .0025 per kilowatt, and 5% on telephone. There are over ISO cities in California with a Utility Users Tax. City staff is recommending that the UUT on telecommunications be updated. The resolutions presented for the Council's consideration would (i) approve an ordinance to be submitted to the voters for this purpose; and (ii) appropriate the funds necessary to cover the related costs. (Finance Director) Staff recommendation: Council adopt the following resolutions: A. RESOLUTION OF THE ClTY COUNCIL OF THE CITY OF CHULA VISTA ORDERING THE SUBMISSION TO THE QUALIFIED ELECTORS OF THE ClTY OF A MEASURE RELATING TO THE CITY'S TELECOMMUNICATIONS USERS' TAX AT THE SPECIAL MUNICIPAL ELECTION TO BE HELD ON TUESDA Y, NOVEMBER 4, 2008; DECLARING THE EXISTENCE OF AN EMERGENCY NECESSITATING SUCH ACTION; AND DIRECTING THE CITY ATTORNEY TO PREPARE AN IMPARTIAL ANALYSIS OF THE MEASURE (UNANIMOUS VOTE REQUIRED) B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING $105,000 FROM THE AVAILABLE BALANCE OF THE GENERAL FUND TO THE CITY CLERK'S AND NON-DEPARTMENTAL BUDGET TO COVER ANTICIPATED COSTS AND EXPENSES RELATED TO ELECTION COSTS, AND PRINTING AND MAILING COSTS (4/5THS VOTE REQUIRED) ADJOURNMENT to the Regular Meeting of August 5, 2008 at 4:00 P.M. in the Council Chambers. Ma/erials provided /0 the City Council related /0 any open-session item on this agenda are available for public review a/the City Clerk's Office, located in City Hall a/ 276 Fourth Avenue, Building 1 DO, during normal business hours. In compliance with the AMERICANS WITH DISABILITIES ACT The City of Chula Vis/a requests individuals who require .\pecial accommodations /0 access. aI/end. and/or participate in a City meeting. activity. or service request such accommodation a/ leas/ for/y-eight hours in advance .ft)r meetings and .live days for scheduled services and activities. Please con/act the City Clerk for specific information a/ (619) 691-5041 or Telecommunica/ions Devices fi:;r the Deaf (TDD) a/ (619) 585-5655. California Relay Service is also available for the hearing impaired. Page 2 - Council Agenda haD ://'\I,'W\-\'. ch u I av i staca. QOV July 23, 2008 '":::::c. ~1' I>> .. CITY COUNCIL AGENDA STATEMENT ~\ft- ClTYOF .~ CHULA VISTA ITEM TITLE: SUBMITTED BY: REVIEWED BY: JULY 23, 2008 Item RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ORDERING THE SUBMISSION TO THE QUALIFIED ELECTORS OF THE CITY OF A MEASURE RELATING TO THE CITY'S TELECOMMUNICATIONS USERS' TAX AT THE SPECIAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY, NOVEMBER 4, 2008; DECLARING THE EXISTENCE OF AN EMERGENCY NECESSITATING SUCH ACTION; AND DIRECTING THE CITY ATTORNEY TO PREPARE AN IMPARTIAL ANALYSIS OF THE MEASURE (UNANIMOUS VOTE REQUIRED) RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING $105,000 FROM THE AVAILABLE BALANCE OF THE GENERAL FUND TO THE CITY CLERK'S AND NON-DEPARTMENTAL BUDGET TO COYER ANTICIPATED COSTS AND EXPENSES RELATED TO ELECTION COSTS, AND PRINTING AND MAILING COSTS (4/5THS VOTE REQUIRED) DIRECTOR OF FINANC /TR:1Jfl~'-lllJ:... CITY MANAGER ~J-..----' 4/5THS YOTE: YES 0 NO D SUMMARY Chula Vista's Utility Users' Tax (UUT) was adopted in 1970 as a means to help fund public services and capital improvcmcnt projects through the City's General Fund. The City receives UUT based on the usagc of natural gas, electricity and telecommunications. In fiscal year 2006- 07, the total UUT received was approximately $7.0 million, which represents 4.3% of General Fund revenues. The CUlTent rates charged are .00919 per therm, .0025 per kilowatt, and 5% on telephonc. There are over I 50 cities in CaIiiornia with a Utility Users Tax. City staff is recommending that the UUT on telecommunications bc updated. The resolutions presented ior the Council's consideration would (i) approve an ordinance to be submitted to the voters for this purpose; and (ii) appropriate the funds necessary to cover the related costs. (-/ . . JULY 23, 2008, Item l Page 2 01'6 ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity of calling a11d giving notice of a special election for the purpose of updating the Utility Users Tax (UTT) on telecommunications is not a "Project" as defined under Section 15378 of the State CEQA Guidelines because it will not result in a physical change to the environment; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines the actions proposed are not subject to CEQA. RECOMMENDA nON That Council adopts the resolutions. BOARDS/COMMISSION RECOMMENDA nON Not applicable. DISCUSSION In 1970, the City lirst adopted a UUT that is applied to usage of natural gas, electricity and telecommunications. The City's UUT ordinance (Chula Vista Municipal Code Chapter 3.44) is outdated as it applies to telecommunications and needs to be amended to reflect recent changes in Federal tax law and to modernize the definition of telecommunications so that it is technology neutral. Presently, the City's UUT is imposed at a rate of 5% of the charges billed for telephone communications services. No changes are proposed to the ordinance for natural gas and electricity. The City's tax has been applied historically in a similar manner as the application of the Federal Excise Tax (FET) upon local and long distance telecommunication services as the Internal Revenue Service (IRS) interprets the FET. The FET statute defines long distance or "toll" calls as tho~e for which charges varied according to both the elapsed time of the call and the distance between the persons on the call. Today, long distance calls are based on time only, or in the case of "cellular or wireless" (Mobile) calls, they are based on a llatmonthly rate. On May 25, 2006, thc IRS issued a Notice that it intended to stop applying the FET to nearly all telephone communication services, except local exchange services, which leaves only approximately 25% of all the telecommunication services as federally taxable. This IRS action came loll owing many federal court losses involving the outdated definition of "toll telephone service" (or long distance) contained in the FET. Like the vast majority of California cities that havc a UUT ordinance, Chula Vista's UUT ordinance refers to the FET and some of its many exemptions, in response to thc telephone companies request of many years ago to do so to achieve administrative ease. The Treasury Department's May 25th Notice reversed its prior Revenue Rulings and interpretation of the FET. In addition, legislation (H.R. 5793) has been introduced in the United States Congress, which would impose a five-year moratorium on ncw local wireless taxes, and could limit the ability of the City to respond to possible fiJture adverse court rulings regarding the City's existing utility users' tax on Mobile communications. 1-2- I) . JUL Y 23, 2008, ItemL Pagc 3 01'6 Thc proposed Ordinance is an updated version of the telecommunications portion of thc City's existing UUT ordinance. It is intcnded to replacc those portions of the existing ordinance that ~pply t~ telecommunications. The new ordinance would modernize the telecommunications tax definitions and other provisions by, among other things, eliminating the reference to the FET and broadening the scope of telecommunication services that already tax intrastate services but will now tax: interstate, and international telecommunication services; private communication services (c.g., T-l lines); paging; and VolP and toll free numbers. Importantly, the new definitions arc technology-neutral and anticipate additional changes in technology, retlecting the modern use of telecommunications. Telecommunication services do not inelude cable or video programming serviccs thal are subject to a cable or vidco scrvice !j'anchise fee. This updating of definitions closes "technology" loopholes, and ensures that all taxpayers will be treated equitably, regardless of the technology used. This more equitable application broadens the tax base and allows the City to reduce the tax rate on cunent taxpayers that make up approximately 80% of all Mobilc telccommunication customers with no net loss of revenue anticipated. The loss in revenues related to the reduction of the tax ratc of 5% to 4.75% for intrastate services is antici pated to be recovcred through the 20% of Mobile customers who currently do not pay the tax and the application of the reduced tax ratc to interstate and international calls. The updated ordinance proposes to apply the tax IDr the first time to interstate and international services for MobiJc and land line telecommunication customers. Other cities that have eliminated this loophole havc experienced a small increase ranging ti'om 5% to 10% in UUT revenues under the modernized dcfinitions. The increase in revenue resulting tram the broadening of the tax base to inelude international and interstate has been offset by the reduction in the tax ratcs also ranging ti'OI11 5% to 10%. The language of the proposed Ordinance follows "model" definitions that are widely used in other states and by CalitDrnia cities that wish to modernize their ordinance. It is also written with the input of the telecommunication companies and is intcndcd to standardize the language for uniform applications so that the companies are elear as to their responsibilitics in collecting the tax. This will ease the burdcn for the telecommunication companies and cnsurc that within municipal authority, UUT is applied as tairly and consistently as possible to all applicable. service providers as tcchnology continues to evolve. UnitDrmity can offer protection against preemptive state or federal law attacks on individual ordinances, and will provide tor centralized payment methods and coordinated audits. The total fiscal year 2006/07 UUT revcnue received was approximately $7.0 million for the General Fund, representing approximately 4.3% of total General Fund revenue. The telecommunications relatcd portion of the UUT revenue is approximatcly $4.6 million. An estimated 75% or $3.4 million of these revenues are derived Electric 30% Wireless 75% $3.4M Telecomm 65% Wired 25% /-3 . . JULY 23, 2008, ItemL Page 4 of6 from Mobile telecommunications. The loss of these revenues would have a substantial impact on the City's ability to provide essential services, including public safety. Over twenty cities/counties throughout the state have recently gone to ballot and successfully adoptcd a modern UUT ordinance (see Attachment A - Proposed Ordinance) with only one failing to pass their ballot measure. Information about each city's ballot results is provided in Attachment B. Recently in June 2008, four more cities and 1 county successfully passed their UUT ballot measures. The information below summarizes the data 11.om Attachment B which includes the results through the June 2008 election: . Number of Cities/Counties that went to Ballot . Number of Successful UUT Elections . Number of Cities/Counties that Reduced Rate . Number of Cities/Counties that Maintained Rate . Number of Cities/Counties that Increased Rate . Number of Cities/Counties that Failed (New Tax) 24 23 14 8 I I An estimated twenty more cities are scheduled to go to ballot in November as there is predicted to be a historic voter turnout for the presidential election. UUT cities also view this coming election as a "window of opportunity" to update their ordinances before adverse judicial decisions might be rendered. The following is a brief summary of the proposed amendments/updates to the City's UUT rclative to telecommunication services: . Reduces the current tax rate on telecommunications and video serviees from 5% to 4.75% for approximately 80% of Chula Vista's Mobile telecommunications customers and all land line customers. . Applies the reduced tax rate to interstate and international calls for "cellular," (Mobile) and land line customers so that all taxpayers are treated the same. . Includes a modern, functional definition of telecommunication services that is technology- neutral, and now adds or specilically identilies the following services: interstate and international calls; Mobile; VoIP, paging, private communication services (e.g., T-1 lines for providing data, video and voice services), toll frcc and public service numbers. . Incorporates delinitions of "ancillary telecommunication services" that are commonly rccognized by the industry as being part of such services. . Anticipates the possibility of new technologies and services to provide telecommunication and video services, so that rates and rcvcnucs are stabilized and all taxpayers will be treated the same. . Providcs other administrative tools for addressing telecommunication taxation issucs including administrative rulings and sourcing, bundling and nexus guidelines. . Updates the local Municipal Code to be consistent with current Federal and State laws and makes Chula Vista's ordinance consistent with the direction of other California cities with UUT. . The UUT tax does not apply to: I_L/ (f) · .l JULY 23, 2008. Item . - Page 5 of6 o Email or other internet services provided by internet service providers (lSPs) o Free Wi-Fl o Current federal laws prohibits taxation of internet services, ineluding broadband services used for internet services. o Telecommunication services do not inelude cable or video programming services that are subject to a cable or video service franchise fee. The City has attempted to collect UUT from telccommunication companies who currently do not pay. Failure to modernize thc UUT ordinance could perpctuate an inequity that encourages other providers who currently are paying to cease collections resulting in a loss of $3.4 million related to Mobile communication. Eventually with the continued technological changes and migration to Mobile the_City is at risk of losing 100% of UUT revenues representing up to approximately $4.6 million in the General Fund which would have a substantial impact on the City's ability to maintain current programs and provide essential services, ineluding public safety. Staff recommends that the City Council adopt the attached Resolution calling for a measure to be placed on the November 2008 ballot. This resolution requires a unanimous vote of the City Council. In order to pass, the measure would need to be approved by a simple majority of voters. The matter could also be addressed as a "special tax" which would require approval by 2/3rds of the voters to pass. If approved by voters the earliest implementation date will be February 1,2009 To ensure that residents of the City are aware of the ballot measure receive factual and accurate information about the measure, staff proposes to conduct an informational program with respect to the measure. In order to minimize costs, it is proposed to use internal resources, rather than a consultant, to conduct" the program. The informational program will consist primarily of spcaking to various civic organizations in the city and sending out infol111ational brochures to the registered voters of Chula Vista. These intormational brochures will also be made available at the public counters and facilities of the City. DECISION MAKER CONFLICT Staff has reviewed thc dccision contcmplatcd by this action and has determined that it is not'site spccific and conscqucntly the 500 foot rulc found in Calitornia Code of Regulations section I 8704.2(a)(1 ) is not applicablc to this dccision. FISCAL IMPACT The total fiscal year 2006/07 UUT revenue received was approximately $7.0 million tor thc General Fund, rcprcsenting approximately 4.3% of total Gcncral Fund rcvenue. The telecommunications related p0l1ion of the UUT revenue is approximately $4.6 .million. At immediate risk is 100% or $3.4 million of existing Mobile telecommunication revenues. [n the long term, the remaining telecommunications revenues arc at risk duc to continued changes in technology and the continued migration from wired to Mobile telecommunications. Thc loss of thcsc revcnues would have a substantial impact on the City's ability to provide esscntial services, ineluding public safcty. 1-6" . . JUL Y 23,2008, ftemL Page60f6 The updating of definitions closes "technology" loopholes, and ensures that all taxpayers will be treated equitably, regardless of the technology used. This more equitable application broadens the tax base and allows the City to reduce the tax rate on current taxpayers that make up approximately 80% of all Mobile telecommunication customers with no net loss of revenue anticipated. The rcduction from a tax rate of 5% to 4.75% for intrastatc scrvices is anticipated to be rccovered through the application of the tax to interstate and international calls, and the 20% of Mobile customers who currently do not pay the tax. Other cities who have eliminated this loophole have expcrienced a small increase ranging from 5% to 10% in their revenues under the modcrnized definition. The increase has been offset by the reduction in the tax rates also ranging tl'om 5% to 10%. With the reduction of the tax rate and the broadening of the tax basc to now tax interstate and international, thc cxact net impact to the Gencral Fund in unknown due to unpredictable calling patterns of the consumer and evolving technology. Thc obiective of the ballot measure is to secure the existing UUT revenue base on an ongoing basis in order to preserve municipal scrvices. Due to a signilicant, and uncxpected, decline in revenue grovv1h ovcr the past 18 months, the City has undergone significant budgetary cuts in order to balance the Fiscal Year 2008-09 general fund operating budget, which assumes the continued collection of Utility Users Tax. The Five Year Forecast projects a $3.1 million budgctary gap in tiscal year 2009-10, which would be exacerbated by any loss in UUT revenue, Approval of the appropriation will impact General Fund rescrvcs by $105,000. In an effort to minimize costs, statfproposcs to manage the informational program internally and would request an appropriation of $105,000 to cover the election costs (City Clerk $35,000) and printing and mailing costs (Non-Departmental $70,(00). ATTACHMENTS Attachment A Proposed Ordinance Attachment B Election Results from Other Cities Prepared by: Phillip Davis, Assistant Director, Finance Department 1-0 . . ~~A- ORDINANCE NO. AN ORDINANCE OF THE CITY OF CHULA VISTA ADDING CHAPTER 3.42 TO TITLI~ 3 OF THE CHULA VISTA MUNICIPAL CODE REGARDING A TELECOMMUNICATION USERS' TAX TH.: PEOPLE OF THE CITY OF CIIULA VISTA DO ORDAIN AS FOLLOWS: SECTION ]: Chapter 3.42 is hereby added to Title 3 of the Chula Vista Municipal Code, and it shall read as follows: Chapter 3.42 TELI~COMMUNICATlON USERS' TAX 3.42.010 Definitions. 3.42.020 Constitutional, Statutory, and Other Exemptions. 3.42.030 Exemptions - Senior Citizens 3.42.040 Telecommunication Users' Tax. 3.42.050 Bundling Taxable Items with Non-taxable Items. 3.42.060 Substantial Nexus / Minimum Contacts. 3.42.070 Duty to collect--Proccdurcs. 3.42.080 Collcction Penaltics - Service Suppliers. 3.42.090 Actions to Collcct. 3.42.100 Deficiency Determination and Asscssment - Tax Application Errors. 3.42.110 Administrativc Rcmedy - Non-Paying Scrvicc Users. 3.42.120 Additional powers and duties of the Tax Administrator. 3.42.130 Records. 3.42.140 Refunds. 3.42.150 Appcals. 3.42.160 Notice No Injunction/Writ of Mandate. 3.42.170 Notice of Changes to Ordinancc. 3.42.180 I~ffect of State and Fcderal Referencc/Authorization. 3.42.190 Indcpendent Audit of Tax Collection, Excmption, Remittance, and Expcnditurc. 3.42.200 I ntcraction with Prior Tax. 3.42.210 Remedies Cumulative. 3.42.220 Violations deemed infractions. 1-7 1 . . 3.42.010 Definitions. The following words and phrases whenever used in this Chapter shall be construed as defined in this section. (a) "Ancillary telecommunication services" means services that arc associated with or incidental to the provision, use or enjoyment of telecommunications services, ineluding but not limited to the following services: (I) "Conference bridging service" means an ancillary service that links two or more participants of an audio or video conference call and may ineludc 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 ancillarv 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 inelude any vertical services that the customer may be required to have in order to utilize the voice mail service. (b) "Billing Address" shall mean the mailing address of the service user where the service supplier submits invoices or bills for payment by the customer. (c) "City" shall mean the City ofChula Vista. (d) "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. (e) "Month" shall mean a calendar month. (I) "Paging service" means a "telecommunications service" that provides transmission of coded radio signals for the purpose of activating specitlc pagers; such transmissions may include messages and/or sounds. /-9 2 . . (g) "Person" shall mean, without limitation, any natural individual, firm, trust, common law trust, estatc, partncrship of any kind, association, syndicatc, elub, joint stock company, joint venturc, limited liability company, corporation (ineluding foreign, domestic, and non- profit), municipal district or municipal corporation (other than thc City) cooperativc, receiver, trustee, guardian, or other representative appointed by order of any court. (h) "Place of Primary Use" means the street address rcpresentative of where the customer's use of the telecommunications service primarily occurs, which must be the residential street address or the primary business street address of the customer. (i) "Post-paid telecommunication service" means the telecommunication service obtained by making a payment on a telecommunieation-by-telecommunication 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 oflhe telecommunication service. U) "Prepaid telecommunication service" means the right to access telecommunication services, which must be paid for in advance and which enables the origination of telecommunications 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. (k) "Private telecommunication service" means a telecommunication service that entitles the customer to exclusive or priority use of a telecommunications channel or group of channels between or among termination points, regardless of the manner in which such channel 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 telecommunications channel is a physical or virtual path of telecommunications over which signals arc transmitted between or among customer channel termination points (i.e., the location where the customer either inputs or receives the tclecommunications). (I) "Service Address" means either: (1) The location oflhe service user's telecommunication equipment Ii'om which the telecommunication originates or terminates, regardless of where the telecommunication is billed or paid; or, (2) If the location in subsection (I) of this delinition is unknown (e.g., mobile telecommunications service or VolP 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. /-1 3 . . (m) "Service Supplier" shall mean any entity or person, ineluding the City, that provides telecommunication service to a uscr of such service within the City. (n) "Service User" shall mean a person requircd to pay a tax imposcd under thc provisions of this Chapter. (0) "State" shall mean the State of California. (p) "Streamlined Sales and Usc Tax Agreement" shall mean the multi-state agrcement commonly known and refelTed to as thc Streamlined Sales and Use Tax Agreement, and as it is amended from time to time. (q) "Tax Administrator" means the Finance Director ofthc City or his or her designee. (r) 'Telecommunications services" means the transmission, conveyance, or routing of voice, data, audio, video, or any other information or signals to a point, or betwecn or among points, whatever the technology used. The term "telecommunications services" includes such transmission, conveyanec, or routing in which computer processing applications are used to act on the form, code or protocol of thc content for purposes of transmission, conveyance or routing without regard to whether such serviccs are referred to as voice over internet protocol (VoIP) scrvices or arc classified by the Federal Telecommunications Commission as enhanced or value addcd, and ineludes video and/or data services that is functionally integrated with "telecommunication services." "Telecommunications services" inelude, but are not limited to thc following services, regardless of the manner or basis on which such services are calculated or billed: intrastate, interstatc, and international telecommunication services; ancillary telecommunication services; mobile telecommunications service; pre-paid telecommunication service; post- paid telecommunication servicc; private telecommunication service; paging service; 800 serviec (or any other toll-free numbers designated by the Federal Telecommunications Commission); 900 service (or any other similar numbers designated by the Fedcral Telecommunications Commission for services whereby subscribers call in to pre-recorded or live servicc). "Telecommunication services" docs not include cable or video programming scrvices that are subject to a cable or vidco service franchise fce. (s) "VolP" (voice over internet protocol) means the digital process of making and receiving real-time voice transmissions over any Intcrnet Protocol network. (t) "800 service" means a "telecommunications service" that allows a caller to dial a toll- free number without incurring a ehargc for the call. The service is typically marketed under the name "800," "855," "866," "877," and "888" toll-free calling, and any subsequent numbers dcsignated by thc Federal Communications Commission. (u) "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 announcement or Iivc service. "900 service" does not inelude thc charge for: collection services provided by the seller of the "telecommunications scrvices" to the subscriber, or service or product sold by the subscriber to the subscriber's customer, The service is 4 /-10 . . typically marketed under thc name "900" servicc, and any subscqucnt numbers designated by the Federal Communications Commission. 3.42.020 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 pcrson or service would be in violation of a federal or state statute, the Constitution ofthe 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 Jile 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 namcs of all telecommunication service suppliers serving that service user. If deemed cxempt by the Tax Administrator, such service user shall give the Tax Administrator timcly written notice of any change in telecommunication service suppliers so that the Tax Administrator can properly notify the new telecommunication service supplier of the service user's tax exempt status. A service user that j~lils to comply with this section shall not be entitled to a refund of telecommunication users' taxes collected and remittcd to the Tax Administrator from slrch service user as a result of such noncompliance. The decision of thc Tax Administrator regarding an application may be appealed pursuant to Section 3.42.150 of this Chapter. Filing an application with the Tax Administrator and appeal to the City Administrator pursuant to Section 3.42.150 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 timc. 3.42.030 l~xemptions - Senior citizens. Any individual who qualiJies for an exemption under Section 3.44.021 of Chapter 3.44 shall be exempt from the tax imposed by Section 3.42.040. The procedures for obtaining such an exemption shall be followed as set forth in Section 3.44.021. 3.42.040 Telecommunication Users' Tax. (a). There is hereby imposed a tax upon every person in the City using tclecommunication services. The tax imposed by this section shall be at the rate of four and 751l 00 percent (4.75 %) of the chargcs made for such services and shall be collectedlrom the service user by the telecommunication services supplier or its billing agent. There is a rebuttable presumption that telecommunication services, which are billcd to a billing or service address in the City, arc used, in whole or in part, within the City's boundaries, and such I-/! 5 . . services are subject to taxation under this Chapter. If the billing address of the servicc user is di ffcrent from the service address, the service address of thc service user shall be used for purposes of imposing thc 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 exchangc for the telecommunication services. (b) "Mobile Telecommunications Scrvice" shall be sourced in accordance with the sourcing rules set forth in thc Mobile Telecommunications Sourcing Act (4 US.c. Section 124). The Tax Administrator ,may issue and disseminate to telecommunication service suppliers, which are subject to the tax eollcction requirements of this Chapter, sourcing rules for the taxation of other telecommunication services, including but not limited to post-paid telecommunication serviccs, prcpaid telecommunication serviccs, and private telccommunication services, provided that such rules are based upon custom and common practicc that further administrative efficiency and minimize multi-jurisdictional taxation (e.g. Streamlinc Sales and Use Tax Agreement). (c) The Tax Administrator may issue and disseminate to telecommunication service suppliers, which arc subject to thc tax collection requirements of this Chaptcr, an administrativc ruling identifying those telecommunication scrvices, 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 scrviccs" shall inelude, but is not limited to charges for: connection, rcconnection, termination, movcment, or change of telecommunication services; late payment fees; dctailed billing; central officc and custom calling fcatures (including but not limited to call waiting, call forwarding, caller identilication and three-way calling); voice mail and other mcssaging 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 scrvices" shall not inelude digital downloads that are not "ancillary telecommunication scrviccs" such as, music, ringtoncs, games, and similar digital products. (e) To prevent actual multi-jurisdictional taxation of telecommunication scrvices subject to tax under this section, any service user, upon proof to the Tax Administrator that the servicc user has previously paid the same tax in anothcr state or local jurisdiction on such telecommunication serviccs, shall be allowed a credit against the tax imposed to thc extent of thc amount of such tax legally imposed on, and paid by, thc service user in such other state or local jurisdiction; provided, however, the amount of credit shall not cxcecd the tax owed to the City undcr this section. (1) The tax on telecommunication services imposed by this section shall be collected from the service user by the service supplicr. The amount of tax collcctcd in one (I) month shall be remitted to the Tax Administrator, and must be received by thc Tax Administrator on or before the twcnticth (20th) day of the following month. / -/2- 6 . . 3.42.050 Bundling Taxable Items with Non-Taxahle Items. If any non-taxable chargcs arc combined with and not separately stated from taxablc 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 non-taxable 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 apportionment of taxable and non-taxable charges. I I' the service supplier offers a combination of taxable and non- taxable services, and the charges are separately stated, then for taxation purposes, the vafues assigned the taxable and non-taxable services shall he 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. 3.42.0GO Suhstantial Nexus / Minimum Contacts. For purposes of imposing a tax or establishing a duty to collect and remit a tax under this Chapter, "substantial nexus" and "minimum contacts" shall be construed broadfy in favor of the imposition, collection and/or remittance of the telecommunication users' tax to the fullest extent permitted by state and federal law, and as it may change li'om time to time by judicial interpretation or by statutory enactment. Any telecommunication service (ineluding Voll') used by a person with 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 lor 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 tor tax collection and remittance purposes if its activities include, but are not limited to, any of the lollowing: 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 within 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 perlormed in the City on behalf of the service supplier that are significantly assoeiated with the serviee supplier's ability to establish and maintain a market in the City for the provision of services that are subject to a tax under this Chapter. 3.42.070 Duty to Collect--Proeedures. (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-/3 7 . . (I) The tax shall be collected by serviee suppliers insofar as practicable at the same time as, and along with, the collection of the charges made in accordance with the regular billing practiee of the servicc supplicr. 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 ace rued for the billing period, a proportionate share of both the charge and the tax shall be dcemed to have bccn paid. In those cases where a service user has notified the serviee supplier of refusal to pay the tax imposed on said charges, Section 3.42.110 shall apply. (2) The duty of a serviee 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 wherc 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 rcmitted in accordance with this Chapter. Returns are due immediately upon cessation of business for any reason. Pursuant to Revenue and Tax Code Section 7284.6, such filing returns are confidential information and are exempt ii-om the disclosure provisions of the Puhlic Records Act. 3.42.080 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 thc following busincss day. (b) If the person required to collect and/or remit the telecommunication users' tax fails to collect the tax (by failing to properly asscss 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 delinqucnt or delicient in the remittance, and shall pay intcrcst at the rate of and 75/1 OOths (0.75'10) perccnt per month, or any fraction thercot~ on the amount of the tax, exclusive of penalties, ii'om the date on which the remittance first became delinquent, until paid. /r-/L/- 8 . . (c) Thc Tax Administrator shall have the powcr to impose additional pcnalties upon pcrsons required to collect and remit taxes pursuant to the provisions of this Chapter l'or fraud or gross negligence in reporting or remitting at the rate of tlfteen (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. 3.42.090 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 ii'om a service user which has not been remitted to the Tax Administrator shall be deemed a debt owed to the City by thc person required to collect and remit and shall no longer be a debt of the servicc user. Any person owing money to the City under the provisions of this Chapler 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 f'or in this Chapter, along with any collection costs incurred by the City as a result of the person's noncompliance with this Chapter, including, but not limited to, reasonable attorneys' Ices. Any tax required to be collected by a service supplier or owed by a service user is an unsecured priority excise tax obligation under!! US.CA. See/ion 507(a)(8)(C). 3.42.100 Deficiency Determination and Assessment - Tax Application Errors. (a) The Tax Administrator shall make a deficiency determination if he or she determines that any service user or service supplier required to payor collect taxes pursuant to the provisions of this Chapter has lililed to pay, collect, and/or remit the proper amount of tax by improperly applying, or failing to apply, the tax to one or more taxable services or charges. Nothing herein shall require that the Tax Administrator institute proceedings under this Section 3.42.100. (b) The Tax Administrator shall mail a notice of such delieiency determination to the person or entity allegedly owing the tax, which notice shall refer brielly to the amount of the taxes owed, plus interest at the rate of 75/100ths (0.75%) percent per month, or any fraction thereoJ~ on the amount of the tax from the date on which the tax should have been received by the City. Within f'ourteen (14) calendar days alter the date of service of such notice, the person or entity allegedly owing the tax may request in writing to the Tax Administrator for a hearing on the matter. 9 1-/ t7 . . (c) If the person or cntity allegedly owing the tax 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 such person or entity requests a hearing, the Tax Administrator shall cause the matter to be set for hearing, which shall be scheduled within thirty (30) days aftcr 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 'I' ax Administrator desires said person to produce spccitic records at such hearing, such notice may designate the records requested to be produced. (d) At the time lixed 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), thereaflcr, by confirming, modifying or rejecting the original deficiency determination, and shall mail a copy of such timtl assessment to the person or entity owing the tax. The decision of the Tax Administrator may be appealed pursuant to Section 3.42.150 of this Chapter. Filing an application with the Tax Administrator and appeal to the City Manager pursuant to Section 3.42.150 of this Chapter is a prerequisite to a suit thereon. (e) Payment of the Ilnal assessment shall become delinquent if not received by the Tax Administrator on or before the thirtieth (30th) day following the datc of receipt of thc notice 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 75/1 OOths (0.75%) pcrcent per month, or any fraction thereof, on thc amount of the tax, exclusive of penalties, from the date of dclinqueney, until paid. The applicablc 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). (I) 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. 3.42.110 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 cxtcnt thc service user has hlilcd 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 duc. The service supplier shall provide thc City with the names and addresses of such service users and the amounts of taxes owed under the provisions of this Chapter. Nothing !-/p 10 . . herein shall reqlllre that the Tax Administrator institute proeeedings under this Section 3.42.110. (b) In addition to the tax owed, the service user shall pay a dclinqueney penalty at the rate of Ii I' teen perccnt (15%) of the total tax that is owed, and shall pay interest at the rate of 75/100ths (0.75%) perccnt 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 collcet the taxes duc for the stated periods and demand payment of such taxes, including penalties and interest. The notice shall be served on thc service user by personal delivery or by deposit of the notice in the United States mail, postage prepaid, addresscd to the service user at the address to which billing was made by the person required to collcct the tax; or, should the servicc uscr have a change of address, to his or her last known address. (d) If the service user f~lils to remit the tax to the Tax Administrator within thirty (30) days trom the date of the service of the notice upon him or her, the Tax Administrator may impose an additional penalty of Ii I' teen percent (15'%) of the amount of the total tax that is owed. 3.42.120 Additionall'owers and Duties of the Tax Administrator. (a) The Tax Administrator shall have the power and duty to enforcc each and all of thc provisions of this Chapter. (b) The Tax Administrator may adopt administrativc rules and regulations consistent with provisions of this Chapter for the purpose of interpreting, clarifying, carrying out and enforcing thc paymcnt, collection and rcmittance of the taxes herein imposed. The administrativc rules and regulations shall not impose a new tax, revise an cxisting tax methodology as stated in this Scction, 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 lile 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 li'om any particular service supplier or service user, that determination shall be considered an exercise of the Tax Administrator's discretion to settlc 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 IDr 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 agreemcnts. (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) contDnn to the billing procedures of a particular service supplicr so long as said agreements result in the collection of the tax in conJDrmance with the 11 /-/7 . . 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 beneli!. A copy of each such agreement shall be on lile in the Tax Administrator's ofliee, 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 immediately preceding the date of receipt of the written notice by said person ti'om the Tax Administrator. Upon completion of the audit, the Tax Administrator may make a deficiency determination pursuant to Section 3.42.100(d) 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. 11' said person is unable or unwilling to provide sut1lcient records to enable the Tax Administrator to verify compliance with this Chapter, the Tax Administrator is authorized to make a reasonable estimate of the deliciency. Said reasonable estimate shall be entitled to a rebuttable presumption of correctness. (c) Upon receipt of a written request of a taxpayer, and for good cause, the Tax Administrator may extend the time for liling any statement required pursuant to this Chapter for a period of not to exceed forty-live (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 751100ths (0.75%) percent per month, prorated for any portion thereof. (I) 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 industry practice or other precedence. 3.42.130 Records. (a) lt 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 reasonablc time. (b) The City may issue an administrative subpoena to eompcl a person to deliver, to the Tax Administrator, copies of all records decmed nceessary by the Tax Administrator to I-If 12 . . establish compliance with this Chapter, including the delivery of records in a common electronic format on readily available media if such records arc kept electronically by the person in the usual and ordinary course of business. As an alternative to delivering the subpoenaed records to the Tax Administrator on or before the due date provided in the administrative subpoena, such person may provide access to such records outside the City on or before the due date, provided that such person shall reimburse the City for all reasonable travel expenses incurred by the City to inspect those records, including travel, lodging, meals, and other similar expenses, but excluding the normal salary or hourly wages of those persons designated by the City to conduct the inspection. (c) The Tax Administrator is authorized to execute a non-disclosure agreement approved by the City Attorney to protect the confidentiality of customer information pursuant to California Revenue and Tax Code Sections 7284.6 and 7284.7. (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 aggrcgator 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 delivcry of, any information or records in the possession of such billing agcnt or billing aggregator that, in the opinion of the Tax Administrator, is necessary to verify the proper application, ealeulation, collection and/or remittance of such tax to the City. (e) If any person subject to record-keeping under this section unreasonably denies the Tax Administrator access to such records, or fails to produce the information requested in an administrative subpoena within the time specified, then the Tax Administrator may impose a penalty of $500 on such person for each day following: i) the initial date that the person refuses to provide such access; or, ii) the due date for production of records as set forth in the administrative subpoena. This penalty shall be in addition to any other penalty imposed under this Chapter. 3.42.140 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: (a) The Tax Administrator may refund any tax that has been overpaid or paid more than onee 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 overpaymcnt 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 1-11 13 . . taxpayers unless each member of the class has submitted a written claim under penalty of perjury as provided by this subsection. (b) The tiling of a written claim pursuant to Government Code See/ion 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 live thousand dollars ($5,000), shall act upon the refund claim within the time period set forth in Government Code Section 9/2.4. 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 decmed to have been rejected by the City Council on the last day of the period within which the City Counci I 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. (c). Notwithstanding the notice provisions of subsection (a) of this Section, thc 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 overpaymcnt or erroneous collection of said tax; ii) the Tax Administrator is satislied that the underlying basis and amount of such credit has been rcasonably established; and, iii) in the case of an overpayment by a service user to the service supplier that has been remitted to the City, thc Tax Administrator has received proof, to his or her satisfaction, that thc overpaymcnt has been refunded by the service supplier to the service user in an amount equal to the requested credit. (d) Notwithstanding subsections (a) through (c) above, a service supplier shall be entitled to take any overpayment as a credit against an underpayment whenever such overpayment has been received by the City within the three (3) years immediately preceding a deficiency determination or assessment by the Tax Administrator in connection with an audit instituted by the Tax Administrator pursuant to Section 3.42.120(d). A service supplier shall not be entitled to said credit unless it first clearly establishes, to the satisfaction of the Tax Administrator, the right to the crcdit by written records showing entitlement thereto. Under no circumstances shall an ovcrpayment taken as a credit against an underpayment pursuant to this subsection qualify a service supplier for a refund to which it would not otherwise bc entitled undcr the one-year written claim requirement of this section. 3.42.150 Appellls. (a) The provisions of this section apply to any dccision (other than a dccision relating to a refund pursuant to Section 3.42.140 of this Chapter), dcflcieney dctermination, 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 3.42.140 of this Chapter), delicieney determination, assessment, or administrative ruling of the Tax Administrator, /-20 14 . . shall be required to comply with the appeals proccdurc of this scction. 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 elass or group of taxpayers. (b) If any person is aggrieved by any decision (other than a decision relating to a refund pursuant to Section 3.42.140 of this Chapter), deficiency determination, assessment, or administrative ruling of the Tax Administrator; he or she may appeal to the City Manager by liling 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 oflieer 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 live (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 sllch evidence and the revicw of the City's tiles, the hearing of/icer 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 fOUl1ecn (14) days aller thc conclusion of thc hearing and shall state thc reasons for the decision. The notice shall specify that the decision is final and that any petition lar judicial review shall be filed within ninety (90) days from the date of the decision in accordance with Code olCivil Procedure See/ion 1094.6. In the event the hearing of/iccr's dccision is in favor of the City, all costs of the hearing shall be borne by the appellant. (el All noticcs under this scction may be sent by regular mail, postage prepaid, and shall be decmed received on the third calendar day following the date of mailing, as established by a proof of mailing. 3.42.160 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. 3.42.170 Notice of Changes to Ordinance. I I' 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 Califim7ia Public Utilities Code Section 799. 1-2-1 15 . . 3.42.180 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 Irom 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. 3.42.190 Independent Audit of Tax Collection, Exemption, Remittance, and Expcnditu re. The City may periodically 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 verilication may exceed the tax revenues to be reviewed. 3.42.200 Interaction with Prior Tax. (a) Satisfaction of Tax Obligation by Service Users. Any person who pays the tax levied pursuant to Section 3.42.040 of this Chapter with respect to any charge for a telecommunication service shall be deemed to have satisfied his or her obligation to pay the tax levied pursuant to Section 3.44.030 of this Code with respect to that charge. Likewise, prior to April 1,2009, any person who pays the tax levied pursuant to Section 3.44.030 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 3.42.040 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 ti.om the prior telecommunication users' tax to the new 16 1-2-2- . . telecommunication users' tax (which transition period ends April I, 2009) and to permit telecommunication 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 alter the effective date of the Chapter, but in no event later than permitted by Section 799 of the CalifiJrnia Public Utilities Code. (c) In the event that a final court order should determine that thc election cnacting this Chapter 3.42 is invalid for whatever reason, or that any tax imposed under this Chapter 3.42 is invalid in whole or in part, then the tax imposed under Sections 3.44.030 (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 efl'cetive beginning as of the tirst date of service (or billing date) for which the tax imposed by this Chapter is not valid. 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 servicc and calculated pursuant to this Chapter shall be deemed to satisfy the tax imposed under Section 3.44.030 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. 3.42.210 Remedies Cumulative. All remedies and penalties prescribed by this Chapter or which arc available under any other provision of law or equity, including but not limited to the California False Claims Act (Government Code Section 12650 et seq.) and the California Unfair Practices Act (Business and Professions Code Section 17000 et seq.), arc cumulative. The use of one or more remedies by the City shall not bar the use of any other remedy for the purpose of enforcing the provisions of this Chapter. 3.42.220 Violations Deemed Infractions. Any person who willfully attempts in any manner to avoid or defeat the tax imposed by this Chapter or the payment of all or any part thereol~ or any person required by this Chapter to pay the tax, to make a return, to keep any records, or to supply any information who willfully tflils to pay all or any part of such tax, make such return, keep such records, or supply such information at the time or times required by this Chapter, shall be guilty of an infraction. 3.42.230 Annual Review. (a) As part of the annual budget process, the City Council shall annually review the amount of revenues derived by the City Irom the Telecommunications Users' Tax imposed by this Chapter. The /irst review shall occur no later than June 30, 2010, and each subsequent review shall occur no later than June 30 of each liscal year. . Prior to the review, the Finance Director shall provide the City Council with the following information: /~23 17 . . (i) the total tax revenue received by the City as proceeds of the Telecommunications Users' Tax, as of December 31 st of the calendar year preceding the date of the mecting; and (ii) the Finance Director's recommendation as to whether an adjustment to thc rate of thc tax imposed by this Chapter is indicated in light of the financial condition of thc City. (b) Following its review, thc City Council may adopt an ordinance modifying (either indelinitely or for a fixed period) the rate of the tax imposcd by thc Chapter or terminating or suspending imposition of the tax. Thc City Council may reducc, maintain or modify the rate in existence at the time of the annual review, but in no event shall the rate bc increased to excecd 4.75%. . (c) If the City Council adopts an ordinance terminating the tax" that tcrmination shall not affcct the obligation to pay taxes levied on serviecs used prior to the datc of termination. Taxes levied prior to that date shall remain a debt payable to the City. All provisions in this Chaptcr, except those relating to the levy of taxes, shall continue with full force and effect after such date. (d) Nothing in this Chapter is intended to constitute an extension or an increase in a tax requiring voter approval under CalijcJ/"/lia Constitution Article XIIIC; and to thc extent that this Section 3.42.230 is found to invoke such a requirement, this Section 3.42.230 shall be deemed null and void ab initio. SECTION 2. Effectivc Date. This Chapter shall becomc effective immediately upon the date that this Ordinance is confirmed and approved by the voters of Chula Vista at the Municipal Election of November 4, 2008. Service Suppliers will not be required to implement the provisions of this ordinance prior to February 1,2009. SECTION 3. Amcndmcnt or Rcpcal. Chapter 3.42 of Article XIll of the Chula Vista Municipal Code may bc repealed or amended by the City Council without a vote of the people. However, as required by Chapter XlIIC 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 Chula Vista atl'irm that the following actions shall not constitute an increase of the rate of a tax: I. 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 clarit'ies the mcthodology of the tax, or any delinition applicable to the tax, so long as interpretation or clarit'ication (evcn if contrary to some prior interpretation or clarit'ication) is not inconsistent with the language of this Ordinance. 3. The establishment of a class of person that is exempt or excepted from the tax or the discontinuation of any such exemption or exception (other than the 18 /-2tf . . discontinuation of an cxcmption or cxccption specifically set forth 111 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 declares that they would have adopted each section, subsection, sentence, clause, phrase, or portion of this Ordinance, irrespective of the fact that anyone or more sections, subsections, sentences, clauses, phrases, or portions of this Ordinance be declared invalid or unenforceable. SECTION 5. 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. I hereby certify that the foregoing Ordinance was PASSED, APPROVED and ADOPTED by the people of the City ofChula Vista voting on the day of ,2008. Mayor ATTEST: City Clerk APPROVED AS TO FORM: City Attorney APPROVED AS TO FORM: /-25 19 . . Attachment B Summary of UUT Election Results ~9~~5Y__ _~~____ Resu~~~:~c~~l~__u __ R..'lt~Reducti()J June 2008 Oakland Passed 79% no change (7.5%) Winters Passed 70% 5 to 4.75% Covina Passed 65% no change (6%) County of Alameda Passed 65% no change (6.5%) Torrance Passed 56% no change (6%) 'McFarland Failed 25% new 15% February 2008 San Bernardino Passed 80% 7.83 to 7.75% Huntington Park Passed 79% 7 to 6.5% Richmond Passed 74% 10 to 9.5% Los Angeles Passed 65% 10t09% Pasadena Passed 58% no change (8.3%) November 2007 Emeryville Passed 86% no change (5.5%) Los Altos Passed 84% 3.5 to 3.2% Redwood City Passed 81% 5t04% Hermosa Beach Passed 72% 6 to 5.5% Benecia Passed 70% 4 to 3.5% Gilroy Passed 64% 5 to 4.5% EI Monte Passed 63% 7 to 6.5% Ventura Passed 63% 5 to 4.5% June 2007 Tulare Passed 86% 7t06% February 2007 **Covina Failed 41% no change (6%) November 2006 Compton Passed 89% 10 to 8.5% Daly City Passed 72% no change (5%) Eureka Passed 51% no change (3%) Menlo Park Passed 51% new 2.5% Total Jurisdictions gone to ballot since November 2006 24 Total that passed 23 Percent that passed 96% 'McFarland proposed new UUT tax at 15% rate and failed. "Covina failed first time out but was eventually approved by the voters. /-20 . . RESOLUTION NO. 2008- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ORDERING TI-IE SUBMISSION TO TI-IE QUALIFIED ELECTORS OF TI-IE CITY OF A MEASURE RELATJNG TO THE CITY'S TELECOMMUNICATJONS USERS' TAX AT THE SPECIAL MUNICIPAL ELECTION TO BE HELD ON TUESDA Y, NOVEMBER 4, 2008; DECLARJNG THE EXISTENCE OF AN EMERGENCY NECESSITATING SUCH ACTION; AND DIRECTING TI-IE CITY ATTORNEY TO PREPARE AN IMPARTIAL ANALYSIS OF TI-IE MEASURE WHEREAS, pursuant to Chula Vista Municipal Code Chapter 3.44, the City currently levies a Utility Users' Tax CUUT"); and WHEREAS, the City Council desires to adjust the rate of the Telephone Users' Tax (a component of the Utility Users' Tax) from 5% to 4.75%; to rename the Telephone Users' Tax as the Telecommunications Users' Tax; to modernize the tax base so that different telecommunications technologies are treated similarly; to apply the tax to interstate and international calls for all customers; and to make other revisions to the method of caleulating and collccting thc tax to reflcct technological advances in telecommunications services, and changes in federal law; and WHEREAS, the proposed ordinance, attached hereto and incorporated herein as Exhibit "A" would implement these proposed revisions to the tax (the "Ordinance"), and ifapproved by voters the earliest implementation date will be February 1,2009; and WHEREAS, by its Resolution No. 2008-016, adopted on January 15, 2008, the City Council has called a Special Municipal Election for Tuesday, November 4, 2008; and WHEREAS, pursuant to Government Code section 53724 and California Elections Code section 9222, the City Council desires to submit the Ordinance to the electorate at the Special Municipal Election. NOW, THEREFORE, BE IT RESOLVED by thc City Council of the City of Chula Vista as follows: SECTION I. All of the foregoing recitals arc true and correct. SECTION 2. That the City Council, pursuant to its right and authority, docs order submitted to the voters at the Special Municipal Election on November 4, 2008, the following question: 1-27 . . Shall an ordinance be adopted to: reduce the rate of the City of Chula Vista's Telecommunications Users' Tax YES (currently the Telephone Users' Tax) from 5% to 4.75%; ensure that Tax proceeds continue to be available for general municipal purposes, such as police, lire, streets and parks; revise the method for calculating and collecting the Tax to reflect technological advances and changes 111 NO federal law; and amend the tax base to inelude additional telecommunications services? SECTION 3. That the proposed Ordinance to be submitted to the voters IS attaehed as Exhibit "A." SECTION 4. That notiee of the time and place of holding the e1eetion is given and the City Clerk is authorized, instructed, and directed to give further or additional notice of the election, in time, form and manner as required by law. SECTION 5. That pursuant to California Eleetions Code :*9280, the City Clerk is direeted to transmit a copy of the measure to the City Attorney. The City Attorney is directed to prepare an impartial analysis of the measure, not to exceed 500 words in length, showing the effect of the measure on the existing law and the operation of the measure, and transmit such impartial analysis to the City Clerk within ten days of the adoption of this Resolution. SECTION 6. That pursuant to California Constitution Artiele XIIlC :*2(b), the City Council deelares, by a unanimous vote of its membership, that a fiscal emergency exists necessitating that the Ordinance be submitted to the voters at the November 4, 2008 Special Eleetion. The eireumstanees giving rise to this emergeney arc as follows: A. The City eurrently reeeives $4.6 million a year in UUT proceeds l1"om teleeommunication services, and such tax revenues arc eritical to the publie welfare and the City's finaneial ability to provide essential munieipal services sueh as police, lire, street repair, parks and libraries. B. Lawsuits have been liled against other jurisdictions challenging the application of the utility users tax to certain telecommunieation services based upon definitions contained in the ordinanees governing such taxes and/or references to allegedly inapplicable federal laws. C. Legislation (J-I.R. 5793) has been introduced in the United States Congress, whieh would impose a five-year moratorium on new loeal wireless taxes, and could limit the ability of the City to respond to possible future adverse court rulings regarding the City's existing utility users' tax on wireless communications. /-2% .. . D. Due to a significant, and uncxpected, decline in revenue growth ovcr the past 18 months, the City has undergone significant budgetary cuts in order to balance the Fiscal Year 2008-09 general fund operating budget, which assumes the continued collection of Utility Users Tax. The Fiscal Y car 2009-10 budgetary gap is projected to be $3.1 million; this gap would bc exacerbated by any loss in UUT revenue. E. General fund operating reserves arc projected at 4.8% for the fiscal year ending June 30, 2008. This is below the 8% reserve goal established by the City Council, and makes the City finances especially sensitivc to a loss of substantial expected revenues. F. Additional budgetary cuts resulting from a loss of the Utility Users Tax would likely have a significant impact upon the City's ability to provide cssential public services including public safety. G. to reduce stream. Therefore, it is urgently important that the City amend its UUT ordinance the legal and legislative risks that eurrcntly endanger this critical funding H. These circumstances are such that it would be imprudent to dclay the revision of the UUT ordinance until June 8, 2010, whieh is the date of the next Municipal General Municipal Election. SECTION 7. That the City Clerk shall certify to the adoption of this resolution, and file it with the City's original resolutions. Presented by Approved as to form by Maria Kachadoorian Finance Director ICsfel \ m City ~tlorney /-29 . . RESOLUTION NO. 2008- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING $105,000 FROM THE A V AILABLE BALANCE OF THE GENERAL FUND TO THE CITY CLERK'S AND NON- DEPARTMENTAL BUDGET TO COVER ANTIClI'ATED COSTS AND EXPENSES RELATED TO ELECTION COSTS, AND PRINTING AND MAILING COSTS WHEREAS, Chula Vista's Utility Users' Tax (UUT) was adoptcd in 1970 as a means to help fund public serviccs and capital improvemcnt projects through the City's General Fund; and WHEREAS, thc City rcccives UUT bascd on the usagc of natural gas, electricity and telecommunications; and WHEREAS, in 11scal year 2006-2007, the total UUT rcccivcd was approximately $7.0 million, which reprcsents 4.3% of Gcneral Fund rcvenues; and WHEREAS, the current rates chargcd arc .00919 pcr therm, .0025 per kilowatt, and 5% on telcphone; and WHEREAS, there are ovcr 150 cities in California with a UUT; and WHEREAS, city staff is recommending that the City's UUT ordinance, as it applies to telecommunications, be updated to reflect recent changes in Federal tax law and to modernize thc dcJ1nition of "telecommunications" to make it technology neutral; and WHEREAS, the City Council desircs to adjust the ratc of the Utility Users' Tax from 5% to 4.75%, apply the tax to interstate and international calls for all customers; and to make other revisions to the method of calculating and collecting the tax to reflect technological advances and changcs in state and federal law; and WHEREAS, 111ilure to modernize the City's UUT ordinance relative to telecommunication services could rcsult in a loss of 75% to 100% of the telecommunications related portion of the UUT, or upwards to approximately $4.6 million trom the General Fund, which would have a substantial impact on the City's ability to maintain current programs and provide essential serviccs, including public safcty; and 1-30 . . WHEREAS, updating the UUT ordinance requires a measure be placed on the ballot and approval by a majority of the voters; and WHEREAS, City staff is recommcnding that the proposed UUT ordinancc relating to telecommunications be placed on the November 2008 ballot; and WHEREAS, in an effort to minimize costs, staff proposes to manage the informational program internally and requests an appropriation of $105,000 to cover the election costs (City Clerk $35,000) and printing and mailing costs (Non-Departmental $70,000). NOW, THEREFORE, BE IT RESOLVED that the City Council of thc City of Chula Vista appropriates $105,000 from the available balance of the Gcneral Fund to the City Clerk's and non-departmental budgets to cover anticipated costs ancl expenses related to election costs, and printing and mailing costs. Presented by Approvccl as to form by Q~~.~ c art 1/ le~le~ ~I'-Intertm CIty Attorney Maria Kaehadoorian Finance Director 1-3/ RESOLUTION NO. 2008- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ORDERING THE SUBMISSION TO THE QUALIFIED ELECTORS OF THE CITY OF A MEASURE RELATING TO THE CITY'S PUBLIC SAFETY TELECOMMUNICATIONS USERS' TAX AT TI-IE SPECIAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY, NOVEMBER 4, 2008; DECLARING THE EXISTENCE OF i\.N EMERGENCY NECESSIT"^.TING SUCH "^.CTION; _AND DIRECTING TI-IE CITY ATTORNEY TO PREPARE AN IMPARTIAL ANALYSIS OF THE MEASURE WHEREAS, pursuant to Chula Vista Municipal Codc Chaptcr 3.44, the City currently Icvics a Utility Uscrs' Tax CUUT"); and WHEREAS, the City Council desircs to adjust the rate of the Tclcphone Users' Tax (a component ofthc Utility Users' Tax) from 5% to 4.75%; to rename the Tclephone Users' Tax as the Telccommunications Users' Tax; to modernize the tax base so that different telecommunications technologies are treated similarly; to apply thc tax to interstate and international calls for all customcrs; to require that all proceeds of the Telecommunications Users' Tax be used exclusive Iv for public safetv purposes; and to make other revisions to the method of calculating and collecting the tax to reflect technological advances in tclecommunications serviccs, and changes in federal law; and WHEREAS, thc proposed ordinance, attached hercto and incorporatcd herein as Exhibit "A,"i would implement these proposed revisions to the tax (the "Ordinance"), and if approved by voters the earliest implementation date will be Fcbruary 1,2009; and WHEREAS, by its Resolution 1'10.2008-016, adopted on January 15,2008, thc City Council has called a Special Municipal Election for Tuesday, Novembcr 4, 2008; and WHEREAS, pursuant to Governmcnt Code section 53724 and California Elections Codc section 9222, the City Council desircs to submit the Ordinance to the electorate at the Special Municipal Elcction. NOW, THEREFORE, BE IT RESOLVED by the City Council of thc City of Chula Vista as follows; SECTION I. All of the foregoing recitals are true and correct. SECTION 2. That the City Council, pursuant to its right and authority, does order submitted to the voters at the Special Municipal Election on November 4, 2008, the following question: Shall an ordinance be adopted to reduce the rate of the City of Chula Vista's Public Safetv Telecommunications Users' YES I Tax (currently the Telephone Users' Tax) Irom 5% to 4.75% while maintaining exemptions for low-income senior citizens; to ensure that Tm( proeeeds continue to be available for general municipal purposes, s:leh as police, fire, streets and parksdedieate the Telecommunications NO Users' Tax proceeds exelusively to police. tire and public safety purposes; to establish accountability provisions: and to revise the method for calculating and collecting the Tax to reflect technological advances and changes 111 federal law? This measure requires a two-thirds vote of the electorate for adoption. SECTION 3. That the proposed Ordinance to be submitted to the voters IS attached as Exhibit "Af SECTION 4. That notice of the time and place of holding the election is given and the City Clerk is authorized, instructed, and directed to give further or additional notice of the election, in time, form and manner as required by law. SECTION 5. That pursuant to California Elections Code 99280, the City Clerk is directed to transmit a copy of the measure to the City Attorney. The City Attorney is directed to prepare an impartial analysis of the measure, not to exceed 500 words in length, showing the effect of the measure on the existing law and the operation of the measure, and transmit such impartial analysis to the City Clerk within ten days of the adoption of this Resolution. SECTION 13. That p:lrsuant to Califomia Constitution :\rtide XlfIC ~2(b), the City Council declares, by a unanimous 'iote of its membership, that a li:;cal emergency exists necessitating that the Ordinance be submitted to the voters at the November 'I, 200S Special Election. The circumstances gi'ling rise to this emergency are a:; follows: A. The City currently receives $1.13 million a year in UUT proceeds from telecommunication services, and such lax revenues are critical to the public welfare mill the City's financial ability to \3rovide essential municipal ser'lices such as police, lire, street repair, parks and libraries. B. Lawsuits have beell tiled against other jurisdictions challcnging the application of the ~Itility users tall to certain tclecomFllHllicatioll services based HpOIl detinitions contained in the ordinallees go'/emillg SHch talles alld/or referellces to allegedly inapplicable federal laws. C. Legislation (H.R. 5793) has been introduced in the United States Congress, which would impose a five year moratorium on new local wireless taxes, and could limit the ability of the City to respond to possible fut~lre adverse court rulings regarding the City's ellisting utility users' tax on wireless communications. D. Due to a significant, and unexpected, decline ill revellue growth over the past 18 months, the City has undergone signiticant budgetary cuts ill order to balance the Fiscal Year 2008 09 general fund operating budget, which assume~; the continued collection of Utility Users T(l)[. The Fiscal Year 2009 10 bHdgetary gap is projected to be $3.1 million; this gap ..vould be exacerbated by any loss in UUT re'/eIlHe. E. General fund operating reserves are projected at 1.8% for the fiscal year ending June 30, 2008. This is below the 8% reserve goal established by the City Council, and makes the City finances especially sellsitive to a loss of substantial expected revenues. F. ,'\dditional budgetary cuts resulting from a loss of the Utility Users Tml would likely have a significant impact upon the City's ability to provide essential public services including public safety. G. to reduce stream. Therefore, it is urgently important that the City amend its UUT ordinance the legal and legislati'/e risks that currently endanger this critical funding H. These circumstallces are such that it .....ould be imprudellt to delay the revision of the UUT ordinance until JHlle 8, 2010, which is the date of the neJlt Municipal General Mllflicipal Election. SECTION Q+. That the City Clerk shall certify to the adoption of this resolution, and tile it with the City's original resolutions. Presented by Approved as to fonn by Maria Kachadoorian Finance Director Bart Miesfeld Interim City Attorney ORDINANCE NO. AN ORDINANCE OF THE CITY OF CHULA VISTA ADDING CHAPTER 3.42 TO TITLE 3 OF THE CHULA VISTA MUNICIPAL CODE REGARDING A PUBLIC SAFETY TELECOMMUNICATION USERS' TAxi THE PEOPLE OF THE CITY OF CHULA VISTA DO ORDAIN AS FOLLOWS: SECTION 1: Chapter 3.42 is hereby added to Title 3 of the Chula Vista Municipal Code, and it shall read as follows: Chapter 3.42 PUBLIC SAFETY TELECOMMUNICATION USERS' TAX 3.42.010 Definitions. 3.42.020 Constitutional, Statutory, and Other Exemptions. 3.42.030 Exemptions - Senior Citizens 3.42.040 Special Telecommunication Users' Tax. 3.42.050 Bundling Taxable Items with Non-taxable Items. 3.42.060 Substantial Nexus / Minimum Contacts. 3.42.070 Duty to collect--Procedures. 3.42.080 Collection Penalties - Service Suppliers. 3.42.090 Actions to Collect. 3.42.100 Deficiency Determination and Assessment - Tax Application Errors. 3.42.110 Administrative Remedy - Non-Paying Service Users. 3.42.120 Additional powers and duties of the Tax Administrator. 3.42.130 Records. 3.42.140 Refunds. 3.42.150 Appeals. 3.42.160 Notice No Injunction/Writ of Mandate. 3.42.170 Notice of Changes to Ordinance. 3.42.180 Effect of State and Federal Reference/Authorization. 3.42.190 Independent Audit ofTllx Colleetion, Exemption, Remittllnee, IInd ExpenditureCreation of Fund and Use of Tax Proceeds. 3.42.200 Interaction with Prior Tax. 3.42.210 Remedies Cumulative. 3.42.220 Violations deemed infractions. 3.42.230 Annual Review. 3.42.240 Accountability Measures. 1 3.42.010 Definitions. The following words and phrases whenever used in this Chapter shall be construed as defined in this section. (a) "Ancillary telecommunication services means services that are associated with or incidental to the provision, use or enjoyment of telecommunications services, including but not limited to the following services: (I) "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 servicc" docs not includc the telccommunications scrvices uscd to rcach the conference bridge. (2) "Detailed telecommunications billing service" mcans an ancillary servicc of separatcly stating inlomlation pertaining to individual calls on a customer's billing statement. (3) "Directory assistance" means an ancillary scrvlce of providing telcphonc number intormation, and/or address information. (4) "Vertical scrvice" means an ancillary scrvicc that is offered in connection with one or morc telecommunications services, which offers advanced calling leaturcs that allow customers to identify callcrs and to manage multiple calls and call connections, ineluding confercncc bridging scrvices. (5) "Voice mail scrvice" means an ancillary scrvice that enables the eustomcr to store, send or receive recorded mcssages. "Voice mail service" does not include any vcrtical scrvices that the customer may be rcquircd to havc in order to utilizc the voice mail service. (b) "Billing Address" shall mean the mailing addrcss of the service uscr where the service supplier submits invoices or bills lor payment by the customer. (c) "City" shall mcan the City ofChula Vista. (d) "Mobile Telecommunications Service" has the meaning and usage as sct forth in the Mobile Telecommunications Sourcing Act (4 U.S.C. Section 124) and the regulations thereundcr. (c) "Month" shall mcan a calendar month. 2 (I) "Paging service" means a "telecommunications service" that provides transmission of coded radio signals for the purpose of activating speeiflc pagers; such transmissions may include messages and/or sounds. (g) "Person" shall mean, without limitation, any natural individual, firm, trust, common law trust, estate, partnership of any kind, association, syndicate, club, joint stock company, joint venture, limited liability company, corporation (including foreign, domestic, and non- profit), municipal district or municipal corporation (other than the City) cooperative, receiver, trustee, guardian, or other representative appointed by order of any court. (h) "Place of Primary Use" means the street address representative of where the customer's use of the telecommunications service primarily occurs, which must be the residential street address or the primary business street address of the customer. (i) "Post-paid telecommunication service" means the telecommunication service obtained by making a payment on a telecommunication-by-teleeommunication 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 scrvice number which is not associated with the origination or termination of the telecommunication service. CD "Prepaid telecommunication service" means the right to access telecommunication services, which must be paid for in advance and which enables the origination of telecommunications using an access number or authorization code, whethcr manually or electronically dialed, and that is sold in prcdetermined units or dollars of which the number declines with use in a known amount. (k) "Private telecommunication service" means a telecommunication service that entitles the customer to exclusive or priority use of a telecommunications channel or group of channels between or among termination points, regardless of the manner in which such channel 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 telecommunications channel is a physical or virtual path of telecommunications over which signals are transmitted between or among customer channel termination points (i.e., the location where the customer either inputs or receives the telecommunications). (I) "Service Address" means either: (I) The location of the service user's telecommunication equipment from which the telecommunication originates or terminates, regardless of where the telecommunication is billed or paid; or, (2) If the location in subsection (1) of this definition is unknown (e.g., mobile telecommunications service or V 011' service), the service address means the location of the service user's place of primary use. 3 (3) For prepaid telecommunication service, "service address" means the location associated with the service number. (m) "Service Supplier" shall mean any entity or person, including the City, that provides telecommunication service to a user of such service within the City. (n) "Service User" shall mean a person required to pay a tax imposed under the provisions of this Chapter. (0) "State" shall mean the State of California. (p) "Streamlined Sales and Use Tax Agreement" shall mean the multi-state agreement commonly known and referred to as the Streamlined Sales and Use Tax Agreement, and as it is amended from time to time. (q) "Tax Administrator" means the Finance Director of the City or his or her designee. (r) "Telecommunications services" means the transmission, conveyance, or routing of voice, data, audio, video, or any other infurmation or signals to a point, or between or among points, whatever the technology used. The term "telecommunications services" ineludes such transmission, conveyance, or routing in which computer processing applications are used to act on the lurm, code or protocol of the content Jur purposes of transmission, conveyance or routing without regard to whether such services are referred to as voice over internet protocol (Vol 1') services or are classified by the Federal Telecommunications Commission as enhanced or value added, and ineludes video and/or data services that is functionally integrated with "telecommunication services. "Telecommunications services" include, but are not limited to the lullowing services, regardless of the manner or basis on which such services are calculated or billed: intrastate, interstate, and international telecommunication services; ancillary telecommunication services; mobile telecommunications service; pre-paid telecommunication service; post- paid telecommunication service; private telecommunication service; paging service; 800 service (or any other toll-Jree numbers designated by the Federal Telecommunications Commission); 900 service (or any other similar numbers designated by the Federal Telecommunications Commission lur services whereby subscribers call in to pre-recorded or live service). "Telecommunication services" docs not include cable or video programming services that arc subject to a cable or video service franchise fee. (s) "VoIP" (voice over internet protocol) means the digital process of making and receiving real-lime voice transmissions over any Internet Protocol network. (t) "800 service" means a "telecommunications service" that allows a caller to dial a toll- free number without incurring a charge for the call. The service is typically marketed under the name "800," "855," "866," "877," and "888" toll-free calling, and any subsequent numbers designated by the Federal Communications Commission. (u) "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 4 announccment or live service. "900 scrvice" 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. 3.42.020 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 trom the tax imposed by this Chapter pursuant to subsection (a) of this section shall tile 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 telecommunication 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 telecommunication service suppliers so that the Tax Administrator can properly notify the new tcleeommunieation service supplier of the service user's tax exempt status. A service user that fails to comply with this section shall not be entitled to a refund of telecommunication users' taxes collected and remitted to the Tax Administrator li'om such service user as a result of such noncompliance. The decision of the Tax Administrator regarding an application r'nay be appealed pursuant to Section 3.42.150 of this Chapter. Filing an application with the Tax Administrator and appeal to the City Administrator pursuant to Section 3.42.150 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. 3.42.030 Exemptions - Senior citizens. Any individual who qualifies for an exemption under Section 3.44.021 of Chapter 3.44 shall be exempt from the tax imposed by Section 3.42.040. The procedures for obtaining such an exemption shall be followed as set forth in Section 3.44.021. 3.42.040 Soecial Telecommunication Users' Tax. (a). There is hereby imposed a special tax upon every person in the City usin~ telecommunication services. The tax imposed by this section shall be at the rate of lour and 75/100 percent (4.75 %) of the charges made for such services and shall be collected 5 from the service user by the telecommunication services supplier or its billing agent. There is a rebuttable presumption that telecommunication 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 arc subjcctto taxation undcr this Chapter. If the billing address ofthc servicc 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 telecommunication 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.e. Section 124). The Tax Administrator may issue and disseminate to telecommunication service suppliers, which are subject to the tax collection requirements of this Chapter, sourcing rules for the taxation of other telecommunication services, including but not limited to post-paid telecommunication services, prepaid telecommunication scrvices, and private telecommunication services, provided that such rules are based upon custom and common practice that further administrative eflieiency and minimize multi-jurisdictional taxation (e.g.. Streamline Sales and Use Tax Agreement). (c) The Tax Administrator may issue and disseminate to tclccommunication service suppliers, which are subject to the tax collection requirements of this Chapter, an administrative ruling identifying those telecommunication services, or charges therefor, that are subject to or not subjeet to the tax of subsection (a) above. (d) As used in this section, the tenn "telecommunication services" shall include, but is not limited to charges lor: connection, reeonnection, termination, movement, or change of telecommunication services; late payment fees; detailed billing; central office and custom calling featurcs (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 ehargcs; 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) To prevent actual multi-jurisdictional taxation of telecommunication 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 local jurisdiction on such telecommunication services, shall be allowed a credit against the tax imposed to the extent of the amount of such tax legally imposed on, and paid by, the service user in such other state or local jurisdiction; provided, however, the amount of credit shall not excecd the tax owed to the City under this section. (t) The tax on telecommunication services imposed by this section shall be collected from the service user by the service supplier. The amount of tax collected in onc (I) month shall 6 be remittcd to the Tax Administrator, and must bc rcccived by thc Tax Administrator on or beforc thc twentieth (20th) day ofthe following month. 3.42.050 Bundling Taxable Items with Non-Taxable Items. If any non-taxable chargcs are combined with and not separately stated trom taxable service charges on thc customer bill or invoicc of a scrvice supplicr, the combincd charge is subjcct to tax unless the service supplier identifies, by rcasonable and verifiable standards, the portions of the combined charge that are non-taxable 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 apportionment of taxable and non-taxable charges. If the service supplier offers a combination of taxable and non- taxable services, and the charges arc separately stated, then for taxation purposes, the values assigned the taxable and non-taxable services shall be bascd 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. 3.42.060 Substantial Nexus / Minimum Contacts. For purposes of imposing a tax or establishing a duty to collect and remit a tax under this Chapter, "substantial nexus" and "minimum contacts" shall be construed broadly in favor of the imposition, collection and/or remittance of the telecommunication users' tax to the fullest extent permitted by state and federal law, and as it may change li'om time to time by judicial interpretation or by statutory enactment. Any telecommunication service (including VolP) uscd by a person with a service addrcss in the City, which service is capablc of tcrminating a call to another person on the general telephone network, shall be subjcct to a rcbuttable presumption that "substantial nexus/minimum contacts" exists for purposes of imposing a tax, or establishing a duty to collect and remit a tax, undcr this Chaptcr. A scrvice supplicr shall be deemed to have sufficient activity in thc City for tax collection and remittancc purposes if its activities includc, but arc not limited to, any of the following: maintains or has within the City, directly or through an agent or subsidiary, a place of busincss of any nature; solicits business in thc City by employecs, indepcndent contractors, rescllers, agcnts or other reprcsentatives; solicits business in the City on a continuous, regular, seasonal or systematic basis by means of advcrtising that is broadcast or relayed from a transmitter with the City or distributed from a location within 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 markct in the City for the provision of scrvices that are subjcet to a tax under this Chapter. 3.42.070 Duty to Collcct--Proccdures. 7 (a) Collection by Service Suppliers. The duty of service suppliers to collect and remit the taxcs 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 3.42.110 shall apply. (2) The duty of a servicc supplier to collcct thc tax trom a scrvice user shall commence with the beginning of the lirst regular billing period applicable to the service uscr wherc all charges normally includcd in such regular billing are subject to the provisions of this Chapter. Whcre a service user receives more than onc billing, one or more being for different periods than another, the duty to collect shall arise separatcly for each billing period. (b) Filing Return and Payment. Each pcrson required by this Chaptcr to remit a tax shall file a return to the Tax Administrator, on forms approvcd by the Tax Administrator, on or beforc 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 Chaptcr. Returns are due immediatcly upon cessation of business for any reason. Pursuant to Revenue and Tax Code Section 7284.6, such filing returns are confidential information and are exempt from the disclosure provisions of the Public Records Act. 3.42.080 Collection Penalties - Service Suppliers. (a) Taxes eollected from a service user are dclinquent if not reeeived by thc Tax Administrator on or before the due date. Should the due date oecur on a weekend or legal holiday, the return must be reeeived by the Tax Administriltor on the lirst regular working day following the weekend or legal holiday. A direct deposit, including electronie fund transfers and other similar methods of electronieally exchanging monics between linaneial accounts, made by a service supplier in satisfaetion of its obligations under this subseetion shall be eonsidered timcly if the transfer is initiated on or before the due date, and the transfer settles into the City's aeeount on the following business day. (b) If the person required to colleet and/or remit the telecommunication users' tax fails to eollect 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 eollected on or before the duc date, the Tax Administrator shall attaeh a penalty for sueh delinquencies or defieiencies at the rate of fifteen (15%) percent of the total tax that is delinquent or delieient in the remittanee, and 8 shall pay interest at the rate of and 75/1 OOths (0.75%) percent per month, or any fraction thereof: on the amount of the tax, exclusive of penalties, 11'om 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, cvery 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. (c) 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 arc mutually agreed upon by other public agencies imposing a utility users' tax, or otherwise legally established, to create a central payment location or mechanism. 3.42.090 Actions to Collect. Any tax required to be paid by a service user undcr 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 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 II U.S.CA. Seclion507(a)(8)(C). 3.42.100 Deficiency Determination and Assessment - Tax Application Errors. (a) The Tax Administrator shall make a dclieieney determination if he or she determines that any service user or service supplier required to payor collect taxes pursuant to the provisions of this Chapter has failed to pay, collect, and/or remit the proper amount of tax by improperly applying, or failing to apply, the tax to one or more taxable services or charges. Nothing herein shall require that the Tax Administrator institute proceedings undcr this Section 3.42.100. (b) Thc Tax Administrator shall mail a notice of such deficiency determination to the person or cntity allegcdly owing the tax, which notice shall refcr briefly to the amount of the taxes owed, plus interest at thc rate of 75/100ths (0.75%) percent per month, or any Iraction thereof, on the amount of the tax from the datc on which the tax should have becn 9 reccived by thc City. Within fourtecn (14) calendar days after the datc of scrvicc of such notice, the pcrson or entity allegedly owing the tax may requcst in writing to the Tax Administrator for a hearing on the matter. (c) If the pcrson or entity allcgedly owing thc tax fails to requcst a hearing within the prcscribed time pcriod, the amount of thc deficiency determination shall bccomc a flnal assessmcnt and shall immediatefy bc due and owing to thc City. If such pcrson or cntity requests a hearing, the Tax Administrator shall cause thc matter to be sct for hearing, which shall be scheduled within thirty (30) days aftcr receipt of the written rcquest for hearing. Notice of the time and placc of thc hearing shall be mailed by thc Tax Administrator to such person at least ten (10) calendar days prior to the hcaring, and, if the Tax Administrator desires said person to produce speciflc records at such hearing, such notice may designate the rccords 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 lor the purpose of allowing the presentation of additional evidence. Within a reasonable timc following the conclusion of the hearing, the Tax Administrator shall issue a final assessment (or non- assessment), thereafter, by conflrming, modifying or rejecting the original defieiency determination, and shall mail a copy of such final assessment to the person or entity owing the tax. The deeision of the Tax Administrator may be appealed pursuant to Section 3.42.150 of this Chapter. Filing an application with the Tax Administrator and appeal to the City Manager pursuant to Section 3.42.150 of this Chapter is a prerequisite to a suit thereon. (e) Payment of thc final assessment shall become dclinquent if not reeeived by the Tax Administrator on or before the thirtieth (30th) day following the date of receipt of the notice of final assessment The penalty for dclinquency shall be flfteen percent (15%) on the total amount of the assessment, along with intercst at the rate of 751100ths (0.75%) percent per month, or any fraction thereof, on the amount of the tax, exclusive of penalties, from the date of dclinquency, until paid. The applicable statute of limitations regarding a claim by the City seeking payment of a tax asscssed under this Chapter shall commence from the date of delinqucncy as provided in this subsection (e). (1) 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. 3.42.110 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 whcnever the Tax Administrator deems it in the best interest of thc City, he or she may relieve such person of the obligation to collect the taxes due under this Chapter {i'om ccrtain named service users for specific billing pcriods. To the 10 extent the service user has failed to pay the amount of tax owed for a period of two (2) or more billing periods, thc service supplier shall be relicved 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 3.42.110. (b) In addition to the tax owed, the service user shall pay a delinquency penalty at the ratc of fifteen percent (15%) of the total tax that is owcd, and shall pay interest at the rate of 75/1 OOths (0.75%) perccnt pcr month, or any fraction thcreoe on the amount of the tax, exclusive of pcnalties, Irom the due date, until paid. (c) The Tax Administrator shall notify the non-paying servicc 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. Thc notice shall bc 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 trom the date of the service of the notice upon him or her, the Tax Administrator may impose an additional penalty of fiftecn percent (15%) of the amount of the total tax that is owed. 3.42.120 Additional Powers and Duties of the Tax Administrator. (a) The Tax Administrator shall have the power and duty to enforce each and all of the provisions of this Chapter. (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 hcrein imposed. The administrative rules and regulations 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 me 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 filII for any period of time trom 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 Codc Section 53750 and the City does not waive or abrogate its ability to imposc the communication users' tax in full as a result of promulgating administrative rulings or entering into agreements. 11 (c) Upon a proper showing of good cause, the Tax Administrator may make administrative agrecmcnts, with appropriate conditions, to vary Ii'om thc 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 of1iee, and arc 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 pcrson of the initiation of an audit in writing. In the absencc of fraud or other intentional misconduct, thc audit period of review shall not exceed a period of thrcc (3) years immediately preceding the date of receipt of the writtcn notice by said person from the Tax Administrator. Upon completion of the audit, the Tax Administrator may make a deficiency determination pursuant to Section 3.42.100(d) of this Chapter for all taxes (and applicable pcnalties and interest) owed and not paid, as evidcnccd by information provided by such person to the Tax Administrator. If said pcrson is unable or unwilling to provide sufficient records to enable the Tax Administrator to verify compliance with this Chapter, the Tax Administrator is authorizcd 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 thereo f. (I) The Tax Administrator shall determine the eligibility of any person who asserts a right to exemption from, or a refund oC 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 industry practice or other precedence. 3.42.130 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 12 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 arc kept electronically by the person in the usual and ordinary course of business. As an alternative to delivering the subpoenaed records to the Tax Administrator on or before the due date provided in the administrative subpoena, such person may provide access to such records outside the City on or before the due date, provided that such person shall reimburse the City for all reasonable travel expenses incurred by the City to inspect those records, including travcl, 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 conlidentiality of customer infonnation pursuant to CalifiJrnia Revenue and Tax Code Sections 72134. 6 and 7284.7. (d) II' 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 tclephone number of each billing agent and billing aggregator currently authorized by the service supplier to bill, collcet, 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 propcr 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 requcsted in an administrativc subpoena within the time specilied, then the Tax Administrator may impose a penalty of $500 on such person for each day following: i) the initial datc that the person refuses to providc such access; or, ii) the due date for production of records as set forth in the administrative subpoena. This penalty shall be in addition to any other penalty imposed under this Chapter. 3.42.140 Refunds. Whenever the amount of any tax has been overpaid or paid more than once or has been erroncously 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: (a) The Tax Administrator may refund any tax that has been overpaid or paid more than onee or has been crroneously 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, 13 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 rcfund by written records showing entitlemcnt thereto. Nothing hercin shall permit the tiling of a claim on behalf of a class or group of taxpayers unless each member of the class has submitted a written claim under penalty of perjury as provided by this subsection. (b) The filing of a written claim pursuant to Governmen/ Code See/ion 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 rcfund claim within the time prescribed by Government Section 912.4, the claim shall be dccmcd to have been rejected by the City Council on the last day of thc period within which the City Council was requircd to act upon the claim as provided in Governmen/ Code Seclion 912.4. The Tax Administrator shall give notiee of the aetion in a form whieh substantially complies with that set forth in Governmen/ Code Section 913. (c). Notwithstanding the notice provisions of subsection (a) of this Section, the Tax Administrator may, at his or her discretion, give writtcn permission to a servicc supplier, who has collected and remitted any amount of tax in cxccss of thc 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 datcd no later than one year Irom the date of overpayment or erroneous collection of said tax; ii) the Tax Administrator is satisfied that the underlying basis and amount of such credit has bcen reasonably established; and, iii) in the case of an overpayment by a service user to the service supplier that has becn remitted to the City, the Tax Administrator has received proof; to his or her satisfaction, that the overpayment has been rdunded by the service supplier to the service uscr in an amount equal to the requested credit. (d) Notwithstanding subsections (a) through (c) above, a service supplier shall be entitled to take any overpayment as a credit against an undcrpayment whenever such overpayment has been received by the City within the thrce (3) ycars immediately preceding a defieiency determination or assessment by the Tax Administrator in connection with an audit instituted by the Tax Administrator pursuant to Section 3.42.120(d). A service supplier shall not be entitled to said credit unless it first c1carly establishes, to the satisfaction of the Tax Administrator, the right to the credit by writtcn records showing entitlement thereto. Under no circumstanccs shall an overpayment taken as a credit against an underpayment pursuant to this subsection qualify a service supplier for a refund to which it would not otherwise be entitled under the one-year written claim requirement of this section. 3.42.150 Appeals. 14 (a) The provisions of this section apply to any decision (other than a decision relating to a refund pursuant to Section 3.42.140 of this Chapter), de1iciency 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 3.42.140 of this Chapter), delieiency determination, assessment, or administrativc ruling of the Tax Administrator, shall be required to comply with the appeals procedurc of this section. Compliance with this section shall be a prerequisite to a suit thcreon. [See Government Code Section 935 (b). ] Nothing herein shall permit the tiling 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 3.42.] 40 of this Chapter), deticiency determination, asscssment, or administrative ruling of the Tax Administrator; hc or shc 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, delieieney determination, assessment, or administrative ruling of the Tax Administrator which aggrieved the service uscr or service supplier. (c) The mattcr shall be scheduled for hearing before an independent hearing oflicer selectcd 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 rclevant 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 rclevant 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 pctition for judicial review shall be tiled within ninety (90) days l1'om the date of the decision in accordance with Code o{Civil Procedure Seetion/094.6. ]n the event the hearing o11icer's decision is in favor of the City, all costs of the hearing shall be borne by the appellant. (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. 3.42.160 No InjunctionIWrit 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 oflieer of the City to prevent or enjoin the collection under this Chapter of any tax or any amount of tax requircd to be collected and/or remittcd. 15 3.42.170 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 Califimlia Public Utilities Code Section 799. 3.42.180 Effect of State and Federal Referencel 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 Califomia 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. 3.42.190 Independent ,A.udit of Tax Colleetion, Exemption, ExpenditureCreation of Fund and Use of Tax Proceeds. Remittance, an1 a Proceeds of the tax im osed under this Cha ter shall be de osited into a s eeial fund desi nated "Public Safet S eeial Tax Fund" which is hereb created. Monies in th fund shall be se aratcl accounted for trom the other f~mds of the Cit and interest earned on f~md balances shall aeerue to the f~md upon which such interest was earned. b Tax roeeeds and interest thereon in the "Public Safet S eeial Tax Fund" ma be used onlv to fund police. tire and other public safetv programs and for no other purposes. e This Section shall constitute the statement indieatin the s ccitic mr oses of special tax as required bv Government Code Section 50075.1 (a). Proceeds of the tax im osed b this Cha ter. and thc interest thereon. shall be ex ended onl as set forth in thi' Section. applied, e)(empted, collected, and remitted in a' 16 . . ,., , ~'- ... . ... T:.. "' -I'" '6 verilieatioR SHull not be required of tal[ remitters where the cost of tH eJ:ceed the tal[ revenues to be reviewed. e,' , 7]' . ,. .., '- "';'.~ . ~n .. . .- .." . ." . .. ~L' " " .C ." ") 3.42.200 Interaction with Prior Tax. (a) Satisfaction of Tax Obligation by Service Users. Any person who pays the tax levied pursuant to Section 3.42.040 of this Chapter with respect to any charge for a telecommunication service shall be deemed to have satisfied his or her obligation to pay the tax levied pursuant to Section 3.44.030 of this Code with respect to that charge. Likewise, prior to April 1,2009, any person who pays the tax levied pursuant to Section 3.44.030 of this Code with respect to any charge for a servicc 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 3.42.040 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 telecommunication users' tax to the new telecommunication users' tax (which transition period ends April I, 2009) and to permit telecommunication 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 aJ1er the effective date of the Chapter, but in no event later than permitted by Section 799 of the CalifiJl'/lia Public Utilities Code. (c) In the event that a linal court order should determine that the election enacting this Chapter 3.42 is invalid for whatever reason, or that any tax imposed under this Chapter 3.42 is invalid in whole or in part, then the tax imposed under Sections 3.44.030 (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 lirst date of service (or billing date) for which the tax imposed by this Chapter is not valid. However, in the event of an invalidation, any tax (other than a tax that is ordered refunded by the court or is otherwisc 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 Section 3.44.030 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 linal court order is published. 3.42.210 Remedies Cumulative. All remedies and penalties prescribed by this Chapter or which are available under any other provision of law or equity, ineluding but not limited to the CalifiJrnia False Claims Act (Governmen/ Code Section 12650 e/ seq.) and the CalifiJrnia Unfclir Practices Acl (Business and Professions Code Section 17000 et seq.), are cumulative. The use of one or 17 more remedies by the City shall not bar the use of any other remedy for the purpose of enforcing the provisions of this Chapter. 3.42.220 Violations Deemed Infractions. Any person who willfully. attempts in any manner to avoid or defcat the tax imposed by this Chapter or the payment of all or any part thereoC or any pcrson required by this Chaptcr to pay the tax, to make a return, to kecp any rccords, or to supply any information who willfully t~lils to pay all or any part of such tax, make such return, keep such records, or supply such information at the timc or times requircd by this Chaptcr, shall bc guilty of an infraction. 3.42.230 Annual Review. (a) As part of the annual budget process, the City Council shall annually review thc amount of rcvenues derived by the City from the Telecommunications Uscrs' Tax imposcd by this Chapter. The lirst review shall occur no later than June 30, 2010, and each subsequcnt review shall occur no later than June 30 of each liscal year. ,-Prior to the review, thc Finance Director shall provide thc City Council with the following information: (i) the total tax revcnuc reccived by the City as proceeds of the Telecommunications Users' Tax, as of Deccmber 31 sl of the calendar year preceding the date of the meeting; and (ii) thc Finance Director's recommendation as to whether an adjustment to the rate of the tax imposed by this Chapter is indicated in light of the linancial condition of the City. (b) Following its rcview, the City Council may adopt an ordinance modifying (either indelinitely or for a fixcd period) the rate of the tax imposed by the Chapter or terminating or suspending imposition of the tax. The City Council may reduce, maintain or modify the rate in existence at the time of thc annual review, but in no event shall the rate be increased to exceed 4.75%. . (c) If thc City Council adopts an ordinance terminating the tax" that tcrmination shall not affect thc obligation to pay taxes levied on services used prior to the date of termination. Taxes levied prior to that date shall remain a debt payable to the City. All provisions in this Chapter, cxeept those relating to the levy of taxes, shall continuc with full force and effect after such date. (d) Nothing in this Chapter is intended to constitute an cxtension or an increase in a tax rcquiring votcr approval under CalifiJrnia Conslilulion Arlicle X/IIC; and to the extent that this Scction 3.42.230 is found to invoke such a rcquirement, this Section 3.42.230 shall be deemed null and void ab initio. 3.42.190 Accountability Measures. 18 a The Cit ' s cx enditurc of the roceeds of the taxes im oscd b this Cha ter an the interest thereon shall be reviewed annuall b an inde endent auditor in con' unction with. and as art of thc Cit 's usual annual financial audit. and the rcsults of such review shall be made available for inspection bv thc public. SECTION 2. Effective Date. This Chapter shall become effective immediately upon the date that this Ordinance is conlirmcd and approved by the voters of Chula Vista at the Municipal Election of November 4, 2008. Scrvice Supplicrs will not bc required to implcment the provisions of this ordinancc prior to February 1,2009. SECTION 3. Amendment or Repeal. Chaptcr 3.42 of Articlc XlIITitle 3 of the Chul~ Vista Municipal Code. cxcept for Section 3.42.190 thereot: may be repealed or amended[ by thc City Council without a vore of the peoplc. Howcver, as required by Chapter XlIlC of the California Constitution, voter approval is required for any amendment provision that would incrcase the rate of any tax levied pursuant to this Ordinancc. Thc People of the City of Chula Vista affirm that the following actions shall not constitute an increase of the ratc of a tax: I. The rcstoration of the ratc of thc tax to a ratc 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 intcrprets or clarifies the methodology of the tax, or any definition applicable to the tax, so long as interpretation or clarification (even if contrary to some prior interpretation or c1aritication) is not inconsistent with the language of this Ordinance. 3. The establishment of a class of person 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, I{)r some period of time, failed to collcct thc tax. [ SECTION 4. Severability. If any scction, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason hcld to bc invalid or unenforceable by a court of competent jurisdiction, thc rcmaining portions of this Ordinance shall noncthelcss rcmain in full forcc and effect. The people hereby dcclares that thcy would have adopted each section, subsection, sentence, c1ausc, phrase, or portion of this Ordinance, irrcspectivc of 19 ," the fact that any onc or morc sections, subscctions, scntences, c1auscs, phrases, or portions of this Ordinance be declared invalid or unenforceable. SECTION 5. 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. I hereby certify that the foregoing Ordinance was PASSED, APPROVED and ADOPTED by the people of the City ofChula Vista voting on the day of ,2008. Mayor ATTEST: City Clerk APPROVED AS TO FORM: City Attorney APPROVED AS TO FORM: 20 Website: htlIl ://vvww. uutinfo.org/table/Sum mary _Listing.htm 146 cities with a UUT intrastate rate: l-k-m 1 '7/Z3/0B 4ddi+:oncJ f"torrYlCL-hon d.t ~+rilolA.ted dt.>r;n'J Yhee+i <3 ' . 99 out of 146 (67%) of the jurisdictions with intrastate UUT have a rate greater than4.75% (3 more have an average rate over 4.75%) . 5.27 is the average UUT for those cities . 92 have an interstate UUT . 85 have an intemational (JUT . ]20 have a mobile UUT When you adjust for population, California (JUT cities with] 00,000 people or more: . 25 of the 30 City's (83%) UUT is greater than 4.75% . 25 of the 30 apply UUT to interstate and international calls . The average (JUT rate for all 30 is 7.39% t+ervt 1 7/z.3/fY8 AGl.d:+-ronGLi !~a.:hZl' ckstr: Iatde.d o.t- meet-lnc " ORDINANCE NO. AN ORDINANCE OF THE CITY OF CHULA VISTA ADDING CHAPTER 3.42 TO TITLE 3 OF THE CHULA VISTA MUNICIPAL CODE REGARDING A TELECOMMUNICATION USERS' TAX THE PEOPLE OF THE CITY OF CHULA VISTA DO ORDAIN AS FOLLOWS: SECTION 1: Chapter 3.42 is hereby added to Title 3 of the Chula Vista Municipal Code, and it shall read as follows: Chapter 3.42 TELECOMMUNICATION USERS' TAX 3.42.010 Definitions. 3.42.020 Constitutional, Statutory, and Other Exemptions. 3.42.030 Exemptions - Senior Citizens 3.42.040 Teleeommunication Users' Tax. 3.42.050 Bundling Taxable Items with Non-taxable Items. 3.42.060 Substantial Nexus / Minimum Contacts. 3.42.070 Duty to coIlect--Procedures. 3.42.080 Collection Penalties - Service Suppliers. 3.42.090 Actions to Collect. 3.42.100 Deficiency Determination and Assessment - Tax Application Errors. 3.42.110 Administrative Remedy - Non-Paying Service Users. 3.42.120 Additional powers and dutics of the Tax Administrator. 3.42.130 Records. 3.42.140 Refunds. 3.42.150 Appeals. 3.42.160 Notice No Injunction/Writ of Mandate. 3.42.170 Notice of Changes to Ordinance. 3.42.180 Effcct of State and Fedcral Reference/Authorization. 3.42.190 Independent Audit of Tax Collection, Exemption, Remittance, and Expenditure. 3.42.200 Interaction with Prior Tax. 3.42.210 Remcdies Cumulative. 3.42.220 Violations dcemed infractions. 3.42.230 Annual Review. 1 (i) the total tax revenue received by the City as proceeds of the Telecommunications Users' Tax, as of Dceember 31 st of the calendar year preceding the date of the meeting; and (ii) the Finance Director's recommendation as to whether an adj ustmcnt to the rate of the tax imposed by this Chapter is indicated in light of the I1naneial condition of the City. (b) Following its review, the City Council may adopt an ordinance modifying (either indefinitely or for a lixed period) the ratc of the tax imposed by the Chapter or terminating or suspcnding imposition of the tax. The City Council may reduce, maintain or modify the rate in existence at the time of the annual review, but in no event shall the rate be increased to exceed 4.75%. ~ (e) If thc City Council adopts an ordinancc terminating the tax,~ that tel1l1ination shall not affect the obligation to pay taxes levicd on scrvices used prior to the date of termination. Taxes levied prior to that date shall rcmain a debt payable to the City. All provisions in this Chapter, except those relating to the levy of taxes, shall continue with full force and ctIee! after such date. (d) Nothing in this Chapter is intended to constitute an extension or an increase in a tax requiring voter approval under Cafifornia COllstifutioll Article Xl/IC; and to the extent that this Section 3.42.230 is found to invoke such a requirement, this Section 3.42.230 shall be deemed null and void ab illitio. SECTION 2. Effective Date. This Chapter shall become effective immediately upon the date that this Ordinance is confirmed and approved by the voters of Chula Vista at the Municipal Election of November 4, 2008. Service Suppliers will not be required to implement the provisions of this ordinance prior to February 1,2009. SECTION 3. Amendment or Repeal. Chapter 3.42 of Title 3/.rtiele XIII of the Chul~ Vista Municipal Code may be repealed or amended by the City Council without a vote of the people. However, as required by Chapter XlllC 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 Chula Vista afJirm that the following actions shall not constitute an increase of the rate of a tax: I. 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 rcduce the rate of the tax; 2. An action that interprets or c1aril1es the methodology of the tax, or any delinition applicable to the tax, so long as interpretation or claritication (even if contrary to some prior interpretation or clarification) is not inconsistent with the language of this Ordinance. 3. Thc establishment of a class of person that is exempt or excepted from the tax or the discontinuation of any such exemption or exception (othcr than the 18 ~ as+r;bvJ-ed -to \l'\Q6Dr;~ crt' "I-tJe. Co\.A..A,r) W ('Q.- -*.i Ov\ 7/ z. 3!Og ~-€-vtdq July] 7, 2008 To: John McCann and Chula Vista City Council From: David Krogh Re: Tuesday night's Utility Tax Update ballot language issue (agenda item #12) 1 was interested in agenda item #12. did not attend Tuesday evening's citv council meeting, but watched on cable TV delay broadcast last night. I respect the serious consideration ofthe issues involved bv all members of the council during the meeting. Therefore, recognizing your re-scheduling the issue for July 23, 1 submit for your consideration, and for consideration by staff and council: Suggested Improved Ballot Short Description language (74 words) This measure will modernize city's utility tax in recognition of changes in telecommunication technology since its inception 38 years ago, along lines of California League of Cities model lanfruage already adopted by two dozen other California cities, in order to assure reliability of future city revenues. It is intended to improve equity (consistency) of tax across all telecommunication users, while adjusting current 5% tax rate to rate estimated to be revenue neutral overall (4.75%). You all are beaded in the right direction and can probably solve the issue without my help, but thought 1 would wordsmith a little bit anyway. I'm available to discuss if desired, and will be off work on Friday this week. Respectfully submitted, ~0r~ n:::.virl W K r()crh ~.6530 W: H: C: File: CV _Utility- Tax_Amendment_200807 printed: 1:00 AM 711712008