HomeMy WebLinkAboutReso 2010-148RESOLUTION NO. 2010-148
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA CALLING AND GIVING NOTICE OF A
SPECIAL ELECTION TO BE HELD IN SAID CITY ON
TUESDAY, NOVEMBER 2, 2010, FOR THE PURPOSE OF
SUBMITTING TO THE QUALIFIED ELECTORS OF THE
CITY, A MEASURE RELATING TO THE CITY'S
TELECOMMUNICATIONS USERS' TAX; CONSOLIDATING
THE ELECTION WITH THE STATEWIDE ELECTION;
REQUESTING THE BOARD OF SUPERVISORS OF THE
COUNTY OF SAN DIEGO PERMIT THE REGISTRAR OF
VOTERS TO CONDUCT SUCH ELECTION; AUTHORIZING
THE CITY CLERK OR HER DULY AUTHORIZED AGENTS
TO CARRY OUT THE NECESSARY PROCEDURES FOR
SUCH ELECTION; AND DIRECTING THE CITY ATTORNEY
TO PREPARE AN IMPARTIAL ANALYSIS OF THE
MEASURE
WHEREAS, pursuant to Chula Vista Municipal Code Chapter 3.44, the City currently
levies a Utility Users' Tax (UUT); and
WHEREAS, the City Council desires to rename the Telephone Users' Tax as the
Telecommunications Users' Tax; to modernize the tax base so that different telecommunications
technologies aze treated similarly; to 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 in telecommunications services, and changes in federal law; and
WHEREAS, the City currently receives $5.3 million a yeaz in UUT proceeds from
telecommunication services, and such tax revenues are critical to the public welfare and the
City's financial ability to provide essential municipal services such as police, fire, street repair,
parks and libraries; and
WHEREAS, lawsuits have been filed against other jurisdictions challenging the
application of the utility users tax to certain telecommunication services based upon definitions
contained in the ordinances governing such taxes and/or references to allegedly inapplicable
federal laws; and
WHEREAS, legislation (H.R. 1521) has been introduced in the United States Congress,
which would impose afive-yeaz moratorium on new local 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; and
Resolution No. 2010-148
Page 2
WHEREAS, Section 2(b) of Article XIII C of the Califomia Constitution, added by
Proposition 218 effective November 1996, requires that a measure proposing a general tax be
submitted to the voters at an election consolidated with the regularly scheduled general election
for members of the governing body of the local government, unless a fiscal emergency is
declazed by unanimous vote of the governing body; and
WHEREAS, by its Resolution No. 2010-147 adopted on June 8, 2010, the City Council
has declared a fiscal emergency; and
WHEREAS, the proposed ordinance, attached hereto and incorporated herein as Exhibit
"A" would implement these proposed revisions to the tax (the "Ordinance"), and if approved by
voters the earliest implementation date will be February 1, 2011; 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 to be held on Tuesday, November 2, 2010.
WHEREAS, Section 439.1 of the Administrative Code of the County of San Diego
authorizes the Registraz of Voters of the county of San Diego to render specified services
relating to the conduct of an election to any city or district which has by resolution requested the
Board of Supervisors to permit the Registrar to render the services, subject to requirements set
forth in that section; and
WHEREAS, it is desirable that the County of San Diego Registrar of Voters conduct the
election and canvass the returns of said Special Municipal Election, and that the City Clerk be
authorized to carry out all other necessary procedures for such election; and
WHEREAS, sufficient funding is anticipated to be allocated in the fiscal year 2010/2011
General Fund budget for the payment of costs relating to the placement of the measure on the
ballot.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista
as follows:
SECTION 1. All of the foregoing recitals are true and con•ect.
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 2, 2010, the following
question:
Resolution No. 2010-148
Page 3
Shall the ordinance to modernize the City's 1978
Telephone Users' Tax (renamed the Telecommunications YES
Users' Tax), with no rate increase; maintain exemptions
for low income senior citizens; ensure Tax proceeds
continue to be available for general municipal purposes,
including police, fire, streets, librazies, and pazks; revise
the method for calculating and collecting the Tax to reflect NO
technological and legal changes; and amend the tax base to
equitably include all applicable telecommunications
services be adopted?
SECTION 3. That the proposed Ordinance to be submitted to the voters is attached as
Exhibit "A."
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. Pursuant to California Elections Code Section 9282, the City Council
hereby acknowledges its authority, and the authority of any individual voter who is eligible to
vote on the measure, or bona fide association of citizens, or any combination of voters and
associations, to submit a written argument, not to exceed 300 words, for or against the measure.
Arguments must be submitted to the City Clerk, and may be changed until and including the date
fixed by the City Clerk, after which no arguments for or against the measure may be submitted,
withdrawn or changed.
SECTION 6. Pursuant Elections Code section 9285, rebuttal azguments will be allowed.
The rebuttal azguments may not exceed 250 words. Rebuttal arguments must be submitted to the
City Clerk, and may be changed until and including the date fixed by the City Clerk, after which
no rebuttal azguments for or against the proposed measure may be submitted to the City Clerk.
SECTION 7. Pursuant to California Elections Code Section 9280, 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 by the date fixed by the City Clerk.
SECTION 8. Pursuant to Elections Code section 10403, the Board of Supervisors of the
County of San Diego is hereby requested to permit the Registraz of Voters to perform and render
all services and proceedings, and to procure and furnish any and all official ballots, notices,
printed matter and all supplies and equipment and pazaphernalia incidental to and connected with
the conduct of the election of the City of Chula Vista, in order to properly and lawfully conduct
the election.
Resolution No. 2010-148
Page 4
SECTION 9. The Boazd of Supervisors of the County of San Diego is hereby requested
to consolidate this election with the statewide election to be held on the same day, in the same
territory. Pursuant to Section 10411 and Section 10418 of the Elections Code, (a) the election
shall be held in all respects as if there were only one election; (b) only one form of the ballot
shall be used; and (c) the Registraz of Voters of the County of San Diego shall canvass the
returns of the subject election as part of the canvass of returns of the election consolidated
hereby.
SECTION 10. Pursuant to Section 10410 and Section 10418 of the Elections Code
within the territories affected by this consolidation, the elections precincts, polling places, voting
booths and polling hours shall, in every case, be the same, and there shall be only one set of
elections officers in each set of the precincts.
SECTION 11. The County of San Diego shall be reimbursed in full for the services
performed by the Registraz of Voters for the City of Chula Vista upon presentation of a bill
therefor, and this City agrees to indemnify and save free and harmless the County, its officers,
agents and employees from expense or liability, including reasonable attorneys' fees, as a result
of an election contest arising after conduct of this election.
SECTION 12. The City Clerk is hereby directed to forthwith file a certified copy of this
resolution with the Boazd of Supervisors and the Registraz of Voters of the County of San Diego
and to issue instructions to the Registraz of Voters to take any and all steps necessary for the
holding of the election.
SECTION 13. That the ballots to be used at said election shall be, both as to form and
matter contained therein, such as may be required by law to be used therefor.
SECTION 14. That in all particulazs not recited in this resolution, the election shall be
held and conducted as provided by law for holding municipal elections in said City.
SECTION 15. That notice of the time and place of holding the election is hereby given
and the City Clerk is authorized, instructed, and directed to give further or additional notice of
the election, in time, form and manner as required by law.
SECTION 16. That the City Clerk shall certify to the passage and adoption of this
resolution, and file it with the City's original resolutions.
Presented by
~,V~ ~:w. 1~,1~t ~r~rn,. _.
Mazia achadoorian
Director of Finance/Treasurer
Approved as to form by
~~ ~
B~ C. Miesf~
City Attorney
Resolution No. 2010-148
Page 5
PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista,
California, this 8th day of June 2010 by the following vote:
AYES: Councilmembers: Bensoussan, Castaneda, Ramirez, Thompson and
Cox
NAYS: Councilmembers: None
ABSENT: Councilmembers: None
Cheryl Cox, ayor
ATTEST:
~'iaQ.,
Donna R. Norris, CMC, ~ y C erk
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
CITY OF CHULA VISTA
1, Donna R. Norris, City Clerk of Chula Vista, California, do hereby certify that the foregoing
Resolution No. 2010-148 was duly passed, approved, and adopted by the City Council at a
regular meeting of the Chula Vista City Council held on the 8th day of June 2010.
Executed this 8th day of June 2010.
~D-YLL[ 12 _ /~ ~DiS/4/z
Donna R. Norris, CMC, City Clerk
~xh~~~~ ~
Resolution No. 2010-148
Page 6
ORDINANCE NO.
AN ORDINANCE OF THP•. CTTY OF CHULA VISTA ADll1NG CHAPTER
3.42 TO TTTLE 3 OF THE CHULA VISTA MUNICIPAL CODE
REGARDING A TCLECOMMUNICATION USERS' TAX
THE PEOPLE OF THE CITY OF CHULA VISTA DO 012llATN AS FOLLOIVS:
SECTION 1: Chapter 3.42 is hereby added to Title 3 of the Chula Vista ~Qunicipal Code,
and it shall read as follows:
Chapter 3.42
TELECOMMUNICATTON USERS' TAX
3.42.010 Ucfinitions.
3.42.020 Constitutional, Starirto~y, and Other Exemptions.
3.42.030 Exemptions -Senior Citizens
3.42.040 Telecommunication Users' Tax.
3.42.00 13undling'faxahlc Items +vith Non-losable Items.
3.42.060 Substantial Nexus /Minimum Contacts.
3.42.070 Duq' to collect--Procedures.
3.42.080 Collection Penalties - Scrvicc Suppliers.
3.42.090 Actions to Collect.
3.42.100 Dcf"iciency lletermination and Assessment-Tax Application Errors.
3.42.110 Administrative 12emedy -Non-Paying Service Users.
3.42.120 Additional powers and duties of the Tax Administratm~.
3.42.13U Records.
3.42.140 12efunds.
3.42.150 Appeals.
3.42.160 Notice No Jnjunction/lVrit 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 of'f:tx Collection, Exemption, Remittance, and
Expenditure.
3.42?00 Interaction +vith Prior Tax.
3.42 X10 Remedies Cumulative.
3.=t2.220 Violations deemed in1'ractiwrs.
Resolution No. 2010-148
Page 7
3.42.010 Definitions.
The following words and phrases whenever used in this Chapter shall he construed as
defined in this section.
(a) "Ancillary telecommunication services" means services that are associated with or
incidental to the provision, use or enjoyment of telecommunications services, including but
not limited to the following services:
(1) "Conference bridging service' me:uis an ancillary service that links t`vo or
more participants of an audio or video conference call and may include the
provision of a telephone number. "Conference bridging servicd' does not include
the telecommunications services used to reach the conference bridge.
(21 "Det<3iled telecommunications billing service" means an ancillary service of
separately stating information pertaining to individual calls on a customer's billing
statement.
(3) "Directory assistance" means an ancillary servicc of providing telephone
number information, and/or address information.
(4) "Verticai service" means an ancillary service that is offered in connection with
one or more telecommunications services, which offers advanced calling features
that allow customers to identify callers and to manage multiple calls and call
connections, including conference bridging services.
(5) "Voice mail service" means an ancillary service that enables the customer to
store, send or receive recorded messages. "Voice mail service" does not include
any vertical services that the customer may be required to have in order to utilize
the voice mail service.
(b) "Billing Address'' shall mean the mailing address of the service user where the service
supplier submits invoices or bills fur payment by the customer.
(c) "City' shall mean the City of Chula Vista.
(d) "Mobile Telecommunications Service" has the meaning and usage as set forth in the
Mobile Telecommunications Sourcing Ac[ (4 U.S.C. Section 124) and the regulations
thereunder
(e) "Month'' shall mean a calendar month.
(f) "Paging service'' means a `telecommunications service" that provides transmission of
coded radio signals for the purpose of activating specific pagers; such transmissions may
include messages and/or sounds.
2
Resolution No. 2010-148
Page 8
(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 tJSe'~ 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 servicz obtained
by making a payment on a telecommunication-by-teleconununication basis either throu~,h
the use of a credit card or payment mechanism such as a bank card, travel card, credit card.
or dehit card, or by charge made to a service number which is not associated with the
origination or termination of the telecommunication service.
(j) "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 usz in a known amount.
('l:) "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 connectzd, and includes switching capacity, extension lints,
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
teleconununications over which signals are transmitted between or among customer
chamtel termination points (i.e., thz 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 fire
telecommunication is billed or paid; or,
(2) If the location in subsection (1) of this definition is unknown (e.g., mobile
telecommunications service or VoTP service), the service address means the
location of the service user's place of primary use.
(3) Por prepaid telecommunication service, "service address' means the location
associated with the service number, if not known, the point of sale of the service.
Resolution No. 2010-148
Page 9
(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) "Sen~ice User" shall mean a person required to pay a tax imposed under the provisions
of this Chapter.
(o) "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 Director of Finance of the City or his or her designee
(r) "Telecommunications sen~ices' means the transmission. conveyance, or rooting of
voice, data, audio, video, or any other information or signals to a point, or between or
among points, whatever the technology used. The tens `telecommunications services"
includes such transmission, conveyance, or routing in which computer processine
applications are used to act on the form, code or protocol of the content for purposes of
transmission, conveyance or routing without regard to whether such services are referred to
as voice over Internet protocol (VoIP) services or are classified by the Federal
Telecommunications Commission as enhanced or value added, and includes video andlor
data services that is Functionally integrated with "telecommunication services.''
"Teleconnunications services'' include, but are not limited to the following 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-free numbers designated by the Federal Telecommunications
Commission); 900 service (or any other similar numbers designated by the Federal
'Telecommunications Commission for services whereby subscribers call in to pre-recorded
or live service). "Telecommunication services" does not include. cable or video
programming services that are subject to a cable or video service lianchise fee.
(s) "VoIP" (voice over interne[ protocol) means the digital process of making and
receiving real-time voice transmissions over any htternet Protocol network.
(t) "800 service" means a "telecommunications service" that allows a caller to dial atoll-
trcc number without incurring a charge for the call. The service is typically marketed
under the name ``800;" "8>j;" "866;'" `'877;" and `'838'' toll-free calling, and any
subsequent numbers designated by the Federal Communications Commission.
(u) "900 services' 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 live service. "900 service" does not include [he charge for: collection
services provided by the seller of the "telecommunications services" to the subscriber, or
sen~ice or product sold by thz subscriber to thz subscriber's customer. The service is
4
Resolution No. 2010-148
Page ] 0
typically marketed tinder 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 constnied as imposing a tax upon any person or service
when the imposition of such tax upon such person or service would be in violation of a
federal or state statute, the Constitution of the United States or the Constitution of the State.
(b) Any service user that is exempt from the tax imposed by this Chapter pursuant to
subsection (a) of this section shall file an application with the Tas Administrator for an
exemptiot; provided, however, this requirement shall not apply to a service user that is a
state or federal agency or subdivision with a commonly reco,nized name for such service.
Said application shall be made upon a form approved by the "Pax Administrator and shall
state those facts, declared under penalty of perjury, which quality the applicant for an
exemption, and shall include the names of all telecunununication service suppliers serving
that service aser. If deemed exempt by the Tax Administrator, such service user shall give
the Tax Administrator timely v\Titten notice of any change in telecommunication service
suppliers so that the 'P;tx Administrator can properly notify the new telecommunication
service supplier of the service user's tax exempt status. A service user that fails to comply
with this section sha[I not he entitled to a refund of telecommunication users' tales
collected and remitted to the Tax Administrator from such service user as a result of such
noncompliance. "l~he decision of the Tax Administrator regarding an application may be
appealed pursuant to Section 3.42.150 of this Chapter Filing an application with the Tas
Administrator and appeal to the City Administrator pursuant to Section 3.42.150 of this
Chapter is a prerequisite to a suit thereon.
tc) The City Council may, by resolution, establish one or more classes of persons or one or
more classes of utility service olhenvise subject to payment of a tax imposed by this
Chapter acid provide that such classes of persons or service shall be exempt, in whale or in
part from such tax for a specified period of time.
3.42.030 Exemptions -Senior citizens.
Any individual who qualities for mt 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.
3.42A40 Telecommunication Users' Tax.
(a). "Phere is hereby imposed a tax upon every person in the City using telecommunication
services. The tax imposed by this section shall be at the rate of five percent (5.00 %) oPthe
charges made for such services and shall be collected 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 ur service address in the City;
are used, in whole or in part, within the City's boundaries; and such services are subject to
Resolution No. 2010-148
Page 11
taxation under this Chapter. There is also a rebuttable presumption that prepaid
telecommunication services sold within the city are used, in whole or in part, within the
City and are therefore subject to taxation under this Chapter. If the billing address of the
service user is different from the service address, the service address of [he service user
shall be used for purposes of imposing the tas. 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) "Nubile Telecommunications Service'' shall be sourced in accordance with the
sourcing rules set forth in the bfohile Telecornnnrrricolions So:ercino .9cr (~ U.S.C. Section
124). The Tax Administrator may issue and disseminate to [elecommunieatiat service
suppliers, which are subject to the tax collection requirements of this Chapter, sourcing
rules for [he taxation of other telecommunication services, including but not limited to
post-paid telecommunication services, prepaid teleatmmunica[ion services, Vo1P, and
private telecommunication services, provided that such rules are based upon custom and
crnnmrnt practice [hat further administrative efficiency and minimize multi-jurisdictional
taxation (e.g., Streamline Sales and Use'l'ax Agreement),
(c) The Tax Administrator may issue and disseminate to telecommunication 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 subject to the tax uFsubsection (a) above.
(d) As used in this section, the term `telecommunication services'' shall include, but is not
limited to charges for. connection, reconnection, termination, movement, or change of
telecommunication services; late payment fees; detailed billing; central office and custom
calling features (including but not limited to call waiting, call forwm~ding, caller
identification and three-way calling); voice [nail and other messaging services; directory
assistance; access and line charges; universal service charges; regulatory, administrative
and other cost recovery charges; local number portability charges; and text and instant
messaging. "Telecommunication services" shall not include digital downloads that are not
"ancillary telecommunication services" such as, music, rin,tones, games, and similar
digital products.
(ej To prevent actual multi-jurisdictional taxation of telecanntunication services subject [o
tax under this section, any service user, upon proof to the 'fax 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 tas legally imposed on; and paid by, the service user in such other
slate or local jurisdiction; provided, however, the amount of credit shall not exceed the tax
owed to the Citv under this section.
(f) 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 one (I) month shall
6
Resolution No. 2010-148
Page 12
be remitted to the Tax Administratoe and must be received by the "fax Administrator on or
before thz twentieth (20th) day of the following month.
3.4Z.OSU Bundling Taxable Items with Non-Taxable items.
If any non-taxable charges are combined with and not separately stated from taxable
service charges on the customer bill or invoice of a service. supplier, the combined charge is
subject to tax wtless 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 ta.x purposes.
The service supplier has the burden of proving the proper appm2ionment of taxable and
non-taxable charges. if the service supplier offers a combination of taxable and non-
taxahle services, and the charges are separately stated, then for taxation purposes, the
values assigned the taxable and non-taxahle services shall be based on its books and
records kept in the regular course of business and in accordance with generally accepted
accounting principles, and not created and maintained for tax purposes. 'fhe 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 irnposition, collection and/or remittancz of the telecommunication users' tax to the
tullcst extent permitted by state and fedzrsl law; and as it may change from time to time by
judicial intzrpreta[ion or by statutory enactment. Any telecommunication service
(including VoIP) used by a person with a service address in the City, which service is
capable of terminating a call to anothzr person on the general telephone nehva•k, shall be
subject to a rebuttable presumption that `'substantial nexus/minimum contacts' exists for
purposes of imposing a tae, or establishing a duty to collect and remit a tax, under this
Chapter. A service supplier shall be deemed fo have sufficient activity in the City for tax
collection and remittancz purposes if its activities include, but are not limited to. any of cite
following: maintains or has within the City, directly or through an agent or subsidiary, a
place of business of any nature; solicits business in the City by employees, independent
contractors, resellers, agents or other representatives; solicits business in the City on a
continuous, regular, seasonal or systematic basis by means of advertising that is broadcast
or relayed frau a transmitter with the City or distributed from a location within fhe City; or
advertises in newspapers or other periodicals printed and published within the City or
through mafzrials distributed in the City by means other than the United States mail; or if
there are activities performed in the City on behalf oP the service supplier that are
sib=nificantly associated with the service 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.
7
Resolution No. 2010-148
Page 13
3.42.p70lluty to Collect-Procedures.
(a) Collection by Service Suppliers. The duty of service suppliers to collect and remit the
taxes imposed by the provisions of this Chapter shall be performed as follows:
(1) The tax shall be collected by service suppliers insofar as practicable at the same
time as, and along with, the collection of the charges made in accordance with the
regular billing practice of the service supplies 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 hoth the charge and the
tax shall be deemed to have been paid. Tn those cases where a service user has
notified the service supplier of refusal ro pay the tax imposed on said charees,
Section 3.42.1 I U shall apply.
(?) The duty of a service supplier to collect the tax from a service user shall
commence with the beginning of the tirst regular billing period applicable to the
service user where all charges normally included in such regular billing are subject
to the provisions of this Chapter. Where a service user receives more than one
bitting, one or snore being for different periods than another, the duty to collect
shall arise separately for each billing period.
(h) 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. 1'he Tax Administrator is authorized to require such
additional information as he or she Jeems necessary to determine if the tax is being levied,
collected, and remitted in accordance with this Chapter. Returns are due immediately upon
cessation of business for any reason. Pursuant to Reverrrrz card Tur Cade .Section '?b'4 6,
such filing returns are confidential information and arc exempt from the disclosure
provisions of the Puhlic Records Act.
3.42.080 Collection Ycnalties -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 tirst re_ular working
day following [he weekend or legal holiday. A direct deposit; including electronic Fund
transfers and other similar methods of electronically exchanging monies behveen 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 [hc
transfer settles into the City's account on the following business day.
(b) if the person required to collect and/or remit the telecommunication users' tax tails to
collect the tax (by failing to properly assess the tax on one or more services or charges on
[he 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 often
8
Resolution No. 2010-148
Page 14
(10°io) percent of the total tax that is delinquent or deficient in the remittance, and shall pay
interest at the rate of one and 50/100ths (1.50°/p) percent per month, or any fraction thereof,
on the amount of the tax, exclusive of penalties, from the date on which the remittance first
became delinquent, until paid.
(c) The Tas Administrator shat) have the power to impose additional penalties upat
persons reyuired to collect and remit taxes pursuant to the provisions of this Chapter fur
fraud or gross negligence in reporting or remitting a[ the rate of ten (10'%j 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) Nohvithstanding the foregoing, the Tax Administrator may, in his ur 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 he paid by a service user under the provisions of this Chapter shall be
deemed a debt owetl by the service user to the City. Any such tax collected from a service
user which has nut been remitted to the Tas Administrator shall be deemed a debt owed to
the City by the person required to collect and remit and shall no longer he 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 fur in this Chapter, alon_ 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 11 U..S.C.,4. S'ectron .i07(n)(8)(C).
3.42.100 Deficiency Determination and Assessment-Tax Application Errors.
(a) The 1'ax Administrator shall make a deficiency determination if he or she determines
that any service user or service supplier required to pay or collect taxes pursuant to the
provisions of this Chapter has failed to pay, collect, and/or remit the proper amount of tax
by improperly applying, ur failin, to apply, the tat 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 deficiency determination to the
person or entity allegedly owing thz tax, which notice shall refer briefly to the amount of
the taxes owed, plus interest at the. rate of one and 50/100ths (L50%) percent per month, or
9
Resolution No. 2010-148
Page 15
any fraction thereof, art the amount of the tax from the date on which the tax should have
been received by the City. Within fourteen (14) calendar days after the date of service of
such notice, the person or entity allegedly owing the tax may request in writing to the Tax
Administrator for a hearing on the matter.
(c) If the person or entity 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 after receipt of the written request for hearing.
Notice of the time and place of the hearing shall be mailed by the. Tax Administrator to
such person at least ten (10) calendar days prior to the hearing, and, if the Tax
Administrator desires said person to produce specific records at such hearing, such notice
may designate the records requested to be produced.
(d) At the time fixed for the hearing, the Tax Administrator shall hear all relevant
testimony and evidence, including that of any other interested parties. At the discretion of
the Tax Administrator, the hearing may be continued front time to tithe for the purpose of
allowing the presentation of additional evidence. \A~ithin a reasonable time following the
conclusion of the hearing; the Tax Administrator shall issue a final assessment (or non-
assessment), thereafter, by confirming, modifi-in; or rejecting the original deficiency
determination, attd shall mail a copy of such final assessment to the person or entiq~ owing
the tax. The decision of the Tax Administrator may he appealed pursuant to Section
;.42.150 of this Chapter. Filing an application with the Tax Administrator and appeal to
fire City Manager pursuant to Section 3.42.150 of this Chapter is a prerequisite to a suit
[hereon.
(e) Payment of the final assessment shall become delinquent if not received by the Tax
Administrator on or before the thirtieth (30th) day following the date of receipt of the
notice of final assessment. The penalty for delinquency shall be ten percent (10%) un the
total amount of the assessment, along with interest at the rate of one and 5Q/100ths (1.50%)
percent per month, or any fraction thereof, on the amount of the tax, exclusive of penalties,
from the date of delinquency, until paid, The applicable statute of limitations regarding a
claim by the City seeking payment of a tax assessed under this Chapter shall commence
from the date of delinquency as provided in this subsection (e).
(t) All notices under this section may be sent by regular mail, postage prepaid, and shall he
deemed received on the third calendar day following the date of mailing, as established by
a proof of mailing.
3.A2.110 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 tas, or whenever thz 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
10
Resolution No. 2010-148
Page 16
due tinder this Chapter from certain named service users for specific billing periods- "fo the
extent the service user has failed to pay the amount of tax owed for a period of rivo (2) or
more billing periods, the service supplier shall be relieved of the obligation to collect taxes
due. The service supplier shall provide the City with the names and addresses of such
service users and the amounts of taxes owed under the provisions of this Chapter. Nothing
herein shall require that the Tax Administrator institute proceedings under this Section
3.42.1 ]0.
(b) In addition to the tax owed, the service user shall pay a delinquency penalty at the rate
of ten percent (10°,~0) of the total tax that is owed, and shall pay interest at the rate of one
and 50/100ths (1.50%) percent per month, or any fraction thereof. un the amount of the tax,
exclusive of penalties, from [he due date, until paid.
(c) The "fax Administrator shall notify the non-paying service user that the Tax
Administrator has assumed the responsibility to collect the taxes due for the stated periods
and demand payment of such taxes, including penalties and interest. The notice shall be
served on the service user by personal delivery or by deposit of the notice in the United
Stales mail, postage prepaid, addressed to the service user at the address to which billing
was made by the person required to collect [he 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 rwithin thirty (30) days
from the dale of the service of the notice upon him or her, the Tax Administrator may
impose an additional penalty of ten percent (10%) of the amount of the total tax that is
owed.
3.42.120 Additional Yowcrs and llutics 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 herein imposed. The
administrative rules and regulations shall not impose a new tax, revise an existing tax
methodology as stated in this Section, or incrcxse an existing tax, except as allowed by
California Government Code Section 53750(h}(2). A copy of such administrative rules and
regulations shall be on file in the Tax Administrator's office. To the extent that the Tar
Administrator detcnnines that the tax imposed under this Chapter shall not be collected in
full for any period of time from any particular service supplier or service user, that
determination shall be considered an exercise of the Tax Administrator's discretion [n settle
disputes and shall not constitute a change in taxing methodology for purposes of
Government Code Section 53750 or otherwise. The Tax Administrator is not authorized to
amend the City's methodology for purposes of Government Code Section 53750 and the
City does not waive or abrogate its ability to impose the communication users' tax in full as
a result of promulgating administrative rulings or eniering into agreements.
Resolution No. 2010-148
Page 17
(c) Upon a proper showing of goad cause, the Tax Administrator may make administrative
agreements; with appropriate conditions; to vary from the strict requirements of this
Chapter and thereby: (I) conform to the billin_ procedures of a particular service supplier
so long as said agreements result in the collection of [he tax in conformance with the
seneral purpose and scope of this Chapter; or, (2) to avoid a hardship where the
administrative costs of collection and remittance greatly ouhveigh the tax benefit. A copy
of each such agreement shall be on file in the "fax Administrator's office; and are voidable
by the'fax Administrator or the City a[ any time.
(d) The Tax Administrator may conduct an audit, to ensure proper compliance with the
requircmeuts of [his Chapter, of any person required to collect and/or remit a tat pursuant
to this Chapter. 'fhc Tax AdministrnNr shall notify said person of the initiation of an audit
in writins. 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 v`ritten 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 penalties and interesQ
owed and not paid, as evidenced by information provided by such person to the l'ax
Administrator. If said person is unable or unwilling to provide sulTicient records to enable
the 1-ax Administrator to verify compliance with this Chapter, the Tax Administrator is
authorized to make a reasonable estimate of the deficiency. Said reasonable estimate shall
be entitled to a rebuttable presumption of correctness.
(e) Upon receipt of a written request of a taxpayer; and for good cause. the Tax
Administrator may extend the time for filing any statement required pursuant to this
Chapter for a period of not to exceed forty-five (45) days, provided that [hc 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 dining
•said extension at the rate of one and 50/100ths (L50%) percent per month, prorated for any
portion thereof.
(fj The 1•ax 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 andlor remit
for failure to collect the tax imposed b}' this chapter if the non-collection occurred in good
faith. In determining whether the non-collection was in good faith, the Tax Administrator
shall take into consideration the uniqueness of [he product or service, industry practice or
other precedence. "the Tax Administrator may also participate with other UUT public
agencies in conducting coordinated compliance reviews with the goal of achieving
administrative efficiency and uniform tax application determinations, where possible. To
encourage fill disclosure and on-_oing cooperation on annual compliance reviews, the Tax
Administrator, and its agents, may enter into aarecmenfs with the tax-collecting service
providers and grant prospective only effect on any changes regm~ding the taxation oC
12
Resolution No. 2010-148
Page 18
services or charces that were previously deemed by the service provider, in good faith and
without gross negligence, to be non-taxsble. In detetminins whether the non-collection
was in good faith and without gross negligence; the Tat Administrator shall t<1ke into
considzration the uniqueness of the product or service, industry practice or other
precedence.
3.42.130 Records.
(a) ]t 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 tas as he/she may have been
liable for the collection of and remittance to [he Tas Administrator, which records the Tax
Administrstor shall have the right to inspect a[ a reasonable time.
(h) 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 Tas Administrator to
establish compliance with this Chapter, includine the delivery of records in a common
electronic format on readily available media if such records are kept electronically by the
person in the usual and ordinary course of business. As an alternative to deliverine 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 not'mal salary or hourly
wages of those persons desi~~nated by the City to conduct the inspection.
(c) The Tax Administrator is authorized to execute anon-disclosure agreement approved
by the City Attorney to protect the confidentiality of customer information pursuant to
(,'ulifornin Revccnte and TerS Corkz SeGionr 71R 9.6 crud 718-1.7.
(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 aggregator currently
authorized by the service supplier to bill, collect, andlor remit the tax to the City; and, ii)
upon request of the Tax Administrator, deliver, or effect the delivery of, any information or
t-ecords in the possession of such billing agent or billing aggregator that, in the opinion of
the Tas Adminis[rstor, is necessary to verify the proper applicatiat, 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 [o such records, or fails to produce the information requested in an
administrative subpoena within the time specified, then the Tas Administrator may impose
a penalty of $~00 on such person Ibr each day following: i) the initial date that the person
refuses to provide sueh 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.
13
Resolution No. 2010-148
Page 19
3.42.110 Refunds.
'<b'henever the vnount 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 Tas Administrator may refund any tax that has been overpaid or paid more than
oncz 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,
execWOr, or administrator has submitted a written claim to the Tax Administrator within
one year of the overpayment or erroneous or illegal collection of said tax. Such claim must
clearly establish claimant's right to the refund by written records showing entitlement
thereto. Nothing herein shall permit the filing oP 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 tiling of a written claim pursuant to Gorernnrenr Code Secrinn 93~ is a prerequisite
to any suit thereon. Any action brought against the City pursuant to this section shall be
subject Co the provisions of Gnvernmeirt Code Sectimrc 995.6 cr»d 916. The Tas
Adminisu'ator, or the City Council where the claim is in excess of five thousand dollars
(Sd;000); shall act upon the refimd claim within the time period se[ forth in Goverruneru
Code Section 913.9. If the Tas Administrator/City Council fails or refuses to act on a
refund claim within the time prescribed by Gut~er•nmerrr S'ccrio» 9/3.9, the claim shall be
deemed to have been rejected by the City Council on the last day of the period within
which the City Council was required to act upon the claim as provided in Corernnren/
Cnde Suction 9/3.9 l'he Tax Administrator shall give notice of the action in a form which
substantially complies with that set forth in Gorermne»t Cnde Section 913.
(c). Notwithstanding the notice provisions of subsection (a) of this Section, the Tas
Administrator may; at his or her discretion, dive 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 w-hich is
due the City upon a subsequent monthly return(s) to the Tas Administrator, provided that:
i) such credit is claimed in a return dated no later than one year from the date of
overpayment or erroneous collection oP said tax; ii) the Tas Administrator is satisfied that
the underlying basis and amount of such credit has been reasonabh~ established; and. iii) in
the case of an overpayment by a service user to the service supplier that has been remitted
to the City, the 'l'ax Administrator has received proof, to his or her satisfaction, that the
overpayment has bezn refunded by the service supplier to the service user in an amount
equal to the requested credit.
11
Resolution No. 2010-148
Page 20
3.42.150 Appeals
(a) "I'he 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), deficiency determination, assessment,
or administrative ruling of the Tax Administrator. Any person aggrieved by any decision
(other than a decision relating to a refund pursuant fo Section 3.42.140 of this Chapter),
deficiency determination, assessment, or administrative ruling of dte Tax Administrator,
shall be required to comply with the appeals procedure of this section. Compliance wish
this section shall be a prerequisite to a suit thereon. [See Gorer-nmetn Code Sec~ron
935(b).] \othing herein shall permit the filing of a claim or action on behalf of a class or
group of taxpayers.
(b) If any person is aggrieved by any decision {other than a decision relating to a refund
pursuant to Section 3.42.140 of this Chapter), deficiency determination, assessment; or
administrative ruling oP the Tas Administrator; he or she may appeal to the City Manager
by filing a notice of appeal with the Cily Clerk within fourteen (14) clays ol'the date of the
decision, deficiency determination, assessment; or administrative ruling of the l'ax
Administrator which aggrieved the service user or service supplier.
(c) "I'he matter shall be scheduled for hearing before an independent hearing officer selected
by the City Manager, no more than thirty (30) days from the receipt of the appeal. "I'he
appellant shall be served with notice of the time and place of the hearing, as well as any
relevant materials, at least five (5) calendar days prior to the hearing. The hearing tnay be
continued from time to time upon mutual consent. At the time of the hearing, the appealing
party, the Tax Adminisurator, and any other interested person may present such relevant
evidence as he or she may have relating to the determination from which the appeal is
taken.
(d) Based upon the submission of such evidence and the review of the City`s files. the
hearing officer shall issue a written notice and order upholding, modifying or reversing the
determination from which the appeal is taken. The notice shall be given within foui1ecn
(14) days after the conclusion of the hearing and shall state the reasons for the decision.
The notice shall specify that the decision is final and that any petition for judicial review
shall be filed within ninety (90) days from the date oP the decision in accordance with Code
of C'it>i! Procedure .Secliun 109a.G. In lhe,cvent the hearing officers decision is in favor of
the City, all costs of the hearine 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.
I~
Resolution No. 2010-148
Page 21
3.42.160 No Injunction/Writ of D7andate.
No injunction or writ of mandate or ocher legal or equitable process shall issue in any suit,
action; or proceeding in any court against this City or against any ofticer 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 Chan~cs to Ordinance.
If a tax under this Chapter is added repealed, increased, reduced, or the tas bast is changed,
the 'l'ax Administrator shall follow the notice requirements of Culiforrriu Public U~iliries
Cac% Section 799.
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 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 mnendment 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 resat[ of excluding all or a part of a
communication service, or charge therefor, from taxationl. 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 tas 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
Expenditure.
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 verification may
exceed the tax revenues to be reviewed.
16
Resolution No. 2010-148
Page 22
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 w any charge for a
telecommunication scrvica 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 I, 201 L 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 nteation pursuant to this
Chapter shall be deemed to have satisfied his or her obligation to pay the tas 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 chc prior telecommunication users' tax to the new
telecommunication users' tax (which transition period ends April I; 201 I) 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 after the effective date of the Chapter, but in no
event later than permitted by Section 799 of the Ca/ifornia Public Utilities Cocte.
(c) In the event that a final court order should determine that the election enacting this
Chapter 3.42 is invalid for whatever reason; or that any tax imposed under this Chaplcr
3.42 is invalid in +vhole 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 detennincJ to be invalid. Such automatic
continuation shall be effective beginning as of the first date of service (or billing date) (or
+ahich the tas imposed by dtis Chapter is not valid. However, in the even[ of an
irn~alidation, any tax (other tltan a tax [hat is ordered refunded by the court or is otherwise
refunded by the City) paid by a person with respect to a service and calculated pursuant to
this Chapter shall be deemed to satisfi' the tax imposed under Section 3.44.030 on that
service; so long as [he tax is paid with respect to a service provided no later than six months
subsequent to fhe date on which the final court order is published.
3.42.2]0 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 (Governnrwrt Code Section 1?G50 et se9J and the California UitJ~~ir Practices Act
(Business arrrl Prafe.rcions Code Section 17000 et .+rq.). are 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 !)ecmed Infractions. Any person who willfully attempts in any
manner to avoid or defeat the mx imposed by this Chapter or the payment of all or any part
thereof, 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 fails to pay all or any pm'l of such tax,
17
Resolution No. 2010-148
Page 23
make such return, keep such records; or supply such inforntation at the time or times
required by this Chapter, shall be guilty of an infraction.
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 2, 2010. Service Suppliers will not be required to
implement the provisions of this ordinance prior to Febniary 1, 201 1.
SECTION 3. Amendment or Repeal. Chapter 3.42 of Article Xlll of the Chula Vista
Municipal Codc may he repealed or amended by the City Council without a vote of the
people. Flowever; as required by Chapter XIIIC of the California Constitution; voter
approval is required for any amendment provision that would increase the rate of any tax
levied pursuant to this Ordinance. The People of the City of Chula Vista al'lirm that the
followine actions shall not constitute an increase of the rate of a tax:
1. 1'he restoration of the rate of the tax to a rate that is no higher than that set by this
Ordinance, i f the City Council has acted to reduce the rate of the tax;
2. An action that interprets or clarifies the methodology of the tax, or any definition
applicable to the tax, so long as interpretation or clarification (even if conn•ary to
some prior interpretation or clarification) 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 Cily had, for
some period of time, failed to collect [he ias.
SECTION 4. Sevcrability. 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 oP this Ordinance, irrespective of
the fact that any one or more sections, subsections; sentences, clauses; phrases, or portions
of this Ordinance be declared invalid or unenforceable.
SECTION 5. Ratification of Prior Tax. "fhe People of the City of Chula Vista hereby
ratify and approve the past collection of the Telephone Users 1'sx under Chapter 3.44 of the
Chula Vista Municipal Code as it existed prior to the etli cove date of this Ordinance.
SECTION f. Execution. "fhe Mayor is hereby authorized to attest to the adoption of this
Ordinance by the voters of the City by signing where indicated below.
l8
Resolution No. 2010-148
Page 24
I hereby certify that the foregoing Ordinance was Pr\SSED, APPROVED and ADOPTED
by the people of the City of Chula Vista voting on the day oP , 2010.
Mayor
A7°I'EST:
Cih~ Clerk
APPROVED AS TO FORM:
City Attorney
AI'I'ROVED AS TO FORM:
19