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Ordinance 494 / .!.} ft~; d"7 ,,;_r~.~ ,"'" ;' -. .' , " ,. ",' t O 'R'D I W ^ u 0 ~ _:..':"_.;.;.~.!l~.;;; l'J O. 494 AN ORDINANCE =;3T~:l.BLIS'II\rG AND LEVYPJG .,~ SALTS AllIn USE TAX ON RETAIL SALES WITHPT THE C TTY 0.7 GILROY PROVIDDrG FOR p:.:m,II'I?S TO RETAIL 'ms 1 PROVIDING FOR TEl': COLY-,T:':TIm~ AJljJ) ?AYN:::HT OF SUCH TAXES, AND PROVID1NG FOR THE REPEAL OF SALES TAX ORD INIU'TCE NO .491. THE JVJAYOR AND COl'IHIlT' COUNCIL OF TIfe CrCYJF GILROY DO ORDAIN AS FOLL01IlS: SECTION 1. IMPOS~ION AND RATE OF TAX. For the privilege of selling tangible personal property at retail a tax is hereby imposed upon all retailers at the rate of one-half of one per cent (t%) of the gross receipts of any retailer from the sale of all tangible personal property sold at retail in the City of Gilroy onor after April 1, 1951. The license tax imposed by the provisions of this ordinance is in ad- dition to any and all other taxes imposed by any other ordinance of the City of Gilroy. <I}" ; , , SECTION 2. USE TAX. For the privilege of using or otherwise consuming in the City of Gilroy tangible personal property purchased from any retailer, a tax is hereby imposed upon every person using or other- '. wise consmning such tangible personal property in the City of Gilroy, at the rate of one-half of one per cent (t%) of the Sales price of the property purchased on or after April 1, 1951. The license taxes imposed by the provisions of this ordinance are '\ " in addition to any and all other taxes imposed by any other ordinance of the City of Gilroy. SECT ION 3. TAX LEVIED IN SAIvIE MANNER AS STATE TAX. The tax here by levied, except as otherwise herein provided is levied in the same manner, to the same extent and under th8-.s.ame conditions as sales taxes are levied pursuant to Part 1 of Division 2 of the California Revenue gnd Taxation Code, known as the "Sales and Use Tax Law,tt as amended and in f~rce and effect on April 1, 1951. SECTION 4. ADOPTION OF STATE SALES TAX LAW BY REFERENCE, EXCEPTIONS. All of the provisions of the ttSales and Use Tax Law,1I as amended and in force and effect on April 1, 1951, except Sections 6006, 6051, 6052, 6053, 6066, 6067, 6068, 6069, 6070, 6071, 6201, 6451, 7052, 7056, 7057, 7101, 7102, 7151, 7152, 7153, applicable to sales or purchases of property at retail, are hereby adopted and made a part of this ordinance as though 0~~ Ill. ~ .... ,.., !~7 '" I fully set forth herein, and all provisions of any other ordinance in conflict therewith are inapplicable to this ordinance and the tax hereby imposed; provided, however, the term tlgross receipts,lt as used herein, does not include the amount of any tax imposed by the State of California upon or with respect to retail sales whether imposed upon the retailer or upon the consumer. All of the provisions of the "Sales and Use Tax Lawll hereby adopted, pro~iding for the adoption of rules and regulations and for hearings on the part of the State Board of Equalization, shall be performed by the C01TImOn Council of the City of Gilroy. All other provisions of the IISales and Use Tax Law" hereby adopted, providing for the performance of official action on the part of the State Board of Equalization, shall be performed by the City Tax Collector. The City of Gilroy shall be deemed substituted forthe State of California whenever the State is referred to in said "Sales Bnd Use Tax Law." The City Attorney of Gilroy shall be deemed substituted for the Attorney General whenever the Attorney General is referred to in said tlSales and Use Tax Law.lI The City Clerk shall be deemed substituted for the State Controller whenever the State Controller or State Board of Control are referred to in said tlSa1es and Use Tax Law." The County of Santa Cle.ra shall be deemed substituted for the County of Sacramento whenever the County of Sacramento is referred to in said "Sales and Use Tax Law." SECTION 5. 2A!&. The word "sale" means and includes: (a) Any transfer, of title or possession, exchange, barter, lease or rental, conditional or otherwise in any manner or by any means whatsoever, of tangible personal property for a consideration. ItTransfer of possession'~ "lease," or ItrentaP' includes only transactions found by the City Tax Collector to be in lieu of a transfer of title, exChange or barter. (b) Any withdrawal of tangible personal property from a point within the City of Gilroy, except a withdrawal pursuant to a transaction in foreign or interstate corr~erce which is immune from local taxation by reason of the provisions of the United States Constitution, for delivery ..2.. '--- :-0 ~:;;.;,~ -,"--"..",..;f'" to any place within or without the city, for the purpose of the transfer of title or possession, exchange, barter, lease or rental, conditional or otherwise, in any manner or by any means whatsoever, of the property for a consideration. (c) The producing, fabricating, processing, printing, or imprinting of tangible personal property for a consideration for consumers who fu,rnish either directly or indirectly the materials used in the producing, fabricating, processing, printing, or imprinting. (d) The furnishing and distributing of tangible personal property for a consideration by social clubs and fraternal organizations to their members or others. (e) The furnishing, preparing, or serving for a consideration of food, meals, or drinks. (f) A transaction whereby the possession of property is transferred but the seller retains the title as security for the payment of the price. (g) A transfer of the title or possession of tangible personal property which has been produced, fabricated, or printed to the special order of the customer, or of any publication. SECTION 6. EXEMPTIONS. ~ (a) No tax shall be due hereunder if a sales tax imposed by any other city of the State of California has been paid on the same trans- action. -..J (b) In addition to the exemptions contained in Part 1 of Division 2 of the Revenue and Taxation Code of California there shall be excluded from the computation of the tax the followingl (I) Sales made to or by the State of California or any agency, department, political subdivision, district or municipal corporation thereof. (2) Sales of meals, food and drinks sold or served on common carri.ers operating into, through or out of the City of Gilroy from or to points outside the City of Gilroy. (3) Sales or purchases of property to be used in connection with the erection, construction, repair or alteration of either public works or buildings belonging to or being constructed by or on behalf of, or for the use of the United StatffiGovernment, State of California or any -3- :; I ''>li1,,:j'''' agency, department, political subdivision, district or public or municipal corporation of the State. vi (4) Sales or purchases made pursuant to contracts actually executed in good faith prior to April I, 1951. (5) Sales or purchases of property imported into this State from a foreign country and sold by the importer in the original package in which imported. (6) Sales or purchases of property sold to foreign purchasers for shipment abroad and delivered to a ship, airplane, or other convey- ance furnished by the purchaser for the purpose of carrying the property abroad and actually carried to a foreign destination, title and control of the property passing to the foreign purchaser upon delivery, and no portion of the property being used or consumed in the United States. Copies of U. S. Customs shippers I export declarations filed with the Collector of Customs must be obtained and retained by retailers to support deductions taken under the preceding paragraph. Tax applies to the transaction if the property is diverted in transit or for any reason not actually delivered outside the State pursuant to the contract of sale or not shipped abroad by a foreign purchaser, regardless of documentary evidence held by the retailer of deliVEry of the property to a carrier for shipment outside the State, or to a foreign purchaser for shipment abroad. (7) Sales or purchases of property mailed by the seller, pursuant to the contract of sale, to persons in the armed forces at points out- side continental United States, notwithstanding the property is addressed in care of the Postmaster at San Francisco and forwarded by him to the addressee. When mail is addressed to Army Post Offices (A.P.O.'s) in cafe of the Postmaster at San Francisco or to naval forces addressed in care of the P'ostmaster at San Francisco , it will be presumed that it is forwarded outside California. The seller must keep records showing the names and addresses as they appear on the mailed matter and should keep evidence that the mailing was done by him. (8) Sales or purchases of property shipped to a point outside this State pursuant to the co~ract of sale when the property is marked -4- ?~j ", ,) ,J ':x... ~" ,# for export and delivered by the retailer to the Itcontracting officer,1I lIofficer in charge,1I tlport quartermaster,1I or other officer of the United States for trarnportation and delivery to the purchaser at such a point. ~ (9) Sales or purchases of property to or by operators of common carriers and waterborne vessels to be used or consmned, in the operation of such common carriers or waterborne vessels, principally outside the city. ~ (10) Sales by manufacturers, processors, jobbers, distributors, dealers, or wholesalers, when said sales are made to purchasers solely for use or consumption in the conduct of their business without the City of Gilroy. (c) No tax shall be due hereunder for sales of airplanes and parts and equipment for airplanes transported to a point outside this city pursuant to the contract of sale when such property is delivered to the Army Corps or any other agency or instrumentality of the United states for transportation and delivery to the purchaser or someone designated by him at that point. (d)jG~hat the exemption from sales tax set forth in Section 6, sub- sections (a), (b)(4), (b)(9) and (b) (10) of this ordinance shall not be applicable unless the seller secures from the purchaser the signed certificate described in the next paragraph below. This certificate shall be held by the seller or delivered to the City Tax Collector as the City Tax Collector may direct. If all of a seller's sales to a particular purchaser are tax exempt the seller need not procure a certificate signed by the purchaser for each sale but, with the permission of the City Tax Collector, may secure the exemption with one certificate covering multiple sales. If it is impracticable for a particular seller to obtain the required certificates from purchasers by reason of his volume and type of sales the City Tax Collector may, after inspection of the books of the seller, agree to recognize a fixed percentage of the sales of the seller as tax exempt under Section 6, subsections (a), (b) (4), (b)(9) and (b) (10), without the requirement of certificates signed by the purchasers. This percentage shall be computed accord- ing to an analysis of the percentage of sales made by the seller during the six (6) months prior to the agreement which fall into the category. -5- ~ ~ t. l~t R' , ; ... /~ - .... :1 :' ~~" ,",..",.:.JJf of tax exempt sales unner Section 6, subsections (a), (b) (4), (b) (9), and (b) (10). The agreement shall be effected by a letter from the City Tax Collector to the seller and is revocable at the discretion of the City Tax Collector. In the absence of fraud by the seller, no revocation shall have retroactive effect. (2) The certificate shall be in the follmving form: NAME OF SELLER ADDRESS OF SELLER CITY GILROY SALES TAX EXEHPTION CERTIFICATE REQUIRED UNDER ORDINANCE NO OF GILROY Please sign and return. I hereby certify that I am engaged in the business of that the ~angib1e personal property described herein which I shall purchase from is not subject to the Gilroy Sales Tax by reason of the exemptiona stated in Section 6, Subsection thereof, for the following reason: Description of property purchased: I understand (1) that the seller must pay to the City of Gilroy the tax on this sale (or sales) unless I sign this certificate, and (2) that a knowingly false statement made by me on this certj_ficate will subject me to a $100.00 fine and/or 30 days in jail, according to Ordinance No. of the City of Gilroy. Purchaser Address Dated (3) Any person signing such a form which contains knowingly false information shall be guilty of a misdenleanor, and upon conviction thereof, shall be punished by a fine not exceeding One Hundred ($IOO.OO) Dollars, or by imprisonment in the County Jail for a period not to exceed 30 days, or both. SECTION 7. ADOPTION OF RULES A~~ REGULATIONS BY REFERENCE. -6- 33'1 ~6-riii'" The rules and regulations of the State Board of Equalization as amended and in force and effect April 1, 1951 pertaining to the inter- pretation, administration and enforcement of the "Sales and Use Tax Law," insofar as applicable, until specifically abandonErlby the rules C. .,. ",,/IIt,1I/ or regulations adopted by the ~ Council of the City of Gilroy pursuant to this ordinance. SECTION 8. USE TAX LIABILITY--RECEIPTS. Every person using or otherwise consuming in the City of Gilroy tangible personal property purchased from a retailer is liable for the use tax imposed herein. His liability is not extinguished until the tax has been paid to the City of Gilroy, except that a receipt from a retailer who is authorized by the City TaX Collector, under such rules and regulations as he may prescribe to collect the tax, given to the purchaser, is sufficient to relieve the purchaser from further liability for the tax to which the receipt refers. SECTION 9. USE TAX EXEMPTION--OTHER CITIES. Every retail sale of tangi~le personal property outside the City of Gilroy for use or other consumption within the City of Gilroy shall be subject to the use tax imposed herein, except that in other cities levying a sales tax, a receipt furnished by the retailer to the purchaser showing payment of such sales tax will exempt said purChaser from the payment of the use tax imposed herein on said purchase. SECTION lO~ BURDEN OF PROOF UPON PERMITTEE, USER OR CONSIDiER. For the purpose of the proper administration of this ordinance, and to prevent evasion of the sales tax it shall be presumed that all gross receipts are subject to the tax until the contrary is established by the permittee. For the purpose of the proper administration of this ordinance and to prevent evasion of the use tax and the duty to collect the use tax, it shall be presumed that tangible personal property sold by any person for delivery in the City of Gilroy is sold for use or other consumption in the City of Gilroy, until the contrary is established by the user or consumer. SECTION 11. MEANING OF "USE.u "Use" includes the exercise of any right or power over tangible personal property incident to the -7- 3) .) ownership of that property, subject, however, to the following exemptions: (a) It does not include the sale of that property in the regular course of business. (b) It does not include the keeping, retaining or exercising of any right or power over tangible personal property shipped or brought into this City and which is thereafter transported outside the City for principal use or consumption outside the City, and which property is actually so used or consumed. (c) It does not include the use of such property for the purpose of being processed, fabricated, or manufactured into, attached to or incorporated into, other tangible personal property wIlich is to be transported outside the City and thereafter used principally out- side the city, or which is to be subsequently sold or resold in the regular course of business. (d) It does not include the use of tangible personal property actually employed in the transportation or transmission of persons, property, gas, electricity, or communications by persons engaged in the business of transporting or transmitting such persons, property, gas, electricity, or communications. SECTION 12. REGISTRATION OF AGENTS. Every retailer selling tangible personal property for use or other consumption in this city and which retailer maintains a place of business in this city or acts through agents located in this city, and which retailer is not other- wise registered under the provisions of this ordinance shall register with the City Clerk and give the name and address of such agent or agents and offices or other places of business in the City. SECTION 13. If the purchaser of fungible goods comingles such goods with other fungible goods not so purchased but of such similarity that the identity of the constituent goods in the comingled mass cannot be determined and thereafter withdraws for use a part of such comingled goods, his withdrawals sh~ll be deemed to be from the goods not so purchased until a quantity 'of coming1ed goods equal to the quantity of goods not so purchased but so comingled has been withdrawn. SECTION 14. SAME. The inclus:blm of any clause, portion or part of the "State Sales and Use Tax Law,n Part I, Division 2 of the -8.. ~, I ,,.,.0 \;'.",iWM' "',' Revenue and Taxation Code of the State of California, verbatim in this ordinance shall not in or of itself be deemed to exclude any of the remaining provisions of said nSales and Use Tax Law" that are made a part hereof by reference only. SECTION 15. APPLICATION FOR PERMIT. Every person desiring to engage in or conduct bu'siness as a seller within the City of Gilroy shall file with the City Tax Collector an application for a permit for each place of business. Every application for a permit shall be made upon a form prescribed by the City Tax Collector and shall set forth the name under which the applicant~ansacts or intends to transact business, the location of his place or places of business, and such other information as the City Tax Collector may require. The application shall be signed by the owner, if a natural person; in the case of an association or partnership, by a member or partner; in the case of a corporation, by an executive officer or some person specifically authorized by the cor- poration to sign the application, to which shall be attached the written evidence of his authority. SECTION 16. ISSUANCE AND DISPLAY OF PERMIT. After compliance with Section 15 of this ordinance by the applicant, the City Tax Collector shall grant and issue to each applicant a separate permit for each place of business upon the payment of the sum of One ($1.00) Dollar for each permit. A permit is not assignable and is valid only for the person in whose name it is issued and for the transaction of business at the place designated therein; provided, however, a change of location may be endorsed upon the permit by the City Tax Collector upon the payment of a fee of $1.00. The permit shall at all times be conspicuously displayed at the place for which issued. SECTION 17. (a) REVOCATION OF PERMIT. Whenever any person fails to comply with any provisions of this ordinance or any rule or regulation adopted pursuant hereto, the City Tax Collector of the City of Gilroy, upon hearing, after giving the person ten days notice in writing specifying the time and place of hearing and requiring him to show cause why his permit or permits should not be revoked, may revoke or suspend anyone or more of the permits held by the person. The notice may be served personally or by mail in the manner prescribed for the service of notice of a deficiency determination under the -9- ~2 .~ 7" v...J ~.$>"" "Sales and Use Tax Law." The City Tax Collector shall not issue a new permit unless the City Tax Collector of the City of Gilroy is satisfied that the former holder of a permit will comply with the provisions of this ordinance and the rules and regulations adopted pursuant hereto. (b) APPEAL. Any person aggrieved by any decision of an admin- istrative officer or agency with respect to the determination of the amount of tax due, or of the suspension or revocation of any permit or permits, may appeal to the City Council by filing a notice of appeal with the City Clerk within fifteen days of such decision. The Council - . shall fix a time a~d place for hearing such appeal and the City Clerk shall give notice in writing to such person of the time and place of hearing by serving it personally or by depositing it in the United states Post Office at Gilroy, California, postage prepaid, addressed to such person at the address appearing on his last tax return or permit. The findings of the Council shall be final and conclusive, and shall be served upon the appellant in the manner prescribed above for service of notice of hearing. SECTION 18. RENEWAL OF PERMIT. A seller whose permit has been previously suspended or revoked shall pay the City Tax Collector a fee of ;:;:L>., :~I for the renewal or issuance of a permit. SECTION 19. UNLAWFUL ACTS. A person who engages in business as a seller in the City of Gilroy without a permit or permits, or after a permit has been suspended or revoked and before the renewal or issuance of a permit, and each officer of any corporation which so en- gages in bUSiness, is guilty of a misdemeanor. SECTION 20. DUE DATE. The taxes imposed by this ordinance are due and payable to the City Tax Collector on or before the last day of the month next succeeding each quarterly period, the first quarterly payment to be due and payable under this ordinance on the 3lst day of jUly, 1951. SECTION 21. DELINQUENT PAYMENTS--PENALTIES. All taxes pay- able hereunder shall be deemed delinquent if not paid within the time required. Whenever any tax required to be paid by this ordinance is not paid on or before the date on which it becomes delinquent, a~pen- -10- " 3 (' "... c. alty of ten per cent (10%) of the amount due, plus interest at the rate of one-half of one per cent (t%) per month of fraction thereof, shall be imposed. Every penalty shall become a part of the tax imposed by this ordinance. SECTION 22. EXTENSION OF DUE DATE. The City Tax Collector of the City of Gilroy for good cause may extend for not more than thirty (30) days the time for making any return or paying any sum required to be paid hereunder. The extension may be granted at any time, provided a written request therefor is filed with the City Tax Collector prior to the delinquency date. S~CTION 23. REIMBURSEME1IT; The tax hereby imposed shall be collected by the retailer from the consumer insofar as it can be done. SECTION 24. UNLAWFUL ADVERTISING. It is unlawful for any re- tailer to advertise or hold out or state to the public or to any customer, directly or indirectly, that the tax or any part thereof will be assumed or absorbed by the retailer or that it will not be added to the selling price of the property sold or that, if added, it or any part thereof will be refunded. Any person violating any provision of this section is guilty of a misdemeanor. SECTION 25. SUIT FOR TAX. All taxes hereby levied shall be to the City Tax Collector and any civil suit for the collection thereof may be filed in any court of competent jurisdiction in the state of California, and the City Attorney of said City shall prosecute the action SECTION 26. RESALE CERTIFICATE. The City Tax Collector may.at hi~ option accept a State of California Resale Certificate as evidence that any sale is not a sale at retail, or he may in his discretion require an affidavit from the seller setting forth such information respecting such sale as he deems necessary to determine the nature of such sale. SECTION 27. DISPOSITION OF PROCEEDS. All moneys collected un- der and pursuant to the provisions of this ordinance shall be deposited and paid into the General Fund of the City of Gilroy. SECTION 28. DIVULGING OF INFOR~~TION FORBIDDEN. It is un- lawful for any officer or employee of the City of Gilroy having an administrative duty under this ordinance to make known in any manner whatever the business affairs, operations or information obtained by -11- ~31 ~,.~ an investigation of records and equipment of any retailer or any other person visited or examined in the discharge of official duty, or the amount or source of income, profits, losses, expenditures, or any particular thereof, set forth or disclosed in any return, or to permit any return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person. However, the City Council may, by resolution, authorize examination of the re- turns by Federal or State officers or employees or by the tax officers of this or any other city if a reciprocal arrangement exists. Succes- sors, receivers, trustees, executors, administrators, assignees, and guarantors, if directly interested, may be given information as to the items included in the measure and amounts of any unpaid tax or amounts of tax required to be collected, interest and pen,alties. SECTION 29. PENALTIES. Any person required to make, render, sign or verify any report under the provisions of this ordinance, who makes any false or fraudulent return, with intent to defeat or evade the determination of an amount due and required to be paid hereunder, is guilty of a misdemeanor, and upon conviction thereof shall be pun- ishable by a fine of not more than $100.00 or by imprisonment for a period of not more than thirty (30) days, or by both such fine and im- prisonment. SECTION 30. SA}ffi. Any person, firm or corporation violating any of the terms of this ordinance shall be deemed guilty of a mis- demeanor, and upon conviction thereof shall be punishable by a fine of not more than $100.00 6r by imprisonment for a period of not more than thirty (30) days, or by both such fine and imprisonment. SECTION 31. SEVERABILITY. If any section, subsection, sentence, clause, pllrase, or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such d~oision shall not affect the validity of the re- maining portions of this ordinance. The Council of this City hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase, or portion thereof, irrespective of the fact that anyone or more sections, subsections, clauses, phrases, or portions be declared invalid or unconstitutional. -12- . . " -" ~, ~,. ,".,' ,"'":..'.. .--" '. 't~.~~, ~....;,,~' ri 1:,~~ 11' ... .. " C' ":t. ',:i>;'~~ :.,:?~.,~,:~..,~!~..~~..,~,;.;~,' " ..,.. ::.~.'.';'.t.'> .,' :~',' ' ." . , . "-I';~; ,,,", W:-!(:'''\,f (. '"t "",: ;~,::~~,:'t,.,' :,".',,"~.."..,::: ;~~~',:' :'.: " ~ )..-~..~ ';' ~"... 1,:':...t.~~.,'T,,:,'\c'~.'\i\, '.... ~...: -"r _ _ -$ ~ ~ .~ . I ,'~ ..'..,'!i.', ~t~'. ~..t. ','- ,'~' ~ ,~- ~ .:::~ ,~ ~~ SECTION 32. CONFLICTING ORDINANCES REPEALED. This ordinance shall supersede Ordinance No. 491 of the City of Gilroy providing for a sales tax for the City of Gilroy, and said Ordinance No. 491 shall stand repealed at the time this Ordinance No. 494 becomes ef- fective. All taxes payable by the terms of said Ordinance No. 491 shall be paid as therein required up to the time this Ordinance No.~ becomes effective. All ordinances and parts of ordinances of the City of Gilroy in conflict herewith are hereby repealed. SECTION 33. EFFECTIVE DATE. This ordinance shall take affect and be in fu.ll force from and after April 1, 1951. Adopted and Passed this 5th day of the following vote: March ,1951, by A YES : Councilmen: George M.Mason,J.H.Wentworth,James B.Thomas,David V.Stout,Carl W.Pate. NOES: Councilmen: None ABSENT : Councilmen: Dale D.Daniels Approved this 5th day of March , 1951. h~ ?7)~ ~ - <<ayor C!!... . ATTEST: ~'~,~ City Clerk -13- -",""".....-1-.; ---;----""--