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Ordinance 545 ,- ORD nU1l3 NO. 545 All ORDINA~E OF THE CITY OF GILROY IMPOSING A CITY SALES AND USE TAX: PROVIDI NG FOR THE PERl-ORMlrcE BY THE STATE BOARD OF EQUALIZATION OF ALL FUNCTIONS INCIDENr TO THE ADMINISTRATION, OPERATION AND COL~TION OF THE SALES AND USE TAX HEREBY IMPOSED- SUSPENDING THE PROVISI: ONS CF ORm NANCES HOBo 494 ANd 534 DURING arCH TIME AS THlS ORDINANCE IS OPERATIVE: AND PROVIDING PENALTIES FOR VIOLAT IONS T IBREOF. fIB COMMON COUNCIL OF THE CITY OF GILROY DOES ORDAIN AS FOLLOWS: Section 10 SHORT TITLE. This ord inance shall be known as the Uniformwcal Sales and Use Tax Ordinance of the Ci ty of Gilroy 0 Section 20 PURPOSfJo The City Council of the City of . Gilroy hereby declares that this ordinance is ad> pted to achieve the follOWing, among other, purposes, and directs that the provisions hereof be interpreted in order to accomplish those purposes: (a) To adopt a sales and use tax ordinance which complies with the requirements and limitations contained in Fart 1.5 of Division 2 of the Revenue and Taxation Code of the State of California; (b) To adopt a sales and use tax ordinance which incorporates provisions identical to those of the Sales and Use Tax Law of the State of California insofar as those provisions are not inconsistent with the requirements and limitations contained in Part 1.5 of Division 2 of the said Revemte and Taxation Code; (c) To adopt a sales and use tax ordinance which imposes a one percent (1%) tax and provides a measure therefor that can be administered and collected by the State Board of Equalization in a manner that adapts itself as tully as practical to, and requires the least possible deviation from, the existing statutory and administrative procedures followed by the State Board of Equalization in administering and QDllecting the California State Sales and Use Taxes; (d) To adopt a sales and use tax ordinance which can be adm1n1stered in a manner that will, to the degree possible consistent with the provisions of Part 1.5 of Divisi~2 of the said Revenue and Taxation Code, minimize the cost of collectin<< city sales and use taxes and at the same time minimize the burden of record keeping upon persons subject to taxation under the provisions of this ordinance; (e) To adopt a sales and use tax ordinance which can be administered in a lIlanner that will exclude the receipts ot (" ;) (/ \J r { "'-J III. particular sales from the measure of the sales tax imposed by this City which have been included in the measure of the s ales tax imposed by any other city and county, county other than the county in which this city is located or city in this State, and avoid imposing a use lax on the storage, use or other consump- tion of tangible personal property in this City when the gross receipts from the sale of, or the use of, that property has been subject to a sales or use tax by any other city and county, county other than the county in which this city is located, or ~ity in this state, pursuant to a sales and use tax' ordinance enacted under the provisions of Part 1., of Division 2 of the said Revenue and Taxation Code. Section 3. OPERATIVE DATE. CONTRACT WITH STATE. This ordiaance shall became operative on October 1, 1956, and prior thereto this City shall contract with the state Board of Equalization to perform all functiODs incident to the administration and operation ot this sales and use tax ordinance; provided that if this City shall not have contracted with the said state Board of Eqnalization, as above set forth, prior to October 1, 1956 t this ~ dinance sha+~ not be operative until the first daT of the first calendar quarter following the execution of such a contract by the City and by the State Board of Equalization, provided further that this ordinance shall not become operative prior to the operative date of the Uniform Local Sales and Use T ax Ordinance of the County ot Santa Clara. Section 40 SALES TAX. Ca> (1) For the privilege of selling tangible personal property at retail a tax is hereby imposed upon all retailers in the city at the rate of one percent (1%) of the gross receipts ot the retailer froll the sale of all tangible personal property sold at retail in the City of Gilroy on and after the operative date of this ordinance. (2) For the purposes of this ordinance, all retail sales shall be presumed to have been consummated at the place of business ot the retailer unless the tangible personal property sold is delivered by the retailer or his agent to an out-of-state destination or to a common carrier for delivery to an out-of-state destination. Delivery charges shall be included in the gross receipts by which the tax is measured, regardless of the place to which deli very is made, when such charaes are included in the measure of the sales or use tax imposed by the state of California. In the event a retailer has no permanent place of business in the state of California, or has more than one place of busile ss, the place or places at which retail sales are consummated Shall be as determined under rules and regulations prescribed and adopted by the Board of Equalization. (b) (1) Except as hereinafter provided, and except insofar as they are inconsistent with the provisions ot -2. J.--.Jlm -1 nun. . _~~- Part 1.5 of Division 2 of the said Revenue and Taxation Code., all of the provisions of Part 1 of Division 2 of said Code, as amended and in force and effect on October 1, 1956, applicable to sales taxes are hereby adopted and made a part of this section as though tully set forth herein. (2) Wherever, and to the extent that, in Part 1 of Division 2 of the said Revenue and Taxation Code of the state of California is named or referred to as the taxing agency the City of Gilroy Shall be substituted therefor. NO!hing in this subdivision shall be deemed to require the substitution of the name of the City 0 f Gilroy for the word .State" when that word is used as part of the title of the state Controller, the state Treasurer, the State Board of Control, the State Board of Equalization, or the name of the State Treasury or of the Constitution or the State of California; nor shall the name of the City be substituted tor that of the State in any section when the result of that substitution would require action to be taken by or against the City or aDT agency thereof, rather than by or against the State Board of Equalization, in performing the functions incident to the administration or operation of this ordinance; and-neither shall the substitution be deemed to have been made in those sections, including, but not necessarily limited to, sections referring to the exterior boundaries of the State of California, where the result of the substitution would be to provide an exemption from this tax with respect to certain gross receipts which would not otherwise be exempt from this tax while those gross receipts remain subject to tax by the state under the provisions of Part 1 of Division 2 of the said Revenue and Taxation Code; nor to impose this tax with respect to certain gross receipts which would not be subject to tax by the State under the said provisions of that Code; and! in addition, the name of the City shall not be substituted for that of the State in Sections 67011 6702 (except in the last sentence thereof), 6711, 6715, 6,37, 6797 and 6~28 of the said Revenue and Taxation Code as adopted. (3) If a seller's permit has been issued to a retailer under Section 6068 of the said Revenue and Taxation Code, an additional seller's permit shall not be required by reason of this section. (4) There shall be excluded from the gross receipts by which the tax is measured: (i) The amount of any sales or use tax imposed by the state of California upon a retailer or consumer. (ii) Receipts from the sale of tangible personal property upon which a sales or use tax has become due by reason of the same transaction to any other city and county, county other than the county in which this city is located, or city in this state under a sales or use tax ordinance en~cted by that city and county, county other than the county in which this city is located, or city in this State in accordance with Part 1.5 of Division 2 of the said Revenue and Taxation Code. -3- (iii) Receipts from sales to operators of common carrier and waterborne vessels of property to be used or consumed in the operation of such common carrie~ or waterborne vessels principally outside of this City. Section 5. USE TAX (a) An excise tax is hereby imposed on the storage, use or other consumption in the City of Gilroy of tangible personal property purchased from any retailer on or after the operative date of this ordinance, for storage, use or other consumption in the city at the rate of one percent (1%) of the sales price of the property. The sales price shall inClude delivery charges when such charges are subject to state sales or use tax regardless of the place to which delivery is made. (b) (1) Except as hereinafter provided, and except insofar as they are inconsistent with the provisions of Part 1.5 of Division 2 of the said Revenue and Taxation Code, allot the provisions of Bart 1 of Division 2 of said Code, as &mended and in force and effect on October 1, 19561 applicable to use taxes are hereby adopted and made a part or this section as though fully set forth herein. (2) Wherever, and to the extent that, in Part 1 of Division 2 of the said Revenue and Taxation Code the state of California is named or referred to as the taxing agency, the City of Gilroy shall be substituted therefor. Nothing in this subdivisi on shall be deemed to require the substitution of the name of the City of Gilroy for the word "State" when that word is used as part of the title of the State contrOller, the state Treasurer, the 'state Board of Control, .the state Board of Equalization or the name of the State Treasury or of the Constitution 01 the State of California; nor shall the name of the City be substituted for that of the state in any section when the result of that substitution would require action to be taken by or against the City or any agency thereof rather than by or against the state Board of Equalization, in performing the functions incident to the administration or operation of this ordinance; and neither shall the substitution be deemed to have been made in those sections, including but not necessarily limited to, sections referring to the exterior boundaries of .the State of California, where the result of the substitution would be to provide an exemption from this tax with respect to certain storage, use or other consumption of tangible personal property which would not otherwise be exempt from this tax while such storage, use or other consumption remains subject to tax by the State under the provisions of Part 1 of Division 2 of the said Revenue and Taxation Code, or to impose this tax with respect to certain storage, use or other consumption of tangible personal property which would not be subject to tax by the State under the said provisions of that Code; and in addition, the name of the City shall not be substituted for that of the state in Sections 67011 6702 (except in the last sentence thereof}, 6711, 671" 673~t 6797 and 6828 of the said Revenue and Taxation Code as adopted. (3) There shall be exempt from the tax due under this section: -4. (i) The amount of any sales or use tax imposed by the State of California upon a retailer or consumer. (ii) The storage, use or other consumption of tangible personal property, the gross receipts from the sale of or the cost of which has been subject to sales or use tax under a sales or use tax ordinance enacted in accordance with Part 1., of Division 2 of the said Revenue and Taxation Code by &ny' other city and county, county other than the county in which this city is locatedf or city in this State. (iii) The storage or use of tangible personal property in the transportation or transmission of persons, property or communications, o~ in the generation, transmission or distribution of electricity or in the manufacture, transmission or distribution of gas in intrastate, interstate or toreign commerce by public utilit1es which are regulated by the Public utilities Commission of the state of California. (iv) The use or consumption of property purchased by operators of common carrier and waterborne vessels to be used or consumed in the operation ot such common carriers or waterborne vessels principally outside the City. Section 6. AMENDMmNTS. All ame~ents of the said Revenue and Taxation Code enacted subsequent to the effective date of this ordinance which relate to the sales and use tax and which are not inconsistent with Part 1.5 of Division 2 of the said Revenue and Taxation Code shall automatically become a part of this ordl. nance . Section 7. ENJOINING COLLECTION FORBIDDEN. No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action or proceeding in any court againSt the State or this City, or against any officer of the state or this City, to prevent or enjoin the collection under this ordinance I or part 1.5 of Division 2 of the Revenue and Taxation Code, or any tax or any amount of tax required to be collected. Section 8. EXISTING SAt.~ AND USE TAX ORDINDCl8 SUSPElIDED. At the tine this ordl. nance goes into operation! the provisions of Ordinances Nos. 494 and ,34 shall be suspena.ed and shall not again be of any force or effect until and unless for any rea~n the state Board of Equalization ceases to perform the functions incident to the administration and operation of the sales and use tax hereby imposed; provided, however, that if tor any reason it is determined that the City of Gilroy is without power to adopt this ordl. nance, or that the State Board of Equalization is without power to perform the tunctions incident to the administration and operation ..,.. i2!!J:1[~ of the taxes imposed by this ordinance, the pro vis ions ot Ordinances No lh 4-94 and 534 shall not be deemed to have been suspended, but shall be deemed to have been in full force and etfect at the rate of one percent (1%) co nt in" uously from and after October 1, 1956. Upon the ceasing of the state Board of Equalization to perform the tunctions~ incident to the administration and operation of the taxes imposed by this ordinance, the provisions of Ordinances Nos. 491+ and 534 shall again be in full force and effect at the rate of one percent (1%). Nothing in this ordinance shall be construed as relieving any person of the obligation to pay to the City of Gilroy any sales or use tax accrued and owing by reason of the provisions of Ordinances Nos 0 494 and 534 in force and etfect prior to and including September 30, 1956. Section 9. PENALTIES. Any person violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor1 and upon conviction thereof shall be punishable by a fine 01" not more than $100.00 or by imprisonment for a period of not more than six (6) months in the City Jail, or by both such fine and imprisonment. Section 10. SEVERABILITY. If any section, subsection, sentence, clause, phrase or portion of this ordinance, including but not limited to any exemption, is for any reason held to be invalid or unconstitutional b.r the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The Council of the City of Gilroy hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases or portions be declared invalid or unconstitutional. Section 11. EFFECTIVE DATE. Tnis ordinance, inasmuch as it provides for a tax levy for the usual current expenses of the city, shall take effect immediately. PASSED and 1DOPTED the 26th day of ,September, 1956, by the following vote: AYES : NOES: ABSENr : Counc ilmen Pate, Petersen, Rush, Wentworth Councilmen None Counc ilmen Sanchez, Gallo ,g~ ~ OMayOr ,. Attest: ~\Ul~ City Clerk /l~ J/ .6 ...