Ordinance 1999-12ORDINANCE NO. 99-12
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
GILROY AMENDING CHAPTER 26B OF THE CITY OF
GILROY MUNICIPAL CODE MAKING CLARIFICATIONS TO
THE EXISTING UTILITY USERS TAX ORDINANCE
WHEREAS, the City of Gilroy has imposed a tax for many years on the use of telephone,
electricity, gas, steam, and cable television services in order to provide a portion of the general
fund revenues required to provide police, fire, general government and a host of other essential
services to the community; and
WHEREAS, state and federal regulators are encouraging competition in the provision of
traditional utility services by deregulating monopoly providers and by unbundling the billing
charges for the various components of these services; and
WHEREAS, in recent years there has been a substantial increase in the number of
providers of telephone, gas, steam, and cable television services in the city, and in the
technologies used; all of which has caused dramatic changes in the manner in which the services
are produced, marketed, and distributed; and
WHEREAS, in view of these changes and in order to give guidance to the many new
utility service providers regarding their collection and remittance obligations, it is appropriate for
the city to update its utility users tax ordinance with needed clarifications regarding the scope of
the city's existing taxes and the responsibilities of the various utility service providers; and
WHEREAS, to assure fair and equal application of the law, the city's utility users tax
ordinance should be applied to similar utility services, regardless of the provider or the
technology used to provide it; and
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93..072604706002 ORDINANCE NO. 99-12
WHEREAS, while clarifying the city's utility users tax ordinance in the manner provided
herein, it is not the intent of the City Council either to increase the tax percentage imposed on
charges for utility use, or to expand the base of the tax; and
WHEREAS, the City Council has reviewed the clarifications made to the city's utility
users tax ordinance, as evidenced by either bold and underlined, or strike through font on a copy
of existing Chapter 26B of the City of Gilroy Municipal Code, attached hereto as Exhibit "A";
and
WHEREAS, the City Council has reviewed Exhibit "B", attached hereto and incorporated
herein by this reference, and finds that the clarifications indicated by either bold and underlined,
or strike through font in Exhibit "A" are fully incorporated in Exhibit "B", a restated and
clarified copy of existing Chapter 26B of the City of Gilroy Municipal Code; and
WHEREAS, the City Council finds that in order to avoid any error in adoption of the
clarifications identified in Exhibit "A", Exhibit "B", a restated and clarified copy of existing
Chapter 26B of the City of Gilroy Municipal Code, should be adopted; and
WHEREAS, in adopting Exhibit "B", the City Council intends to merely amend existing
Chapter 26B of the City of Gilroy Municipal code for the purpose of clarification.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF GILROY DOES
HEREBY ORDAIN AS FOLLOWS:
The clarifications made to Chapter 26B of the City of Gilroy Municipal Code, the Utility
Users Tax Ordinance, as incorporated in Exhibit "B", should be and hereby are approved, and said
restated and clarified Utility Users Tax Ordinance is hereby adopted.
If any section, subsection, subdivision, paragraph, sentence, clause, phrase or word of this
ordinance is for any reason held to be invalid by a court of competent jurisdiction, such decision
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shall not affect the validity of the remaining portions of this ordinance. The City Council hereby
declares that it would have adopted this ordinance and each and every provision herein, irrespective
of the possibility that one of more provisions might be declared invalid.
All other ordinances and parts of ordinances in conflict herewith are hereby repealed. The
modifications to this ordinance shall take effect and be in full force thirty days from and after its
adoption and approval.
PASSED AND ADOPTED this 7th day of September, 1999 by the following vote:
AYE S:
NOES:
ABSENT:
COUNCILMEMBERS: ARELLANO, GIFFORD, MORALES, ROWLISON
COUNC[LMEMBERS: NONE
COUNCILMEMBERS: SUDOL, GILROY
ATTEST
Rhonda Pellin~ City Clerk
APPROVED:
K} A Mike Gilroy, Mayor
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93-072604706002 ORDINANCE NO. 99-1 2
Exhibit A
Chapter 26B
UTILITY USERS TAX
Art. II.
Art. III.
Art. IV.
Art. IVA.
Art. V.
Art. VI.
Art. VII.
Art. VIII.
Art. IX.
Art.
Art.
General Provisions, §§ 26B. 1--26B.6
Telephone Users Tax, § § 26B.746B. 10
Electricity Users Tax, §§ 26B. 1 l~6B. 13
Gas Users Tax, §§ 26B.14 26B.16
Steam Users Tax, §§ 26B.16.1--26B.16.2
Video Services Users Tax, §§ 26B.17, 26B.18
Collection of Tax, § § 26B. 19~6B.21
Delinquent Taxes, §§ 26B.22--26B.31
Failure to Collect and Report Tax, §§ 26B.32--26B.35
Appeals, §§ 26B.36--26B.39
Records, § 26B.40
Refunds, §§ 26B.41--26B.44
Art. XII. Severabilit¥, § 26B.45
Art. XIII. Notice of Changes to Ordinance § 26B.46
ARTICLE I. GENERAL PROVISIONS
Sec. 26B.1. Title
This chapter shall be known as the "Utility Users Tax Ordinance of the City of Gilroy."
(Ord. No. 927, § 1, 7-19-71)
Sec. 26B.2. Adoption; charter authority.
This chapter is adopted pursuant to the powers of the City of Gilroy as a charter city as
provided in Article II, Section 200, of the City Charter, and as authorized by Section 6 of Article
XI of the Constitution of the State of California. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.3. Definitions.
Except where the context otherwise requires, the definitions contained in this section
shall govern the construction of this chapter. The word "may" is always directory and
discretionary and not mandatory; the word "shall" is always mandatory and not directory or
discretionary.
City. "City" shall mean the City of Gilroy, California, including all of the territory and
jurisdiction thereof as presently constituted, and any and all of the same which shall later come
into existence by any manner or means whatsoever.
Tax Collector. ,,r~,,~+~,,,,,
......... Tax Collector" shall mean the director of finance, or his/her
designee, vj .......~ ~j .....~.
n: .......,,n: ...... ,,~,,-,, ....... "-~': ......... '0~' ....... fth City fGil
........................................... j j ........ 0 e o roy.
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Electrical corporation, gas corporation and telephone corporation. "Electrical
corporation", "gas corporation" and "telephone corporation" shall have the same meanings as
defined in Sections 218, 222, 234, respectively, of the Public Utilities Code of the State of
California.
Month. "Month" shall mean a calendar month.
Non-utility Supplier. "Non-utility Supplier" shall mean: (1) a Service Suppher, other
than a provider of electric distribution services to all or a significant portion of the City, which
generates electfici~ in capacities of 50 kilowatts or more, for its own use or for sale to others,
and shall include but is not limited to any publicly-owned electric utility, investor-owned utility,
cogenerator, municipal utility district, federal power marketing a~encv, electric rural cooperative,
or other supplier or seller of electrici .ty; (2) an energy service provider (ESP), electricity broker,
marketer, aegregator, pool operator, or other electricity supplier other than provider of electric
distribution services to all or a significant portion of the City, which sells or supplies electricity
or supplemental services to electricity users within the City; and (3) a gas Service Suppher,
a~gregator, marketer or broker, other than a provider of gas distribution services to all or a
sienificant portion of the City, which sells or supplies gas or supplemental services to gas users
within the City.
Person. "Person" shall mean all domestic and foreign corporations, associations,
syndicates, joint stock companies, parmerships of every kind, joint ventures, clubs,
Massachusetts business or common law trusts, societies and individuals, and shall include a
municipal corporation.
Service s c;'. ......... rr .................. ~ ........ u ....... er. "Semice
Supplier" shall me~ ~y entity or person that provides tel~hone communication, electric, gas,
or video semice to a user of such semices within the Ci~. The te~ shall include ~y entity or
person req~red to collect or self-collect ~d remit a tax .......... Frc;d;~n; cf ~ imposed by
this chapter, including its billing agent.
Service ..... User. "Service ....." "
...... ,.ow User shall mean a person required to pay a tax
imposed under the provisions of this chapter. (Ord. No. 927, § 1, 7-19-71)
Video Service Provider. "Video Service Provider" shall mean any person, company, or
service which provides one or more channels of video programmin~ or communications
(including the leasing of channel access to provide such video programming or com2munication)
to or from an address in the City, including to or from a business, home. condominium, or
apartment, where some fee is paid, whether directly or included in dues or rental charges for that
service, whether or not public rights-of-way are utilized in the delivery of the video
pro~rammin~ or communications. A "Video Service Provider" includes, but is not limited to,
multichannel video programmin~ distributors [as defined in 47 U.S.C. Section 552(12)], open
video systems (OVS) providers, providers of cable television, master antenna television, satellite
master antenna television, multicharmel multipoint distribution services, direct broadcast satellite
(to the extent allowed by federal law), and other providers of video programming or
commmfications (including two-way communications), whatever their technology.
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Video Services. "Video Services" shall mean any and all services related to the providing
of video pro~ramming (including origination programming), communications (includinq two-
way communications), regardless of the content of the video pro~ranuning or conuurmications,
and shall include the leasin~ of channel access (e.g., home shopping) to the extent that the
Service User is subiect to an additional direct or indirect charge for pro~ramming or
communications over the leased channel. "Video Services" shall not include services for which a
tax is paid under section 26 B.7 of this Chapter.
Sec. 26B.4. Exemptions.
Noth' _ ..... :-~ d by hap ........... ' ' ~
ina ........... in The taxes impose this c ter shall be .... '-'~ "~ :mpc::ng ~
tax ape. n not apply to:
any person when or service if imposition of such tax upon
..... person or service
would be in violation of the Constitution of the United States or that th~_~e
Constitution of the State of California. ~c~.~.~. x~^~.... ,~,,,~,, ~ I, 7 19 71); and,
(b) the City.
Any Service User believing itself exempt from the taxes imposed by this chapter pursuant
to subsection (a), other than state and fedm'al a~encies or their subdivisions with commonly
recognized names, shall file an application with the Tax Collector for the exemption. Such
application shall be made upon a form supplied by the Tax Collector and shall state those facts,
declared under penalty of perjury., which qualify the applicant for an exemption, and shall
include the names of all utility service providers serving that Service User. If constitutionally
exempt, such Service User shall give the Tax Collector timely written notice of any change in
utility service providers so that the Tax Collector can properly notifyr the new utility service
provider of the Service User's tax exempt status. A Service User that fails to comply with this
section shall not be entitled to a refund of utility users taxes collected and remitted to the Tax
Collector from such Service User as a result of such non-compliance. Upon request of the Tax
Collector, a Service Supplier or Non-utility Supplier, or their billing agents, shall provide a list of
the names and addresses of those customers which, according to their billin~ records, are deemed
exempt from the utility users tax.
Sec. 26B.5. Conflicts.
Nothing contained in this chapter is intended to conflict with applicable roles, regulations
and tariffs of anyo~.~,.~ ....... ~m.-~-~^~ Service Supplier OR Non-utility. Supplier subject to the
jurisdiction of the California Public Utilities Commission. In the event of any conflict, the
provisions of said roles, regulations and tariffs shall control. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.6. Tax; effective date.
The taxes imposed by this chapter shall become operative November 1, 1971. (Ord.
No. 927, § 1, 7-19-71)
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Article II. TELEPHONE USERS TAX
Sec. 26B.7. Tax imposed.
(a] There is hereby imposed a tax upon every person in the ~:'-' City, other than a
telephone corporation, using intrastate telephone communication services in the ~:*"
v.,., City. The
tax imposed by this article shall be at the rate of five (5) per cent of the charges made for such
services, and shall be paid by the person paying for such services. (Ord. No. 927, § 1, 7-19-71)
(b) Except as otherwise provided herein, the words "telephone communication services"
shall mean "communications services" as defined in Sections 4251 and 4252 of the Internal
Revenue Code, and the regulations thereunder, regardless of the means of technology used to
provide such services. "Telephone communication service" shall not include "private mobile
radio service" [as defined in Part 20 of Title 47 of the Code of Federal Regulationsl, which is not
interconnected with the public switched network.
(c) To prevent actual multi-jurisdictional taxation of telephone communication services
subiect to tax under this section, any Service User, upon proof to the Tax Collector that the
Service User has previously paid the same tax in another state or city on such telephone
communication service, shall be allowed a credit against the tax imposed to the extent of the
amount of such tax legally imposed in such other state or city, provided, however, the amount of
credit shall not exceed the tax owed to the City under this section. For purposes of establishing
sufficient nexus for the imposition and collection of utili .ty users' tax on charges for telephone
communication services pursuant to this Chapter, "minimum contacts" shall be construed
broadly in favor of imposition and collection of the utility users' tax to the fullest extent
permitted by California and federal law, and as it may change from time to time.
Sec. 26B.8. Exemptions.
Notwithstanding the provisions of section 26B.7 the tax imposed under this article shall
not be imposed upon any person for using intrastate telephone communication services to the
extent that, pursuant to Section 4252 and 4253 of the Internal Revenue Code, the amounts paid
for such services are exempt from or not subject to the tax imposed under Section 4251 of .....
ok ~c~h~ 11.,:.~ c~ C~c .... :.~ ~^~,: ..... :~,~ ~ x~ ..... ~'~ I 19~7 the Intemal Revenue
Code. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.9. Exclusions.
As used in this article, the term "charges" shall not include charges for services paid for
by inserting coins in coin operated telephones except that where such coin-operated telephone
service is furnished for a guaranteed amount, the amounts paid under such guarantee plus any
fixed monthly or other periodic charge shall be included in the base for computing the amount of
tax due.
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Sec. 26B.10. Tax collection.
The tax imposed in tiffs article shall be collected from the :cr',':.cc ugcr Service User by
the person providing the intrastate telephone communication services. The amount of tax
collected in one month shall be remitted to the ccllzctcr Tax Collector on or before the last day
of the following month; or at the option of the person required to collect or remit the tax, such
person shall remit an estimated amount of tax measured by the tax billed in the previous month
or upon the payment pattern of the customer(s), which must be received by the Tax Collector on
or before the last day of the following month. The actual tax shall be calculated and paid within
a reasonable time, with an appropriate adjustment for the payment of the estimated tax. (Ord.
No. 927, § 1, 7-19-71)
Article III. ELECTRICITY USERS TAX
Sec. 26B.11. Tax imposed.
(a) There is hereby imposed a tax upon every person in the ~:*"
~-v City, other than an
............. v .......... a electric or gas corporation, using ............... ~ electnc~ty in the ~.,/
City. The tax imposed by this a~ic!c .section shall be at the rate of five (5) 7cr cent%) percent of
thc charges made for such ..... ~,. ......... ~ ............................ electric , and
for any supplemental services or other associated activities directly related and/or necessary for
the provision of electricity to the end-user, which are provided by a Service Supplier or Non-
utility Supplier to a Service User. The tax shall be paid by thc person paying for such ;nzrgy
electricity or supplemental services. (Ord. No. 927, § 1, 7-19-71)
(b) "Charges", as used in this section, shall include: (1)energy charges; (2)
distribution and transmission charges; (3) metering charges; (4) stand-by, reserves, firming,
ramping, voltage support, regulation, emergency, or other similar services minimum charges for
services; (5) customer charges, service charges, service establishment or reestablishment
charges, demand charges, fuel or other cost adjustments, power exchange charges, independent
system operator (ISO) charges, standard investment or competitive transition charges (CTC~~
public purpose program charges, nuclear decommissioning charges, franchise fee, franchise
surcharge; and (6) all other annual and monthly charges or surcharges for electricity services or
programs, which are authorized by the City Council, Califorrfia Public Utilities Commission or
the Federal Energy Regulatory Commission, whether or not such charges appear on a bundled or
line item basis on the customer billing.
"Charges" shall also 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 electricity or
services related to the provision of such electricity.
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Sec 26B 12 e~ ~ ~n Exclusions
As used in this article, the words "using electrical energy" shall not be construed to
mean":
(a)
The storage of such energy by a person in a battery owned or possessed by him
for use in an automobile or other machinery or device apart from the premises
upon which the energy was received; provided however, that the term shall
include the receiving of such energy for the purpose of using it in the charging of
batteries; or
(b)
the mere receiving of such energy by an electrical corporation or a government
agency at a point within the city City for resale. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.13. Tax collection.
(a~ The tax imposed in this article shall be collected from the service ug~ uT..u .......
~..,~": ...... ~.~..~ ~.~,~"~' ~.~j ....... Service User by any electricity Service Supplier or Non-utility
Supplier or its billing agent. The mount of tax collected in one month shall be remitted to the
cc!!ectc, r Tax Collector on or before the last day of the following month; or, at the option of the
person required to collect or remit the tax, such person shall remit an estimated amount of tax
measured by the tax billed in the previous month or upon the payment pattern of the customer(s)
of the Service Supplier, which must be received by the Tax Collector on or before the last day of
the following month. The actual tax shall be calculated and paid within a reasonable time, with
an appropriate ad ustment for the payment of the estimated tax. (Ord. No. 927, § 1, 7-19-71)
(b) Any Service User subiect to the tax imposed by Section 26B.11, which produces
electricity for self-use, or which receives electricity directly from a Non-utility Supplier not
under the jurisdiction of this ordinance, or which otherwise is not having the full tax due on the
use of electricity in the City. that is directly billed and collected by the Service Supplier or its
billing agent, shall report said fact to the Tax Collector and shall remit the tax due directly to the
Tax Collector within thirty (30) days of such use. In lieu of paying said actual tax, the Service
User may, at its option, remit to the Tax Collector within thirty (30) days of such use an
estimated amount of tax measured by the tax billed in the previous month, or upon the payment
pattern of similar customers of the Service Supplier using similar amounts of electricity,
provided that the Service User shall submit an adjusted payment or request for credit, as
appropriate, within sixty (60) days following each calendar quarter. The credit, if approved by
the Tax Collector, may be applied against any subsequent tax bill that becomes due.
(c) The Tax Collector may require said Service User to identify its Non-utility Supplier
and provide, subject to audit, invoices, books of account, or other satisfactory, evidence
documenting the quantity of electricity used and the cost or price thereof. If the Service User is
unable to provide such satisfactory evidence, or if the administrative cost of calculating the tax in
the opinion of the Tax Collector is excessive, the Tax Collector may determine the tax by
applying the tax rate to the equivalent charges the Service User would have incurred if the
electricity used had been provided by the Service Supplier, which is the primary, provider of
electricity within the City. Rate schedules for this purpose shall be available from the City.
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ARTICLE IV. GAS USERS TAX
Sec. 26B.14. Tax imposed.
There is hereby imposed a tax upon every person in the ~:"'
~.~ Cit.~.y, other than a gas
corporation or an electric corporation, using gas in the city City which is delivered through mains
or pipes. The tax imposed by this article shall be at the rate of five (5) per cent of the charges
made for such gas, ;~1...~:_~ _.:-; .... c ......: .... ~ ppi
.......... ~, ............. chargc: .......... , ~.~ and for any su emental
services or other associated activities directly related and/or necessary for the provision of gas to
the end-user, which are provided by a Service Supplier or Non-utility Supplier to a Service User.
The ta.____~x shall be paid by the person paying for such gas or supplemental services. (Ord. No. 927,
§ 1, 7-19-71)
Sec. 26B.15. Exclusions.
As used in this article, the tem~ "charges" shall not include: (1) charges made for gas
which is to be resold and delivered through mains and pipes; (2) charges made for gas used in the
......... · ~ ......... ~tk p d ti f I tfi itvby 1 ~ ~ ti
o ................ o~*-~J,~-~ c ro uc ono eec c acogenerator, aneec cco ora on,
a public agency that supplies or sells elec~citv, or ~ exempt wholesale generator; (3) ch~ges
made b~ a ~as public utiliW or g~ used ~d consumed in the course of its public utility business;
and (4) ch~ges made for gas used in the propulsion of a motor vehicle, as authorized in the
Vehicle Code of the State of California. The te~ "using gas" shall not be cons~ed to me~ the
mere receiving of such gas by a gas co~oration or gove~ental agency at a point within the~.~j*:"'
Cit~ for resale. (Ord. Ne. 927, ~ 1, 7-19-71; Ord. No. 83-20, ~ 1, 11-7-83)
Sec. 26B.16. Tax collection.
(a) The tax imposed in this article shall be collected from the zcr':izc uzcr by tko pcrzcn
o~,.....~11;~ ~.1~,....~.... e,.o Service User by any gas Service Supplier or Non-utiliW. Supplier or its billing
agent. The amount collected in one month shall be remitted to the cc!lector Tax Collector on or
before the last day of the following month; or, at the option of the person required to collect or
remit the tax, such person shall remit an estimated amount of tax measured by the tax billed in
the previous month or upon the payment pattern of the customer(s) of the Service Supplier,
which must be received by the Tax Collector on or before the last day of the following month.
The actual tax shall be calculated and paid within a reasonable time, with an appropriate
adjustment for the pawnent of the estimated tax. (Ord. No. 927, § 1, 7-19-71)
(b) Any Service User subject to the tax imposed by Section 26B.14, which produces gas
for self-use, or which receives gas directly from a Non-utility Supplier not under the iurisdiction
of this ordinance, or which otherwise is not having the full tax due on the use of gas in the City
that is directly billed and collected by the Service Supplier or its billing agent, shall report said
fact to the Tax Collector and shall remit the tax due directly to the Tax Collector within thirty
(30) days of such use. In lieu of paying said actual tax, the Service User may, at its option, remit
to the Tax Collector within thirty (30) days of such use an estimated amount of tax measured by
the tax billed in the previous month, or upon the pattern payment of similar customers of the
Service Supplier using similar amounts of gas, provided that the Service User shall submit an
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adjusted payment or request for credit, as appropriate, within sixty (60) days following each
calendar quarter. The credit, if approved by the Tax Collector, may be applied against any
subsequent tax bill that becomes due.
(c) The Tax Collector may require said Service User to identify its Non-utility Supplier
and provide, subject to audit, invoices, books of account, or other satisfactory, evidence
documenting the quantity of gas used and the cost or price thereof. If the Service User is unable
to provide such satisfactory, evidence, or if the administrative cost of calculating the tax in the
opinion of the Tax Collector is excessive, the Tax Collector may determine the tax by applying
the tax rate to the equivalent charges the Service User would have incurred if the gas used had
been provided by the Service Supplier, which is the primary provider of gas within the City.
Rate schedules for this purpose shall be available from the City
ARTICLE IVA. STEAM USERS TAX
Sec. 26B.16.1. Tax imposed.
There is hereby imposed a tax upon every person in the ~: ..... ~'~ ';' ............. :^~
..... ~,~; ....... ,: ...... : ..... :_ ~.~ ~:, ..... ~:~t. :~ .~,: ..... '~ '~' ..... ~' --~: .....:-~ City
using steam or hot water delivered through pipes or mains as an industrial energy resource in the
City. The tax imposed by this article shall be at the rate of five (5) per cent of the charges made
for such steam or hot water, including minimum charges for service, and shall be paid by the
person paying for such steam or hot water. Ord. No. 83-20, § 1, 11-7-83)
Sec. 26B.16.2 Tax collection.
The tax imposed in this article shall be collected from the :crvlcc uzcr Service User by
the person selling steam or hot water heat. The amount collected in one month shall be remitted
to the cc!!cctcr Tax Collector on or before the last day of the following month. (Ord. No. 83-20,
§ 1, 11-7-83)
ARTICLE V. CABLE TELEVI£1@N VIDEO SERVICES USERS TAX
Sec. 26B.17. Tax imposed.
There is hereby imposed a tax upon every person in the ~:~" City using ~-~-~
:crvicc video services in the city Citer. The tax imposed by this article shall be at the rate of
five (5) per cent of the charges made for such service and shall be paid by the person paying for
such service. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.18. Tax collection.
The tax imposed in this article shall be collected from the :c:~.'!cc uscr by '&~c 7crz.~n
..... ;~; ...... ~' ~'~ *~":~: ...... :~ Service User by any Video Services Provider, its billing
agent, or a reseller of such services. The amount of tax collected in one month shall be remitted
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to the .........Tax Collector on or before the last day of the following month. (Ord. No. 927,
§ 1, 7-19-71)
ARTICLE VI. COLLECTION OF TAX
Sec. 26B.19. Suit by ~.~ City.
Any tax required to be paid by a ;crvicc x:cr Service User under the provisions of this
chapter shall be deemed a debt owed by the ::r'.Sc: user Service User to the city City. Any such
tax collected from a :crv/cc t:gcr Service User which has not been remitted to the cc!Icctc, r Tax
Collector shall be deemed a debt owed to the city City by the person required to collect and
remit. Any person owing money to the city Ci.ty under the provisions of this chapter shall be
liable to an action brought in the name of the city City for the recovery of such mount. (Ord.
No. 927, § 1, 7-19-71)
Sec. 26B.20. Duty to collect; procedures.
The duty to collect and remit the taxes imposed by this chapter shall be performed as
follows:
(a)
The tax shall be collected insofar as practicable at the same time as and along with
the charges made in accordance with regular billing practice of the gcr'.Scc
zupFl~cr Service Supplier or Non-utility Supplier. Except in those cases where a
services user pays the full amount of said charges but does not pay nay an,/
portion ora tax imposed by this chapter, or where a ~ Service Us~r has
notified a s~wie-e--suppti~ Service Supplier or Non-utility Supplier that he is
refusing to pay a tax imposed by this chapter which said .... ; ....... ~:~- Service
Supplier or Non-utility Supplier is required to collect, if the amount paid by a
:c.~,':cc ugcr Service User is less than the full amount of the charge and tax which
has accrued for the billing period, a proportionate share of both the charge and the
tax shall be deemed to have been paid. In those cases where a Service User has
notified the Service Supplier or Non-utility Supplier of his refusal to pay the tax
imposed on said energy charges, the Service Supplier or Non-utility Supplier shall
provide the City with amounts refused and/or unpaid along with the names and
addresses of the Service Users not paving the tax imposed under the provisions of
this ordinance.
(b)
The duty to collect tax from a :ct:icc u;cr Service User shall commence with the
beginning of the first regular billing period applicable to that person which starts
on or after the operative date of this chapter. Where a person receives more than
one billing, one or more being for different periods than another, the duty to
collect shall arise separately for each billing period. (Ord. No. 927, § 1, 7-19-71)
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Sec. 26B.21. Administrative agreements.
(a) The Tax Collector shall have the power and duty, and is hereby directed to enforce
each and all of the provisions of this chapter.
(b) The Tax Collector may adopt administrative rules and regulations not inconsistent
with provisions of this chapter for the purpose of carrying out and enforcing the payment,
collection and remittance of the taxes herein imposed. A copy of such administrative rules and
regulations shall be on file in the Tax Collector's office.
(c) The Tax Collector T~z director may make administrative agreements to vary from the
strict requirements of this chapter so that collection of any tax imposed herein may be made in
conformance with the billing procedures of a partmular ~zr..':c: :'a~!:~r :c .... ~ .............
..... 1~- Ar ~:.-1 ................ 14-~ 1~ ~11~*1~ cf Se ice S pplier Non utility Supplier (or
Service User subiect to Sections 26B.13 or 26B.16) so long as said agreements result in the
collection of the tax in conformance with the general purpose and scope of this chapter. A copy
of each such agreement shall be on file ~ .... :~.~ c ..... ~.~; ...... :~,:^~ :- **.~ ~:~,~,~
....... ~n the Tax Collector's office.
(d) The Tax Collector, or his designee, shall employ any reasonable means, including the
Intemet, of providing prompt written notice to all Service Suppliers and Non-utility Suppliers of
any change in the City's boundaries following any annexation or other change in the City's
boundaries. (Ord. No. 927, § 1, 7-19-71)
ARTICLE VII. DELINQUENT TAXES
Sec. 26B.22. Taxes; when delinquent.
Taxes collected from a :crv:.cz ~:z:r Service User which are not remitted to theco" ....... .....
Tax Collector on or before the due dates provided in this chapter are delinquent. (Ord. No. 927,
§ 1, 7-19-71)
Sec. 26B.23. Service :::ppi[er Supplier; penalty.
In addition to remitting the anaount of the tax, any~. .... ,-~; ....... o~vv-~-~:~' Service Supplier or
Non-utility Supplier who fails to remit any tax imposed by this chapter within the time required
and upon five (5) days' written notice to the ac:~.'icc saTplier Service Supplier or Non-utility
Supplier of its failure to remit, shall pay a penalty of ten per cent (10%) of the amotmt of the tax
which shall be added on the last day of each month following the date on which remittance was
due until the tax and penalties are remitted. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.24. Service :::pp!icr Supplier; fraud; penalty.
If the c ........ Tax Col.~___lector determines that the non-payment byany ......... .... : ....... vv~: ...... ....
Service Supplier or Non-utility Supplier, of any remittance due under this chapter is due to fi'aud,
a penalty of twenty-five percent (25%) of the amount of the tax shall be added thereto in addition
to the penalty imposed by section -2z6]g~ 26B.24 (Ord. No. 927, § 1, 7-19-71)
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Sec. 26B.25. Service :uppI~c: Supplier; interest.
In addition to the penalties imposed by section 25~.22 and 26B.?., an;,' :cr. Scc :::ppllcr
26B.24 and 26B.25, any Service Supplier or Non-utility Supplier who fails to remit any tax
imposed by this chapter shall pay interest at the rate of one per cent (1%) per month, or fraction
thereof, on the amount of the tax, exclusive of penalties, from the date on which the remittance
first became delinquent until paid. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.26. Service ourr .... Supplier, penalty and interest part of tax.
Every penalty imposed upon a :crv!cc zuppl!zr Service Supplier or Non-utility Supplier
and such interest as accrues, under the provisions of sections ~ 26B.24 to ~__26B'26,
inclusive, shall become a part of the tax required to be remitted. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.27. Service ugcr User; penalty.
In addition to paying the amount of the tax, any :crv!cc 'c:cr Service User who fails to
pay any tax imposed by this chapter within sixty (60) days of the date of the receipt of notice of
the amount of tax due from the :crv:.cc :uFp!!cr Service Supplier shall pay a penalty of ten per
cent (10%) of the amount of the tax which shall be added on the last day of each month
following the date on which payment was due until the tax and penalties are paid. (Ord. No. 927,
§ 1, 7-19-71)
Sec. 26B.28. Service user User; fraud; penalty.
If the ccl!cctcr Tax Collector determines that the non-payment by any sei~d-ae-us~
Service User of any tax imposed by this chapter is due to fraud, a penalty of twenty-five per cent
(25%) of the amount of the tax shall be added thereto in addition to the penalty imposed by
section-2,(~,-3g 26B.28. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.29. Service ugcr User; interest.
In addition to the penalties imposed by sections 2,,,E.27 26B2~8 and ~ 26B29, any
gcrvicc ugcr Service User who fails to remit any tax imposed by this chapter; shall pay interest at
the rate of one per cent (1%) per month, or fraction thereof, on the amount of the tax, exclusive
of penalties, from the date on which the remittance first became delinquent until paid, and a
collection charge often dollars ($10.00) for each delinquent account. (Ord. No. 927, § 1, 7-19-
71)
Sec. 26B.30. Service '-'-:ct User; penalty and interest part of tax.
Every penalty imposed upon a ser.5zc ugcr, Service Supplier and such interest as accrues,
under the provisions of sections g6-g-.3¢ 26B.28 to 361~.39 26B.30, inclusive, shall become a part
of the tax required to be paid. (Ord. No. 927, § 1, 7-19-71)
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Sec. 26B.31. Service ugc: User; penalties and interest collected by c:.~' City.
The penalties, interest and collection charges imposed in sections g6t~2-¢ 26B.28 to
g6g:-.2-9 26B.30, inclusive, shall not be collected by the z:r',dc: :'a?pl~cr Service Supplier. but by
the city City. (Ord. No. 927, § 1, 7-19-71)
ARTICLE VIII. FAILURE TO COLLECT AND REPORT TAX
Sec. 26B.32. Determination of tax ~"~"+~- · '
by ......... Tax Collector, not]ce.
If any scr',5~co-vv..~.~: ~- Service Supplier or Non-utility Supplier shall fail to make, within
the time provided in this chapter, any report and remittance of said tax or any portion thereof
required by this chapter, the ~' .....
c ........Tax Collector shall proceed in such manner as he may
deem best to obtain facts and information on which to base his estimate of the tax due. As soon
as the eo4tee~ Tax Collector shall procure such facts and information as he is able to obtain
upon which to base the assessment of any tax imposed by this chapter and payable by any gcr'.Sce
sup7l~cr Service Supplier or Non-utility Supplier who has failed or refused to make such report
and remittance, he shall proceed to determine and assess against such .... : ....... ~:~ Service
Supplier or Non-utility Supplier the tax, interest and penalties provided for by this chapter. In
the .........Tax Collector shall give a notice of the amount so
case such determination is made, ~' .....
assessed by serving it personally or be bv depositing it in the United States mail, postage prepaid,
addressed to the ~ Service Supplier or Non-utility Sun~lier so assessed at his last
kmown place of address. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.33. Hearing on determination of tax; application; notice.
The :cr~,'ie: :upp!icr Service Supplier or Non-utility Supplier may within ten (10) days
after the serving or mailing of the notice referred to in section 2~B.22 26B.3~3 make application
in writing to the cc!lz:tor Tax Collector for a hearing on the amount assessed. If application by
the ::r'.'iz: :upp!icr Service Supplier or Non-utility Supplier for a hearing is not made within the
time prescribed, the tax, interest and penalties, if any, determined by the ccllcctar Tax C_~ollector
shall become final and conclusive and immediately due and payable. If such application is made,
the ~'~'^~ Tax Collector shall give not less than ~"~ ~r~ ten (10) days' written notice in the
maturer prescribed herein to the~ .... .~ ........ ~:^" Services Supplier or Non-utility Supplier to
show cause at a time and place fixed in said notice why said amount specified therein should not
be fixed for such tax, interest and penalties. At such hearing, the .... : ....... ~:~- Service
Supplier or Non-utility Supplier may appear and offer evidence why such specified tax, interest
and penalties should not be so fixed. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.34. Determination of tax following hearing; notice; when due.
After a hearing on the amount of tax assessed, the zc1!cctzr Tax Collector shall determine
the proper tax to be remitted, and shall thereafter give written notice to the~. .... ..~: ....... ,,,~,~,.~.~:~-
Service Supplier or Non-utility Supplier in the manner prescribed above of such determination
and the amount of such tax, interest and penalties. The amount determined to be due shall be
payable after fifteen (15) days of the date of notice of determination unless an appeal is taken as
provided in this chapter. (Ord. No. 927, § 1, 7-19-71)
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Sec. 26B.35. Collection of taxes from service user Service User by c~' City; conditions;
notice.
Whenever the cc!!cctcr Tax Collector determines that a gar. Sca user Service User has
deliberately withheld the amount of any tax imposed on him by the provisions of this chapter
.... ~ ....... ~;~- ' ppli ppli
from the amounts remitted to a ......... },r .... Service Su er or Non-utiliW Su er required
to collect the tax, or that a :africa uscr Service User has failed to pay the amount of the tax to
such~. .... .*~: ....... o~m,-*~*~:~ Service Supplier or Non-utiliW Supplier for a period of four (4) or more
billing periods, or whenever the :a!!aztcr Tax Collector deems it in the best interest of the~.~j~:*"
City, he may relieve such zzr'.Scc zapF!!zr Service Supplier or Non-utility Supplier of the
obligation to collect taxes due under this chapter from certain named :cr¥icc u:cr: Service Users
for specified billing periods. The cc!l:ctzr Tax Collector shall notify the zzr':!c: uzcr Service
User that he has assumed responsibility to collect the taxes due for the stated periods and demand
payment of such taxes, plus any penalty imposed and such interest as may be due pursuant to the
provisions of article VII VII~I of this chapter. The notice shall be :crvcd c,n tkc :cr'.dac uzcr by
......... o .......... v ......... J ~* ~; ~v .... c ven to the Service User epositing the notice
in the United States mail, postage prepaid thereon, addressed to the ~ Service User at
the address to which billing was made by the~. .... .,~: ....... o~tq~,,~-':~' Service Supplier or Non-utility
Supplier required to collect the tax; or, should the :cr,'~cc u:cr Service User have changed his
address, to his last known address. (Ord. No. 927, § 1, 7-19-71)
ARTICLE IX. APPEALS
Sec. 26B.36. Who may appeal.
An person aggrieved by any decision of the cc!!cctcr Tax Collector pursuant to this
chapter may appeal to the ........ C~ty Clerk by filing a notice of appeal with the ........ C~ty
Cler____~k within fifteen (15) days of the serving or mailing of the decision. (Ord. No. 927, § 1, %19-
71)
Sec. 26B.37. Hearing; notice.
The ~ircctcr Ci.ty Clerk shall fix a time and place for hearing such appeal. The dircctcr
City Clerk shall give notice thereof in writing to such person by serving it personally or by
depositing it in the United States Mail, postage prepaid, addressed to such person at his last
known place of address. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.38. Hearing; determination.
The aircctcr City Council shall have authority to determine all questions raised on such
appeal at the time of the hearing. No determination so made by the a~rcctcr CiW Council shall
conflict with any substantive provision of this chapter. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.39. Hearing; penalties suspended.
No penalty provided for in this chapter shall be imposed after the filing of any appeal or
prior to the completion of the hearing on the appeal and the making of a determination on the
subject of the appeal by the a!r::tvr City Council. (Ord. No. 927, § 1, 7-19-71)
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ARTICLE X. RECORDS
Sec. 26B.40. Retention period; access.
It shall be the duty of every zz:-.'ic: zuppli:r Service Supplier and Non-utility Supplier
required to collect and remit to the city Cit.~_7 any tax imposed by this chapter to keep and
preserve, for a period of three (3) years, all records as may be necessary to determine the amount
of such tax that sucho~. .... ..~: ....... o,m,_~."~- Service Supplier or Non'utility Supplier may have been
required to collect and remit to the city Cit.~y_V, which records the ecllcctc, r Tax Collector shall have
the right to inspect at all reasonable times. (Ord. No. 927, § 1, 7-19-71)
ARTICLE XI. REFUNDS
Sec. 26B.41. Claim; filing period.
Whenever the amount of any tax, interest or penalty has been overpaid or paid more than
once, or has been erroneously or illegally collected or received by the city City under this
chapter, it may be refunded as provided in this :~ ...... :.4~,4 ~ ~1~:~ : .... ~M~:~ ~-l~.~C~. o~-n"~,
............ section. (Ord. No. 927, § 1, 7-19-71)
(a)
The Tax Collector may refund any tax that has been overpaid or paid more than
once or has been erroneously or illegally collected or received by the Tax
Collector under this chapter, provided that no refund shall be paid under the
provisions of this section unless the claimant has submitted a written claim to the
Tax Collector 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 of a claim on behalf of a class or group of taxpayers. The
submission of a written claim, which is acted upon by the City Council, shall be a
prerequisite to a suit thereon. (See Government Code Section 935). The City
Council shall act upon the refund claim within the time period set forth in
Government Code Section 912.4. If the City Council fails or refuses to act on a
refund claim within the time prescribed by Government Code Section 912.4, 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 Government Code Section 912.4. It is the intent of the City Council
that the one year written claim requirement of this subsection be given retroactive
effect; provided, however, that any claims which arose prior to the
commencement of the one year claims period of this subsection, and which are
not otherwise barred by a then applicable statute of limitations or claims
procedure, must be filed with the Tax Collector as provided in this subsection
within ninety (90) days following the effective date of this ordinance.
Notwithstanding other provisions of this section, whenever a Service Supplier or
Non-utility Supplier, pursuant to an order of the California Public Utilities
~Khrv~435290.re - 14-
93-082704706002
Commission or a court of competent jurisdiction, makes a refund to Service Users
of charges for past utility services, the taxes paid pursuant to this chapter on the
amount of such refunded charges shall also be refunded to Service Users, and the
Service Supplier or Non-utility Supplier shall be entitled to claim a credit for such
refunded taxes against the amount of tax which is due upon the next monthly
returns. In the event this ordinance is repealed, the amounts of any refundable
taxes will be borne by the City~
Sec. 26B.42. Service Supplier; refund.
A Service Supplier or Non-utility Supplier may claim a refund or take as credit against
taxes collected and remitted an amount overpaid, paid more than once, or erroneously or illegally
collected or received in the manner provided in section 26B.42, but only when it is established in
a manner prescribed by the Tax Collector that the person from whom the tax has been collected
was not a Service User. (Ord. No. 927, § 1, 7-19-71)
Sec. 2~.~2. £:rvie: ..... " ..... e.._a
o'~.r .... , .......26B.43. Service User; refund.
~my :cy,'~cc '~cr ~ Semite Us~r may obtMn a r¢~d of taxes ove~aid, or paid more th~
once, or e~oneously or illegally collected or received by ~e els~ City by filing a claim in the
ma~¢r provided in section ~ 26B.42, but only when the :cT:icc '~a~r Semice User having
paid the tax to th~o~ .... ,,~: ....... o.~-~""~ Semice Supplier or Non-utility Supplier establishes to the
satisfaction of the cc!!cctsr Tax Collector that the s;7,5c; 'a:cr Semice User has been ~able to
obtain a ref~d ~om the .... : ....... ~:~- ppli ppl/
......... w .... Semice Su er or Non-utili~ Su er who collected
the tax. (Ord. No. 927, ~ 1, 7-19-71)
Sec. 26B.44. Claim; proof required.
No refund shall be paid under the provisions of this article unless the claimant establishes
his right thereto by written records showing entitlement thereto. (Ord. No. 927, § 1, 7-19-71)
ARTICLE XII. SEVERABILITY
Sec. 26B.45. Severability
If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this
chapter or any part thereof is for any reason held to be unconstitutional, such decision, and
decision not to enforce such shall not affect the validity of the remaining portion of this chapter
or any part thereofi The City Council hereby declares that it would have passed each section,
subsection, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of the fact that
any one or more section, subsection, subdivision, param'aph, sentence, clause or phrase be
declared unconstitutional.
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ARTICLE XIIL NOTICE OF CHANGES TO ORDINANCE
Sec. 26B.46. Notice of Changes to Tax
If a tax under this chapter is added, repealed, increased, reduced, or the tax base is
changed, the Tax Collector shall follow the notice requirements of the Public Utilities Code
Section 799. Prior to the effective date of the change, the Service Supplier or Non-utility
Supplier shall provide the Tax Collector with a copy of any written procedures describing the
information that the Service Supplier or Non-utility Supplier needs to implement the change. If
the Service Supplier or Non-utility Supplier fails to provide such written instructions, the Tax
Collector, or its agent, shall send, by first class mail, a copy of the change to all collectors and
remitters of the City's utility users taxes according to the latest payment records of the Tax
Collector.
\KHIV[435290.re - 16-
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...................... REVISION LIST ......................
The bracketed numbers refer to the Page and Paragraph for the start of the paragraph in both the
old and the new documents.
[ 1:14 1:14] Add Paras "Art. XII. S everability, ... Ordinance § 26B.46"
[1:22 1:24] Changed "Collector. "Collector'"' to "Tax Collector. "Tax Collector ....
[1:22 1:24] Changed "finance of ... of Gilroy." to "finance"
[ 1:23 1:24] Changed "Director .... of finance" to ", or his/her designee,"
[1:26 ! :27] Add Para "Non-utility Supplier .... within the City."
[1:27 1:29] Changed "supplier ....required to "to "Supplier .... collect or self-"
[1:27 1:29] Changed "under the provisions of" to "as imposed by"
[1:27 1:29] Changed "chapter." to "chapter, including its billing agent."
[1:28 1:30] Changed "user. "to "User."
[I :28 1:30] Changed "user"" to "User ....
[1:29 1:31] Add Paras"Video Service Provider .... of this Chapter."
[1:30 1:34] Changed "Nothing contained in" to "The taxes imposed by"
[1:30 1:34] Changed "shall be" to "shall not apply to:"
[1:30 1:35] Changed "be constTued ... tax upon" to "(a)"
[1:30 1:35] Changed "when" to "or service if"
[1:30 1:35] Changed "upon that person" to "upon person or service"
[1:30 1:35] Changed "or that off to "or the Constitution of"
[1:30 1:35] Changed ". (Ord. No .... 1, 7-19-71)" to "; and,"
[1:30 1:36] Add Paras "(b) the City ....utility users tax."
[1:32 1:39] Changed "service supplier" to "Service Supplier ... Supplier"
[1:37 1:44] Changed "There" to "(a) There"
[1:37 1:44] Changed "the city," to "the City,"
[1:37 1:44] Changed "the city. "to "the City."
[1:38 1:45] Add Paras "(b) Except as otherwise ... from time to time."
[1:39 1:48] Changed "that the" to "that, pursuant ... Code, the"
[1:39 1:48] Changed "Title 26 of ... November 1, 1967" to "the Internal Revenue Code"
[1:42 1:51] Changed "Thewords ... Sec." to "Sec."
[1:44 1:52] Changed "service user" to "Service User"
[1:44 1:52] Changed "collector" to "Tax Collector"
[1:44 1:52] Changed "month." to "month; or ... estimated tax."
[1:47 1:55] Changed "There" to "(a) There"
[1:47 1:55] Changed "the city," to "the City,"
[1:47 1:55] Changed "electrical corporation or a " to "electric or "
[ 1:47 1:55] Changed "electrical energy" to "electricity"
[1:47 1:55] Changed "the city. "to "the City."
[1:47 1:55] Changed "article" to "section"
[1:47 1:55] Changed ") per cent" to "%) percent"
[1:47 1:55] Changed "energy, including ... service, and" to "electricity, ... User. The tax"
[1:47 1:55] Changed "such energy." to "such electricity ... services."
[1:48 1:56] Add Paras "(b) "Charges", ... such electricity."
\KHM~435290.re - 17-
93-082704706002
[1:48 1:58] Changed "Sec. 26B.12. "to "Sec. 26B.12"
[1:51 1:61] Changed "city" to "City"
[1:53 1:63] Changed "The tax" to "(a) The tax"
[1:53 1:63] Changed "service user ... electrical energy" to "Service User ... billing agent"
[1:53 1:63] Changed "collector" to "Tax Collector"
[1:53 1:63] Changed "month." to "month; or, ... estimated tax."
[1:53 1:64] Add Paras "(b) Any Service ... from the City."
[1:56 1:68] Changed "the city," to "the City,"
[ 1:56 1:68] Changed "the city which "to "the City which"
[1:56 1:68] Changed "including ... service, and" to "and for any ... User. The tax"
[1:56 1:68] Changed "gas." to "gas or supplemental services."
[1:58 1:70] Changed "include charges"to "include: (1) ... (2) charges"
[1:58 1:70] Changed "generation ... agency, and the" to "production ... California. The"
[1:58 1:70] Changed "city" to "City"
[1:60 1:72] Changed "The tax" to "(a) The tax"
[1:60 1:72] Changed "service user ... selling the gas" to "Service User ... billing agent"
[1:60 1:72] Changed "collector" to "Tax Collector"
[1:60 1:72] Changed "month." to "month; or .... estimated tax."
[1:60 1:73] Add Paras"(b) Any Service ... from the City"
[1:63 1:77] Changed "city, other ... mains or pipes" to "City using ... in the City"
[1:65 1:79] Changed "service user" to "Service User"
[1:65 1:79] Changed "collector" to "Tax Collector"
[1:66 1:80] Changed "CABLE TELEVISION" to "VIDEO SERVICES"
[1:68 1:82] Changed "city "to "City"
[1:68 1:82] Changed "cable television s~wice" to "video services"
[1:68 1:82] Changed "the city." to "the City."
[1:70 1:84] Changed "service user ... television service" to "Service User ... such services"
[1:70 1:84] Changed "collector" to "Tax Collector"
[1:72 1:86] Changed "city" to "City"
[1:73 1:87] Changed "a service user under" to "a Service User under"
[I :73 1:87] Changed "the service user to" to "the Service User to"
[1:73 1:87] Chgd All "city" to "City"
[1:73 1:87] Changed "a service user which" to "a Service User which"
[1:73 1:87] Changed "collector" to "Tax Collector"
[1:76 1:90] Chgd All "service supplier" to "Service Supplier or Non-utility Supplier"
[1:76 1:90] Changed "nay" to "any"
[1:76 1:90] Changed "a service user has" to "a Service User has"
[1:76 1:90] Changed "a service user is" to "a Service User is"
[1:76 1:90] Changed "paid." to "paid. In those ... ordinance."
[1:77 1:91] Changed "service user" to "Service User"
[1:79 1:93] Add Paras "(a) The Tax Collector ... Collector's office."
[1:79 1:95] Changed "The director" to "(c) The Tax Collector"
[1:79 1:95] Changed "vary the" to "vary from the"
[1:79 1:95] Changed "service supplier ... collection of" to "Service Supplier .... collection of
the"
[1:79 1:95] Changed "file and" to "file in the Tax Collector's office."
\KHM/435290.re -1 8-
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[1:79 1:96] Changed "and available ... director's office. "to "(d) The Tax ... boundaries."
[1:82 1:99] Changed "service user" to "Service User"
[1:82 1:99] Changed "collector" to "Tax Collector"
[1:83 1:100] Changed "supplier" to "Supplier"
[1:84 1:101] Changed "any service supplier who" to "any Service ... Supplier who"
[1:84 1:101] Changed "the service supplier of" to "the Service ... Supplier of"
[1:85 1:102] Changed "supplier" to "Supplier"
[1:86 1:103] Changed "collector" to "Tax Collector"
[1:86 1:103] Changed "service supplier or" to "Service Supplier ... Supplier, of"
[1:86 1:103] Changed "26B.23 "to "26B.24"
[ 1: 87 1:104] Changed "supplier" to "Supplier"
[1:88 1:105] Changed "26B.23 and ... supplier" to "26B.24 and ... Supplier"
[1:89 1:106] Changed "supplier" to "Supplier"
[1:90 1:107] Changed "service supplier" to "Service Supplier ... Supplier"
[1:90 1:107] Changed "26B.23 "to "26B.24"
[1:90 1:i07] Changed "26B.25" to "26B.26"
[ 1:91 1:108] Changed "user" to "User"
[1:92 1:109] Changed "service user" to "Service User"
[1:92 1:109] Changed "service supplier" to "Service Supplier"
[1:93 1:110] Changed "user" to "User"
[1:94 ! :111] Changed "collector" to "Tax Collector"
[1:94 1:111] Changed "service user" to "Service User"
[1:94 1:111 ] Changed "26B27" to "26B.28"
[ 1:95 1:112] Changed "user" to "User"
[ 1:96 1:113] Changed "26B.27" to "26B28"
[ 1:96 1:113] Changed "26B.28," to "26B29,"
[ 1:96 1:113] Changed "service user" to "Service User"
[ 1:96 1:113] Changed "chapter, shall" to "chapter shall"
[1:96 1:113] Changed "tax, from" to "tax, exclusive of penalties, from"
[1:97 1:114] Changed "user" to "User"
[1:98 1:115] Changed "service user," to "Service Supplier"
I1:98 1:115] Changed "26B.27" to "26B.28"
[1:98 1:115] Changed "26B.29" to "26B.30"
[1:99 1:116] Changed "user" to "User"
[1:99 1:116] Changed "city" to "City"
[1:100 1:117] Changed "26B.27 "to "26B.28"
[1:100 1:117] Changed
[1:100 1:117] Changed
[I:100 1:117] Changed
[1:102 1:119] Changed
[1:103 1:120] Changed
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[ 1:103 1:120] Changed
"26B.29" to "26B,30"
"service supplier" to "Service Supplier"
"city" to "City"
"collector" to "Tax Collector"
"any service supplier shall" to "any Service ... Supplier shall"
"chapter, the ... shall proceed" to "chapter, the ... shall proceed"
"as the collector shall procure" to "as the Tax ... shall procure"
"any service supplier who" to "any Service ... Supplier who"
"such service supplier the" to "such Service ... Supplier the"
"made, the ... shall give" to "made, the ... shall give"
\KhM~435290.re - 19 -
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[1:103 1:120] Changed
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[1:107 1:124] Changed
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deliberately"
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required"
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required"
[1:121 1:138] Changed
[1:121 1:138] Changed
[1:121 1:138] Changed
"be" to "by"
"the service supplier so" to "the Service ... Supplier so"
"The service supplier may" to "The Service ... Supplier may"
"26B.32" to "26B.33"
"the collector for" to "the Tax Collector for"
"the service supplier for" to "the Service ... Suppher for"
"by the collector shall become" to "by the Tax ... shall become"
"made, the ... shall give" to "made, the ... shall give"
"five (5) "to "ten (10)"
"services supplier" to "Services Supplier ... Supplier"
"the service supplier may" to "the Service ... Supplier may"
"collector" to "Tax Collector"
"service supplier" to "Service Supplier ... Supplier"
"days unless" to "days of the ... determination unless"
"service user" to "Service User"
"city" to "City"
"the collector ... deliberately" to "the Tax Collector ...
"a service supplier required" to "a Service ... Supplier required"
"that a service user has failed" to "that a Service User has failed"
"such service supplier for" to "such Service ... Supplier for"
"the collector deems" to "the Tax Collector deems"
"city" to "City"
"such service supplier of" to "such Service ... Supplier off
"service users "to "Service Users"
"The collector shall" to "The Tax Collector shall"
"the service user that" to "the Service User that"
"VII" to "VIII"
"served on ... deposit of" to "given to the ... depositing"
"the service user at" to "the Service User at"
"the service supplier required" to "the S~'vice ... Supplier
"the service user have" to "the Service User have"
"collector" to "Tax Collector"
"the director by" to "the City Clerk by"
"the director within" to "the City Clerk within"
"The director shall fix" to "The City Clerk shall fix"
"appeal. The ... shall give" to "appeal. The ... shall give"
"The director shall" to "The City Council shall"
"the director shall" to "the City Council shall"
"director" to "City Council"
"every service supplier required" to "every Service ... Supplier
"city" to "City"
"such service supplier may" to "such Service ... Supplier may"
"the city," to "the City,"
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[1:124 1:141] Changed
[1:124 1:141] Changed
[1:124 1:142] Add Paras
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refund."
[1:126 1:147] Del Paras
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[ 1:128 1:147] Changed
[1:130 1:150] Add Paras
"collector" to "Tax Collector"
"city" to "City"
"this article" to "this section: ... 1, 7-19-71)"
"this article ... 1, 7-19-71)" to "this"
"(a) The Tax Collector ... Supplier; refund."
"this article" to "A Service ... Service User."
"26B.42. Service supplier; refund." to "26B.43. Service User;
"A service supplier ... Service user; refund."
"Any service user" to "Any Service User"
"city" to "City"
"26B.41" to "26B.42"
"the service user having" to "the Service User having"
"the service ... establishes" to "the Service ... estabhshes"
"collector" to "Tax Collector"
"the service user has" to "the Service User has"
"the service supplier who" to "the Service ... Supplier who"
"ARTICLE XII. SEVERABILITY ... Tax Collector."
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Exhibit B
Chapter 26B
UTILITY USERS TAX
Art. I.
Art. II.
Art. III.
Art. IV.
Art. IVA.
Art. V.
Art. VI.
Art. VII.
Art. VIII.
Art. IX.
Art. ×.
Art. XI.
Art. XII.
Art. XIII.
General Provisions, 8§ 26B.1--26B.6
Telephone Users Tax, 88 26B.7--26B.10
Electricity Users Tax, § § 26B. 11--26B. 13
Gas Users Tax, 88 26B.14--26B.16
Steam Users Tax, 88 26B.16.1--26B.16.2
Video Services Users Tax, 8§ 26B.17, 26B.18
Collection of Tax, § § 26B. 19--26B.21
Delinquent Taxes, §8 26B.22--26B.31
Failure to Collect and Report Tax, 88 26B.32--26B.35
Appeals, 88 26B.36~26B.39
Records, § 26B.40
Refunds, 88 26B.41--26B.44
Severability, § 26B.45
Notice of Changes to Ordinance § 26B.46
ARTICLE I. GENERAL PROVISIONS
Sec. 26B.1. Title
This chapter shall be known as the "Utility Users Tax Ordinance of the City of Gilroy."
(Ord. No. 927, § 1, 7-19-71)
Sec. 26B.2. Adoption; charter authority.
This chapter is adopted pursuant to the powers of the City of Gilroy as a charter city as
provided in Article II, Section 200, of the City Charter, and as authorized by Section 6 of Article
XI of the Constitution of the State of California. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.3. Definitions.
Except where the context otherwise requires, the definitions contained in this section
shall govern the construction of this chapter. The word "may" is always directory and
discretionary and not mandatory; the word "shall" is always mandatory and not directory or
discretionary.
City. "City" shall mean the City of Gilroy, California, including all of the territory and
jurisdiction thereof as presently constituted, and any and all of the same which shall later come
into existence by any manner or means whatsoever.
Tax Collector. "Tax Collector" shall mean the director of finance, or his/her designee, of
the City of Gilroy.
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Electrical corporation, gas corporation and telephone corporation. "Electrical
corporation", "gas corporation" and "telephone corporation" shall have the same meanings as
defined in Sections 218, 222, 234, respectively, of the Public Utilities Code of the State of
California.
Month. "Month" shall mean a calendar month.
Non-utility Supplier. "Non-utility Supplier" shall mean: (1) a Service Supplier, other
than a provider of electric distribution services to all or a significant portion of the City, which
generates electricity in capacities of 50 kilowatts or more, for its own use or for sale to others,
and shall include but is not limited to any publicly-owned electric utihty, investor-owned utility,
cogenerator, municipal utility district, federal power marketing agency, electric rural cooperative,
or other supplier or seller of electricity; (2) an energy service provider (ESP), electricity broker,
marketer, aggregator, pool operator, or other electricity supplier other than provider of electric
distribution services to all or a significant portion of the City, which sells or supplies electricity
or supplemental services to electricity users within the City; and (3) a gas Service Supplier,
aggregator, marketer or broker, other than a provider of gas distribution services to all or a
significant portion of the City, which sells or supplies gas or supplemental services to gas users
within the City.
Person. "Person" shall mean all domestic and foreign corporations, associations,
syndicates, joint stock companies, partnerships of every kind, joint ventures, clubs,
Massachusetts business or common law trusts, societies and individuals, and shall include a
municipal corporation.
Service Supplier. "Service Supplier" shall mean any entity or person that provides
telephone communication, electric, gas, or video service to a user of such services within the
City. The term shall include any entity or person required to collect or self-collect and remit a
tax as imposed by this chapter, including its billing agent.
Service User. "Service User" shall mean a person required to pay a tax imposed under
the provisions of this chapter. (Ord. No. 927, § 1, 7-19-71)
Video Service Provider. "Video Service Provider" shall mean any person, company, or
service which provides one or more channels of video programming or communications
(including the leasing of channel access to provide such video programming or communication)
to or from an address in the City, including to or from a business, home, condominium, or
apartment, where some fee is paid, whether directly or included in dues or rental charges for that
service, whether or not public rights-of-way are utilized in the delivery of the video
programming or communications. A "Video Service Provider" includes, but is not limited to,
multicharmel video programming distributors [as defined in 47 U.S.C. Section 552(12)], open
video systems (OVS) providers, providers of cable television, master antenna television, satellite
master antenna television, multichannel multipoint distribution services, direct broadcast satellite
(to the extent allowed by federal law), and other providers of video programming or
communications (including two-way communications), whatever their technology.
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?ideo Services. "Video Services" shall mean any and all services related to the providing
of video programming (including origination programming), communications (including two-
way communications), regardless of the content of the video programming or communications,
and shall include the leasing of channel access (e.g., home shopping) to the extent that the
Service User is subject to an additional direct or indirect charge for programming or
communications over the leased channel. "Video Services" shall not include services for which a
tax is paid under section 26 B.7 of this Chapter.
Sec. 26B.4. Exemptions.
The taxes imposed by this chapter shall not apply to:
(a)
any person or service if imposition of such tax upon person or service would be in
violation of the Constitution of the United States or the Constitution of the State
of California; and,
(b) the City.
Any Service User believing itself exempt from the taxes imposed by this chapter pursuant
to subsection (a), other than state and federal agencies or their subdivisions with commonly
recognized names, shall file an application with the Tax Collector for the exemption. Such
application shall be made upon a form supplied by the Tax Collector and shall state those facts,
declared under penalty of perjury, which qualify the applicant for an exmnption, and shall
include the names of all utility service providers serving that Service User. If constitutionally
exempt, such Service User shall give the Tax Collector timely written notice of any change in
utility service providers so that the Tax Collector can properly notify the new utility service
provider of the Service User's tax exempt status. A Service User that fails to comply with this
section shall not be entitled to a refund of utility users taxes collected and remitted to the Tax
Collector from such Service User as a result of such non-compliance. Upon request of the Tax
Collector, a Service Supplier or Non-utility Supplier, or their billing agents, shall provide a list of
the names and addresses of those customers which, according to their billing records, are deemed
exempt from the utility users tax.
Sec. 26B.5. Conflicts.
Nothing contained in this chapter is intended to conflict with applicable rules, regulations
and tariffs of any Service Supplier OR Non-utility Supplier subject to the jurisdiction of the
California Public Utilities Commission. In the event of any conflict, the provisions of said rules,
regulations and tariffs shall control. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.6. Tax; effective date.
The taxes imposed by this chapter shall become operative November 1, 1971. (Ord.
No. 927, § 1, 7-19-71)
\KHM~435290.03 -3 -
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Article Il. TELEPHONE USERS TAX
Sec. 26B.7. Tax imposed.
(a) There is hereby imposed a tax upon every person in the City, other than a telephone
corporation, using intrastate telephone communication services in the City. The tax imposed by
this article shall be at the rate of five (5) per cent of the charges made for such services, and shall
be paid by the person paying for such services. (Ord. No. 927, § 1, 7-19-71)
(b) Except as otherwise provided herein, the words "telephone communication services"
shall mean "communications services" as defined in Sections 4251 and 4252 of the Internal
Revenue Code, and the regulations thereunder, regardless of the means of technology used to
provide such services. "Telephone communication service" shall not include "private mobile
radio service" [as defined in Part 20 of Title 47 of the Code of Federal Regulations], which is not
interconnected with the public switched network.
(c) To prevent actual multi-jurisdictional taxation of telephone communication services
subject to tax under this section, any Service User, upon proof to the Tax Collector that the
Service User has previously paid the same tax in another state or city on such telephone
communication service, shall be allowed a credit against the tax imposed to the extent of the
amount of such tax legally imposed in such other state or city, provided, however, the amount of
credit shall not exceed the tax owed to the City under this section. For purposes of establishing
sufficient nexus for the imposition and collection of utility users' tax on charges for telephone
communication services pursuant to this Chapter, "minimum contacts" shall be construed
broadly in favor of imposition and collection of the utility users' tax to the fullest extent
permitted by California and federal law, and as it may change from time to time.
Sec. 26B.8. Exemptions.
Notwithstanding the provisions of section 26B.7 the tax imposed under this article shall
not be imposed upon any person for using intrastate telephone communication services to the
extent that, pursuant to Section 4252 and 4253 of the Internal Revenue Code, the amounts paid
for such services are exempt from or not subject to the tax imposed under Section 4251 of the
Internal Revenue Code. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.9. Exclusions.
As used in this article, the term "charges" shall not include charges for services paid for
by inserting coins in coin operated telephones except that where such coin-operated telephone
service is furnished for a guaranteed amount, the amounts paid under such guarantee plus any
fixed monthly or other periodic charge shall be included in the base for computing the amount of
tax due.
Sec. 26B.10. Tax collection.
The tax imposed in this article shall be collected from the Service User by the person
providing the intrastate telephone communication services. The amount of tax collected in one
month shall be remitted to the Tax Collector on or before the last day of the following month; or
\KHM\435290.03 -4-
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at the option of the person required to collect or remit the tax, such person shall remit an
estimated amount of tax measured by the tax billed in the previous month or upon the payment
pattern of the customer(s), which must be received by the Tax Collector on or before the last day
of the following month. The actual tax shall be calculated and paid within a reasonable time,
with an appropriate adjustment for the payment of the estimated tax. (Ord. No. 927, § 1,
7-19-71)
Article Ill. ELECTRICITY USERS TAX
Sec. 26B.11. Tax imposed.
(a) There is hereby imposed a tax upon every person in the City, other than an electric or
gas corporation, using electricity in the City. The tax imposed by this section shall be at the rate
of five (5%) percent of the charges made for such electricity, and for any supplemental services
or other associated activities directly related and/or necessary for the provision of electricity to
the end-user, which are provided by a Service Supplier or Non-utility Supplier to a Service User.
The tax shall be paid by the person paying for such electricity or supplemental services. (Ord.
No. 927, § 1, 7-19-71)
(b) "Charges", as used in this section, shall include: (1) energy charges; (2)
distribution and transmission charges; (3) metering charges; (4) stand-by, reserves, firming,
ramping, voltage support, regulation, emergency, or other similar services minimum charges for
services; (5) customer charges, service charges, service establishment or reestablishment
charges, demand charges, fuel or other cost adjustments, power exchange charges, independent
system operator (ISO) charges, standard investment or competitive transition charges (CTC),
public purpose program charges, nuclear decommissioning charges, franchise fee, franchise
surcharge; and (6) all other annual and monthly charges or surcharges for electricity services or
programs, which are authorized by the City Council, California Public Utilities Commission or
the Federal Energy Regulatory Commission, whether or not such charges appear on a bundled or
line item basis on the customer billing.
"Charges" shall also 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 electricity or
services related to the provision of such electricity.
Sec. 26B.12 Exclusions.
As used in this article, the words "using electrical energy" shall not be construed to
mean":
(a)
The storage of such energy by a person in a battery owned or possessed by him
for use in an automobile or other machinery or device apart from the premises
upon which the energy was received; provided however, that the term shall
include the receiving of such energy for the purpose of using it in the charging of
batteries; or
~KHM\435290.03 -5-
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(b) the mere receiving of such energy by an electrical corporation or a government
agency at a point within the City for resale. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.13. Tax collection.
(a) The tax imposed in this article shall be collected from the Service User by any
electricity Service Supplier or Non-utility Supplier or its billing agent. The amount of tax
collected in one month shall be remitted to the Tax Collector on or before the last day of the
following month; or, at the option of the person required to collect or remit the tax, such person
shall remit an estimated amount of tax measured by the tax billed in the previous month or upon
the payment pattern of the customer(s) of the Service Supplier, which must be received by the
Tax Collector on or before the last day of the following month. The actual tax shall be calculated
and paid within a reasonable time, with an appropriate adjustment for the payment of the
estimated tax. (Ord. No. 927, § 1, 7-19-71)
(b) Any Service User subject to the tax imposed by Section 26B.11, which produces
electricity for self-use, or which receives electricity directly from a Non-utility Supplier not
under the jurisdiction of this ordinance, or which otherwise is not having the full tax due on the
use of electricity in the City that is directly billed and collected by the Service Supplier or its
billing agent, shall report said fact to the Tax Collector and shall remit the tax due directly to the
Tax Collector within thirty (30) days of such use. In lieu of paying said actual tax, the Service
User may, at its option, remit to the Tax Collector within thirty (30) days of such use an
estimated amount of tax measured by the tax billed in the previous month, or upon the payment
pattern of similar customers of the Service Supplier using similar amounts of electricity,
provided that the Service User shall submit an adjusted payment or request for credit, as
appropriate, within sixty (60) days following each calendar quarter. The credit, if approved by
the Tax Collector, may be applied against any subsequent tax bill that becomes due.
(c) The Tax Collector may require said Service User to identify its Non-utility Supplier
and provide, subject to audit, invoices, books of account, or other satisfactory evidence
documenting the quantity of electricity used and the cost or price thereof. If the Service User is
unable to provide such satisfactory evidence, or if the administrative cost of calculating the tax in
the opinion of the Tax Collector is excessive, the Tax Collector may determine the tax by
applying the tax rate to the equivalent charges the Service User would have incurred if the
electricity used had been provided by the Service Supplier, which is the primary provider of
electricity within the City. Rate schedules for this purpose shall be available from the City.
ARTICLE IV. GAS USERS TAX
Sec. 26B.14. Tax imposed.
There is hereby imposed a tax upon every person in the City, other than a gas corporation
or an electric corporation, using gas in the City which is delivered through mains or pipes. The
tax imposed by this article shall be at the rate of five (5) per cent of the charges made for such
gas, and for any supplemental services or other associated activities directly related and/or
necessary for the provision of gas to the end-user, which are provided by a Service Supplier or
\KHM\435290,03 -6-
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Non-utility Supplier to a Service User. The tax shall be paid by the person paying for such gas or
supplemental services. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.15. Exclusions.
As used in this article, the term "charges" shall not include: (1) charges made for gas
which is to be resold and delivered through mains and pipes; (2) charges made for gas used in the
production of electricity by a cogenerator, an electric corporation, a public agency that supplies
or sells electricity, or an exempt wholesale generator; (3) charges made by a gas public utility or
gas used and consumed in the course of its public utility business; and (4) charges made for gas
used in the propulsion of a motor vehicle, as authorized in the Vehicle Code of the State of
California. The term "using gas" shall not be construed to mean the mere receiving of such gas
by a gas corporation or governmental agency at a point within the City for resale. (Ord. No. 927,
§ 1, 7-19-71; Ord. No. 83-20, § 1, 11-7-83)
Sec. 26B.16. Tax collection.
(a) The tax imposed in this article shall be collected from the Service User by any gas
Service Supplier or Non-utility Supplier or its billing agent. The amount collected in one month
shall be remitted to the Tax Collector on or before the last day of the following month; or, at the
option of the person required to collect or remit the tax, such person shall remit an estimated
amount of tax measured by the tax billed in the previous month or upon the payment pattern of
the customer(s) of the Service Supplier, which must be received by the Tax Collector on or
before the last day of the following month. The actual tax shall be calculated and paid within a
reasonable time, with an appropriate adjustment for the payment of the estimated tax. (Ord.
No. 927, § 1, 7-19-71)
(b) Any Service User subject to the tax imposed by Section 26B. 14, which produces gas
for self-use, or which receives gas directly from a Non-utility Supplier not under the jurisdiction
of this ordinance, or which otherwise is not having the full tax due on the use of gas in the City
that is directly billed and collected by the Service Supplier or its billing agent, shall report said
fact to the Tax Collector and shall remit the tax due directly to the Tax Collector within thirty
(30) days of such use. In lieu of paying said actual tax, the Service User may, at its option, remit
to the Tax Collector within thirty (30) days of such use an estimated amount of tax measured by
the tax billed in the previous month, or upon the pattern payment of similar customers of the
Service Supplier using similar amounts of gas, provided that the Service User shall submit an
adjusted payment or request for credit, as appropriate, within sixty (60) days following each
calendar quarter. The credit, if approved by the Tax Collector, may be applied against any
subsequent tax bill that becomes due.
(c) The Tax Collector may require said Service User to identify its Non-utility Supplier
and provide, subject to audit, invoices, books of account, or other satisfactory evidence
documenting the quantity of gas used and the cost or price thereof. If the Service User is unable
to provide such satisfactory evidence, or if the administrative cost of calculating the tax in the
opinion of the Tax Collector is excessive, the Tax Collector may determine the tax by applying
the tax rate to the equivalent charges the Service User would have incurred if the gas used had
\KH~435290,03 -7-
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been provided by the Service Supplier, which is the primary provider of gas within the City.
Rate schedules for this purpose shall be available from the City
ARTICLE IVA. STEAM USERS TAX
Sec. 26B.16.1. Tax imposed.
There is hereby imposed a tax upon every person in the City using steam or hot water
delivered through pipes or mains as an industrial energy resource in the City. The tax imposed
by this article shall be at the rate of five (5) per cent of the charges made for such steam or hot
water, including minimum charges for service, and shall be paid by the person paying for such
steam or hot water. Ord. No. 83-20, § 1, 11-7-83)
Sec. 26B.16.2 Tax collection.
The tax imposed in this article shall be collected from the Service User by the person
selling steam or hot water heat. The amount collected in one month shall be remitted to the Tax
Collector on or before the last day of the following month. (Ord. No. 83-20, § 1, 11-7-83)
ARTICLE V. VIDEO SERVICES USERS TAX
Sec. 26B.17. Tax imposed.
There is hereby imposed a tax upon every person in the City using video services in the
City. The tax imposed by this article shall be at the rate of five (5) per cent of the charges made
for such service and shall be paid by the person paying for such service. (Ord. No. 927, § 1,
7-19-71)
Sec. 26B.18. Tax collection.
The tax imposed in this article shall be collected from the Service Us~r by any Video
Services Provider, its billing agent, or a reseller of such services. The amount of tax collected in
one month shall be remitted to the Tax Collector on or before the last day of the following
month. (Ord. No. 927, § 1, 7-19-71)
ARTICLE VI. COLLECTION OF TAX
Sec. 26B.19. Suit by City.
Any tax required to be paid by a Service User under the provisions of this chapter shall be
deemed a debt owed by the Service User to the City. Any such tax collected from a Service User
which has not been remitted to the Tax Collector shall be deemed a debt owed to the City by the
person required to collect and remit. Any person owing money to the City under the provisions
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of this chapter shall be liable to an action brought in the name of the City for the recovery of such
amount. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.20. Duty to collect; procedures.
The duty to collect and remit the taxes imposed by this chapter shall be performed as
follows:
(a)
The tax shall be collected insofar as practicable at the same time as and along with
the charges made in accordance with regular billing practice of the S~rvice
Supplier or Non-utility Supplier. Except in those cases where a services user pays
the full amount of said charges but does not pay any portion of a tax imposed by
this chapter, or where a Service User has notified a Service Supplier or Non-utility
Supplier that he is refusing to pay a tax imposed by this chapter which said
Service Supplier or Non-utility Supplier is required to collect, if the amount paid
by a Service User is less than the full amount of the charge and tax which has
accrued for the billing period, a proportionate share of both the charge and the tax
shall be deemed to have been paid. In those cases where a Service User has
notified the Service Supplier or Non-utility Supplier of his refusal to pay the tax
imposed on said energy charges, the Service Supplier or Non-utility Supplier shall
provide the City with amounts refused and/or unpaid along with the names and
addresses of the Service Users not paying the tax imposed under the provisions of
this ordinance.
(b)
The duty to collect tax fi~om a Service User shall commence with the beginning of
the first regular billing period applicable to that person which starts on or after the
operative date of this chapter. Where a person receives more than one billing, one
or more being for different periods than another, the duty to collect shall arise
separately for each billing period. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.21. Administrative agreements.
(a) The Tax Collector shall have the power and duty, and is hereby directed, to enforce
each and all of the provisions of this chapter.
(b) The Tax Collector may adopt administrative roles and regulations not inconsistent
with provisions of this chapter for the purpose of carrying out and enforcing the payment,
collection and remittance of the taxes herein imposed. A copy of such administrative rules and
regulations shall be on file in the Tax Collector's office.
(c) The Tax Collector may make administrative agreements to vary from the strict
requirements of this chapter so that collection of any tax imposed herein may be made in
conformance with the billing procedures of a particular Service Supplier, Non-utility Supplier (or
Service User subject to Sections 26B.13 or 26B.16) so long as said agreements result in the
collection of the tax in conformance with the general purpose and scope of this chapter. A copy
of each such agreement shall be on file in the Tax Collector's office.
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(d) The Tax Collector, or his designee, shall employ any reasonable means, including the
Intemet, of providing prompt written notice to all Service Suppliers and Non-utility Suppliers of
any change in the City's boundaries following any annexation or other change in the City's
boundaries. (Ord. No. 927, § 1, 7-19-71)
ARTICLE VII. DELINQUENT TAXES
Sec. 26B.22. Taxes; when delinquent.
Taxes collected from a Service User which are not remitted to the Tax Collector on or
before the due dates provided in this chapter are delinquent. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.23. Service Supplier; penalty.
In addition to remitting the amount of the tax, any Service Supplier or Non-utility
Supplier who fails to remit any tax imposed by this chapter within the time required and upon
five (5) days' written notice to the Service Supplier or Non-utility Supplier of its failure to remit,
shall pay a penalty of ten per cent (10%) of the amount of the tax which shall be added on the
last day of each month following the date on which remittance was due until the tax and penalties
are remitted. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.24. Service Supplier; fraud; penalty.
If the Tax Collector determines that the non-payment by any Service Supplier or Non-
utility Supplier, of any remittance due under this chapter is due to fraud, a penalty of twenty-five
percent (25%) of the amount of the tax shall be added thereto in addition to the penalty imposed
by section 26B.24 (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.25. Service Supplier; interest.
In addition to the penalties imposed by section 26B.24 and 26B.25, any Service Supplier
or Non-utility Supplier who fails to remit any tax imposed by this chapter shall pay interest at the
rate of one per cent (1%) per month, or fraction thereof, on the amount of the tax, exclusive of
penalties, from the date on which the remittance first became delinquent until paid. (Ord.
No. 927, § 1, 7-19-71)
Sec. 26B.26. Service Supplier; penalty and interest part of tax.
Every penalty imposed upon a Service Supplier or Non-utility Supplier and such interest
as accrues, under the provisions of sections 26B.24 to 26B.26, inclusive, shall become a part of
the tax required to be remitted. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.27. Service User; penalty.
In addition to paying the an~ount of the tax, any Service User who fails to pay any tax
imposed by this chapter within sixty (60) days of the date of the receipt of notice of the amount
of tax due from the Service Supplier shall pay a penalty often per cent (10%) of the amount of
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the tax which shall be added on the last day of each month following the date on which payment
was due until the tax and penalties are paid. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.28. Service User; fraud; penalty.
If the Tax Collector determines that the non-payment by any Service User of any tax
imposed by this chapter is due to fraud, a penalty of twenty-five per cent (25%) of the amount of
the tax shall be added thereto in addition to the penalty imposed by section 26B.28. (Ord.
No. 927, § 1, 7-19-71)
Sec. 26B.29. Service User; interest.
In addition to the penalties imposed by sections 26B28 and 26B29, any Service User who
fails to remit any tax imposed by this chapter shall pay interest at the rate of one per cent (1%)
per month, or fraction thereof, on the amount of the tax, exclusive of penalties, from the date on
which the remittance first became delinquent until paid, and a collection charge of ten dollars
($10.00) for each delinquent account. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.30. Service User; penalty and interest part of tax.
Every penalty imposed upon a Service Supplier and such interest as accrues, under the
provisions of sections 26B.28 to 26B.30, inclusive, shall become a part of the tax required to be
paid. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.31. Service User; penalties and interest collected by City.
The penalties, interest and collection charges imposed in sections 26B.28 to 26B.30,
inclusive, shall not be collected by the Service Supplier, but by the City. (Ord. No. 927, § 1,
7-19-71)
ARTICLE VIII. FAILURE TO COLLECT AND REPORT TAX
Sec. 26B.32. Determination of tax by Tax Collector; notice.
If any Service Supplier or Non-utility Supplier shall fail to make, within the time
provided in this chapter, any report and remittance of said tax or any portion thereof required by
this chapter, the Tax Collector shall proceed in such manner as he may deem best to obtain facts
and information on which to base his estimate of the tax due. As soon as the Tax Collector shall
procure such facts and information as he is able to obtain upon which to base the assessment of
any tax imposed by this chapter and payable by any Service Supplier or Non-utility Supplier who
has failed or refused to make such report and remittance, he shall proceed to determine and
assess against such Service Supplier or Non-utility Supplier the tax, interest and penalties
provided for by this chapter. In case such determination is made, the Tax Collector shall give a
notice of the amount so assessed by serving it personally or by depositing it in the United States
mail, postage prepaid, addressed to the Service Supplier or Non-utility Supplier so assessed at his
last known place of address. (Ord. No. 927, § 1, 7-19-71)
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Sec. 26B.33. Hearing on determination of tax; application; notice.
The Service Supplier or Non-utility Supplier may within ten (10) days after the serving or
mailing of the notice referred to in section 26B.33 make application in writing to the Tax
Collector for a hearing on the amount assessed. If application by the Service Supplier or Non-
utility Supplier for a heating is not made within the time prescribed, the tax, interest and
penalties, if any, determined by the Tax Collector shall become final and conclusive and
immediately due and payable. If such apphcation is made, the Tax Collector shall give not less
than ten (10)_days' written notice in the manner prescribed herein to the Services Supplier or
Non-utility Supplier to show cause at a time and place fixed in said notice why said amotmt
specified therein should not be fixed for such tax, interest and penalties. At such hearing, the
Service Supplier or Non-utility Supplier may appear and offer evidence why such specified tax,
interest and penalties should not be so fixed. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.34. Determination of tax following hearing; notice; when due.
After a heating on the amount of tax assessed, the Tax Collector shall determine the
proper tax to be remitted, and shall thereafter give written notice to the Service Supplier or Non-
utility Supplier in the manner prescribed above of such determination and the amount of such
tax, interest and penalties. The amount determined to be due shall be payable after fifteen (15)
days of the date of notice of determination unless an appeal is taken as provided in this chapter.
(Ord. No. 927, § 1, 7-19-71)
Sec. 26B.35. Collection of taxes from Service User by City; conditions; notice.
Whenever the Tax Collector determines that a Service User has deliberately withheld the
amount of any tax imposed on him by the provisions of this chapter from the amounts remitted to
a Service Supplier or Non-utility Supplier required to collect the tax, or that a Service User has
failed to pay the amount of the tax to such Service Supplier or Non-utility Supplier for a period
of four (4) or more billing periods, or whenever the Tax Collector deems it in the best interest of
the City, he may relieve such Service Supplier or Non-utility Supplier of the obligation to collect
taxes due under this chapter from certain named Service Users for specified billing periods. The
Tax Collector shall aotify the Service User that he has assumed responsibility to collect the taxes
due for the stated periods and demand payment of such taxes, plus any penalty imposed and such
interest as may be due pursuant to the provisions of article VIII of this chapter. The notice shall
be given to the Service User by depositing the notice in the United States mail, postage prepaid
thereon, addressed to the Service User at the address to which billing was made by the Service
Supplier or Non-utihty Supplier required to collect the tax; or, should the Service User have
changed his address, to his last known address. (Ord. No. 927, § 1, 7-19-71)
ARTICLE IX. APPEALS
Sec. 26B.36. Who may appeal.
An person aggrieved by any decision of the Tax Collector pursuant to this chapter may
appeal to the City Clerk by filing a notice of appeal with the City Clerk within fifteen (15) days
of the serving or mailing of the decision. (Ord. No. 927, § 1, 7-19-71)
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Sec. 26B.37. Hearing; notice.
The City Clerk shall fix a time and place for hearing such appeal. The City Clerk shall
give notice thereof in writing to such person by serving it personally or by depositing it in the
United States Mail, postage prepaid, addressed to such person at his last known place of address.
(Ord. No. 927, § 1, 7-19-71)
Sec. 26B.38. Hearing; determination.
The City Council shall have authority to detemfine all questions raised on such appeal at
the time of the hearing. No determination so made by the City Council shall conflict with any
substantive provision of this chapter. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.39. Hearing; penalties suspended.
No penalty provided for in this chapter shall be imposed after the filing of any appeal or
prior to the completion of the hearing on the appeal and the making of a determination on the
subject of the appeal by the City Council. (Ord. No. 927, § 1, 7-19-71)
ARTICLE X. RECORDS
Sec. 26B.40. Retention period; access.
It shall be the duty of every Service Supplier and Non-utility Supplier_required to collect
and remit to the City any tax imposed by this chapter to keep and preserve, for a period of three
(3) years, all records as may be necessary to determine the amount of such tax that such Service
Supplier or Non-utility Supplier may have been required to collect and remit to the City, which
records the Tax Collector shall have the right to inspect at all reasonable times. (Ord. No. 927,
§ 1,%19-71)
ARTICLE XI. REFUNDS
Sec. 26B.41. Claim; filing period.
Whenever the amount of any tax, interest or penalty has been overpaid or paid more than
once, or has been erroneously or illegally collected or received by the City under this chapter, it
may be refunded as provided in this section: (Ord. No. 927, § 1, 7-19-71)
(a)
The Tax Collector may refund any tax that has been overpaid or paid more than
once or has been erroneously or illegally collected or received by the Tax
Collector under this chapter, provided that no refund shall be paid under the
provisions of this section unless the claimant has submitted a written claim to the
Tax Collector 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 of a claim on behalf of a class or group of taxpayers. The
submission of a written claim, which is acted upon by the City Council, shall be a
prerequisite to a suit thereon. (See Government Code Section 935). The City
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Council shall act upon the refund claim within the time period set forth in
Government Code Section 912.4. If the City Council fails or refuses to act on a
refund claim wittfin the time prescribed by Government Code Section 912.4, 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 Government Code Section 912.4. It is the intent of the City Council
that the one year written claim requirement of this subsection be given retroactive
effect; provided, however, that any claims which arose prior to the
commencement of the one year claims period of this subsection, and which are
not otherwise barred by a then applicable statute of limitations or claims
procedure, must be filed with the Tax Collector as provided in this subsection
within ninety (90) days following the effective date of this ordinance.
Co)
Notwithstanding other provisions of this section, whenever a Service Supplier or
Non-utility Supplier, pursuant to an order of the California Public Utilities
Commission or a court of competent jurisdiction, makes a refund to Service Users
of charges for past utility services, the taxes paid pursuant to this chapter on the
amount of such refunded charges shall also be refunded to Service Users, and the
Service Supplier or Non-utility Supplier shall be entitled to claim a credit for such
refunded taxes against the amount of tax which is due upon the next monthly
returns. In the event this ordinance is repealed, the amounts of any refundable
taxes will be borne by the City.
Sec. 26B.42. Service Supplier; refund.
· A Service Supplier or Non-utility Supplier may claim a refund or take as credit against
taxes collected and remitted an amount overpaid, paid more than once, or erroneously or illegally
collected or received in the manner provided in section 26B.42, but only when it is established in
a manner prescribed by the Tax Collector that the person from whom the tax has been collected
was not a Service User. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.43. Service User; refund.
Any Service User may obtain a refund of taxes overpaid, or paid more than once, or
erroneously or illegally collected or received by the City by filing a claim in the manner provided
in section 26B.42, but only when the Service User having paid the tax to the Service Supplier or
Non-utility Supplier establishes to the satisfaction of the Tax Collector that the Service User has
been unable to obtain a refund from the Service Supplier or Non-utility Supplier who collected
the tax. (Ord. No. 927, § 1, 7-19-71)
Sec. 26B.44. Claim; proof required.
No refund shall be paid under the provisions of this article unless the claimant establishes
his right thereto by written records showing entitlement thereto. (Ord. No. 927, § 1, 7-19-71)
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ARTICLE XII. SEVERABILITY
Sec. 26B.45. Severability
If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this
chapter or any part thereof is for any reason held to be unconstitutional, such decision, and
decision not to enforce such shall not affect the validity of the remaining portion of this chapter
or any part thereofi The City Council hereby declares that it would have passed each section,
subsection, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of the fact that
any one or more section, subsection, subdivision, paragraph, sentence, clause or phrase be
declared unconstitutional.
ARTICLE XIII. NOTICE OF CHANGES TO ORDINANCE
Sec. 26B.46. Notice of Changes to Tax
If a tax under this chapter is added, repealed, increased, reduced, or the tax base is
changed, the Tax Collector shall follow the notice requirements of the Public Utilities Code
Section 799. Prior to the effective date of the change, the Service Supplier or Non-utility
Supplier shall provide the Tax Collector with a copy of any written procedures describing the
information that the Service Supplier or Non-utility Supplier needs to implement the change. If
the Service Supplier or Non-utility Supplier fails to provide such written instructions, the Tax
Collector, or its agent, shall send, by first class mail, a copy of the change to all collectors and
remitters of the City's utility users taxes according to the latest payment records of the Tax
Collector.
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I, RHONDA PELLIN, City Clerk of the City of Gilroy, do hereby certify that the attached
Ordinance No. 99-12 is an original ordinance, duly adopted by the Council of the City of Gilroy at
a regular meeting of said Council held on the 7th day of September, 1999, at which meeting a
quorum was present.
1N WlTNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of
the City of Gqlroy this 22nd day of September, 1999.
City Clerk of the;City o Gq y
(Seal)