HomeMy WebLinkAboutOrdinance No. 92-O31 ORDINANCE NO. 92-031
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA
ADDING A NEW CHAFFER 3.46 TO TITLE 3 OF THE AZUSA
MUNICIPAL CODE IMPOSING A UTILITY USER TAX
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA DOES
HEREBY ORDAIN AS FOLLOWS:
SECTION 1. The City Council of the City of Azusa does hereby find, determine
and declare as follows:
A. A continuing need exists to finance the maintenance and replacement of the
essential elements of the City's infrastructure, provide services to residents, and
to maintain the quality of life of the City of Azusa;
B. It is intended that the burden of taxation be spread as equitably as possible so
that a correlation exists between the amount of services and benefits received
by a citizen of Azusa and the taxes assessed against them;
C. A utility users tax measures the amount of a tax by the amount of utilities
consumed by the taxpayer. The amount of utilities consumed by an individual
taxpayer helps to measure the extent of activity conducted by the taxpayer
within the City; and
D. It is the intention of the City Council that the tax imposed by this Ordinance be
a general tax to be deposited in the City's general fund and used for general
municipal purposes.
SECTION 2, The City Council of the City of Azusa hereby adds a new Chapter
3.46 to Title 3 of the Azusa Municipal Code to read as follows:
"Chapter 3.46
UTILITY USERS TAX
3.46.010 Definitions.
3.46.020 Exemptions.
3.46.030 Electricity Users Tax.
3.46.035 Tax on Co-Generated Electricity.
3.46.040 Gas Users Tax.
3.46.050 Water Users Tax.
3.46.060 Reporting and Remitting.
3.46.070 Interest and Penalty.
3.46.080 Actions to Collect.
3.46.085 Attorneys' Fees.
3.46.090 Duty to Collect Procedures.
3.46.100 Additional Power and Duties of Tax
Administrator.
3.46.110 Assessment - Administrative Remedy.
3.46.120 Records.
3.46.130 Refunds.
3.46.010 DEFINITIONS.
The following words and phrases whenever used in this chapter shall be construed
as defined in this section.
"Person" shall mean any residential, commercial or industrial utility user.
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"Fuel" shall mean natural or manufactured gas or any alternate hydrocarbon fuel
which may be substituted therefor.
"Electrical corporation", "gas corporation", and "water corporation" shall have the
same meaning as defined in Sections 218, 222 and 241, respectively, of the Public Utilities Code
of the State of California as said sections existed on July 1, 1992 except "electrical corporation"
shall be construed to include any franchised agency, or cogenerator, and "electrical corporation",
"gas corporation" and "water corporation" shall also be construed to include any municipality,
public agency, broker/marketer or person engaged in the selling or supplying of electrical power
or gas or water to a service user.
"Tax administrator" shall mean the Finance Director of the City of Azusa.
"Service supplier" shall mean any entity which receives taxes paid and remits same
as imposed by this chapter.
"Service user" shall mean a person required to pay a tax imposed by this chapter.
"Month" shall mean a calendar month.
"Cogenerator" shall mean any corporation, including an electrical corporation, or
person employing cogeneration technology for producing power from other than a conventional
power source for the generation of electricity.
"Non-utility Supplier" shall mean: (a) a service supplier, other than an electrical
corporation serving with the City, which generates electrical energy in capacities of at least 50
kilowatts for its own use or for sale to others; or (b) a gas supplier other than a gas
corporation, that sells or supplies gas to users within the City.
3.46.020 EXEMPTIONS
Nothing in this chapter shall be construed as imposing a tax upon any person when
imposition of such tax upon that person would be in violation of the Constitution of the United
States or that of the State of California or upon the City or any of its departments, agencies,
boards or commissions or upon any school district, or upon any other person when imposition
of such tax upon that person would be in violation of the Constitution of the United States or
the Constitution of the State of California. The tax administrator shall prepare a list of the
persons exempt from the provisions of this chapter by virtue of this section and furnish a copy
thereof to each service supplier.
There shall also be exempted the following:
1. Individuals over the age of 61.
2. Individuals certified as handicapped by the Azusa Light and Water
Department.
3. Individuals certified as "low-income" using standards developed by the Azusa
Light and Water Department.
4. Organizations classified as exempt from taxation under Chapter 501 of the
Internal Revenue Code.
The tax administrator shall develop regulations for determining eligibility for the
exemptions provided for herein and shall be charged with the responsibility for developing forms
and procedures and processing applications for exemptions.
The Azusa Light and Water Department shall determine the eligibility of any person
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who asserts a right to exemption from the tax imposed by this chapter. The Light and Water
Department shall provide the tax administrator with the name of any person it determines is
exempt from the tax imposed hereby, together with the address and account number to which
service is supplied to any such exempt person. The tax administrator shall certify the
information and shall provide it to the service provider. The tax administrator shall also notify
the service supplier of the termination of any person's right to exemption hereunder, or the
change of any address to which service is supplied to any exempt person.
3.46.030 ELECTRICITY USERS TAX
(a) There is hereby imposed a tax upon every person in the City using electrical energy
in the City. The tax imposed by this section shall be at the rate of five percent (5%) of the
charges made for such energy and shall be paid by the person paying for such energy.
"Charges", as used in this section, shall include charges made for: (1) metered energy; (2)
transmission and distribution charges; and (3) demand charges, service charges, customer
charges, minimum charges, annual and monthly charges, fuel cost adjustments and any other
charge authorized by the California Public Utilities Commission or the Federal Energy
Regulatory Commission.
(b) As used in this section, the term "using electrical energy" shall not be construed to
mean 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; nor shall the term include electricity used and
consumed by an electric utility supplier in the conduct of its business as an electric public utility;
nor shall the term include the mere receiving of such energy by an electric public utility or
government agency at a point within the City for resale; or the use of such energy in the
production or distribution of water by a public utility or a governmental agency; nor shall the
base on which the tax imposed in this section is computed include reconnect charges, late
payment charges, returned check charges, penalties, broken meter charges, etc.
(c) The tax imposed by this section shall be collected from the service user by the
person providing such energy. The amount of the tax collected in one (1) month shall be
remitted to the tax administrator on or before the last day of the following month.
3.46.035 TAX ON COGENERATED ELECTRICITY
(a) There is hereby imposed a tax on every person in the City using cogenerated
electrical energy in the City. The tax imposed by this section shall be at the rate of five percent
(5%) of the value of the cogenerated electrical consumed energy in the City. The cogenerator
shall install and maintain an appropriate utility type metering system which will enable
compliance with this section.
(b) The tax shall be collected and paid by the cogenerator if the cogenerator consumes
the energy. If the cogenerator sells the energy, the tax shall be paid by the person to whom the
energy is sold and collected by the cogenerator.
(c) The amount of the tax collected in one (1) month shall be remitted to the tax
administrator on or before the last day of the following month.
3.46.040 FUEL USERS TAX
(a) There is hereby imposed a tax upon every person in the City other than a gas
corporation or electrical corporation, using, in the City, natural gas and other hydrocarbon fuels
which is transported through the gas pipeline distribution system or by mobile transport. The
tax imposed by this section shall be at the rate of five percent (5%) of the amount that will be
paid by the person using the fuel. The tax applicable to fuel provided by non-utility suppliers
shall be determined by applying the tax rate to the actual charges the service user incurred.
"Charges" as used in this section shall include: (1) that billed for fuel which is delivered
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through a gas pipeline distribution system or mobile transport; (2) fuel transportation charges;
and (3) demand charges, service charges, customer charges, minimum charges, annual and
monthly charges, fuel cost adjustments and any other charge authorized by the California Public
Utilities Commission or the Federal Energy Regulatory Commission.
(b) There shall be excluded from the base on which the tax imposed in this section is
computed: (1) charges made for gas which is to be resold and delivered through mains or pipes;
(2) charges made for gas sold for use in production or distribution of water by a public utility
or governmental agency; (3) charges made by a gas public utility for gas used and consumed
in the conduct of the business of gas public utilities; (4) charges made for gas used by a co-
generator or fuel cell, or in the propulsion of a motor vehicle, as that phrase is defined in the
Vehicle Code of the State of California, utilizing natural gas; and (5) reconnect charges, late
payment charges, returned check charges, penalties, broken meter charges, etc.
(c) The tax imposed by this section shall be collected from the service user by the
person selling the gas. The person selling the gas shall, on or before the 20th of each calendar
month, commencing on the 20th day of the calendar month after the effective date of this part,
make a return to the tax administrator stating the amount of taxes billed during the preceding
calendar month. At the time such returns are filed, the person selling the gas shall remit tax
payments to the tax administrator in accordance with schedules established or approved by the
tax administrator.
3.46.050 SERVICE USERS RECEIVING DIRECT PURCHASE
OF FUEL OR ELECTRICITY
(a) Notwithstanding any other provision of this chapter, a service user receiving fuel or
electricity directly from a non-utility supplier not under the jurisdiction of this ordinance, or
otherwise not having the full tax due on the use of fuel or electricity in the City
(unincorporated/incorporated) directly billed and collected by the service supplier, shall report
said fact to the tax administrator within thirty days of said use and shall directly remit to the
City the amount of tax due.
(b) The tax administrator may require said service user to provide, subject to audit, filed
tax returns or other satisfactory evidence documenting the quantity of gas or electricity used and
the (actual) price thereof.
3.46.060 WATER USERS TAX
(a) There is hereby imposed a tax upon every person in the City using water which is
delivered through mains or pipes. The tax imposed by this section shall be at the rate of five
percent (5%) of the charges made for such water.
(b) "Charges" as used in this section, shall include charges made for: (1) metered
water; (2) transmission and distribution charges; and (3) demand charges, service charges,
customer charges, minimum charges, annual and monthly charges, water cost adjustments, and
any other charge authorized by the California Public Utilities Commission or the Federal Energy
Regulatory Commission.
(c) There shall be excluded from the base on which the tax imposed in this section is
computed charges made for water which is to be resold and delivered through mains or pipes;
charges made by a municipal water department, public utility or a County or municipal water
district for water used and consumed by such department, utility or district; and reconnect
charges, late payment charges, returned check charges, penalties, broken meter charges, etc.
(d) The tax imposed by this section shall be collected from the service user by the
person selling the water. The amount collected in one (1) month shall be remitted to the tax
administrator on or before the last day of the following month.
3.46.070 REPORTING AND REMITTING
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Each service supplier shall, on or before the last day of each month, make a return
to the tax administrator on forms provided by him, stating the amount of taxes billed by the
service supplier during the preceding month, except as provided in Section 3.24.040(c) of this
chapter. At the time the return is filed, the full amount of the tax collected shall be remitted to
the tax administrator. The tax administrator is authorized to require such further information
as he deemed necessary to determine if the tax imposed hereby is being levied and collected in
accordance with this chapter.
3.46.080 INTEREST AND PENALTY
(a) Taxes collected from a service user which are not remitted to the tax administrator
on or before the due dates provided in this chapter are delinquent. Should the due date occur
on a weekend or legal holiday, the return may be postmarked the first regular working day
following a Saturday/Sunday, or legal holiday.
(b) Penalties for delinquency in remittance of any tax collected or any deficiency
determination pursuant to this chapter shall attach to, and be paid by, the person required to
collect and remit at the rate of fifteen percent per month (prorated for periods less than one
month) of the total tax collected or imposed by this chapter.
(c) The tax administrator is hereby empowered to impose additional penalties for fraud
or negligence in reporting or remitting at the rate of fifteen percent (15%) per month (prorated
for periods less than one month) of the amount of the tax collected or as recomputed by the tax
administrator.
(d) Every penalty imposed under the provisions of this section shall become a part of
the tax required to be remitted.
3.46.090 ACTIONS TO COLLECT.
Any tax required to be paid by a service user under the provisions of this chapter
shall be deemed a debt owed by the service user to the City. Any such tax received from a
service user which has willfully been withheld from the tax administrator shall be deemed a debt
owed to the City by the person required to collect and remit. Any person holding such money
contrary to the provisions of this chapter shall be liable to an action brought in the name of the
City for the recovery of such amount.
3.46.095 ATTORNEYS' FEES
The City shall be entitled to recovery of its attorney fees in any action to enforce the
provisions of this chapter.
3.46.100 DUTY TO COLLECT - PROCEDURES
The duty to collect and remit the taxes imposed by this chapter shall be performed
as follows:
(a) Notwithstanding the provisions of Section 3.36.040(c), the tax shall be collected
insofar as practicable at the same time as and along with the charges made in accordance with
the regular billing practices of the service supplier. Where the amount paid by a service user
to a service supplier is less than the full amount of the utility charge and tax which has accrued
for the billing period, such amount and any subsequent payments by a service user shall be
applied to the utility charge first until such charge has been fully satisfied. Any remaining
balance shall be applied to taxes due. In those cases where a service user has notified the
service supplier of his refusal to pay the tax imposed on said utility charges Section 3.46.110(c)
will apply.
(b) The duty to collect tax from a service user shall commence with the beginning of
the first full regular billing period applicable to the service user where all charges normally
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included in such regular billing are subject to the provisions 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.
3.46.110 ADDITIONAL POWER AND DUTIES OF TAX ADMINISTRATOR
(a) The tax administrator shall have the power and duty, and is hereby directed to
enforce each and all of the provisions of this chapter.
(b) The tax administrator shall have the power to adopt 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 rules and
regulations shall be on file in the tax administrator's office.
(c) The tax administrator may make administrative agreements to vary the strict
requirements of this chapter so that collection of any tax imposed here may be made in
conformance with the billing procedures of a particular service supplier so long as said
agreements result in 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 administrator's office.
3.46.120 ASSESSMENT - ADMINISTRATIVE REMEDY
(a) The tax administrator may make an assessment for taxes not remitted by a person
required to remit.
(b) Whenever the tax administrator determines that a service user has deliberately
withheld the amount of the tax owed by him from the amounts remitted to a person required to
collect the tax, or that a service user has refused to pay the amount of tax to such person, or
whenever the tax administrator deems it in the best interest of the City, he may relieve such
person of the obligation to collect taxes due under this chapter from certain service users for
specified billing periods.
(c) The service supplier shall provide the City with amounts refused and/or unpaid along
with the names and addresses of the service users neglecting to pay the tax imposed under
provisions of this chapter. Whenever the service user has failed to pay the amount of tax for
a period of two or more billing periods, the service supplier may be relieved of the obligation
to collect taxes due.
(d) The tax administrator shall notify the service user that he has assumed responsibility
to collect the taxes due for the stated periods and demand payment of such taxes. The notice
shall be served on the service user by handing it to him personally or by deposit of 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 person required to collect the tax; or, should the service user
have changed his address, to his last known address. If a service user fails to remit the tax to
the tax administrator within fifteen(15) days from the date of the service of the notice upon him,
which shall be the date of mailing if service is not accomplished in person, a penalty of twenty-
five percent (25%) of the amount of the tax set forth in the notice shall be imposed, but not less
than $5.00. The penalty shall become part of the tax herein required to be paid.
3.46.130 RECORDS
It shall be the duty of every person 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 as he may have been liable for the collection
of and remittance to the tax administrator, which records the tax administrator shall have the
right to inspect at City Hall at all reasonable times. Failure to provide the tax administrator with
documents requested by the times specified by the tax administrator shall result in a penalty of
$250.00 per day for each day after the date the documents were requested to be produced by the
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tax administrator that the documents are withheld.
3.46.140 REFUNDS
(a) Whenever the amount of any tax has been overpaid or paid more than once or has
been erroneously or illegally collected or received by the tax administrator under this chapter,
it may be refunded as provided in subsections (b) and (c) of this section, provided a claim in
writing therefor, stating under penalty of perjury the specific grounds upon which the claim is
based is filed with the tax administrator within three years of the date of payment. The claim
shall be on forms furnished by the tax administrator.
(b) Notwithstanding the provisions of subsection (a) of this section, a service supplier
may claim a refund or take as credit against taxes collected and remitted the amount overpaid,
paid more than once, or erroneously or illegally collected or received when it is established that
the service user from whom the tax has been collected did not owe the tax; provided, however,
that neither a refund nor a credit shall be allowed unless the amount of the tax so collected has
either been refunded to the service user or credited to charges subsequently payable by the
service user to the person required to collect and remit. A service supplier that has collected
any amount of tax in excess of the amount of tax imposed by this chapter and actually due from
a service user, may refund such amount to the service user and claim credit for such
overpayment against the amount of tax which is due upon any other monthly returns, provided
such credit is claimed in a return dated no later than three (3) years from the date of
overpayment.
(c) No refund shall be paid under the provisions of this section unless the claimant
establishes his right thereto by written record showing entitlement thereto to the satisfaction of
the tax administrator.
(d) Notwithstanding other provisions of this section, whenever a service 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 shall be entitled to claim a credit for such refunded taxes against
the amount of tax which is due upon the next monthly return. In the event this chapter is
repealed, the amounts of any refundable taxes will be borne by the City.
(e) A service supplier may refund the taxes collected to the service user in accordance
with this section or by the service supplier's customary practice.
3.46.150 OPERATIVE DATE
This ordinance shall become effective the 1st day of July 1993. The tax imposed
under this ordinance shall apply to bills rendered on or after July 1, 1993.
3.46.160 TERMINATION OR SUSPENSION OF UTILITY USERS TAX
The service supplier shall, upon notification, terminate or suspend any utility users
tax commencing with the first full billing period which occurs after the effective date of such
action by the City Council."
SECTION 3. SEVERABILITY
If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this
ordinance or any part thereof is for any reason held to be unconstitutional, such decision shall
not affect the validity of the remaining portion of this ordinance or any part thereof. 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 phrases be declared
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unconstitutional.
SECTION 4. The City Clerk shall certify to the passage and adoption of this
Ordinance, shall cause the same to be entered in the book of original ordinances of said City,
and shall cause the same to be published or posted as prescribed by law.
PASSED AND APPROVED this 5th day of October 1992.
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"ifeAl Vi/i/ t22.6'
If
I HEREBY CERTIFY that the foregoing Ordinance No. 92-031 was regularly
introduced and placed upon its first reading at a regular meeting of the City Council of the City
of Azusa on the 21st day of September 1992. That thereafter, said Ordinance
was duly adopted and passed at a regular meeting of the City Council on the 5th day of October
1992, by the following vote, to wit:
AYES: COUNCILMEMBERS : DANGLEIS, MADIRD, NARANJO
NOES: COUNCILMEMBERS: ALEXANDER, MOSES
ABSENT: COUNCILMEMBERS : NONE
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