16. Utility users tax ordinance measureADMINISTRATIVE SERVICES DEPARTMENT
CUPERTINO
CITY HALL
10300 TORRE AVENUE: • CUPERTINO, CA 950143202
{408) 777-3220 • FAX (4.08) 777-3109
SUMMARY
Agenda Item No. ! ~p
SUBJECT AND ISSUE
Meeting Date: July 21, 2009
Consider placing a measure on the November 3, 2009 General Municipal Election to
amend the telephone utility users tax (UUT) ordinance. The amendment would modernize
the municipal code wording to treat all taxpayers the same regardless of technology used,
with no rate increases and no changes to senior citizen exemptions.
a) Adopt a resolution to place a measure on the ballot at the November 3, 2009
General Municipal Election (Resolution 110. Q - .~Q ; or
b) Defer the matter at this time and direct .staff to undertake further study and report
back with options regarding such a measure at a future election.
BACKGROUND
Since 1990; Cupertino residents and businesses have paid a utility users tax (UUT} on
telecommunication services. 142 California cities use this type of funding to provide
essential local services. The tax, totaling about $1 million per year,, goes into the City's
general fund for general city purposes such as these that maintain the high quality of public
safety, support the excellent public schools, maintain parks and open space, and provide the
senior programs that residents expect and deser.~e. Communication advances aver the past
two decades mean that the City must update its outdated UUT law to match today's
technology. Voter approval is necessary for any updates to the UUT. Such an update will
clarify what can and can be taxed, close loopholes, and ensure that all taxpayers are treated
the same regardless of the technology used.
The proposed measure for the November 3, 2009 ballot is not a new tax and the current tax
rate would, not increase. This measure will simply include definitions for new
communications services and continue an existing fee that telecommunication users have
been paying for years. Internet access and a-mail has not been and will not be taxed under
this measure. This measure would maintain existing protections which exempt senior
residents, 65 and over, from paying the UUT.
Residential customers, who are the predominant: users of telecom services, should not see
any changes to their bill. The Legislative Action Council (LAC) of the Cupertino Chamber
of Commerce discussed the proposed UUT at their July 10, 2049 meeting. The reaction
was favorable. The LAC will discuss it furthf:r with the Chamber Board. Pending the
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Utility Users Tax
July 21, 2009
Page 2 of 3
review of the final ordinance as presented tonight, the LAC is leaning toward supporting
the measure, and doesn't foresee any problems with the Board. The major communication
providers have indicated that these types of measures are up to the voters to decide.
Information about this potential measure was published in this month's Cupertino Scene
sent to all residents and a letter about the measure was mailed to key community members.
Feedback so far has come from those interested in the tax exemption for seniors.
The proposed ordinance is substantially what's been passed by voters in 38 other California
cities that went through the same update that Cupertino is attempting. A key variable in
these measures is that some of these cities lowered the tax rate or included a maximum tax
per customer. In Cupertino, the City's fiscal strategic plan indicates that a goal for this
UUT measure is to keep existing revenues. Staff considered these reductions and caps done
by other cities. The already low tax rate of Cupertino, as described below, gave very little
room for moving the rate incrementally lower to make a worthwhile difference to taxpayers
while keeping revenues consistent. Tax caps have been found to be administratively
difficult to implement for cities, telecom users, and telecom carriers. The proposed
ordinance meets Cupertino's UUT revenue goal by excluding telecommunication lines that
are dedicated to the exclusive use of end users (such as T1 lines). Taxes are not currently
collected on such lines and there is potential long-term growth in usage of these lines.
In Santa Clara County, Cupertino's 2.4% telephone UUT rate is the second lowest of cities
that have a telephone UUT. Other nearby city rates are Sunnyvale at 2%, Mountain View
3%, Los Altos 3.2%, Gilroy 4.5%, San Jose 4.5%, and Palo Alto 5%. A recent City poll
showed that the measure would get the required majority vote to pass. Expenditures from
the UUT would be subject to independent annual financial audits.
FISCAL IMPACT
If the ordinance is not updated the City could be forced to return hundreds of thousands of
dollars. The City has received letters from the major cellular carriers, protesting the
continued collection of this tax based on our current ordinance and federal tax rulings. Staff
estimates that up to $600,000 in annual revenues could be at risk. The City is keeping $1.6
million in general fund reserves as a contingency until voters adopt an ordinance update
and the statute of limitations on refunds expires.
RECOMMENDATION
Staff recommends that the City Council consider placing on the November 3, 2009 general
municipal election, a ballot measure to modernize the City's existing utility users tax to
treat taxpayers the same regardless of technology used without any rate increase or change
in senior-citizen exemptions. If the Council determines to go forward with placing this on
the November 2009 ballot, then the Council should adopt the enclosed resolution placing
the measure and accompanying ordinance on that ballot. However, if further work on the
measure is determined to be needed, the Council may consider deferring this measure and
direct staff to conduct further study and report back with options regarding such a measure
at a future election.
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Utility Users Tax
Juiy 21, 2009
Page 3 of 3
Submitted by:
David Woo.
Finance Director
Approved for submission:
~~~~
David W. Knapp
City Manager
Attachment A: Resolution 09- l ~t9 : Submitting to Voters at the November 3, 2009 General
Municipal Election an Ordinance Amending the Telephone Users Tax
Attachment B: Community Update presentation
Attachment C: Frequently Asked Questions About the UUT
16-3
~~
Attachment A
RESOLUTION N0.09-120
A RESOLUTION OF THE CUPERTINO CITY COUNCIL SUBMITTING TO THE
VOTERS AT THE NOVEMBER 3, 2009 GENERAL MUNICIPAL ELECTION AN
ORDINANCE AMENDING TITLE 3 OF THE CUPERTINO MUNICIPAL CODE
REGARDING THE TELEPHONE USERS TAX
WHEREAS, since 1990 the residents of Cupertino have paid a Utility User Tax
(UUT) on telecommunications services. Like many other California cities, Cupertino uses
this funding to provide essential public services and, without this revenue, the City would
be forced to cut funding that supports:
• Neighborhood police patrols
• Library services
• School crossing guards
• City streets
• Open space and parks improvement projects; and
WHEREAS, communication advances over the past two decades mean that the
City must update its UUT law to match today's technology, including definitions for new
communications technologies; and
WHEREAS, the changes are technical and do not change the rate, and most
residents will see no difference; and,
WHEREAS, the measure would clarify what can and cannot be taxed, close
unintended loopholes, and continue the exemption for seniors; and
16-4
87260.1
WHEREAS, updating the existing, outdated UUT -with no change to the existing
rate or exemptions -will ensure that taxpayers are treated the same regardless of the
type of technology used; and,
WHEREAS, the measure will safeguard local revenues already being received for
local needs, and this money cannot be taken avray by the State; and,
WHEREAS, many residents live in Cupertino because it offers a higher level of
service, programs and quality of life than neigYlboring cities; and,
WHEREAS, the UUT is an important revenue source and preserving that revenue
will ensure that the City can maintain the high quality of public safety, support of the
community's excellent schools, main#ain parks and open space, and provide the senior
programs that residents expect and deserve.
NOW, THEREFORE, BE 1T RESOLVED by the City Council of the City of
Cupertino as follows:
At the November 3, 2009 Genel•al Municipal Election called by previous
action of this Council, there shall be submitted to the qualified voters of the City of
Cupertino an ordinance amending Title 3 of the Cupertino Municipal Code, to adopt
Chapter 3.35, the Telecommunications Users Tax.
2. The text of the ordinance is attached hereto as Exhibit A, and incorporated
herein by this reference.
3. The procedures for voting for alid against said question shall be those
established by Santa Clara County and the que;~tion shall be printed in substantially the
following form:
2 16-5
87260.1
"MEASURE :Cupertino Vital Services Utility Users Tax
Update Measure. Without increasing the tax rate, shall an
ordinance be adopted to update Cupertino's existing telephone YES
utility users tax, to fund general city services, including
neighborhood police patrols, library services, city streets, parks
and open spaces, senior programs, and school crossing guards,
while maintaining senior citizens' tax exemptions, treating NO
taxpayers equally regardless of technology used, retaining local
control of revenues, and requiring annual audits and public
expenditure reviews?" _ __
4. The ballots to be used at the election shall be in form and content as
required by law.
5. The polls shall be open at 7:00 a.m. of the day of the election and shall
remain open continuously from that time unti18:00 p.m. of the same day when the polls
shall be closed, except as provided in Section 14401 of the California Elections Code.
6. Under separate resolution, the Board of Supervisors of Santa Clara County
shall cause the precincts, polling places and election officers for said election to be
established and cause the returns of said election to be canvassed and to certify the same
to the City Council of the City of Cupertino. The vote requirement for passage of the
measure is a majority of the votes cast (50% plus 1).
7. In all particulars not recited in this resolution, the election hereby called
shall be as provided by law for holding municipal elections in the City.
8. Notice of the time and place of holding the election is given and the City
Clerk is authorized, instructed and directed to give further or additional notice of the
election, in time, form and manner as required by law.
9. Arguments in favor or against the proposed measure shall be filed with the
City Clerk by Friday, August 7, 2009 at 5:00 p.m.
87260.1 ~ 16 - 6
10. Rebuttals to arguments in favor or against the proposed measures shall be
filed with the City Clerk by Monday, August 17, 2009 at 5:00 p.m.
11. The City Attorney shall prepare an impartial analysis of the measure not to
exceed 500 words in length and which is to be filed with the County no later than
Wednesday, August 19, 2009.
12. The City Clerk shall publish a notice of election and synopsis of the
measure one time in a newspaper of general circulation.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 21st day of July 2009, by the fol~iowing vote:
Vote Council Members
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
City Clerk
APPROVED:
srzbo. ~ 4 ~ s - ~
r
EXHIBIT A TO RESOLUTION NO. 09-
ORDINANCE NO. 09-
AN ORDINANCE OF THE CITY OF CUPERTINO ADDING CHAPTER
3.35 TO THE CUPERTINO MUNICIPAL CODE WITH RESPECT TO A
TELECOMMUNICATION USERS' TAX
WHEREAS, since 1990 the residents of Cupertino have paid a Utility User Tax (UUT) on
telecommunications services. Like many other California cities, Cupertino uses this
funding to provide essential public services; and, without this revenue, the City would be
forced to cut funding that supports:
• Neighborhood police patrols
• Library services
• :School crossing guards
• .City streets
• Open space and parks improvement projects; and
WHEREAS, communication advances over the past two decades mean that the City
must update its UUT law to match today's technology, including definitions for new
communications technologies; and
WHEREAS, the changes are technical and do not change the rate, and most residents
will see no difference; and,
WHEREAS, the measure would clarify what can and cannot be taxed, close unintended
loopholes, and continue the exemption for seniors; and
WHEREAS, updating the existing, outdated UUT -with no change to the existing rate or
exemptions -will ensure that taxpayers are treated the same regardless of the type of
technology used; and,
WHEREAS, the measure will safeguard local revenues already being received for local
needs, and this money cannot be taken away by the State; and,
WHEREAS, many residents live in Cupertino because it offers a higher level of service,
programs and quality of life than neighboring cities; and,
WHEREAS, the UUT is an important revenue source and preserving that revenue will
ensure that the City can maintain the high quality of public safety, support the
community's excellent schools, maintain parks and open space, and provide the senior
programs that residents expect and deserve.
NOW, THEREFORE, the People of the City of Cupertino do ordain as follows:
94787.1 1 16 - 8
SECTION 1: Title 3 of the Cupertino Municipal Code is hereby amended by
adding a new Chapter 3.35, which shall read as follows:
CHAPTER 3.35
TELECOMMUNICATION USERS' TAX
3.35.010 Short Title.
3.35.020 Adoption.
3.35.030 Definitions.
3.35.040 Constitutional, Statutory, and Other Exemptions.
3.35.050 Telecommunication Users' Tax.
3.35.060 Bundling Taxable Items with Non-tax~~ble Items
3.35.070 Substantial Nexus /Minimum Contacts.
3.35.080 Duty to collect -Procedures.
3.35.090 Collection Penalties -- Service Suppli~:rs.
3.35.100 Actions to Collect.
3.35.110 :Deficiency Determination and Assessment -Tax Application Errors.
3.35.120 Administrative Remedv -Non-Paving Service Users.
3.35.130 Additional Powers and Duties of the 'Tax Administrator.
3.35.140 Records.
3.35.150 Refunds.
3.35.160 Appeals.
3.35.170 No Iniunction/V1/rit of Mandate.
3.35.180 Notice of Changes to Ordinance.
3.35.190 -Effect of State and Federal Reference/Authorization.
3.35.200 Independent Audit of Tax Collection, Exemption, Remittance, and Expenditure.
3.35.210 Interaction with Prior Tax.
3.35.220 Remedies Cumulative
3.35.230 Duration.
3.35.010 Short Title.
This Chapter shall be known as the "Telecommunication Users' Tax Ordinance" of the
City.
3.35.020 Adoption.
This Chapter is adopted pursuant to the powers of the City of Cupertino as authorized
by Califorrlia Government Code Section 37100.5.
3.35.030 Definitions.
The following words and phrases whenever used in this chapter shall be construed as
defined in this Section.
A. "Anci!!ary telecommunication services" me~~ns services that are associated with or
incidental to the provision, use or enjoyment of telecommunications services, including
but not limited to the following services:
(1) "Conference budging service" means an ancillary service that links two or
more participants of an audio or video conference call and may include the
provision of a telephone number. Conference bridging service does not include
the telecommunications services used i:o reach the conference bridge.
94787.1 2 16 - 9
(2) "Detailed telecommunications billing service" means an ancillary service of
separately stating information pertaining to individual calls on a customer's billing
statement.
(3) "Directory assistance" means an ancillary service of providing telephone
number information, and/or address information.
(4) "Vertical service" means an ancillary service that is offered in connection with
one or more telecommunications services, which offers advanced calling features
that allow customers to identify callers and to manage multiple calls and call
connections, including conference bridging services.
(5} "Voice mail service" means an ancillary service that enables the customer to
store, send or receive recorded messages. Voice mail service does not include
any vertical services that the customer may be required to have in order to utilize
the voice mail service
B. "Billing Address" shall mean the mailing address of the service user where the
service supplier submits invoices or bills for payment by the customer.
C. "City!' shall mean the City of Cupertino.
D. "City Manager" shall mean the City Manager or his or her designee.
E. "Telecommunication Services" means "telecommunication services" and "ancillary
telecommunication services."
F. "Mobile Telecommunications Service" has the same meaning and usage as set forth
in the Mobile Telecommunications Sourcing Act (4 U.S.C. Section 124) and the
regulations thereunder.
G. "Month" shall mean a calendar month.
H. "Paging Service" means a "telecommunications service" that provides transmission
of coded radio signals for the purpose of activating specific pagers; such transmissions
may include messages and/or sounds.
I. "Person" shall mean, without limitation, any natural. individual, firm, trust, common law
trust, estate, partnership of any kind, association, syndicate, club, joint stock company,
joint venture, limited liability company, corporation (including foreign, domestic, and non-
profit}, municipal district or municipal corporation (other than the City} cooperative,
receiver, trustee, guardian, or other representative appointed by order of any court.
J. "Place of Primary Use" means the street address representative of where the
customer's use of the telecommunications service primarily occurs, which must be the
residential street address or the primary business street address of the customer.
K. "Post=paid telecommunication service" means the telecommunication service
obtained by making a payment on acommunication-by-communication basis either
through the use of a credit card or payment mechanism such as a bank card, travel card,
94787.1 3 16 - 10
credit card, or debit card, or by charge made to a service number which is not
associated with the origination or termination of the telecommunication service.
L. "Prepaid telecommunication service" means the right to access telecommunication
services, which must be paid for in advance and which enables the origination of
communications using an access number or authorization code, whether manually or
electronically dialed, and that is sold in prede#e~rmined units or dollars of which the
number declines with use in a known amount.
M. "Private telecommunication service" means a telecommunication service that
entitles the customer to exclusive or priority use of a communications channel or group
of channels between or among termination points, regardless of the manner in which
such channel or channels are connected, and includes switching capacity, extension
lines, stations, and any other associated services that are provided in connection with
the use of such channel or channels. A communications channel is a physical or virtual
path of communications over which signals are transmitted between or among customer
channel termination points (i.e., the location wriere the customer either inputs or receives
the communications).
N. "Service Address" means either:
(1) The location of the service user's telecommunication equipment from which
the communication originates or terminates, re~~ardless of where the communication is
billed or paid; or,
(2) If the location in subsection (1) of this definition is unknown {e.g., mobile
telecommunications service or VoIP service), the service address means the location of
the service user's place of primary use.
(3) For prepaid telecommunication senvice, "service address" means the location
associated with the service number.
O. "Service Supplier" shall mean any entity or person, including the City, that provides
communication service to a user of such service within the City.
P. "Service User" shall mean a person requirE~d to pay a tax imposed under the
provisions of this Chapter.
Q. "State" shall mean the State of California.
R. "Streamlined Sales and Use Tax AgreemE~nt" shall mean the multistate agreement
commonly known and referred to as the Streamlined Sales and Use Tax Agreement as it
is amended from time to time.
S. "Tax Administrator" means the City Treasurer of the City or his or her designee.
T. "Telecommunications services" means the transmission, conveyance, or routing of
voice, data, audio, video, or any other information or signals to a point, or between or
among points, whatever the technology used. 'the term "telecommunications services"
includes such transmission, conveyance, or rotating in which computer processing
applications are used to act on the form, code ~~r protocol of the content for purposes of
94787.1 416 - 11
transmission, conveyance or routing without regard to whether such services are
referred to as voice over internet protocol (VoIP} services or are classified by the Federal
Communications Commission as enhanced or value added, and includes video and/or
data services that are functionally integrated with "telecommunication services."
"Telecommunications services" include, but are not limited to the following services,
regardless of the manner or basis on which such services are calculated or billed:
ancillary telecommunication services; mobile telecommunications service; prepaid
telecommunication service; post-paid telecommunication service; paging service; 800
service (or any other toll-free numbers designated by the Federal Communications
Commission); and 900 service (or any other similar numbers designated by the Federal
Communications Commission for services whereby subscribers who call in to pre-
recorded or live service).
U. "VoIP-(Voice Overlnternet Protocol)" means the digital process of making and
receiving real-time voice transmissions over any Internet Protocol network.
V. "800 Service" means a "telecommunications service" that allows a caller to dial atoll-
free number without incurring a charge for the call. The service is typically marketed
under the name "800", "$55", "866", "877", and "888" toll-free calling, and includes any
subsequent numbers designated by the Federal Communications Commission for such
services.
W. "900 Service" means an inbound toll "telecommunications service" purchased by a
subscriber that allows the subscriber's customers to call in to the subscriber's
prerecorded announcement or live service. "900 service" does not include the charge for
collection services provided by the seller of the "telecommunications services" to the
subscriber, or service or product sold by the subscriber to the subscriber's customer.
The service is typically marketed under the name "900" service, and includes any
subsequent numbers designated by the Federal Communications Commission.
3.35.040 Constitutional, statutory, and other exemptions:
A. Nothing in this Chapter shall be construed as imposing a tax upon any person or
service when the imposition of such tax upon such person or service would be in
violation of a federal or state statute, the Constitution of the United States or the
Constitution of the State. Residential service users of sixty-five years or older shall be
exempt from tax payments under this Chapter.
B. Any service user who is exempt from the tax imposed by this Chapter pursuant to
subsection A. of this Section shall file an application with the Tax Administrator for an
exemption; provided, however, this requiremen# shall not apply to a service user that is a
state or federal agency or subdivision with a commonly recognized name for such
service. Said application shall be made upon a form approved by the Tax Administrator
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 suppliers serving that
service user. If deemed exempt by the Tax Administrator, such service user shall give
the Tax Administrator timely written notice of any change in utility service suppliers so
that the Tax Administrator can properly notify the new utility service supplier of the
service user's tax exempt status. A service user who fails to comply with this Section
shall not be entitled to a refund of utility users' taxes collected and remitted to the Tax
Administrator from such service user as a result of such noncompliance.
94787.1 ~ 5 16 - 12
The decision of the Tax Administra#or may be appealed pursuant to Section 3.35.160 of
this Chapter. Filing an application with the Tax Administrator and appeal to the City
Manager pursuant to Section 3.35.160 of this {chapter is a prerequisite to a suit thereon.
C. The City Council may, by resolution, establish one or more classes of persons or
one or more classes of utility service otherwisE: subject to payment of a tax imposed by
this chapter and provide that such classes of K~ersons or service shall be exempt, in
whole or in part from such tax for a specified period of time.
D. 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. _
3.35.050 Telecommunication Users' Tax.
A. There is hereby imposed a tax upon every person in the City using
telecommunication services. The maximum t~ix imposed by this Section shall be at the
rate of two and forty hundredths percent (2.40'x/0) of the charges made for such services
and shall be collected from the service user by the telecommunication services supplier
or its billing agent. There is a rebuttable presumption that telecommunication services,
which are billed to a billing or service address in the City, are used, in whole or in part,
within the City's boundaries, and such service:~ are subject to taxation under this
Chapter. If the billing address of the service user is different from the service address,
the service address of the service user shall be used for purposes of imposing the tax.
As used in this Section, the term "charges" shell include the value of any other services,
credits, property of every kind or nature, or other consideration provided by the service
user in exchange for the telecommunication services.
B. "Mobile Telecommunications Service" shall be sourced in accordance with the
sourcing rules set forth in the Mobile Telecomrunications Sourcing Act (4 U.S.C.
Section 724). The Tax Administrator may issue. and disseminate to telecommunication
service suppliers, which are subject to the tax collection requirements of this Chapter,
sourcing rules for the taxation of other telecommunication services, including but not
limited to post-paid communication services arld prepaid communication services,
provided that such rules are based upon custom and common practice that further
administrative efficiency and minimize multi jurisdictional taxation (e.g., Streamlined
Sales and Use Tax Agreement).
C. The Tax Administrator may issue and disseminate to telecommunication service
suppliers, which are subject to the tax collection requirements of this Chapter, an
administrative ruling identifying those telecomrnunication services, or charges therefore,
that are subject to or not subject to the tax of subsection A. above.
D. As used in this Section, the term "telecomrnunication services" shall include, -but are
not limited to charges for. connection, reconnection, termination, movement, or change
of telecommunication services; late payment fE:es; detailed billing; central office and
custom calling features (including but not limited to call waiting, call forwarding, caller
identification and three-way calling); voice mail and other messaging services; directory
assistance; access and line charges; universal service charges; regulatory,
administrative and other cost recovery charger; local number portability charges; and
text and instant messaging. "Telecommunication services" shall not include: i) digital
94787.1 616 - 13
downloads that are not "ancillary telecommunication services" such as books, music,
ringtones, games, and similar digital products; and ii} private telecommunication service.
E. To prevent actual multi-jurisdictional taxation of telecommunication services subject
to tax under this Section, any service user, upon proof to the Tax Administrator that the
service user has previously paid the same tax in another state or city on such
telecommunication services, 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.
F. The tax on telecommunication services imposed by this Section shall be collected
from the service user by the service supplier. The amount of tax collected in one (1}
month shall be remitted to the Tax Administrator on or before the last day of the
following month or, at the option of the service supplier, an estimated amount of tax
collected, measured by the tax bill in the previous month, shall be remitted to the Tax
Administrator on or before the last day of each month.
3.35.060 :Bundling Taxable Items with Non-Taxable Items.
If any nontaxable charges are combined with and not separately stated from taxable
service charges on the customer bill or invoice of a service supplier, the combined
charge is subject to tax unless the service supplier identifies, by reasonable and
verifiable standards, the portions of the combined charge that are nontaxable and
taxable through the service supplier's books and records kept in the regular course of
business, :and in accordance with generally accepted accounting principles, and not
created and main#ained for tax purposes. The service supplier has the burden of proving
the proper apportionment of taxable and non-taxable charges. If the service supplier
offers a combination of taxable and non-taxable services, and the charges are
separately stated, then for taxation purposes, the values assigned the taxable and non-
taxable services shall be based on its books and records kept in the regular course of
business and in accordance with generally accepted accounting principles, and not
created and maintained for tax purposes. The service supplier has the burden of proving
the proper valuation of the taxable and non-taxable services.
3.35.070 Substantial Nexus /Minimum Contacts.
For purposes of imposing a tax or establishing a duty to collect and remit a tax under this
Chapter, "substantial nexus" and "minimum contacts" shall be construed broadly in favor
of the imposition, collection and/or remittance of the telecommunications users tax to the
fullest extent permitted by state and federal law, and as it may change from time to time
by judicial interpretation or by statutory enactment. Any telecommunication service
{including-VoIP) used by a person with a service address in the City, which service is
capable of terminating a call to another person on the general telephone network, shall
be subject to a rebuttable presumption that "substantial nexus/minimum contacts" exists
for purposes of imposing a tax, or establishing a duty to collect and remit a tax, under
this Chapter. A service supplier shall be deemed to have sufficient ac#ivity in the City for
tax collection and remittance purposes if its activities include, but are not limited to, any
of the following: maintains or has within the City, directly or through an agent or
subsidiary, a place of business of any nature; solicits business in the City by employees,
independent contractors, resellers, agents or other representatives; solicits business in
the City on a continuous, regular, seasonal or systematic basis by means of advertising
that is broadcast or relayed from a transmitter with the City or distributed from a location
94'787.1 7 16 - 14
with the City; or advertises in newspapers or other periodicals printed and published
within the City or through materials distributed in the City by means other than the United
States mail; or if there are activities performed in the City on behalf of the service
supplier that are sign~cantly associa#ed with tt~e service supplier's ability to establish
and maintain a market in the City for the provision of communication services that are
subject to the tax under this Chapter.
3.35.080 -Duty to Collect -Procedures.
A. Collection by Service Suppliers. The duty of service suppliers to collect and remit the
taxes imposed by the provisions of this Chapter shall be pertormed as follows:
{1) The tax shall be collected by service suppliers insofar as practicable at the
same time as, and along with, the colle~;,tion of the charges made in accordance
with the regular billing practice of the sE:rvice supplier. Where the amount paid by
a service user to a service supplier is less than the full amount of the charge and
tax which was accrued for the billing period, a proportionate share of 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 of refusal to pay the tax imposed on
said charges, Section 3.35.120 shall a~~ply.
{2) The duty of a service supplier to collect the tax from a service user shall
commence with the beginning of the fir:>t regular billing period applicable to the
service user where all charges normall~~ included in such regular billing are
subject to the provisions of this Chapter. Where a service user receives more
than one billing, one or more being for ciifferent periods than another, the duty to
collect shall arise separately for each billing period.
B. Filing Return and Payment. Each person required by this Chapter to remit a
tax shall file a return to the Tax Administrator, on forms approved by the Tax
Administrator, on or before the due datE:. The full amount of the tax collected
shall be included with the return and filed with the Tax Administrator. The Tax
Administrator is authorized to require such additional information as he or she
deems necessary to determine if the ta:~c is being levied, collected, and remitted
in accordance with this Chapter. Returns are due immediately upon cessation of
business for any reason. Pursuan# to Revenue and Tax Code Section 7284.6,
the Tax Administrator, and its agents, shall maintain such filing returns as
confidential information that is exempt from the disclosure provisions of the
Public Records Act.
3.35.090 Collection Penalties -Service Suplpliers.
A. Taxes. collected from a service user are delinquent if not received by the Tax
Administrator on or before the due date. Should the due date occur on a weekend or
legal holiday, the retum must be postmarked oin the frrst regular working day following
the weekend or legal holiday. A direct deposit, including electronic fund transfers and
other similar methods of electronically exchanging monies between financial accounts,
made by a service supplier in satisfaction of its obligations under this subsection shall be
considered timely if the transfer is initiated on or before the due date, and the transfer
settles into the City's account on the following business day.
94787. r $ 16 - 15
B. If the person required to collect and/or remit the telecommunication users' tax fails to
collect the tax (by failing to properly assess the tax on one or more services or charges
on the customer's billing) or fails to remit the tax collected on or before the due date, the
Tax Administrator shall attach a penalty for such delinquencies or deficiencies at the rate
of fifteen (15%) percent of the total tax that is delinquent or deficient in the remittance,
and shall pay interest at the rate of one (1 %) percent per month, or any fraction thereof,
on the amount of the tax, exclusive of penalties, from the date on which the remittance
first became delinquent, until paid.
C. The Tax Administrator shall have the power to impose additional penalties upon
persons required to collect and remit taxes pursuant to the provisions of this Chapter for
fraud or gross negligence in reporting or remitting at the rate of fifteen (15%) percent of
the amount of the tax collected and/or required to be remitted, or as recomputed by the
Tax Administrator.
D. For collection purposes only, every penalty imposed and such interest that is
accrued under the provisions of this Section shall become a part of the tax herein
required to be paid.
3.35.9 d0 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 collected from a
service user which has no# been remitted to the Tax Administrator shall be deemed a
debt owed to the City by the person required to collect and remit and shall no longer be
a debt of the service user. Any person owing money to the City under the provisions of
this Chapter shall be liable to an action brought in the name of the City for the recovery
of such amount, including penalties and interest as provided for in this Chapter, along
with any collection costs incurred by the City as a result of the person's noncompliance
with this Chapter, including, but not limited to, reasonable attorneys fees. Any tax
required to be collected by a service supplier or owed by a service user is an unsecured
priority excise tax obligation under 19 U. S.C.A. Secfion 507(a}(8)(C).
3.35.11 Q Deficiency Determination and Assessment -Tax Application Errors.
A. The Tax Administrator shall make a deficiency determination if he or she determines
that any person required to pay or collect taxes pursuant #o the provisions of this
Chapter has failed to pay, collect, and/or remit the proper amount of tax by improperly or
failing to apply the tax to one or more taxable services or charges. Nothing herein shall
require that the Tax Administrator institute proceedings under this Section 3.35.110 if, in
the opinion of the Tax Administrator, the cost of collection or enforcement likely
outweighs the tax benefit.
B. The Tax Administrator shall mail a notice of such deficiency determination to the
person required to pay or remit the tax, which notice shall refer briefly to the amount of
the taxes owed, plus interest at the rate of one (1 %) percent per month, or any fraction
thereof, on the amount of the tax from the date on which the tax should have been
received by the City. Within fourteen (14} calendar days after the date of service of such
notice, the person may request in writing to the Tax Administrator for a hearing on the
matter.
94787. S 916 - 16
C. If the person fails to request a hearing withiin the prescribed time period; the amount
of the deficiency determination shall become a. final assessment, and shall immediately
be due and owing to the City. if the person requests a hearing, the Tax Administrator
shall cause the matter to be set for hearing, which shall be scheduled within thirty {30)
days after receipt of the written request for hearing. Notice of the time and place of the
hearing shall be mailed by the Tax Administrator to such person at least ten (10)
calendar days prior to the hearing, and, if the 1"ax Administrator desires said person to
produce speck records at such hearing, such notice may designate the records
requested to be produced.
D. At the time fixed for the hearing, the Tax Administrator shall hear all relevant
testimony and evidence, including that of any other interested parties. At the discretion
of the Tax Administrator, the hearing may be continued from time to time for the purpose
of allowing the presentation of additional evidence. Within a reasonable time following
the conclusion of the hearing, the Tax Administrator shall issue a final assessment (or
non-assessment), thereafter, by confirming, modifying or rejecting the original deficiency
determination, and shall mail a copy of such final assessment to person owing the tax.
The decision of the Tax Administrator may be appealed pursuant to Section 3.35.160 of
this Chapter. Filing an application with the Ta>c Administrator and appeal to the City
Manager pursuant to Section 3.35.160 of this Chapter are prerequisites to a suit thereon.
E. Payment of the final assessment shall become delinquent if not received by the Tax
Administrator on or before the thirtieth {30th) day following the date of receipt of the
notice of final assessment. The penalty for delinquency shall be fifteen percent (15%)
on the total amount of the assessment, along with interest at the rate of ane (1 %)
percent per month, or any fraction thereof, on i:he amount of the tax, exclusive of
penalties„from the date of delinquency, until paid. The applicable statute of limitations
regarding a claim by the City seeking payment of a tax assessed under this Chapter
shall commence from the date of delinquency ;~s provided in this subsection E.
F. All notices under this Section may be sent by regular mail, postage prepaid, and
shall be deemed received on the third calendar day following the date of mailing, as
established by a proof of mailing.
3.35.'120 Administrative Remedy -Non-Paying Service Users.
A. Whenever the Tax Administrator determinc;s that a service user has deliberately
withheld the amount of the tax owed by the service user from the amounts remitted to a
person required to collect the tax, or whenever the Tax Administrator deems it in the
best interest of the City, he or she may relieve such person of the obligation to collect
the taxes due under this Chapter from certain named service users for specific billing
periods. To the extent the service user has failed to pay the amount of tax awed for a
period of two (2) or more billing periods, the service supplier shall be relieved of the
obligation:to collect taxes due. The service SuK~plier shall provide the City with the names
and addresses of such service users and the 2~mounts of taxes owed under the
provisions of this Chapter. Nothing herein shal'I require that the Tax Administrator
institute proceedings under this Section 3.35.120 if, in the opinion of the Tax
Administrator, the cost of collection or enforcernent likely outweighs the tax benefit.
B. In addition to the tax owed, the service user shall pay a delinquency penalty at the
rate of fifteen percent (15%) of the total tax that is owed, and shall pay interest at the
94787.1 1 Q 16 - 17
rate of one (1 %) percent per month, or any fraction thereof, on the amount of the tax,
exclusive of penalties, from the due date, until paid.
C. The Tax Administrator shall notify the non-paying service user that the Tax
Administrator has assumed the responsibility to collect the taxes due for the stated
periods and demand payment of such taxes, including penalties and interest. The notice
shall be served on the service user by personal delivery or by deposit of the notice in the
United States mail, postage prepaid, 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 a change of address, to his or her last known address.
D. If the service user fails to remit the tax to the Tax Administrator within thirty {30)
days from- the date of the service of the notice upon him or her, the Tax Administrator
may impose an additional penalty of fifteen percent (15%) of the amount of the total tax
that is owed.
3.35.130 Additional Powers and' Duties of the 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 may adopt administrative rules and regulations consistent
with provisions of this Chapter for the purpose of interpreting, clarifying, carrying out and
enforcing the payment, collection and remittance of the taxes herein imposed. The
administrative ruling shall not impose a new tax, revise an existing tax methodology as
stated in this Section, or increase an existing tax, except as allowed by California
Govemmenf Code Section 53750(h) or other applicable law. A copy of such
administrative rules and regulations shall be on file in the Tax Administrator's office. To
the extent:: that the Tax Administrator determines tha# the tax imposed under this Chapter
shall not be collected in full for any period of time from any particular service supplier or
service user, that determination shall be considered an exercise of the Tax
Administrator's discretion to settle disputes and shall not constitute a change in taxing
methodology for purposes of Government Code Section 53750(h) or otherwise. The Tax
Administrator is not authorized to amend the City's methodology for purposes of
Government Code Section 53750(h) and the City does not waive or abrogate its ability to
impose the telecommunications users' tax in full as a result of promulgating
administrative rulings or entering into agreements.
C. Upon a proper showing of good cause, the Tax Administrator may make
administrative agreements, with appropriate conditions, to vary from the strict
requirements of this Chapter and thereby: (1) conform to the bi{ling procedures of a
particular service supplier so long as said agreements result in the collection of the tax in
conformance with the general purpose and scope of this Chapter; or, (2) to avoid a
hardship where the administrative costs of collection and remittance greatly outweigh the
tax .benefit. A copy of each such agreement shall be an file in the Tax Administrator's
office, ancf are voidable by the Tax Administrator or the City at any time.
D. The Tax Administrator may conduct an audit, to ensure proper compliance with the
requirements of this Chapter, of any person required to collect and/or remit a tax
pursuant to this Chapter. The Tax Administrator shall notify said person of the initiation
of an audit in writing. In the absence of fraud or other intentional misconduct, the audit
period of review shall not exceed a period of three (3} years preceding the date of
94787.1 11 16 - 18
receipt of the written notice by said person frorn the Tax Administrator. Upon completion
of the audit, the Tax Administrator may make c'1 deficiency determination pursuant to
Section 3.35.110 of this Chapter for all taxes (~~nd applicable penalties and interest)
owed and not paid, as evidenced by information provided by such person to the Tax
Administrator. If said person is unable or unwilling to provide sufficient records to enable
the Tax Administrator to verify compliance with this Chapter, the Tax Administrator is
authorized #o make a reasonable estimate of tl~e deficiency. Said reasonable estimate
shall be presumed con-ect unless and until rebutted by competent evidence.
E. Upon .receipt of a written request of a taxp~~yer, and for good cause, the Tax
Administrator may extend the time for filing arn~ statement required pursuant to this
Chapter for a period of not to exceed forty-five (45} days, provided that the time for filing
the required statement has not already passed when the request is received. No penalty
for delinquent payment shall accrue by reason of such extension. Interest shall accrue
during said extension at the rate of one (1 %) percent per month, or any fraction thereof.
F. The Tax Administrator shall determine the eligibility of any person who asserts a
right to exemption from, or a refund of, the tax imposed by this Chapter.
G. Notwithstanding any provision in this Cha~~ter to the contrary, the Tax Administrator
may waive any penalty or interest imposed upon a person required to collect and/or
remit for failure to collect the tax imposed by this Chapter if the non-collection occurred
in good faith. In determining whether the non-~;ollection was in good faith, the Tax
Administrator shall take into consideration industry practice or other precedents.
3.35.140 Records.
A. It shall be the duty of every person required to collect and/or remit to the City any tax
imposed by this Chapter to keep and preserve, for a period of at least three (3) years, all
records as may be necessary to determine the amount of such tax as he or she may
have been liable for the collection of and remittance to the Tax Administrator, which
records the Tax Administrator shall have the rictht to inspect at any reasonable time.
B. The City may issue an administrative subpoena to compel a person to deliver, to the
Tax Administrator, copies of all records deemed necessary by the Tax Administrator to
establish compliance with this Chapter, including the delivery of records in a common
electronic:format on readily available media if :;uch records are kept electronically by the
person in the usual and ordinary course of business. As an alternative to delivering the
subpoenaed records to the Tax Administrator an or before the due date provided in the
administrative subpoena, such person may pre~vide access to such records outside the
City on or before the due date, provided that such person shall reimburse the City for all
reasonable travel expenses incurred by the City to inspect those records, including
travel, lodging, meals, and other similar expen:~es, but excluding the normal salary or
hourly wages of those persons designated by the City to conduct the inspection.
C. The Tax Administrator is authorized to execute anon-disclosure agreement
approved by the City Attorney to protect the confidentiality of customer information
pursuant to California Revenue and Tax Code Sections 7284.6 and 7284.7.
94787.1 12 16 - 19
D. If a service supplier uses a billing agent or billing aggregator to bill, collect, and/or
remit the tax, the service supplier shall: i) provide to the Tax Administrator the name,
address and telephone number of each billing agent and billing aggregator currently
authorized by the service supplier to bill, collect, and/or remit the tax to the City; and,
ii) upon request of the Tax Administrator, deliver, or effect the delivery of, any
information or records in the possession of such billing agent or billing aggregator that, in
the opinion of the Tax Administrator, is or are necessary to verify the proper application,
calculation, collection and/or remittance of such tax to the City.
E. Any person subject to record-keeping obligations under this Sec#ion unreasonably
denies the Tax Administrator access to such records, or fails to produce the information
requested in an administrative subpoena within the time specified shall be guilty of a
violation of this Code punishable under Section 1.12.010 of this Code or in any other
manner permitted by law. Such penalty shall be in addition to any other penalties
provided by this Chapter.
3.35.150 Refunds.
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
from a person or service supplier, it may be refunded as provided in this Section as
follows:
A. The Tax Administrator 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 Administrator
under this- Chapter from a person or service supplier, provided that no refund shall be
paid under the provisions of this Section unless the claimant or his or her guardian,
conservator, executor, or administrator has submitted a written claim to the Tax
Administrator within one year of the overpayment or erroneous or illegal collection of
said tax. Such claim must clearly establish claimant's right to the refund by written
records showing entitlement thereto. Nothing herein shall permit the filing of a claim on
behalf of a class or group of taxpayers unless each member of the class has submitted a
written claim under penalty of perjury as provided by this subsection.
B. The filing of a written claim pursuant to Government Code Section 935 is a
prerequisite to any suit thereon. Any action brought against the City pursuant to this
Section shall be subject to the provisions of Government Code Sections 945.6 and 946.
The Tax Administrator, or the City Council where the claim is in excess of five thousand
dollars ($5,000), shall act upon the refund claim within the time period set forth in
Government Cade Section 912.4. If the Tax Administrator/City Council fails or refuses to
act on a refund claim within the time prescribed by Government Section 992.4, the claim
shall be deemed to have been rejected by the City on the last day of the period within
which the'City was required to act upon the claim as provided in Government Code
Section 912.4. The Tax Administrator shall give notice of the action in a form which
substantially complies with that set forth in Govemment Code Section 913.
C. Notwithstanding the notice provisions of subsection A. of this Section, the Tax
Administrator may, at his or her discre#ion, give written permission to a service supplier,
who has collected and remitted any amount of tax in excess of the amount of tax
imposed by this Chapter, to claim credit for such overpayment against the amount of tax
which is due the City upon a subsequent monthly retum(s} to the Tax Administrator,
provided that: 'r) such credit is claimed in a return dated no later than one year from the
94787.1 13 16 - 20
date of overpayment or erroneous collection o1~ said tax; ii) the Tax Administrator is
satisfied that the underlying basis and amount of such credit has been reasonably
established; and, iii) in the case of an overpayrent by a service user to the service
supplier that has been remitted to the City, the Tax Administrator has received proof, to
his or her satisfaction, that the overpayment hers been refunded ly the service supplier
to the service user in an amount equal to the rE:quested credit.
D. Notwithstanding subsections A, B, and C atr~ove, a service supplier shall be entitled to
take ariy overpayment as a credit against an underpayment whenever such
overpayment has been received by the City wii:hin the three (3) years preceding a
deficiency determination or assessment by the Tax Administrator in connection with an
audit instituted by the Tax Administrator pursu~~nt to Section 3.35.130 D. A service
supplier shall not be entitled to said credit unless it ftrst clearly establishes, to the
satisfaction of the Tax Administrator, the right to the credit by written records showing
entitlement thereto. Under no circumstances shall an overpayment taken as a credit
against an underpayment pursuant to this sub:;ection qualify a service supplier for a
refund to which it would-not otherwise be entitled under the one-year written claim
requirement of this Section.
3.35.160 Appeals.
A. The provisions of this Section apply to any decision (other than a decision relating to
a refund pursuant to Section 3.35.150 of this Chapter), deficiency determination,
assessment, or administrative ruling of the Tax Administrator (other than the adoption of
rules and regulations for the implementation of this Chapter to be implemen#ed
prospectively}. Any person aggrieved by any such decision may appeal to the City
Manager by filing a notice of appeal with the City Clerk within fourteen (14) days of the
date of the decision, deficiency determination, assessment, or administrative ruling of
the Tax Administrator from which appeal is taken. Compliance with this Section shall be
a prerequisite to a suit thereon. Nothing herein shall permit the filing of a claim or action
on behalf of a class or group of taxpayers.
B. The matter shall be scheduled for hearing I~efore an independent- hearing officer
selected by the City Manager no more than thirty (30) days from the receipt of the
appeal. The appellant shall be served with notice of the time and place of the hearing,
as well as any relevant materials, at least five (5) calendar days prior to the hearing.
The hearing may be continued from time to time upon mutual consent. At the time of the
hearing, the appealing party, the Tax Administrator, and any other interested person
may present such relevant evidence as he or she may have relating to the determination
from which the appeal is taken.
C. Based upon the submission of such evidence and the review of the City's files, the
hearing officer shall issue a written notice and order upholding, modifying or reversing
the determination from which the appeal is takE:n. The notice shall be given within
fourteen (14) days after the conclusion of the hearing and shall state the reasons for the
decision. -The notice shall specify that the decision is final and that any petition for
judicial review shall be filed in accordance with Code of Civil Procedure Section 1094.6.
D. All notices under this Section may be sent by U.S. mail, pos#age prepaid, and shall
be deemed received on the third calendar day following the date of mailing, as
established by a proof of mailing.
94787.1 14 16 - 21
3.35.170 No InjunctionNVrit of Mandate.
No injunction or writ of mandate or other legal or equitable process shall issue in any
suit, action, or proceeding in any court against this City or against any officer of the City
to prevent or enjoin the collection under this Chapter of any tax or any amount of tax
required to be collected and/or remitted.
3.35.180 Notice of Changes to Ordinance.
If a tax under this Chapter is added repealed, increased, reduced, or the tax base is
changed, the Tax Administrator shall follow the notice requirements of California Public
Utilities Code Section 799.
3.35.190 Effect of State and Federal ReferencelAuthorization
Unless specifically provided otherwise, any reference to a state or federal statute in this
Chapter shall mean such statute as it may be amended from time to #ime, provided that
such reference to a statute herein shall not include any subsequent amendment thereto,
or to any subsequent change of interpretation thereto by a state or federal agency or
court of law with the duty to interpret such law, to the extent that such amendment or
change of interpretation would require voter approval under California law, or to the
extent that such change would result in a tax decrease (e.g., as a result of excluding all
or a part of a communication service, or charge therefore, from taxation). Only to the
extent voter approval would otherwise be required or a tax decrease would result, the
prior version of the statute (or interpretation} shall remain applicable; for any application
or situation that would not require voter approval or result in a decrease of a tax,
provisions of the amended statute (or new interpretation) shall be applicable to the
maximum possible extent. To the extent that the City's authorization to collect or impose
any tax imposed under this Chapter is expanded or limited as a result of changes in
state or federal law, no amendment or modification of this Chapter shall be required to
conform the tax to those changes, and the tax shall be imposed and collected to the full
extent of the authorization up to the full amount of the tax imposed under this Chapter.
3.35.200 Independent Audit of Tax Collection, Exemption, Remittance, and
Expenditure.
The City shall annually verify that the taxes owed under this Chapter have been properly
applied, exempted, collected, and remitted in accordance with this Chapter, and properly
expended; according to applicable municipal law. The annual verification shall be
performed by a qualified independent third party and the review shall employ
reasonable, cost-effective steps to assure compliance, including the use of sampling
audits. The verification shall not be required of tax remitters where the cost of the
verification may exceed the tax revenues to be reviewed.
3.35.210 Interaction with Prior Tax.
A. Satisfaction of Tax Obligation by Service Users. Any person who pays the tax levied
pursuant fo Section 3.35.050 of this Code with respect to any charge for a
telecommunication service shall be deemed to have satisfied his or her obligation to pay
the tax levied pursuant to Section 3.34.030 of this Code with respect to that charge.
Likewise, prior to April 1, 2010, any person who pays the tax, levied pursuant to Section
3.34.030 of this Code with respect to any charge for a service subject to taxation
94787.1 i s 16 - 22
pursuant to this Chapter shall be deemed to have satisfied his or her obligation to pay
the tax levied pursuant to Section 3.35.050 of this Code with respect to #hat charge. The
intent of this paragraph is to prevent the imposition of multiple taxes upon a single utility
charge during the transition period from the prior telephone users' tax to the new
telecommunication users' tax (which transition period ends April 1, 2010) and to permit
telecommunications service providers, during that transition period, to satisfy their
collection obligations by collecting either tax.
B. Collection of Tax by Service Providers. Service providers shall begin to collect the
tax imposed by this Chapter as soon as feasible after the effective date of the Chapter,
but in no event later than permitted by Section 799 of the California Public Utilities Code.
C. Judicial Determinations. In the event that .a final court order should determine that
the election enacting this Chapter 3.35 is invalid for whatever reason, or that any tax
imposed under this Chapter 3.35 is invalid in whole or in part, then the taxes imposed
under Section 3.34.030 shall automatically continue to apply with respect to any service
for which the tax levied pursuant to this ChaptE~r has been determined to be invalid. Such
automatic continuation shall be effective begirnzing as of the first date of service (or
billing date) for which the tax imposed by this Chapter is not valid. However, in the event
of an invalidation, any tax (other than a tax tha~i is ordered refunded by the court or is
otherwise refunded by the City) paid by a person with respect to a service and calculated
pursuant to this Chapter shall be deemed to satisfy the tax imposed under Section
3.34.030 on that service, so long as the tax is Maid with respect to a service provided no
later than :six months subsequent to the date on which the final court order is published.
3.35.220 Remedies Cumulative.
All remedies and penalties prescribed by this Chapter or which are available under any
other provision of law or equity, including but not limited to the California Faise Claims
Act (Government Code Section 12650 et seq.} and the Califomia Unfair Practices Act
(Business and Professions Code Section 97070 of seq.}, are cumulative. The use of
one or more remedies by the City shall not bar the use of any other remedy for the
purpose of enforcing the provisions of this Chapter.
3.35.230 Duration.
The tax shall be levied until November 6, 2031) at which time, the tax levied
hereinund.er, unless further extended, shall ce<<se.
SECTION 2. Effective Date. This Chapter shall become effective if approved by
a majority vote of the electorate voting on the issue, at the General Municipal Election to
be held on November 3, 2009 within the City o~f Cupertino If so approved, the City Clerk
shall certify to adoption of this Ordinance, which shall take effect 10 days upon such
certification.
SECTION 3. Amendment or Repeal. Chapter 3.35 of the Cupertino Municipal
Code may be repealed or amended by the City Council without a vote of the people.
However, as required by Article X111C of the California Constitution, voter approval is
required for any amendment provision that would increase the rate of any tax levied
pursuant to this Ordinance. The People of the City of Cupertino affirm that the following
actions shall not constitute an increase of the rate of a tax:
94787.1 1016 - 23
1. The restoration of the rate of the tax to a rate that is no higher than that set by this
Ordinance, if the City Council has acted to reduce the rate of the tax;
2. An action that interprets or clarifies the methodology of the tax, or any definition
applicable to the tax, so long as interpretation or clarification (even if contrary to
some prior interpretation or clarification) is not inconsistent with the language of this
Ordinance.
3. The establishment of a class of person that is exempt or excepted from the tax or
the discontinuation of any such exemption or exception (other than the
discontinuation of an exemption or exception specifically set forth in this Ordinance);
and
4. The collection of the tax imposed by this Ordinance, even if the City had, for some
period of time, failed to collect the tax.
SECTION 4. Severability. If any section, subsection, sentence, clause, phrase,
or portion of this Ordinance is for any reason held to be invalid or unenforceable by a
court of competent jurisdiction, the remaining portions of this Ordinance shall
nonetheless remain in full force and effect. The people hereby declares that they would
have adapted each section, subsection, sentence, clause, phrase, or portion of this
Ordinance, irrespective of the fact that any one or more sections, subsections,
sentences, clauses, phrases, or portions of this Ordinance be declared invalid or
unenforceable.
SECTION 5. Rat cation of Prior Tax. The voters of the City of Cupertino hereby
ratify and approve the past collection of the Telephone Users Tax under Chapter 3.34 of
the Cupertino Municipal Code as it existed prior to the effective date of this Ordinance.
SECTION 6. Certification. The Mayor is hereby authorized to sign where
indicated below to certify to the adoption of this Ordinance.
PASSED, APPROVED and ADOPTED by the People of the City of Cupertino
this 3`d day of November 2009.
Orrin Mahoney
MAYOR
ATTEST::
Kim Smith
CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY
94787.1 17 16 - 24
Attachment B
.4 ~Y
-_ T-.-- - - - -.. - _...---.-. - _..
>'
_ .What is a Utility Users Tax?
CUPERTINO
-r
'=>a The UUT is a tax on certain utility bills.
Since 1990, the residents of Cupertino
,~ have paid a UUT on telecommunications
services.
- ~ Like many other California cities,
Cupertino uses this funding to provide
essential and other important services.
16-25
.fw~,~a
:~
r~
S '~
~~~ What is the issue?
CUPERTINO
• Qver the past 20 years, communications
technology has changed.
• Voter approval is necessary for any updates to
' - the UUT.
• To keep pace with technology advances, the
City must update its UUT language -- with no
'' rate increase.
~s.
-~
z, r..` -:
? Why does the UUT need
to be updated? CIiPERTIN0
' To ensure that all telecommunication
users are paying their fair share.
~,
_~
• The updated language will close some
loopholes so that taxpayers are treated
the same regardless of the technology
' used today.
.,
,~-_
,6-26 z
a.~ 1 r ,y~ r ~ .. v
What are our funding needs? CUPERTINO
~.
• State budget cuts mean: that there is NO help
. ~ coming from Sacramento.
,°
~ ~ • The City's share of fundiing from the state, like many
~:, { ~~ =~
~~- ,:~ other cities, has only decreased over time.
-;
• The City is relying on the continued revenue
': ~; , generated by the UUT to ensure that essential
services for our quality of life are maintained.
.r ?C c f
~--55 ..w .. .: G
i~rt
Why do we need the UUT? CUPERTINO
• Many residents live in Cupertino because it offers a
higher level of service, programs and quality of life
xR,~; than neighboring cities.
r; ;,~
~,~ The UUT is an important revenue source and
preserving it will ensure that our City can maintain the
:~;
high quality of public safei.y, support of our excellent
schools, maintain parks and open space, and provide
the senior programs that residents expect and
deserve.
G
~s-2~ 3
~; ~~~~,
°' -
~~ What can be done? CUPERTINO
• The City Council will be considering placing a
measure to address these technical issues on
`=~~~ the November 2009 ballot.
`°
• This would not be a new tax and the rate will
not increase.
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3.. 5
6
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What will the measure do? CUPERTINO
r
~_~ • The measure simply updates our old UUT
ordinance and definitions without making any
_~ change to the existing tax rate.
- The measure will clarify what can and cannot
be taxed and close unintended loopholes.
~. The measure would continue the exemption
s_ for seniors, and ensure that users of similar
services or equipment are treated the same.
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S"
-Will business or residential customers
;, see any changes to their bitls? CUPERTINO
~~ • Updating the ordinance all~aws for all
telecommunications customers to be treated the
same regardless of the technology used.
• Residential customers should not see any changes
~~~ ~ to their bill.
.~
'..The issues for some large businesses are complex
related to their services. The City is committed to
working with all stakeholders to ensure appropriate
a lication of the UUT.
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~' ~ Financial Oversight CUPERT~N~
`~~~~ The measure will safeguard local funds already being
received for local needs, and the money cannot be
1 taken away by the state.
``a Continuing the existing UUT will enable Cupertino to
continue effectively funding essential services for the
public.
hs^
• The City Budget, including revenues from the UUT, are
~~ subject to annual indepen+~ent audits and public review
of the Budget.
16-29 rj
~r~ ~
How can you get involved? CUPERTINO
~ Do you belong to other organizations that need this
information?
~ Volunteer to keep informed and help in the future.
~ Call City Administrative Services at (408) 777-3280
~;~: , or email uut(c~cupertino.orq for more information.
-;
'~
16-30 s
Attachment C
CUPERTINO
Frequently Asked Questions About the UUT
Q: What is a Utility Users Tax?
A: The UUT is a tax on certain utility bills. Since; 1990, the residents of Cupertino have paid a
UUT on telecommunications services. Like man; other California cities, Cupertino uses this
funding to provide essential and other important services.
Q: What is the issue?
A: Communication advances over the past two decades mean that the City must update its UUT
law to match today's technology, including definitions for new communications technology. To
do so, the state's Constitution requires voter approval. Voter approval of an updated ordinance
avoids the lawsuits some cities have faced that have jeopardized funding for services.
Q: How can this issue be addressed?
A: The City will be considering placing a measure on the November 2009 ballot to address these
technical issues and update the ordinance -with 210 change to the existing rate. Updating our
outdated UUT will ensure that taxpayers are treated the same regardless of the type of
technology used. The measure will safeguard Local funds already being received for local needs,
this money cannot be taken away by the state.
Q: Why do we need a UUT?
A: Many residents live in Cupertino because it offers a higher level of service, programs and
quality of life than neighboring cities. The UUT is an important revenue source and preserving it
will ensure that our City can maintain the high qu;~lity of public safety, support of our excellent
schools, maintain parks and open space, and provide the senior programs that residents expect
and deserve.
Q: What community services does the UUT fund?
A: Cupertino's UUT pays for many critical city services. Without this funding, the City would
be forced to cut funding that supports:
• Neighborhood police patrols
• Library services
• School crossing guards
• City streets
• Open space and parks improvement projects
Q: How would the UUT be updated?
A: The measure simply updates our old UUT ordinance and definitions without making any
change to the existing tax rate. Residential customers should not see any changes to their bill.
The measure will simply clarify what can and cannot be taxed, close unintended loopholes,
continue the exemption for seniors, and ensure that users of similar services or equipment are
treated the same.
16-31
Q: Can the City provide the same level of services without a ITUT?
A: No. If the ordinance is not updated the city could be forced to return hundreds of thousands
of dollars. This would put funding for vital city services such as maintaining neighborhood
police patrols, library services, school crossing guards, and City streets in jeopardy.
Q: How do we know that funds will continue to be spent responsibly?
A: Cupertino has a reputation for effective and conservative fiscal planning and budgeting. Any
measure would require that all expenditures from the utility tax are subject to independent annual
financial audit.
Q: How can I get more information?
A: For more information, please call City Administrative Services at {408} 777-3280 or email
uut(a7,cuperti no.org.
16-32
EXHIBITS
BEGIN
HERE
~~ ~
CUPERTINO
ADMINISTRATIVE SERVICES DEPARTMENT
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 950143202
(408) 777-3220 • FAX (40~~} 777-3109
MEMOR~~NDUM
To; City Council
CC: David Knapp, Carol Korade, Kelly .Kline
From: David Woo, Finance Director {;:~'jj,~~/`~~
Subject: Agenda Item 16 -UUT -Definition of "Private Telecommunication Service"
Date: July 21, 2009
In xesponse to Councilmember questions about the scope and definition of this type of telecom
service, which is excluded from taxation in the proposed ordinance, staff asked an attorney with
expertise in°UUT issues to provide the attached memorandum to the Council.
Please note that he also addresses the unavailability of reliable information as to the potential
revenue impact of this exclusion. I have made sevf:ral calls to experts, service providers,
companies and cities, and have come to the same conclusion. Estimates are difficult because
telecom infrastructure can vary widely per customer. Because it hasn'fi been taxed previously,
new costs and lines have to be found and proprietary issues have proven to be a challenge. Cities
have generally not been able to collect from this area yet.
Colantuono & Levin, PC
Confidential 11406 Pleasant Valley Road
Penn Valley, CA 95946-9024
Main: (530) 432-7357
FAX: (530) 432-7356
WWW.CLLAW.US
MEMC}RA~J DUM
TO: City Council of Cupertino FILE NO: 33013.0003
FROM: Michael G. Colantuono, Esq. DATE: July 21, 2009
Scott E. Porter, Esq.
RE: Telecommunications Users Tax: Definition of "Private Telecommunications
Service"
Introduction. As the City Attorney asked, v~~e write to explain the definition of "private
telecommunications services" included in the proposed Telecommunications Users Tax
Ordinance prepared by your staff, which we ha~~e reviewed. The proposal would tax all
"telecommunication services" in the City, but sectioli 3.35.050 of the ordinance exempts "private
telecommunications service" from taxation.
Discussion. Section 3.35.020.M defines "private telecommunication service" in two
sentences:
"Private telecommunication service" mean:. a telecommunication services that
entitles the customer to exclusive or priority use of a communications channel or
I Section 3.35.OSO.T of the ordinance defines "telecammunicat~.ions service" and provides:
"Telecommunications services" means the transmission, conveyance, or routing of voice, data, audio,
video, or any other information or signals to a point, or between or among points, whatever the technology
used. The term "telecommunications services" includes such transmission, conveyance, or routing in which
computer processing applications are used to act on the form, code or protocol of the content for purposes
of transmission, conveyance or routing without regard to whether such services are referred to as voice over
internet_ protocol (Noll') services or are classified by the Federal Communications Commission as enhanced
or value added, and includes video and/or data servia~s that are functionally integrated with
"telecommunication services." "Telecommunications services" include, but are not limited to the following
services, regardless of the manner or basis on which silch services are calculated or billed: ancillary
telecommunication services; mobile telecommunications service; prepaid telecommunication service; post-
paid telecommunication service; paging service; 800 service (or any other toll-free numbers designated by
94885.2
CONFIDEINTIAL
THIS MATERIAL IS SUBJECT TO THE ATTORNEY-CLIENT PRIVILEGE AND/OR THE
ATTORNEY WORK PRODUCT DOCTIRINE.DO NOT DISCLOSE.
BO NOT FILE WITH PUBLICLY ACCESSIBLE R.E~CORDS.
Cupertino City Council
July 21, 2009
Page 2
group :of channels between or among termination points, regardless of the manner
in which such channel or channels are connected, and includes switching
capacity, extension lines, stations, and any other associated services that are
provided in connection with the use oi' such channel or channels. A
communications channel is a physical or virtual path of communications over
which signals are transmitted between or among customer channel termination
op ints (i.e., the location where the customer either inputs or receives the
communications)."
The underlined terms used above are defined below.
The ATIS 2007 Telecom Glossary2 provides the following definitions:
Communications channel. See Channel.
Channel. 3. A path for conveying electrical or electromagnetic signals, usually
distinguished from other parallel paths.
The Alliance for Telecommunications Industry Solutions (ATIS) 2007 Telecom Glossary
does not define "termination points" but does define: a similar term, "service termination
point":
Service Termination Point. The last point of service rendered by a commercial
carrier under applicable tariffs. Note 1: The service termination point is usually on
the customer premises. Note 2: The customer is responsible for equipment and
operation from the service termination point to user end instruments. Note 3: The
service termination point usually corresponds to the demarcation point.
the Federal Communications Commission); and 900 s~:rvice (or any other similar numbers designated by
the Federal Communications Commission for services whereby subscribers who call in to pre-recorded or
live service).
a The glossary is available at: http://www.atis.org[glossary/.
94885.2
Cupertino City Council
July 21, 2004
Page 3
In general, then, a private communications service is one which allows a user exclusive
or priority use of a path for conveying electrical or electromagnetic signals from one termination
point on a customers premises to another such termi~iation point. An example would be a leased
data line allowing a corporation to transmit data from its headquarters to another of its facilities
without using the general switched telephone network. To give this abstract definition some
context, we apply it to two specific factual scenarios.
1. A call from a mobile telephone to a land line'
Taxable under Cupertino's proposed ordinance. A telephone call over a mobile
telephone is a "telecommunications service" beca~ise it sends a voice message. The
exemption does not apply, because the call would be transmitted to a cell tower and the
related wiring system that transmits messages from all users -unless the customer were
to own or lease the cell tower and all related lines to the exclusion of other users or for a
use on a priority basis as to other users.
2. A voice over internetprotocol telephone call to a land line?
Usually taxable. VOIP calls are expre~;sly included in the definition of
"telecommunications service." Typically, the private communications exemption would
not apply because most VOIP calls are transmitted over wiring systems that are not
entirely owned or leased by the customer to the excl~zsion of other users. However, some
VOIP calls (e.g. dialing a three digit extension to reach a coworker down the hall) are
made over systems that are entirely owned or leased by the customer, .and other parties
cannot use those lines. Those telephone calls would be exempt as private
communications.
Conclusion. The ordinance uses terminology derived from FCC laws and
regulations in order to facilitate its application by the telecommunications industry.
Those FCC rules apply to technology available in the marketplace, and the marketplace
and technology change more rapidly than do laws. We are not ira a position to estimate
the dollar impact of the exemption, as that turns on non-legal issues and, given the
complexity and rate of change in the telecommunications industry, even industry
consultants may be able to provide little more than educated guesses as good data sources
and current data sources may not be available.
If we can provide further advice or assistance on this subject, we would be
pleased to do so.
c: Carol Korade, City Attorney
94885.2
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~ What is a Utility Users Tax? CUPERTINO
r
• The UUT is a tax on telephone, gas,
electric bills. Its ~~een in place since
1990.
::~:
iLY
' It is a local tax for local needs such as
public safety, streets, parks, support of
schools.
,_.
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What is the issue? CUPERTINO
• Over the past 20 years, communications
technology has changE~d.
~'''~~ Voter approval is nece:~sary for any updates to
'~ ~' the UUT.
~;~~_
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• To keep pace with technology advances, the
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'~ ' "~` City must update its UUT language. No rate
~~ .~ increase.
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_F~:~ What will the mea~~ure do?
2f i N ~~
~,
.n • Protects what the City is getting now.
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-~; ~;~ Not a new tax; no change in tax rate.
CUPERTINO
• Continue the exemption for seniors.
,;
• Residential/business customers should not
~~"` ` see changes to their bill.
°4 ~ ,:
2