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16-037 State Board of Equalization, Agreement for State Collection and Administration of Local Charges (Local Prepaid Mobile Telephony Services Surcharge)STATE OF CALIFORNIA STATE BOARD OF EQUALIZATION 450 N STREET, SACRAMENTO, CALIFORNIA (PO BOX 942879, SACRAMENTO, CALIFORNIA 94279-0027) TELEPHONE (916) 324-3000 FAX (916) 322-0986 www.boe.ca.gov City of Cupertino Tax Administrator 10300 Torre Ave. Cupertino, CA 95014 February 5, 2016 Re: Local Prepaid Mobile Telephony Services Surcharge -UUT Code 1112 Dear Mr. David Brandt, SEN. GEORGE RUNNER (RET.) First District, Lancaster FIONA MA, CPA Second District, San Francisco, JEROME E. HORTON Third District, Los Angeles County DIANE L. HARKEY Fourth District, Orange County BETTYY YEE State Controller CYNTHIA BRIDGES Executive Director The Board of Equalization (BOE) has completed processing the agreement for the administration of the Local Prepaid Mobile Telephony Services Collection Act, the "Local Charge Act" (Rev. & Tax. Code§§ 42100-42111, added by Stats. 2014, Ch. 885, Sec. 9), for the City of Cupertino. A copy of the fully executed agreement is enclosed for your records. Based on City Ordinance 09-2053 for the City of Cupertino and section 42102 of the Local Charge Act, the applicable local Utility User Tax rate is Ll percent. The BOE's collection oflocal charge revenue will commence.on April 1, 2016. Payments will be transmitted at the end of each allocation quarter. The first payment process is anticipated for September 2016 for the 4/1/2016 commencement date. You will be contacted once the allocation calendar has been finalized. You will also be contacted to confirm your preference to receive payments through EFT or paper warrants sent through the U.S. Postal Service. If you have any questions or concerns regarding the above, please contact me at (916) 322-2563 Enclosures Cc: file Sincerely, Olivia Siu Business Taxes Specialist I Local Revenue Allocation Unit Local Jurisdiction City of Cupertino AGREEMENT FOR STATE COLLECTION AND ADMINISTRATION OF LOCAL CHARGES This Agreement is for the purpose of implementing the Local Prepaid Mobile Telephony Services Collection Act (Part 21.1, commencing with Section 42100) of Division 2 of the Revenue and Taxation Code), hereinafter referred to as the Local Charge Act. The City of Cupertino and the State Board of Equalization, hereinafter called Insert name of local JtmSd1ctron the Board, do agree as follows: ARTICLE I DEFINITIONS Unless the context requires otherwise, wherever the following terms appear in this Agreement they shall be interpreted to mean the following: A. "Administrative Expenses" means all expenses incurred by the Board in the administration and collection of the local charges,. including preparation and wind down costs which are reimbursable to the Board from the revenues collected by the Board on behalf of the local jurisdiction. B. "Contingent Fee" includes, but is not limited to, a fee that is based on a percentage of the tax liability reported on a return, a fee that is based on a percentage of the taxes owed, or a fee that depends on the specific tax result attained. C. "Direct Seller" means a prepaid Mobile Telephony Service (MTS) provider or service supplier, as defined in section 41007, that makes a sale of prepaid mobile telephony services directly to a prepaid consumer for any purpose other than resale in the regular course of business. A direct seller includes, but is not limited to, a telephone corporation, a person that provides an interconnected Voice over Internet Protocol (VoIP) service, and a retailer as described in section 42004(b )(1 ). D. "Local Charges" means a utility user tax imposed on the consumption of prepaid mobile telephony services, as described in section 42102, and charges for access to communication services or to local "911" emergency telephone systems imposed by a local jurisdiction, as described in section 42102.5. E. "Local Jurisdiction" or "local agency" means a city, county, or city and county, which includes a charter city, county, or city and county of this State, which has adopted an ordinance imposing a local charge of the kind described in Part 21.1 of Division 2 of the Revenue and Taxation Code and has entered into a contract with the Board to perform all functions incident to the collection of the local charges. F. "Ordinance" means an ordinance of a local jurisdiction imposing a local charge, including any local enactment relating to the filing of a refund or a claim arising under the ordinance, attached hereto, as amended from time to time. G. "Quarterly local charges" means the total amount of local charges transmitted by the Board to a local jurisdiction for a calendar quarter, as set forth in section 42106(a)(l). H. "Refund" means the amount of local charges deducted by the Board from a local jurisdiction's quarterly local charges in order to pay that jurisdiction's share of a local charge refund due to one taxpayer. I. "Section" -all section references are to the Revenue and Taxation Code. J. "Seller" means a person that sells prepaid mobile telephony service to a person in a retail transaction. ARTICLE II BOARD ADMINISTRATION AND COLLECTION OF LOCAL CHARGES A. Administration. The Board -and the local jurisdiction agree that the Board shall perform functions incident to the collection of the local charges from sellers that are not direct sellers. B. Collection. The Board shall collect the local charges in the same manner as it collects the prepaid MTS Surcharge in the Prepaid Mobile Telephony Services Surcharge Collection Act, subject to specified limitations in the Local Charge Act for which the local jurisdiction is responsible, as set forth in Article III of this Agreement. C. Audits. The Board's audit duties shall be limited to verification that the seller that is not a direct seller complied with the Local Charge Act. D. Other applicable laws. The Board and the local jurisdiction agree that all provisions of law applicable to the administration and operation of the Local Charge Act, Prepaid Mobile Telephony Services Surcharge Collection Act, and the Fee Collection Procedures Law (FCPL) shall be applicable to the collection of local charges. References in the FCPL to feepayer include a person required to pay the local charge, including the seller. All future amendments to applicable laws are automatically incorporated into this Agreement. E. Deposit of Local Charges. All local charges collected by the Board shall be deposited in the Local Charges for Prepaid Mobile Telephony Services Fund in the State Treasury to be held in trust for the local taxing jurisdiction. Local charges shall consist of all taxes, charges, interest, penalties, and other amounts collected and paid to the Board, less payments for refunds and reimbursement to the Board for expenses incurred in the administration and collection of the local charges, including preparation and wind- down costs. F. Allocation of Expenses. The Board shall allocate the total combined annual expenses incurred for administration and collection pursuant to the Prepaid Mobile Telephony Services Surcharge Collection Act and the Local Charge Act on a pro rata basis according to revenues collected for: (1) the emergency telephone users surcharge portion of the prepaid MTS surcharge, (2) the Public Utilities Commission surcharges 2 portion of the prepaid MTS surcharge, and (3) local charges. The Board shall charge a local jurisdiction its pro rata share of the Board's cost of collection and administration. G. Transmittal of money. All local charges collected by the Board shall be transmitted to the local jurisdiction once in each calendar quarter. Transmittals may be made by mail or by deposit to the account of the local jurisdiction in a bank designated by that jurisdiction. The Board shall furnish a statement quarterly indicating the amounts paid and withheld for expenses of the Board. H. Rules. The Board shall prescribe and adopt such rules and regulations as in its judgment are necessary or desirable for the administration and collection of local charges and the distribution of the local charges collected. I. Security. The Board agrees that any security which it hereafter requires to be furnished under the FCPL section 55022 will be upon such terms that it also will be available for the payment of the claims of the local jurisdiction for local taxes owing to it as its interest appears. The Board shall not be required to change the terms of any security now held by it, and the local jurisdiction shall not participate in any security now held by the Board. J. Records of the Board. 1. Information obtained by the local jurisdiction from the examination of the Board's records shall be used by the local jurisdiction only for purposes related to the collection of the prepaid mobile telephony services surcharge and local charges by the Board pursuant to this Agreement. 2. When requested by resolution of the legislative body of a local jurisdiction, the Board shall permit any duly authorized officer or employee or other person designated by that resolution to examine any information for its own jurisdiction that is reasonably available to the Board regarding the proper collection and remittance of a local charge of the local jurisdiction by a seller, including a direct seller, subject to the confidentiality requirements of sections 7284.6, 7284.7 and 19542. (sections 42110(b), 42103(e).). 3. The resolution of the local jurisdiction shall certify that any person designated by the resolution, other than an officer and an employee, meets all of the following conditions: a. Has an existing contract with the local jurisdiction that authorizes the person to examine the prepaid MTS surcharge and local charge records. b. Is required by that contract with the local jurisdiction to disclose information contained in or derived from, those records only to an officer or employee of the local jurisdiction authorized by the resolution to examine the information. c. Is prohibited by that contract from performing consulting services for a seller during the term of that contract. d. Is prohibited by that contract from retaining information contained in, or derived from, those prepaid MTS surcharge and local charge records, after that contract has expired. 3 4. Any third party contract between the local jurisdiction and an entity or person authorized by the local jurisdiction to request information from the Board shall be subject to the following limitations: a. Any third party shall, to the same extent as the Board, be subject to Section 55381, relating to unlawful disclosures. b. A third party contract shall not provide, in whole or in part, in any manner a contingent fee arrangement as payment for services rendered. 5. Information obtained by examination of Board records shall be used only for purposes related to the collection of the prepaid MTS surcharge and local charges by the board pursuant to the contract, or for purposes related to other governmental functions of the local jurisdiction set forth in the resolution. 6. If the Board believes that any information obtained from the Board's records related to the collection of the prepaid MTS surcharge and local charges has been disclosed to any person not authorized or designated by the resolution of the local jurisdiction, or has been used for purposes not permitted by section 4211 O(b ), the board may impose conditions on access to its local charge records that the board considers reasonable, in order to protect the confidentiality of those records. (section 42110 (c).) 7. The costs incurred by the Board in complying with a request for information shall be deducted by the Board from those revenues collected by the Board on behalf of the local jurisdiction making the request, as authorized by section 421 lO(b)(l). ARTICLE III LOCAL JURISDICTION ADMINISTRATION AND RESPONSIBILITIES A. The local jurisdictions shall be solely responsible for all of the following: 1. Defending any claim regarding the validity of the ordinance in its application to prepaid mobile telephony service. The claim shall be processed in accordance with the provisions of the local ordinance that allows the claim to be filed. 2. Interpreting any provision of the ordinance, except to the extent specifically superseded by section 42105 of the Local Charge Act. The claim shall be processed in accordance with the provisions of the local enactment that allows the claim to be filed. 3. Responding to specified consumer claims for refund involving: (1) rebutting the presumed location of the retail transaction; (2) a consumer claim of exemption from the local charge under the ordinance; or (3) any action or claim challenging the validity of a local tax ordinance, in whole or part. The claim shall be processed in accordance with the provisions of the local enactment that allows the claim to be filed. 4. Refunding the taxes in the event a local jurisdiction or local government is ordered to refund the tax under the local ordinance. 4 5. Reallocating local charges as a result of correcting errors relating to the location of the point of sale of a seller or the known address of a consumer, for up to two past quarters from the date of knowledge. 6. Collecting local charges on prepaid mobile telephony service and access to communication services or access to local 911 emergency telephone systems imposed on direct sellers. 7. Enforcement, including audits, of the collection and remittance of local charges by direct sellers pursuant to the ordinance. 8. The local jurisdiction shall be the sole necessary party defendant on whose behalf the local charge is collected in any action seeking to enjoin collection of a local charge by a seller, in any action seeking declaratory relief concerning a local charge, in any action seeking a refund of a local charge, or in any action seeking to otherwise invalidate a local charge. There shall be no recovery from the State for the imposition of any unconstitutional or otherwise invalid local charge that is collected under the Local Act. 9. Entering into an agreement with the Board to perform the functions incident to the collection of the local charges imposed on sellers that are not direct sellers. 10. Submitting an executed Certification to the Board, certifying that: (a) the local jurisdiction's ordinance applies the local charge to prepaid mobile telephony services; (b) the amount of the rate charged for access to local 911 emergency telephone systems or access to communications services complies with the requirements of section 42102.5; and/or applies the tiered rate for the utility user tax, as identified in section 42102. ( c) The local jurisdiction shall further certify that it agrees to indemnify and to hold harmless the Board, its officers, agents, and employees for any and all liability for damages that may result from the Board's collection pursuant to this Agreement. 11. Submitting signed documents to the Board to include agreement(s), certification, copy of ordinance(s), and resolution(s). 12. Providing payment to the Board of the local jurisdiction's pro rata share of the Board's cost of collection and administration as established pursuant to subdivision ( e) of section 42020. 5 ARTICLE IV LOCAL CHARGES A. Local Charges -Timeliness -This part shall remain in effect until proposed California Code of Regulations, title 18, section 2460 is adopted by the Board and approved by the Office of Administrative Law. 1. Ordinances in effect as of September 1, 2015. On or after January 1, 2016, a local charge imposed by a local jurisdiction on prepaid mobile telephony services shall be collected from the prepaid consumer by a seller at the same time and in the same manner as the prepaid MTS surcharge is collected under Part 21 (commencing with section 42001) provided that, on or before September 1, 2015, the local jurisdiction enters into a contract with the Board pursuant to section 42101.5. Thereafter, all subsequently enacted local charges, increases to local charges, or other changes thereto, shall become operative pursuant to paragraphs (2), (3), and (4). 2. New charges. When a local jurisdiction adopts a new local charge after September 1, 2015, the local jurisdiction shall enter into a contract with the Board, pursuant to section 42101.5, on or before December 15 \ with collection of the local charge to commence April I st of the next calendar year. 3. Increases in local charges. When a local jurisdiction increases an existing local charge after September 1, 2015, the local jurisdiction shall provide the Board written notice of the increase, on or before December 1st, with collection of the local charge to commence April I st of the next calendar year. 4. Inaccurate rate posted on the Board's website. When a local jurisdiction notifies the Board in writing that the rate posted on the Board's Internet Web site (posted rate) for a local charge imposed by that local jurisdiction is inaccurate, including scenarios where the local charge was reduced or eliminated, the recalculated rate applicable to the local jurisdiction shall become operative on the first day of the calendar quarter commencing more than 60 days from the date the Board receives the local jurisdiction's written notification that the posted rate is inaccurate. A. Local Charges -Timeliness -This part shall take effect and supersede the above "Local Charges -Timeliness section when California Code of Regulations, title 18, section 2460 is adopted by the Board and approved by the Office of Administrative Law. 1. Ordinances in effect as of September 1, 2015. On or after January 1, 2016, a local charge imposed by a local jurisdiction on prepaid mobile telephony services shall be collected from the prepaid consumer by a seller at the same time and in the same manner as the prepaid MTS surcharge is collected under Part 21 (commencing with section 42001) provided that, on or before September 1, 2015, the local jurisdiction enters into a contract with the Board pursuant to section 42101. 5. In the event a local jurisdiction does not enter into a contract with the Board by September 1, 2015, the local jurisdiction may enter into a contract with the Board, pursuant to section 42101.5, on or before December 1st, with collection of the local charge to commence April 1st of the next calendar year. Thereafter, all subsequently 6 enacted local charges, increases to local charges, or other changes thereto, shall become operative pursuant to paragraphs (2), (3), (4) and (5) of this subdivision. 2. New charges. When a local jurisdiction adopts a new local charge after September 1, 2015, the local jurisdiction shall enter into a contract with the Board, pursuant to section 42101.5, on or before December 1st, with collection of the local charge to commence April 1st of the next calendar year. 3. Increases in local charges. When a local jurisdiction increases an existing local charge after September 1, 2015, the local jurisdiction shall provide the Board written notice of the increase, on or before December 1st, with collection of the local charge to commence April 1st of the next calendar year. 4. Advance written notification. When a local charge is about to expire or decrease in rate, the local jurisdiction imposing the local charge shall notify the Board in writing of the upcoming change, not less than 110 days prior to the date the local charge is scheduled to expire or decrease. The change shall become operative on the first day of the calendar quarter commencing after the specified date of expiration or decrease in rate. If advance written notice is provided less than 110 days prior to the specified date of expiration or decrease in rate, the change shall become operative on the first day of the calendar quarter commencing more than 60 days after the specified date of expiration or decrease. 5. Inaccurate Rate Posted on the Board's Web site. When a local jurisdiction notifies the Board in writing that the rate posted on the Board's Internet Web site (posted rate) for a local charge imposed by that local jurisdiction is inaccurate, including scenarios where the local charge was reduced or eliminated and the local jurisdiction failed to provide advance written notice pursuant to paragraph 4 of this subdivision, the recalculated rate applicable to the local jurisdiction shall become operative on the first day of the calendar quarter commencing more than 60 days from the date the Board receives the local jurisdiction's written notification that the posted rate is inaccurate. The local jurisdiction shall promptly notify the Board in writing of any such discrepancies with the posted rate that are known or discovered by the local jurisdiction. ARTICLE V COMPENSATION The local jurisdiction agrees to pay the Board its pro rata share of the Board's cost of collection and administration of the local charges, as established pursuant to section 42020, subdivision (e). Such amounts shall be deducted from the local charges collected by the Board for the local jurisdiction. ARTICLE VI MISCELLANEOUS PROVISIONS A. Communications. Communications and notices may be sent by first-class United States Mail. A notification is complete when deposited in the mail. Communications and notices to be sent to the Board shall be addressed to: 7 State Board of Equalization P.O. Box 942879 MIC: 27 Sacramento, California 94279-0001 Attention: Supervisor, Local Revenue Allocation Unit Communications and notices to be sent to the local jurisdiction shall be addressed to: City of Cupertino Tax Administrator 10300 Torre Ave. Cupertino, CA 95014 B. Term. The date of this Agreement is the date on which it is approved by the Department of General Services. The Agreement shall take effect on the first day of the calendar quarter next succeeding the date of such approval, but in no case before the operative date of the local jurisdiction's ordinance, nor on a day other than the first day of a calendar quarter. This Agreement shall be renewed automatically from year to year until January 1, 2020, when the Local Charge Act is repealed, unless a statute enacted prior to that date extends that date. In such event, this Agreement will continue to renew automatically from year to year to the date authorized by statute. This document memorializes the contractual agreement that was reached, for the purposes of Revenue and Taxation Code section 42101.5, on or before December 1, 2015, to authorize collection of the prepaid MTS surcharge. 8 STATE BOARD OF EQUALIZATION ~-- Return Analysis and Allocation Section City of Cupertino (Signature on this line) David Brandt (Type name here) City Manager (Type title here) Amended CERTIFICATION I, __ D_a_v_id_B_r_an_d_t __ am authorized to sign this certification on behalf of_~C_ity_o_f~Cu_,.c-pe~r~tin~o __ (Insert name of local jurisdiction) I certify to the following: Please check all the following that apply to your jurisdiction: 1. _ 911 Charges/Access to Communication Services -Ordinance No. ofthe -(-lns-ert-nam-ec-flo-cal-jU<-isd-icti-on)-- imposes the local charge set forth in the ordinance to prepaid mobile telephony services for access to communication services or to local 911 emergency telephone systems. As required by section 42102.5, the percentage reflecting the rate for access to the local 911 emergency telephone systems or access to communications services is ---- 2. ___!___Utility User Tax -Ordinance No. 09-2053 of the City of Cupertino imposes the local (Inse:t name of local jurisdiction) charge set forth in the ordinance to the consumption of prepaid mobile telephony services. The tiered rate for the utility user tax, as identified in section 42102 is 1.5% 3. The City of Cupertino -~(ln-sert~nam-e~ofc-loca-,-lj~mi""7.'sdfo"'"'tio...,..n) -- agrees to indemnify and to hold harmless the Board of Equalization (Board), its officers, agents, and employees for any and all liability for damages that may result from the Board's collection pursuant to this agreement. Executed in the City of Cupertino on December 1, 2015 -----(~ln,-ert-nam-e~of~loca~lj~OOs~ilic...,..tio...,..n)______ ----(~Ad~dd-attj~--- Printed name David Brandt ----------------- Title of person _______ C_i~ty_M_an_a~ge_r _____ _ RESOLUTION NO. 15-108 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING CITY MANAGER TO EXECUTE AGREEMENT WITH THE STATE BOARD OF EQUALIZATION FOR IMPLEMENTATION OF THE LOCAL PREPAID MOBILE TELEPHONY SERVICES COLLECTION ACT WHEREAS, on December 1r 2015, the City Cotmcil certified that Ordinance No. 09-2053 applies its local charge(s) (access to 911 or commtmication services and/or utility user tax) to prepaid mobile telephony services; and WHEREAS, the Local Prepaid Mobile Telephony Services Collection Act, mandates the Board of Equalization (Board) to administer and collect the local charges for all applicable local jurisdictions (Rev. & Tax Code section 42103); and WHEREAS, the Board will perform all functions incident to administration and collection of the local charges for the City of Cupertino; and WHEREAS, the Board requires that the City of Cupertino enter into an "Agreement for State Collection and Administration of Local Charges" the Agreement prior to :implementation of the Local Prepaid Mobile Telephony Services Collection Act, and WHEREAS, the Board requires that the City Manager authorize the agreement; NOW, THEREFORE, BE IT RESOLVED by the City Council that the attached "Agreement for State Collection and Administration of Local Charges" is hereby approved and the City Manager is hereby authorized to execute the Agreement and Certification of Rates and Ordinances. PASSED AND ADOPTED at a Regular Meeting of the City Council of the City of Cupertino the 1st day of December 2015, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: Members of the City Council Sinks, Chang, Paulr Vaidhyanathai1, Wong None None None APPROVED: THIS IS TO CERTIFY THAT THE WITHIN INSTRUMENT IS A TRUE AND CORRECT COPY OF THE OHIGINAL ON FILE IN THIS OFFI~ ATTEST_ J'•tV'(v•u-'1 23 , 20L CITY CLER\{. OF THE CITY.PF CUPERTINO BY~~ofu~'­ -·_. --CITY Cl.:-- 0~/:ilLrn ~ ~a~ I Grace Schmidt, City Clerk Rod Sinks, Mayor, City of Cupertino ORDINANCE NO. 09-2053 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, or exemptions, 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, the existing, outdated UUT language: is updated to be consistent with current practice; 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. THIS IS TO CERTIF=Y THAT THE WITHIN INSTRUMENT IS A TRUE AND CORRECT COPY OF THE ORIGINAL ON Fl~~ IN THIS OFFICE ATIEST ,lJece,,t.t Lu f3 , 20 IS- CITY CLERK QF THE CITY OF CUPERTINO BY~~~~~ /2..e11 t/f.-/ CITY .~ Ordinance No. 09-2053 NOW, THEREFORE, the People of the City of Cupertino do ordain as follows: 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-taxable Items 3.35.070 Substantial Nexus I Minimum Contacts. 3.35.080 Duty to collect-Procedures. 3.35.090 Collection Penalties -Service Suppliers. 3.35.100 Actions to Collect. 3 .3 5 .110 Deficiency Determination and Assessment -Tax Application Errors. 3.35.120 Administrative Remedy -Non-Paying S1~rvice 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 Injunction/Writ 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 "Telecommw1ication Users' Tax Ordinance" of the City. 3.35.020 Adoption. This Chapter is adopted pursuant to the powers o:f the City of Cupertino as authorized by California 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. "Ancillary telecommunication services" means services that are associated with or incidental to the provision, use or enjoyment of telecommunications services, including but not limited to the following services: 2 Ordinance No. 09-2053 ( 1) "Conference bridging service" means an ancillary service that links two or more participants of an audio or video conferenc1e call and may include the provision of a telephone number. Conference bridging service does not include the telecommunications services used to reach the conference bridge. (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 US. 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 3 Ordinance No. 09-2053 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 a communication-by-communication basis either through the use of a credit card or payment mechanism such as a bank card, travel card, 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 predetermined 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 where 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, regardless 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 service:, "service address" means the location associated with the service number. 0. "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 required to pay a tax imposed under the provisions of this Chapter. Q. "State" shall mean the State of California. 4 Ordinance No. 09-2053 R. "Streamlined Sales and Use Tax Agreement" 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 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 referre:d to as voice over internet protocol 01 oIP) 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 Fedc:ral 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 Over Internet 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 a toll-free number without incurring a charge for the call. The service is typically marketed under the name "800", "855", "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 ex1emptions. 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. 5 Ordinance No. 09-2053 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 requirement shall not apply to a service user that is a state or federal agency or subdivision with a commonly re•::ognized 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 taK 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. The decision of the Tax Administrator 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 persons 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 1:he 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 tax imposed by this Section shall be at the rate of two and forty hundredths percent (2.40%) 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, whkh 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 services 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" shall 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 Telecommunications Sourcing Act ( 4 US. C. Section 124). 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 and 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). 6 Ordinance No. 09-2053 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 telecommunication 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 "telecommunication services" shall include, but are not limited to charges for: connection, reconnection, termination, movement, or change of telecommunication services; late payment fees; 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 serv:ices; directory assistance; access and line charges; universal service charges; regulatory, administrative and other cost recovery charges; local number portability charges; and text and instmt messaging. "Telecommunication services" shall not include: i) digital 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 amou:nt 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 maintained 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. 7 Ordinance No. 09-2053 3.35.070 Substantial Nexus I Minimum Contac1ts. For purposes of imposing a tax or establishing a duty to collect and remit a tax under this Chapter, "substantial nexus" and "minimum contai::ts" 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 activity 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 systE:matic basis by means of advertising that is broadcast or relayed from a transmitter with the City or distributed from a location 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 ifthere are activities performed in the City on behalf of the service supplier that are significantly associated with the 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 performed as follows: (1) The tax shall be collected by service suppliers insofar as practicable at the same time as, and along with, the collection of the charges made in accordance with the regular billing practice of the service supplier. Wh1;:re 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 apply. (2) The duty of a service supplier to collect the tax from a service user shall commence with the beginning of the first regular billing period applicable to the service user where all charges normally 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 different periods than another, the duty to collect shall arise separately for each billing period. 8 Ordinance No. 09-2053 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 tax is being levied, collected, and remitted in accordance with this Chapter. Returns are due immediately upon cessation of business for any reason. Pursuant 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 Suppliers. 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 return must be postmarked on the first regular working day following the weekend or legal holiday. A direct deposit, including electronic fund transfers ~md 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 considen~d 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. 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. 3.35.100 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 not 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 11 l!S.C.A. Section 507(a)(8)(C). 9 Ordinance No. 09-2053 3.35.110 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 to 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 iJ~ 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. C. If the person fails to request a hearing within 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 Tax Administrator desires said person to produce specific 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 Tax 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 one ( 1 % ) percent per month, or any fraction thereof, on the 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 as provided in this subsection E. 10 Ordinance No. 09-2053 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 determines 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 owed for a period of two (2) or more billing periods, the service supplier shall be relieved of the obligation to collei:t taxes due. The service supplier shall provide the City with the names and addresses of such service users and the amounts of taxes owed under the provisions of this Chapter. Nothing herein shall 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 enforcement 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 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 a.mount of the total tax that is owed. 3.35.130 Additional Powers and Duties of the T:11x 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 Cal{fornia Government 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 that the tax imposed under this Chapter shall not be collected in full for any period of time from any 11 Ordinance No. 09-2053 particular service supplier or service user, that determination shall be considered an exercise of the Tax Administrator's discretion to settle disput{:s 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 billing 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 on file in the Tax Administrator's office, and 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 requin~d 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 receipt of the written notice by said person from the Tax Administrator. Upon completion of the audit, the Tax Administrator may make a deficiency determination pursuant to Section 3.35.110 of this Chapter for all taxes (and 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 to make a reasonable {:stimate of the deficiency. Said reasonable estimate shall be presumed correct unless and untH rebutted by competent evidence. E. Upon receipt of a written request of a taxpayer, and for good cause, the Tax Administrator may extend the time for filing any 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 Chapter 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-collection was in good faith, the Tax Administrator shall take into consideration industry practice or other precedents. 12 Ordinance No. 09-2053 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 right 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 such 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 on or before the due date provided in the administrative subpoena, such person may provide 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 expenses, 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 a non-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. 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 Section 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 13 Ordinance No. 09-2053 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 Code 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 912.4, 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 Government Code Section 913. C. Notwithstanding the notice provisions of subsection A. of this Section, the Tax Administrator may, at his or her discretion, 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: i) such credit is claimed in a return dated no later than one year from the date of overpayment or erroneous collection of 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 overpayment 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 has been refanded by the service supplier to the service user in an amount equal to the requested credit. D. Notwithstanding subsections A, B, and C above, a service supplier shall be entitled to take any overpayment as a credit against an underpayment whenever such overpayment has been received by the City within the three (3) years prec:eding a deficiency determination or assessment by the Tax Administrator in connection with an audit instituted by the Tax Administrator pursuant to Section 3.35.130 D. A service supplier shall not be entitled to said credit unless it first 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 subsection 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 de1:;ision (other than a decision relating to a refund pursuantto 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 implemented prospectively). Any person aggrieved by any such decision may appeal to the City Manager by filing a notice of appeal with the City 14 Ordinance No. 09-2053 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 before 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 hearlng, 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 taken. 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 I 094. 6. 0. All notices under this Section may be sent by U.S. 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. 3.35.170 No Injunction/Writ of Mandate. No injunction or writ of mandate or other legal or 1~uitable 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 Reference/Authorization 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 time, 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 15 Ordinance No. 09-2053 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 to 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 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 that 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 Chapter has been determined to be invalid. Such automatic continuation shall be effective beginning 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 that 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 paid with respect to a service provided no later than six months subsequent to the date on which the final court order is published. 16 Ordinance No. 09-2053 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 limite:d to the California False Claims Act (Government Code Section 12650 et seq.) and the California Unfair Practices Act (Business and Professions Code Section 17070 et 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, 2030 at which time, the tax levied hereinunder, unless further extended, shall cease. 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 of 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 XIIIC 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: 1. The restoration of the rate of the tax to a ratt~ 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 adopted 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. 17 Ordinance No. 09-2053 SECTION 5. Ratification 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 thf: 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 Cup rtino this 3rd day of November 2009. ATTEST: 18