HomeMy WebLinkAbout2259ORDINANCE NO. 2259
AN ORDINANCE OF THE PEOPLE OF THE CITY OF ARCADIA
UPDATING THE TELEPHONE/TELECOMMUNICATIONS PROVISIONS OF
THE CITY'S UTILITY USERS TAX
THE PEOPLE OF THE CITY OF ARCADIA, CALIFORNIA DO HEREBY
ORDAIN AS FOLLOWS:
SECTION 1. Section 2670 of Part 7 of Chapter 6 of Allic,e 11 of the Arcadia
Municipal Code is hereby amended to read as follows:
"2670. DEFINITIONS.
The definitions given in this section govern the construction of this Part.
(a) "Person" shall mean any domestic or foreign corporation, firm, association,
syndicate, joint stock company, partnership or any kind, joint venture, club,
Massachusetts business or common-law trust, society, individual, or municipal
corporation.
(b) "City" shall mean the City of Arcadia.
(c) Electrical corporation", "gas corporation", "water corporation", and "cable
television corporation" shall have the same meanings as defined in Sections 218,
222, 241 and 215.5, respectively, of the Public Utilities Code of the State of
California, as said sections existed on January 1, 1970, except that "water
corporation" shall not mean or include the City of Arcadia.
(d) "Tax Administrator" shall mean the Finance Director of the City of Arcadia.
(e) "Service Supplier" shall mean a person required to collect and remit a tax
imposed by this Part.
(f) "Service User" shall mean a person required to pay a tax imposed by this Part.
(g) "Month" shall mean a calendar month.
(h) "Ancillary Telecommunications Services" shall mean 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 bridging service" means an ancillary service that links two or
more participants of an audio or video conference call and may include the
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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.
(i) "Billing Address" shall mean the mailing address of the service user where the
service supplier submits invoices or bills for payment by the service user.
(j) "Communication Services" shall mean telecommunications services and ancillary
telecommunication services.
(k) "Mobile Telecommunications Service" shall have the same meaning and usage as
set forth in the Mobile Telecommunications Sourcing Act (4 U.S.C. Section 124)
and the regulations thereunder.
(1) "Municipal Organization" shall mean an organization or association created by
statute or by voluntary action, whose purpose is to facilitate the development and
dissemination of uniform rulings or interpretations regarding the application of
utility users taxes to communications services in the State of California.
(m) "Place of Primary Use" shall mean the street address representative of where the
customer's use of the communications service primarily occurs, which must be
the residential street address or the primary business street address of the
customer.
(n) "Post-Paid Telecommunication Service" shall mean the telecommunication service
obtained by making a payment on a telecommunication-by-telecommunication
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.
(o) "Prepaid Telecommunication Service" shall mean the right to access
telecommunication services, which must be paid for in advance and which enables
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the origination of telecommunications 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.
(p) "Private Telecommunication Service" shall mean a telecommunication service that
entitles the customer to exclusive or priority use of a telecommunications 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
telecommunications channel is a physical or virtual path of telecommunications
over which signals are transmitted between or among customer channel termination
points (i.e., the location where the customer either inputs or receives the
telecommunications).
(q) "Service Address" means any of the following:
(1) The location of the service user's telecommunications equipment from
which the telecommunication originates or terminates, regardless of where
the telecommunication is billed or paid; or,
(2) If the location in subsection (1) of this definition is unknown (e.g., mobile
telecommunications or VOIP service), the service address means the
location of the service user's place of primary use, or
(3) For prepaid telecommunication service, "service address" means the location
associated with the service number.
(r) "Streamlined Sales and Use Tax Agreement" shall mean the multi-state
agreement commonly known and referred to as the Streamlined Sales and Use
Tax Agreement, and as it is amended from time to time.
(s) "Communications Services" shall mean 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
"communications 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 (Vol?) services or are classified by the Federal Communications
Commission as enhanced or value added, and includes video and/or data services
that is functionally integrated with "communications services".
"Communications 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; private
telecommunication service; paging service; 800 service (or any other toll-free
numbers designated by the Federal Communications Commission); 900 service
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(or any other similar numbers designated by the Federal Communications
Commission for services whereby subscribers who call in to pre-recorded or live
service).
(t) "VoIP" (Voice over Internet Protocol) shall mean the digital process of making
and receiving real-time voice transmissions over any Internet Protocol network.
(u) "800 SERVICE" shall mean a "communications 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", 6685599, 4686699, "877", and "888" toll-
free calling, and any subsequent numbers designated by the Federal
Communications Commission.
(v) "900 SERVICE" shall mean an inbound toll "communications 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 any subsequent numbers designated by the Federal Communications
Commission."
SECTION 2. Section 2671 of Part 7 of Chapter 6 of Article II of the Arcadia
Municipal Code is hereby amended to read as follows:
"2671. COMMUNICATIONS SERVICES TAX.
(a) There is hereby imposed a tax upon every person in the City, using intrastate,
interstate and international communications services, including cellular telephone
services, and the telephone services that gain access to the Public Switched Network
(PSN), by means of various technologies, by every person in the City using such services.
The tax imposed by this section shall be at the rate of five percent (5%) of all charges
made for such services and shall be paid by the person paying for such service. There
is a rebuttable presumption that communications services, which services are capable of
terminating a call to another person on the general telephone network, and 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 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.
(b) "Mobile Telecommunications Service" shall be sourced in accordance with the
sourcing rules set forth in the Mobile Telecommunications Sourcing Act (4 U.S.C.
Section 124). The Tax Administrator may issue and disseminate to communication
service suppliers, which are subject to the tax collection requirements of this Part,
sourcing rules for the taxation of other communication services, including but not limited
to post-paid telecommunication services, prepaid telecommunication services, and private
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telecommunication 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) As used in this section, the term "communications services" shall not include
"private mobile radio service" [as defined in Part 20.3 of Title 47 of the Code of Federal
Regulations], or "private mobile service" [as defined in 47 U.S.C.A. Section 332(d)(3)],
which is not interconnected with the PSN. As used in this section, the term
"communications services" shall include, but shall not be limited to charges for:
connection, reconnection, termination, movement, or change of communications 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 services; directory assistance; access and line
charges; universal service charges; regulatory, administrative and other cost recovery
charges; local number portability charges; and text and instant messaging.
"Communication services" shall not include digital downloads such as, music, ringtones,
games, and similar digital products.
(d) 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 communications services.
(e) The Tax Administrator, from time to time, may issue and disseminate to
communications service suppliers that are subject to the tax collection requirements of
this Part, an administrative ruling identifying those communications services that are
subject to the tax of subsection (a) above. This administrative ruling shall not impose a
new tax, revise an existing tax methodology as stated in this Part, or increase an existing
tax except as allowed by California Government Code Section 53750(h)(2), as it may be
amended from time to time.
(f) To facilitate the uniform interpretation and application of similar ordinance
provisions in other local jurisdictions in the state, the Tax Administrator may, prior to
issuing and disseminating a sourcing rule or an administrative tax ruling, submit his or
her proposed sourcing rule or administrative tax ruling to a Municipal Organization for
review and comment, according to the rules and procedures of that Municipal
Organization, or its successor organization.
(g) To prevent actual multi jurisdictional taxation of communications 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
communications 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."
SECTION 3. Section 2671.4 is hereby added to Part 7 of Chapter 6 of Article II
of the Arcadia Municipal Code and shall read as follows:
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"2671.4 EFFECT OF BUNDLING TAXABLE WITH NON-TAXABLE ITEMS.
If any nontaxable charges are bundled 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."
SECTON 4. Section 2671.6 of Part 7 of Chapter 6 of Article II of the Arcadia
Municipal Code is hereby amended to read as follows:
"2671.6 INDEFINITE SUSPENSION OF A PORTION OF THE UTILITY USER
TAX RATE
That notwithstanding the utility user tax rates set forth in 2671.1 (a) and 2671.2 (a), of
this Code, the utility user tax rate for electricity shall be five percent (5%) of the charges
for such electricity and the utility user tax rate for gas shall be five percent (5%) of the
charges for such gas. That during such time as this Section of the Arcadia Municipal
Code is in effect, the utility user tax rates imposed by Subsections 2671.1 (a) and 2671.2
(a) over the rate set forth in this Section, shall be suspended, and shall not be collected.
The rate set forth in this Section shall not be operative as to a service user and the duty to
collect the tax pursuant to such rate from a service user shall not commence until the
beginning of the first regular billing period applicable to that service user which starts on
or after June 3, 1980. Where a service user receives more than one (1) billing, one or
more being for different periods than another, the rate set forth in this Section shall be
operative, and the duty to collect the tax pursuant to said rate shall arise separately for
each billing period.
The utility users tax shall be reviewed annually by the City Council and the City Council
may, by ordinance or resolution, adjust the rate or temporarily suspend all or a portion of
the tax, as appropriate to the financial condition of the city. No adjustment to the rate or
temporary suspension of the tax shall constitute a decrease in a tax, or an increase in a tax
requiring voter approval under California Constitution Article XIIIC (Proposition 218);
provided the City Council's action does not increase the tax beyond the maximum rate or
methodology set forth in this voter-approved ordinance. To the extent that any aspect of
a rate adjustment or temporary tax suspension is found to invoke such a requirement under
Proposition 218, the entire City Council action shall be deemed null and void ab initio, and
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there shall be no entitlement to adjustment or suspension for any service user."
SECTION 5. Section 2671.8 is hereby added to Part 7 of Chapter 6 of Article II
of the Arcadia Municipal Code and shall read as follows:
"2671.8 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 utility 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. 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
systematic basis by means of advertising that is broadcast or relayed from a transmitter
with the City or distributed from a location within 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 significantly associated with the
service supplier's ability to establish and maintain a market in the City for the provision
of services that are subject to a tax under this Chapter."
SECTION 6. Section 2672.1 of Part 7 of Chapter 6 of Article II of the Arcadia
Municipal Code is hereby amended to read as follows:
"2672.1 EXEMPTION.
The tax imposed by this Part 7 shall not apply during any calendar year to any of the
following:
(a) Any service user who has an income adjusted for family size, at or below fifty
percent (50%) of the area median income as determined under the Section 8 Income
Limits for Los Angeles County as published by the United States Department of Housing
and Urban Development and applicable to the Community Development Block Grant
Programs; and
(b) Any service user who meets the criterion of disability as established by the Social
Security Administration's Supplemental Income program for the Aged, Blind and
Disabled. (Title XVI of the Social Security Act as amended.)"
SECTION 7. Section 2679.1 is hereby added to Part 7 of Chapter 6 of Article II
of the Arcadia Municipal Code and shall read as follows:
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"2679.1 FUTURE AMENDMENT TO CITED STATUTE
Unless specifically provided otherwise, any reference to a state or federal statute in this
Part 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 (as a result of excluding all or a part of any
utility service, or charge therefor, 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 would not 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
Part is expanded or limited as a result of changes in state or federal law, no amendment or
modification of this Part 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."
SECTION 8. Effective Date. The amendments to this Part are subject to a vote
of the citizens of Arcadia and shall become effective immediately upon the date that the
City Clerk certifies that this Ordinance has been approved by a majority of the voters of
Arcadia at the Special Municipal Election of June 9, 2009.
SECTION 9. Severability. If any section, sentence, clause or phrase of this
ordinance is for any reason held to be invalid or unconstitutional by a decision of any
court of competent jurisdiction, such decision shall not affect the validity of the
remaining provisions of this ordinance. The People of the City of Arcadia hereby declare
that they would have adopted this ordinance and each section, sentence, clause or phrase
thereof, irrespective of the fact that any one or more section, subsections, sentences,
clauses or phrases be declared invalid or unconstitutional.
SECTION 10. Certification/Summary. Following the City Clerk's certification
that the citizens of Arcadia have approved this Ordinance, the Mayor shall sign this
Ordinance and the City Clerk shall cause the same to be entered in the book of original
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ordinances of said City; and shall cause the same, or a summary thereof, to be
published as required by law.
I hereby certify that the forgoing ordinance was passed, approved and adopted by
the People of the City of Arcadia on the 9th day of June, 2009.
ATTEST:
r
ity Clerk
Stephen P. Deitsch
City Attorney
of the City of Arcadia
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