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HomeMy WebLinkAboutS04-City Attorney MAYOR & COMMON COUNCIL AND COMMUNITY DEVELOPMENT COMMISSION MEETING BACKUP MEETING DATE: August 7, 2006 DEPUTY: Linda Sutherland ITEM NO. STATUS 17 Continued to 8/21/06 (for public hearing) 21 Continued to 8/21/06 (for public hearing) 24 Continued to 8/21/06 S4 Laid over to 8/21/06 . S-4 t(Q)f1f 1 ORDINANCE NO. 2 AN ORDINANCE OF THE CITY OF SAN BER:\TARDINO IMPOSING A GENERAL TRANSACTIONS AND USE TAX TO BE ADMINISTERED BY THE STATE BOARD OF 3 EQUALIZATION PURSUANT TO REVENUE A:"olD TAXA TION CODE SECTIONS 7251 ET SEQ., SUBJECT TO VOTER APPROV AL, AND PROVIDING FOR SUNSET OF THE 4 TAX, AND THE CREATION OF A CITIZEN'S OVERSIGHT COMMITTEE. 5 BE IT RESOLVED THE MA YOR AND COMMON COUNCIL OF THE CITY OF 6 SAN BERNARDINO DO ORDAIN AS FOLLOWS: 7 SECTION I. Title. This ordinance shall be known as the City of San Bernardino 8 Transactions, and Use Tax Ordinance. The City of San Bernardino hereinafter shall be called "City." 9 This ordinance shall be applicable in the incorporated territory of the City. 10 SECTION 2. Operative Date. "Operative Date" means the first day of the first calendar 11 quarter commencing more than 110 days after November 7.2006. 12 SECTION 3. Purpose. This ordinance]s adopted to achieve the following, among other 13 purposes. and directs that the provisions hereof be interpreted in order to accomplish those purposes: 14 A. To impose a retail transactions. and use tax in accordance with the provIsions of Part IS 1.6 (commencing with Section 7251) of D]vision 2 of the Revenue and Taxation 16 Code and SectIon 7285.9 of Part 1.7 of Division 2, that authorize the City to adopt 17 this tax ordinance, which shall be operative only if a majority of the electors voting 18 on the measure vote to approve lhe imposi lion of the tax at an election called for that 19 20 purpose. B. To adopt a retail transactions and use tax ordinance that incorporates provisions 21 identical to those of the Sales and Use Tax Law of the State of California insofar as 22 23 24 those provisions are not mconsistent with the requirements and limitations contained in Part 1.6 of Division 2 of the Revenue and Taxation Code. c. To adopt a retail transactions and use tax ordinance that Imposes a tax, and provides 25 26 27 28 a measure therefore that can be administered, and collected by the State Board of Equalization in a manner that adapts itself as fully as practicable to, and requires the least possible deviation from the existing statutory and administrative procedures followed by the State Board of Equalization in administering and collecting the DHClJs [Ordinances\GeneraITransactions.Usc Tax Ord] Revised 8/7/06 2 AN ORDINANCE OF THE CITY OF SAN BERNARDINO IMPOSING A GENERAL TRANSACTIONS AND USE TAX TO BE ADMINISTERED BY THE STATE BOARD OF EQUALIZATION PCRSUANT TO REVENUE AND TAXA T10N CODE SECTIONS 7251 ET SEQ., SUBJECT TO VOTER APPROVAL, AND PROVIDING FOR SUNSET OF THE TAX, AND THE CREA TION OF A CITIZEN'S OVERSIGHT COMMITTEE. 3 4 5 California State Sales and Use Taxes 6 D To adopt a retail transactions and use tax ordinance that can be administered in a 7 manner that will be, to the greatest degree possible, consistent with the provisions of 8 Part 1.6 of Division 2 of the Revenue and Taxation Code, minimize the cost of 9 collecting the transactions and use taxes, and at the same time, minimize the burden 10 of record keeping upon persons subject to taxation under the provisions of this II ordinance. J 2 SECTION 4. Contract With State. Prior to the operative date, the City shall contract with 13 the State Board of Equalization to perfonn all functions incident to the administration and operation 14 of this transactions and use tax ordinance; provided. that if the City shall not have contracted with 15 the State Board of Equalization prior to the operative date, it shall nevertheless so contract and in 16 such a case the operative date shall be the first day of the first calendar quarter following the 17 execution of such a contract. 18 SECTION 5. Transactions Tax Rate. For the privilege of selling tangible personal 19 property at retail, a tax is hereby imposed upon all retailers in the mcorporated tenitory of the City 20 at the rate of 0.25% of the gross receIpts of any retailer from the sale of all tangible personal property 21 sold at retail in said tenitory on and after the operatIve date of this ordinance. 22 SECTION 6. Place of Sale. For the purposes of this ordinance, all retail sales are 23 consummated at the place of business of the retailer unless the tangible personal property sold is 24 delivered by the retailer or his agent to an out-of-state destination or to a common carner for delivery 25 to an out-of-state destination. The gross receipts from such sales shall include delivery charges, 26 when such charges are subject to the state sales and use tax. regardless of the place to which delivery 27 is made. In the event a retailer has no permanent place of business in the State or has more than one 28 III DHCl)s [Ordinances\GeneralTrJllSactions.Use TaxOrdJ 2 Revised 817/06 2 AN ORDINAl\'CE OF THE CITY OF SAN BERNARDINO IMPOSING A GENERAL TRANSACTIONS AND USE TAX TO BE ADMINISTERED BY THE STATE BOARD OF EQUALIZA TION PURSUANT TO REVENUE AND TAXA TION CODE SECTIONS 7251 ET SEQ., SUBJECT TO VOTER APPROVAL, AND PROVIDING FOR SUNSET OF THE T AX, AND THE CREA TION OF A CITIZEN'S OVERSIGHT COMMITTEE. 3 4 5 place of business, the place or places at whIch the retail sales are consummated shall be determined 6 under rules and regulations to be prescribed and adopted by the State Board of Equalization. 7 SECTION 7. Use Tax Rate. An excIse tax is hereby imposed on the storage, use or other 8 consumption in the City of tangIble personal prope11y purchased from any retailer on, and after the 9 operative date of this ordinance for storage, use or other consumption in said territory at the rate of 10 0.25% of the sales price of the property. The sales price shall include delivery charges when such II charges are subject to state sales or use tax regardless of the place to which delivery is made. 12 SECTION 8. Adoption of Provisions of State Law. Except as otberwise provided in this 13 ordinance, and except insofar as tbey are inconsistent with the provisions of Part 1.6 of Division 2 14 of the Revenue and Taxation Code. all of the proviSIOns of Part I (commencing with Section 6001) 15 of Division 2 of the Revenue and Taxation Code are hereby adopted. and made a part of this 16 ordinance as though fully set forth herein. 17 SECTION 9. Limitations on Adoption of State Law and Colleetion of Use Taxes. In 18 adopting the provisions of Part] of Division 2 of the Revenue and Taxation Code: 19 20 A. Wherever the State of California is named or referred to as the taxing agency, the name of this City shall be substituted therefor. However, the substitution shall not 21 be made when: 22 23 1 The word "State" is used as a part of the title of the State Controller, State Treasurer, State Board of Control, State Board of Equalization, State 24 25 Treasury, or the Constitution of the State of California; 2. The result of that substitution would reqUIre action to be taken by or against 26 this City or any agency, officer, or employee thereof rather than by or against 27 the State Board of Equalization. in performing the functions incident to the 28 / / / DHC/Js [Ordinanccs\GeneralTransaclions. Use Tax .Ord] Revised 8/7/06 2 AN ORDINANCE OFTHE CITY OFSAN BERNARDINO IMPOSING A GENERAL TRANSACTIONS AND USE TAX TO BE ADMINISTERED BY THE STATE BOARD OF EQUALIZA TION PURSUANT TO REVENUE AND TAXA TION CODE SECTIONS 7251 ET SEQ., SUBJECT TO VOTER APl'ROV AL, AND PROVIDING FOR SUNSET OF THE TAX, AND THE CREATION OF A CITIZEN'S OVERSIGHT COMMITTEE. 3 4 5 6 administration or operation of this ordinance. 3. In those sections, including, but not necessarily limited to sections referring 7 8 to the exterior boundarIes of the State of California, where the result of the substitution would be to: 9 Provide an exemption from this tax with respect to certain sales, a. 10 storage, use or other consumption of tangi bIe personal property which II would not otherwise be exempt from this tax while such sales, 12 storage, use or other consumption remain subject to tax by the State 13 under the provisions of Part I of Division 2 of the Revenue and 14 Taxation Code, or; 15 16 17 18 19 b Impose this tax with respect to certain sales, storage, use or other consumption of tangible personal property which would not be subject to tax by the state under the said provision of that code. 4. In Sections 6701, 6702 (except in the last sentence thereof.) 671 1,6715, 6737,6797 or 6828 of the Revenue and Taxation Code. 20 B. The word "City" shall be substituted for the word "State'. in the phrase "retailer 21 engaged in business in this State" in Section 6203, and in the definition of that phrase 22 in Section 6203. 23 SECTION 10. Permit Not ReQuired. If a seller's permit has been issued to a retailer under 24 Section 6067 of the Revenue and Taxation Code, an additional transaction's permit shall not be 25 required by this ordinance. 26 SECTION 11. Exemotions and Exclusions. 27 28 A. There shall be excluded from the measure of the transactIOns tax and the use tax the amount of any sales tax or use tax imposed by the State of California or by any city, DHCIJ5 [Ordinanccs\GeneralTransactions,Usc Tax OrdJ 4 Revi~ed 817106 2 AN ORDINANCE OFTHE CITY OF SAN BERNARDINO IMPOSING A GENERAL TRANS,\CTIONS AND USE TAX TO BE AD:\lINISTERED BY THE STATE BOARD OF EQUALIZATION PURSUANT TO REVENUE AND TAXA TION CODE SECTIONS 7251 ET SEQ., SUBJECT TO VOTER APPROVAL, AND PROVIDING FOR SVNSET OF THE TAX, AND THE CREA TION OF A CITIZEN'S OVERSIGHT COMMITTEE. 3 4 5 6 city and county, or county pursuant to the Bradley-Bums Uniform Local Sales and Use Tax Law or the amount of any state-administered transactions or use tax. 7 B, There are exempted from the computatIOn of the amount of transactions tax the gross 8 9 recopts from: 1 Sales of tangible personal property. other than fuel or petroleum products, to 10 operators of aircraft to be used or consumed principally outside the county in 11 which the sale is made and directly and exclusively in the use of such aircraft 12 as common carriers or persons or property under the authority of the laws of 13 thIs State, the United States. or any foreign government. 14 2. Sales of property to be used outside the City which is shipped to a point 15 outside the City, pursuant to the contract of sale, by delivery to such point by 16 17 the retai ler or his agent. or by del i very by the retailer to a carrier for shipment to a consignee at such point. For the purposes of this paragraph, delivery to 18 a point outside the City shall be satisfied: 19 With respect to vehicles (other than commercial vehicles) subject to a, 20 registration pursuant to Chapter 1 (commencing with Section 4000) 21 of DiviSIon 3 of the Vehicle Code, aircraft licensed in compliance 22 with Section 21411 of the Public Utilities Code, and undocumented 23 vessels registered under Division 3,5 (connecting with Section 9840) 24 of the Vehicle Code by registration to an out-of-City address and by 25 a declaration under penalty of perjury, signed by the buyer, stating 26 that such address is, in fact, his or her principal place of residence; n ~d 28 III DHC/js [Ordinances\GeneralTransactionsUse Tax Ord] Revised 817/06 2 AN ORDINANCE OFTHE CITY OFSAN BERl\'ARDINO IMPOSING A GENERAL TRANSACTIONS AND USE TAX TO BE ADMINISTERED BY THE STATE BOARD OF EQUALlZA TION PURSUANT TO REVENUE Al\'D TAXATION CODE SECTIONS 7251 ET SEQ., SUBJECT TO VOTER APPROVAL, Al\'D PROVIDING FOR SUNSET OF THE TAX, AND THE CREA TION OF A CITIZEN'S OVERSIGHT COMMITTEE. 3 4 5 b. With respect to commercIal vehicles, by registration to a place of 6 business out-of-City, and declaration under penalty of perjury. signed 7 8 9 10 11 12 13 by the buyer, that the vehicle will be operated from that address. 3. The sale of tangible personal property if the seller is obl1gated to furnish the property for a fixed price pursuant to a contract entered into prior to the operative date of this ordinance. 4. A lease of tangible personal property which is continuing sale of such property, for any period of time for which the lessor IS obl1gated to lease the property for an amount fixed by the lease prior to the operative date of this 14 ordinance. 15 16 17 18 5 For the purposes of subparagraphs (3), and (4) of this section. the sale or lease of tangible personal property shall be deemed not to be obl1gated pursuant to a contract or lease for any period of time for which any party to the contract or lease has the uncondItIOnal right to terminate the contract or 19 lease upon notice, whether or not such nght is exercised. 20 c There are exempted from the use tax imposed by thIS ordinance, the storage, use or 21 other consumption in thIS City of tangible personal property: 22 I. The gross receipts from the sale of which have been subject to a transactions 23 tax under any state-administered transactions, and use tax ordinance. 24 2. Other than fuel or petroleum products purchased by operators of aircraft, and 25 used or consumed by such operators directly, and exclusively in the use of 26 such aircraft as common carriers of persons or property for hire or 27 compensation under a certificate of public convenience, and necessity issued 28 pursuant to the laws of this State, the United States, or any foreign DHC/js [Oldinanccs\GeneraITransactions,Use TaxOrd] 6 Revised 817/06 2 A:\ ORDINA:\CE OFTHE CITY OF SAN BERNARDINO IMPOSING A GENERAL TRANSACTlO:\S AND USE TAX TO BE ADMINISTERED BY TilE STATE BOARD OF EQUALIZATION PURSUA:\T TO REVE:\UE A:\'D TAXATION CODE SECTIONS 7251 ET SEQ., SUBJECT TO VOTER APPRO V AL, AND PROVIDING FOR SUNSET OF THE TAX, AND THE CREATION OF A CITIZEN'S OVERSIGIIT COMMITTEE. 3 4 S government. ThIs exemption IS in additIon to the exemptIons provided in 6 SectIons 6366 and 6366.1 of the Revenue and TaxatIon Code of the State of 7 California. 8 3. If the purchaser is obligated to purchase the property for a fixed price 9 10 11 pursuant to a contract entered into prior to the operative date of this ordinance. 4. If the possession of, or the exercIse of any right or power over, the tangible 12 personal property arises under a lease which IS a continUIng purchase of such 13 property for any period of time for which the lessee IS obligated to lease the 14 propellY for an amount fixed by a lease prior to the operative dale of this lS ordinance. 16 5 For the purposes of subparagraphs (3) and (4) of this section, storage. use, or 17 other consumption. or possession of, or exercise of any right or power over. 18 tangible personal property shall be deemed not to be obligated pursuant to a 19 contract or lease for any period of time for which any party to the contract or 20 lease has the unconditional nght to terminate the contract or lease upon 21 notice, whether or not such right is exercised. 22 6. Except as provided in subparagraph (7), a retailer engaged in business in the 23 City shall not be required to collect use tax from the purchaser of tangible 24 25 26 personal property, unless the retailer ships or delivers the property into the City or participates within the City in making the sale of the property, including, but not limIted to, solicitmg or receiving the order, either directly 27 or indirectly, at a place of business of the retailer in the City or through any 28 representative, agent. canvasser, solicitor, subsidiary, or persnn in the City DHCiJs l Ord~nances\GeneraiTransaClions, Use Tax.Ord] 7 Revised 8!7J06 1 A1\\ ORDI'iANCE OF THE CITY OF SA:\' BER:\!ARDINO IJ\TPOSI'\G A GENERA L TRANSACTIONS AND USE TAX TO BE ADMINISTERED BY THE STATE BOARD OF EQUALIZA TION PURSUANT TO REVENlCE AND TAXATION CODE SECTIOl\S 7251 ET SEQ., Sl'BJECT TO VOTER APPROV AL, AND PROVIDING FOR SUNSET OF THE TAX, AND TIlE CREATION OF A CITIZEN'S OVERSIGHT COMMITTEE. " 3 4 under the authority of the retailer. 5 7. "A retailer engaged in business in the Clty" shall also ,nclude any retailer of 6 any of the following: vehicles subject to registration pursuant to Chapter 1 7 (commencing with Section 4000) of Division 3 of the Vehlcle Code, aircraft 8 licensed in compliance with Section 21411 of the Public Utilities Code, or 9 undocumented vessels registered under Dlvision 3.5 (commencing wlth 10 Section 9840) of the Vehicle Code. That retailer shall be required to collect 11 12 use tax from any purchaser who registers or licenses the vehicle, vessel, or aircraft at an address in the City. 13 D. Any person subject to use tax under this ordinance may credit against that tax any 14 transactions tax or reimbursement for transactions tax paid to a dlstnct imposing, or 15 16 retailer liable for a transactions tax pursuant to Part 1.6 of Division 2 of the Revenue and Taxation Code with respect to the sale to the person of the property the storage, 17 use or other consumption of which is subject to the use tax. 18 SECTION 12. Amendments To State Law. All amendments subsequent to the effective 19 date of this ordmance to Part 1 of Division 2 of the Revenue and Taxation Code relating to sales, and 20 use taxes and which are not inconsistent with Part 1.6 and Part 1.7 of Division 2 of the Revenue and 21 Taxatlon Code, and all amendments to Part 1.6 and Part 1.7 of Division 2 of the Revenue and 22 Taxation Code, shall automatically become a part of this ordinance, provided however, that no such 23 amendment shall operate so as to affect the ratc of tax imposed by this ordinance. 24 SECTION 13. Enioining Collection Forbidden. No injunction or writ of mandate or other 25 legal or equitable process shall issue in any suit, action or proceeding in any court against the State 26 or the City, or against any officer of the State or the City, to prevent or enjoin the collection under 27 this ordinance. or Part 1.6 of Division 2 of the Revenue and Taxation Code. of any tax or any amount 28 DHC/Js [Ordinances\GeneraITransactionsUse Tax Ord] Revised 817/06 8 2 AN ORDI;\;ANCE OFTHE CITY OFSAN BERNARDINO IMPOSI;\G A GE'iERAL TRANSACTIONS AND USE TAX TO BE AD\lINISTERED BY THE STATE BOARD OF EQUALIZATION PVRSUANT TO REVENUE AND TAXA T10N CODE SECTIONS 7251 ET SEQ., SUBJECT TO VOTER APPROV AL, AND PROVIDING FOR SUNSET OF THE TAX, AND THE CREATION OF A CITIZEN'S OVERSIGHT COMMITTEE. 3 4 of tax required to be collected. 5 SECTION 14. Severabilitv. If any provision of this ordinance or the applicatIOn thereof 6 to any person or circumstance is held invalid. the remainder of the ordmance and the application of 7 such provision to other persons or circumstances shall not be affected thereby. 8 SECTION 15. Effective Date. and Submission To Voters. This ordinance relates to the 9 levy and collection of City transactions and use taxes and shall take effect immediately upon its 10 JI approval by the voters of the City. SECTION 16. Amendment. and Termination Date. The authority to levy the tax Imposed 12 by this ordinance shall expire IS years after the Operative Date defined in SectIon 2 of this 13 ordinance. However, as required by Article XIIIC of the California Constitution, no amendment to 14 this ordinance may increase the rates of the taxes above 0.25% without voter approval. 15 SECTION 17. Declaration. The proceeds of the taxes Imposed by thiS ordinance may be 16 used for any lawful purpose of the City, as authorized by ordinance, resolution or action of the 17 Mayor and Common Council. These taxes are not special taxes within the meaning of Section l(d) 18 of Article XIIIC of the California ConstJtution. but are general taxes imposed for general government 19 purposes. 20 SECTION 18. Citizen's Advisorv Committee. The Mayor and Common Council shall 21 create a Citizen's Oversight Committee, which shall review the expenditure of proceeds of the taxes 22 imposed by this ordinance and report on those expenditures to the voters of the City at least once a 23 year. 24 SECTION 19. Execution. The Mayor and City Clerk are authorized to subscribe this 25 Ordmance where indicated below to evidence its approval by the voters of the City. 26 27 11/ 11/ 28 DHCiJs [Ordinances\GeneraITr<lnsactions Use TaxOrd) 9 Revised 8/7/06 2 AN ORDINA:\"CE OF THE CITY OF SAl\" BERNARDIl\"O IMPOSING A GEl\"ERAL TRANSACTIONS AND USE TAX TO BE ADMINISTERED BY THE STATE BOARD OF EQUALIZA T10N PURSUANT TO REVENUE AND TAXA T10N CODE SECTIONS 7251 ET SEQ., SUBJECT TO VOTER APPROVAL, AND PROVIDING FOR SUNSET OF THE TAX, AND THE CREATION OF A CITIZEN'S OVERSIGHT COMMITTEE. 3 4 I HEREBY CERTIFY that the foregolng Ordinance was duly adopted by the Mayor and S 6 Common Counci I of the City of San Bemardino at a meeting thereof, held , 2006, by the following vote, to wit: on the day of ABSTAIN ABSENT Rachel G. Clark, City Clerk The foregoing Ordinance is hereby approved this _ day of ,2006. 19 20 21 Patrick J. Morris, Mayor City of San Bernardino 22 Approved as to Form: 23 Michael G. Colantuono, Special Counsel 24 '-, '--..3/ "? lex... 2S By: /"-- / 26 27 28 DHC/js [Ordinances\GeneraITransactions,lIse TaxOrd] 10 Revised 817106