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HomeMy WebLinkAboutORD NO 4958ORDINANCE NO. 4 9 5 8 AN ORDINANCE OF THE PEOPLE OF THE CITY OF BAKERSFIELD IMPOSING A TRANSACTIONS AND USE TAX BY ADDING CHAPTER 3.38, "BAKERSFIELD PUBLIC SAFETY/VITAL CITY SERVICES MEASURE" TO THE BAKERSFIELD MUNICIPAL CODE TO BE ADMINISTERED BY THE CALIFORNIA DEPARTMENT OF TAX AND FEE ADMINISTRATION BE IT ORDAINED by the Council of the City of Bakersfield as follows: SECTION 1. Chapter 3.38 of the Bakersfield Municipal Code is hereby added to read as follows: 3.38.005 TITLE. This ordinance shall be known as the "Bakersfield Public Safety/Vital City Services Measure Transactions and Use Tax Ordinance." The City of Bakersfield (hereinafter shall be called 'City):' This ordinance shall be applicable in the incorporated territory of City. 3.38.010 OPERATIVE DATE. "Operative Date" means the first day of the first calendar quarter commencing more than 110 days after the adoption of this ordinance, the date of such adoption being as set forth below. 3.38.015 PURPOSE. This ordinance is adopted to achieve the following, among other purposes, and directs that the provisions hereof be interpreted in order to accomplish those purposes: A. To impose a retail transactions and use tax in accordance with the provisions of Part 1.6 (commencing with Section 7251) of Division 2 of the Revenue and Taxation Code and Section 7285.9 of Part 1.7 of Division 2 which authorizes City to adopt this tax ordinance which shall be operative if a majority of the electors voting on the measure vote to approve the imposition of the tax at an election called for that purpose. B. To adopt a retail transactions and use tax ordinance that incorporates provisions identical to those of the Sales and Use Tax Law of the State of California insofar as those provisions are not inconsistent 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 a measure therefore that can be administered and collected by the California Department of Tax and Fee Administration in a manner that FeAKF9 T b OAIGNAI adapts itself as fully as practicable to, and requires the least possible deviation from, the existing statutory and administrative procedures followed by the California Department of Tax and Fee Administration in administering and collecting the California State Sales and Use Taxes. D. To adopt a retail transactions and use tax ordinance that can be administered in a manner that will be, to the greatest degree possible, consistent with the provisions of Part 1.6 of Division 2 of the Revenue and Taxation Code, minimize the cost of collecting the transactions and use taxes, and at the some time, minimize the burden of record keeping upon persons subject to taxation under the provisions of this ordinance. 3.38.020 CONTRACT WITH STATE. Prior to the operative date, City shall contract with the California Department of Tax and Fee Administration to perform all functions incident to the administration and operation of this transactions and use tax ordinance; provided, that if the City shall not have contracted with the California Department of Tax and Fee Administration prior to the operative date, it shall nevertheless so contract and in such a case the operative date shall be the first day of the first calendar quarter following the execution of such a contract. 3.38.025 TRANSACTIONS TAX RATE. For the privilege of selling tangible personal property at retail, a tax is hereby imposed upon all retailers in the incorporated territory of City at the rate of I% of the gross receipts of any retailer from the sale of all tangible personal property sold at retail in said territory on and after the operative date of this ordinance. 3.38.030 PLACE OF SALE. For the purposes of this ordinance, all retail sales are consummated at the place of business of the retailer unless the tangible personal property sold is delivered by the retailer or his agent to an out-of-state destination or to a common carrier for delivery to an out-of-state destination. The gross receipts from such sales shall include delivery charges, when such charges are subject to the state sales and use tax, regardless of the place to which delivery is made. In the event a retailer has no permanent place of business in the State or has more than one place of business, the place or places at which the retail sales are consummated shall be determined under rules and regulations to be prescribed and adopted by the California Department of Tax and Fee Administration. 3.38.035 USE TAX RATE. An excise tax is hereby imposed on the storage, use or other consumption in City of tangible personal property purchased from any retailer on and after the operative date of this ordinance for storage, use or other consumption in said territory at the rate of 1% of the sales price of the property. The sales price shall include delivery charges when such charges are subject to state sales or use tax regardless of the place to which delivery is made. �e0AYF9 prnownL 3.38.040 ADOPTION OF PROVISIONS OF STATE LAW. Except as otherwise provided in this ordinance and except insofar as they are inconsistent with the provisions of Part 1.6 of Division 2 of the Revenue and Taxation Code, all of the provisions of Part 1 (commencing with Section 6001 ) of Division 2 of the Revenue and Taxation Code are hereby adopted and made a part of this ordinance as though fully set forth herein. 3.3&45 LIMITATIONS ON ADOPTION OF STATE LAW AND COLLECTION OF USE TAXES. In adopting the provisions of Part 1 of Division 2 of the Revenue and Taxation Code: 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 be madewhen: 1. The word "State" is used as a part of the title of the State Controller, State Treasurer, State Treasury, or the Constitution of the State of California; 2. The result of that substitution would require action to be taken by or against this City or any agency, officer, or employee thereof rather than by or against the California Department of Tax and Fee Administration, in performing the functions incident to the administration or operation of this ordinance. 3. In those sections, including, but not necessarily limited to sections referring to the exterior boundaries of the State of California, where the result of the substitution would be to: a. Provide an exemption from this tax with respect to certain sales, storage, use or other consumption of tangible personal property which would not otherwise be exempt from this taxwhile such sales, storage, use or other consumption remain subject to tax by the State under the provisions of Part 1 of Division 2 of the Revenue and Taxation Code, or; 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), 6711, 6715, 6737, 6797 or 6828 of the Revenue and Taxation Code. B. The word "City'shall be substituted for the word "State" in the phrase "retailer engaged in business in this State" in Section 6203 and in the definition of that phrase in Section 6203. a U ORIOINAA` 3.38.050 PERMIT NOT REQUIRED. If a seller's permit has been issued to a retailer under Section 6067 of the Revenue and Taxation Code, an additional transactor's permit shall not be required by this ordinance. 3.38.55 EXEMPTIONS AND EXCLUSIONS. 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, city and county, or county pursuant to the Bradley- Burns Uniform Local Sales and Use Tax Law or the amount of any state- administered transactions or use tax. B. There are exempted from the computation of the amount of transactions tax the gross receipts from: 1. Sales of tangible personal property, other than fuel or petroleum products, to operators of aircraft to be used or consumed principally outside the county in which the sale is made and directly and exclusively in the use of such aircraft as common carriers of persons or property under the authority of the laws of this State, the United States, or any foreign government. 2. Sales of property to be used outside City which is shipped to a point outside City, pursuant to the contract of sale, by delivery to such point by the retailer or his agent, or by delivery by the retailer to a carrier for shipment to a consignee at such point. For the purposes of this paragraph, delivery to a point outside City shall be satisfied: a. With respect to vehicles (other than commercial vehicles) subject to registration pursuant to Chapter 1 (commencing with Section 4000) of Division 3 of the Vehicle Code, aircraft licensed in compliance with Section 21411 of the Public Utilities Code, and undocumented vessels registered under Division 3.5 (commencing with Section 9840) of the Vehicle Code by registration to an out-of-City address and by a declaration under penalty of perjury, signed by the buyer, stating that such address is, in fact, his or her principal place of residence; and b. With respect to commercial vehicles, by registration to a place of business out-of-City and declaration under penalty of perjury, signed by the buyer, that the vehicle will be operated from that address. 3. The sale of tangible personal property if the seller is obligated 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 a continuing sale of such property, for any period of time for which the lessor is obligated to lease the property for an amount fixed by the lease prior to the operative date of this eAKe ordinance. vs 081GINAI 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 obligated 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 lease upon notice, whether or not such right is exercised. C. There are exempted from the use tax imposed by this ordinance, the storage, use or other consumption in this City of tangible personal property: 1. The gross receipts from the sale of which have been subject to a transactions tax under any state -administered transactions and use tax ordinance. 2. Other than fuel or petroleum products purchased by operators of aircraft and used or consumed by such operators directly and exclusively in the use of such aircraft as common carriers of persons or property for hire or compensation under a certificate of public convenience and necessity issued pursuant to the laws of this State, the United States, or any foreign government. This exemption is in addition to the exemptions provided in Sections 6366 and 6366.1 of the Revenue and Taxation Code of the State of California. 3. If the purchaser is obligated to purchase the property for a fixed price 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 personal property arises under a lease which is a continuing such purchase of property for any period of time for which the lessee is lease the obligated to property for an amount fixed by a lease prior to the operative date of this ordinance. 5. For the purposes of subparagraphs (3) and (4) of this section, storage, use, or other consumption, or possession of, or exercise of any right or power over, tangible personal property shall be deemed not to be obligated 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 lease upon notice, whether or not such right is exercised. 6. Except as provided in subparagraph (7), a retailer engaged in business in City shall not be required to collect use tax from the purchaser of tangible personal property, unless the retailer ships or delivers the property into City or participates within City in making the sale of the property, including, but not limited to, soliciting or receiving the order, either directly or indirectly, at a place of business of the retailer in City or through any representative, agent, canvasser, solicitor, subsidiary, or person in City under the authority of the retailer. 7. "A retailer engaged in business in City" shall also include any retailer of any of the following: vehicles subject to registration pursuant to Chapter 1 (commencing with Section 4000) of Division 3 of the Vehicle Code, aircraft licensed in compliance with Section 21411 of the Public Utilities Code, or undocumented vessels registered under Division 3.5 (commencing with Section 9840) of the Vehicle Code. That retailer shall be required to collect use tax from any purchaser who registers or licenses the vehicle, vessel, or aircraft at an address in City. D. Any person subject to use tax under this ordinance may credit against that tax any transactions tax or reimbursement for transactions tax paid to a district imposing, or 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, use or other consumption of which is subject to the use tax. 3.38.060 AMENDMENTS. All amendments subsequent to the effective date of this ordinance to Part 1 of Division 2 of the Revenue and Taxation Code relating to sales and use taxes and which are not inconsistent with Part 1.6 and Part 1.7 of Division 2 of the Revenue and Taxation Code, and all amendments to Part 1.6 and Part 1.7 of Division 2 of the Revenue and Taxation Code, shall automatically become a part of this ordinance, provided however, that no such amendment shall operate so as to affect the rate of tax imposed by this ordinance. 3.38.065 ENJOINING COLLECTION FORBIDDEN. No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action or proceeding in any court against the State or City, or against any officer of the State or City, to prevent or enjoin the collection under this ordinance, or Part 1.6 of Division 2 of the Revenue and Taxation Code, of any tax or any amount of tax required to be collected. 3.38.070 SEVERABILITY. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, the remainder of the ordinance and the application of such provision to other persons or circumstances shall not be affected thereby. 3.38.075 EFFECTIVE DATE. This ordinance relates to the levying and collecting of City transactions and use taxes and shall be posted in accordance with the provisions of the Bakersfield Municipal Code and shall become effective ten (10) days from and after the date of its passage. 3.38.080 TERMINATION DATE. The authority to levy the tax imposed by this ordinance shall expire when ended by voters of City. 3.38.085 CITIZENS OVERSIGHT COMMITTEE. Prior to the Operative Date, City Council shall adopt a resolution establishing the composition of a Committee of nK no more than nine residents of City to act in an advisory capacity to review the e e9T m ORIGINAL expenditure of revenues generated by the tax imposed by this ordinance. The Committee shall advise City Council on goals and objectives associated with the revenues imposed by this ordinance. City Council also appoints City manager, or City Manager designee, as the committee coordinator of the Committee. 3.38.090 ACCOUNTING, TRANSPARENCY AND AUDIT. A City shall ensure the tax revenues received and expenditures made in relation to the tax that is subject to this ordinance are accounted for distinctly from all other revenues and expenditures within City's accounting system. B City shall ensure these revenues and expenditures are identified separately within City's annual budget document and made available through common public platforms, including, but not limited to City's web site and Open Budget. C. City shall produce an annual report to inform the residents of Bakersfield how the funds subject to this ordinance are being expended. The report shall provide a comprehensive review of the funds received, budgeted and expended in relation to the tax that is subject to this ordinance. The report shall be provided to the Citizens Oversight Committee for review and made available on City's web site and all other customary City communications platforms as determined feasible by City Manager. D. City shall ensure that annual independent audits are conducted to account for the tax revenues received and expenditures made in relation to the tax that is subject to this ordinance, and to ensure consistency with spending priorities. E Such audits will be provided to the Citizens Oversight Committee for review made available on City's web site and all other customary City communications platforms as determined feasible by City Manager. o�QAKe9T o ORIG!P1A1 HEREBY CERTIFY that the foregoing ordinance was passed and adopted, by the Council of the City of Bakersfield at a regular meeting thereof held on DEC 11 1018 by the following vote: AYF t COUNCILMEMBER: RIVERA, GON ALES, WEIR, SMITH, FREEMAN, SULLIVAN, PAR ER NOES:COUNCILMEMBER: NDr\o ABSTAIN: COUNCILMEMBER: Ny(\Q ABSENT: COUNCILMEMBER , L6 k,f.� JUME DRIMAKIS ACTING CITY CLERK and Ex Officio Clerk of Council of the City of Bakersfield APPROVED: DEC 12 2018 By:— f KAREN dOH Mayor APPROVED AS TO FORM: VIRGINIAGEyJJARO City Attorn By: V GINIA GENNARO City Attorney RI/vlg AKeg s T M v .- ORIGINAL AFFIDAVIT OF POSTING DOCUMENTS STATE OF CALIFORNIA) ) ss. County of Kern ) JULIE DRIMAKIS, being duly sworn, deposes and says: That she is the duly appointed, acting and qualified City Clerk of the City of Bakersfield, and that on the 1411 day of December. 2018 she posted on the Bulletin Board at City Hall, a full, true and correct copy of the following: Ordinance No. 4958, passed by the Bakersfield City Council at a meeting held on the 12th day of December. 2018 and entitled: AN ORDINANCE OF THE PEOPLE OF THE CITY OF BAKERSFIELD IMPOSING A TRANSACTIONS AND USE TAX BY ADDING CHAPTER 3.38, "BAKERSFIELD PUBLIC SAFETY/VITAL CITY SERVICES MEASURE" TO THE BAKERSFIELD MUNICIPAL CODE TO BE ADMINISTERED BY THE CALIFORNIA DEPARTMENT OF TAX AND FEE ADMINISTRATION. JULIE DRIMAKIS, CMC Acting City Clerk and Ex Officio of the Council of the City of Bakersfield By: aonif, 6L4 DEPOW City Clerk S:00CUMEWRFORMSWORORD wpd