Loading...
Ordinance 3231CITY OF ALAMEDA ORDINANCE NO. 3231 New Series AMENDING THE ALAMEDA MUNICIPAL CODE BY ADDING SECTION 3-63 (TRANSACTIONS AND USE TAX) TO DIVISION IX (TAXES) OF ARTICLE II (TAXATION) OF CHAPTER Ill (FINANCE AND TAXATION) IMPOSING A TRANSACTIONS AND USE TAX TO BE ADMINISTERED BY THE CALIFORNIA DEPARTMENT OF TAX AND FEE ADMINISTRATION WHEREAS, the City of Alameda (the "City") is a desirable place to live, raise a family and start a business, with a strong quality of life, unique character and historic, small-town charm; and WHEREAS, the City has a strong track record of maintaining a low crime rate and keeping Alameda a safe place to live; and WHEREAS, Alameda's Police and Fire Department maintain rapid emergency response times for 9-1-1 calls for crimes, fires, and medical emergencies; and WHEREAS, the City's 21 community and neighborhood parks are an important ',, ' part of what makes living here special, and our City takes pride in keeping our parks, . · 1 beaches and waters safe and clean for residents to enjoy; and WHEREAS, many of Alameda's aging streets and sidewalks require repairs to potholes, cracks and other deterioration to maintain safety for drivers, pedestrians, and bicyclists; and WHEREAS, Alameda's unique position as an island within the San Francisco Bay requires the City to maintain infrastructure that protects the Bay from pollution and runoff; and WHEREAS, the City has been a responsible steward of limited funds, proactively planning for long-term financial stability and maintaining an adequate emergency reserve; and WHEREAS, even with these proactive steps, our City faces a structural deficit of several million dollars in the coming fiscal years; and WHEREAS, a deficit of this magnitude will require cuts to essential city services, including police, fire, and paramedics, leading to slower 9-1-1 emergency response times; and n WHEREAS, a deficit of this magnitude will also prevent ongoing investments in critical infrastructure like maintenance of neighborhood parks, pothole and street repairs, and other improvements; and WHEREAS , in order to maintain the City's financial stability and protect general city services, the City Council is placing a 0.5% transactions and use tax, commonly referred to as a sales tax, ("Measure") on the ballot at the statewide general election on November 6, 2018; and WHEREAS, if enacted , the Measure would provide a local revenue source to protect public safety, including police response to violent crimes and burglaries, and 9-1- 1 emergency medical and fire response; and WHEREAS, if enacted, the Measure would also protect Alameda's strong neighborhood character and quality of life by maintaining neighborhood parks , keeping our streets safe, repairing potholes and protecting the Bay from pollution; and WHEREAS, the Measure would apply to visitors who shop in our City, ensuring that they pay their fair share for their impact on our streets and roads and utilization of other services; and WHEREAS, the Measure will maintain the City's comm itment to transparency and fiscal accountability with all funds raised by the measure being subject to independent audits and public review of all expenditures ; and WHEREAS, the state cannot take one penny of the Measure, giving Alamedans local control over local funds for local needs. NOW, THEREFORE, BE IT ORDAINED by the People of the City of Alameda that: Section 1. Ordinance The Alameda Municipal Code is hereby amended to add Sections 3-63.1 through 3 -63.14, inclusive, (Transactions and Use Tax) of Division IX (Taxes) of Article II (Taxation) of Chapter Ill (Finance and Taxation) to read as follows : 3-63 TRANSACTIONS AND USE TAX 3-63.1 Title. This ordinance shall be known as the City of Alameda Transactions and Use Tax Ordinance. The City of Alameda hereinafter shall be called "City." This ordinance shall be applicable in the incorporated territory of the City. 3-63.2 Operative Date. "Operative Date" means the first day of the first calendar quarter commencing more than 11 0 days after the adoption of this ordinance, the date of such adoption being as set forth below. 3-63.3 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, except for section 7251.1, and pursuant to Section 7292.5 of Part 1 . 7 of Division 2 which authorizes the 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 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 same time, minimize the burden of record keeping upon persons subject to taxation under the provisions of this ordinance. 3-63.4 Contract with State. Prior to the operative date, the 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. n 0 c 3-63.5 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 the City at the rate of 0.50 percent 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. 3-63.6 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. 3-63.7 Use Tax Rate. An excise tax is hereby imposed on the storage, use or other consumption in the 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 0.50 percent 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. 3-63.8 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. 3-63.9 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 made when: 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 tax while 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. 3-63.10 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. 3-63.11 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. n [] c. [J 2. Sales of property to be used outside the City which is shipped to a point outside the 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 the 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 ordinance. 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. 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 tang ible personal property arises under a lease which is a continuing purchase of such property for any period of time for which the lessee is obligated to lease the 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 the 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 the City or participates within the 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 the City or through any representative, agent, canvasser, solicitor, subsidiary, or person in the City under the authority of the retailer. 7. "A retailer engaged in business in the 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 n D d. any purchaser who registers or licenses the vehicle, vessel, or aircraft at an address in the City. 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. 3-63.12 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. 3-63.13 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 the City, or against any officer of the State or the 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. 3-63.14 Annual Audit. By no later than March 30 of each year after the operative date, the City's independent auditors shall complete a report reviewing the collection, management and expenditure of revenue from the tax levied by this chapter. The report shall be reviewed by the City Council as part of its review of the annual audit. Section 2. Voters' Power. By approving this ordinance, the voters authorize the City Council to amend this tax without subsequent voter approval so long as such amendment does not increase the rate of the tax paid by any taxpayer. This tax shall remain in effect until repealed or amended by the voters. Section 3. Environmental Compliance. The tax approved by this Ordinance is not a project for the purposes of the California Environmental Quality Act (CEQA), pursuant to Guidelines Section 15378(b)(4), which states that a project does not include the creation of government funding mechanisms or government fiscal activities which do not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment. Accordingly, no CEQA review is required. Section 4. 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. Section 5. Effective Date. This ordinance relates to the levy and collection of the City's transactions and use tax and, if approved by the voters, shall take effect on April 1, 2019. APPROVED by the following vote of the People of the City of Alameda on November 6, 2018: YESES-20,320 NOES-12,722 ADOPTED by Declaration of the vote at the November 6, 2018, election by the City Council of the City of Alameda on this 18th day of December 2018. ~h~{}QJ Presiding OffiCefOftt18council Attest: La~er,~k City of Alameda ~i ··., n * * * * * * I, the undersigned, hereby certify that the foregoing Ordinance was duly and regularly adopted and passed by Council of the City of Alameda in regular meeting assembled on the 18th day of December, 2018, by the following vote to wit: AYES: Councilmembers Ezzy Ashcraft, Matarrese, Oddie, Vella and Mayor Spencer-5. NOES: None. ABSENT: None. ABSTENTIONS: None. IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of said City this 19th day of December, 2018. Approved as to Form: J1JvLlWW Pi /1;(;\.{w( Michael H. Roush Interim City Attorney f4vvcA ~VA Lara Weisiger, cl# Clerk City of Alameda