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HomeMy WebLinkAbout1169 - Imposing a Cigarette TaxTHS :aem 6/24/66 as follows: ORDINANCE NO. 1169 AN ORDINANCE OF THE CITY OF NEWPORT BEACH ADDING CHAPTER 8.5 TO ARTICLE VI OF THE NEWPORT BEACH MUNICIPAL CODE IMPOSING A CIGARETTE TAX AND PROVIDING FOR COLLECTION THEREOF The City Council of the City of Newport Beach does ordain SECTION to Chapter 8,5 is added to Article VI of the Newport Beach Municipal Code to read: t9Chapter 8.5 CIGARETTE TAX SECTION 6850. Title, This chapter shall be known as the Newport Beach Cigarette Tax Law. SECTION 6851. Definitions. The following words and phrases, wherever use ink' l'is chapter, shall be construed as herein defined: (a) Ci aretteo 'Cigarette' means any roll for smoking, made wholly or in part of tobacco, irrespective of size or shape and irrespective of whether the tobacco is flavored, adulterated or mixed with any other ingredient, where such roll has a wrapper or cover made of paper or any other material, unless such wrapper is wholly or in the greater part made of tobacco and weighs over three (3) pounds per thousand, (b) Use or ConsgMRtion, 'Use' or 'consumption' includes the exercise or any right or power over cigarettes incident to the ownership thereof other than the sale of the cigarettes or the keeping or retention thereof for the purpose of sale, (c) Retailer, 'Retailer' shall mean any domestic or foreign corpora�n, association, syndicate, joint venture, joint stock company, partnership of any kind, club, Massachusetts business or common law trust, society or individual who sells cigarettes for any purpose other than resale. Where cig- arettes are offered for sale through the means of a vending machine, the person holding title to the cigarettes in the machine shall be deemed the retailer. SECTION 68.52. Tax Imposed, An excise tax is hereby imposed upon the use or consumption in the City of cigarettes purchased from a retailer within the City at the rate of one and one-half ($0.0015) mills per cigarette, SECTION 68530- Tax Paid to Retailer. The tax constitutes a debt owed by the purchaser to tae City which is extinguished only by payment of the tax to the Finance Director or to the retailer. When a purchase from a retailer is made within the City, the tax shall be paid to the retailer at the time the • purchase price is paid. The tax collected or required to be collected by the retailer constitutes a debt owed by the retailer to the City. Should any remittance of tax be made by a retailer prior to sale of cigarettes to a consumer, such i remittance shall be considered as an advance payment to be reimbursed by adding the amount of the tax to the price of the cigarettes at the time of sale to the user or consumer. SECTION 6854. Retailer Remits Quarterlv. Each retailer • selling cigarettes within the City shall co ect the tax imposed under this chapter., and on or before the last day of the month following the close of a calendar quarter remit the total amount so collected to the Finance Director, together with a statement on a form provided by the Finance Director showing the number of cigarettes sold to purchasers, the amount of tax collected, and such other information as the Finance Director shall require. Where the Finance Director determines that efficiency in the administration of the tax would be promoted, he may establish reporting periods greater than quarterly, but not to exceed one year. The Finance Dir- ector may establish shorter reporting periods for any retailer if he deems it necessary in order to insure collection of the tax. Statements and payments are due immediately upon ces- sation of the business of selling cigarettes for any reason. All taxes collected by retailers pursuant to this chapter shall be held in trust for the account of the City until payment thereof is made to the Finance Director. SECTION 6855. Registration. (a) Within thirty (30) days after the operative date of this chapter, or within thirty (30) days after com- mencing business, whichever is later, each retailer shall register with the Finance Director and obtain from him a 'Cigarette Tax Registration Certificate' to be at all times posted in a conspicuous place on the premises; provided, how- ever, each retailer who does not operate from a fixed place of business shall keep the registration certificate upon his person at all times while engaging in the business of being a retailer. No person shall engage in the business of being a retailer with- out obtaining a registration certificate therefor. Said cer- tificate shall, among other things, state the following: 1. The name of the operator 2. The address of the retailer's place of business The date upon which the certificate was issued 4. 'This Cigarette Tax Registration Certif- icate signifies that the person named on the face hereof has fulfilled the requirements of the Cigarette Tax Law by registering with the Finance Director for the purpose of collecting the Cigarette Tax from purchasers of cig- arettes and remitting said tax to the Finance Director. This certificate does not authorize any person to con - duct any lawful business in an unlawful manner, nor to operate a cigarette retailing business without comply- ing with all state and local applicable laws, including but not limited to those requiring a permit from any board, commission, department or office of this City. This certificate does not constitute a permit.' (b) All Cigarette Tax Registration Certificates shall be countersigned by the Finance Director. (c) A retailer having more than one place of bus- iness within the City at which cigarettes are sold, other than 2. a vending machine operator, shall be required to obtain a separate registration for each such place of business. SECTION 6856. Penalties and Interest. (a) Taxes collected by a retailer which are not remitted to the Finance Director on or before the due dates - fixed in Section 6854, or fixed by the Finance Director as provided herein, are delinquent. (b) Any retailer who fails to remit any tax imposed by this chapter within the time required shall pay a penalty of ten per cent (10 %) of the amount of the tax in addition to the amount of the tax. (c) Any retailer who remittance on or before a period the date on which the remittance pay a second delinquency penalty amount of the tax in addition to the ten per cent (107x) penalty f fails to remit any delinquent of thirty (30) days following first became delinquent shall of ten per cent (10 %) of the the amount of the tax and Crst imposed. (d) If the Finance Director determines that the non - payment of any remittance due under this chapter is due to fraud, a penalty of twenty -five per cent (25 %) of the amount of the tax shall be added thereto in addition to the penalties stated in subparagraphs (b) and (c) of this section. (e) In addition to the penalties imposed, any retailer who fails to remit any tax imposed by this chapter shall pay interest at the rate of one -half of one per cent (.5 %) per month or fraction thereof on the amount of the tax, exclusive of penalties, from the date on which the remittance first became delinquent until paid. (f) Every penalty imposed and such interest as accrues under the provisions of this section shall become a part of the tax herein required to be paid. SECTION 6857. Failure to Collect and Report Tax; Determination of Tax. If any retailer shall Fa_1r or refuse to collect said tax anJ to make, within the time provided in this chapter, any report and remittance of said tax or any portion thereof required by this chapter, the Finance Director shall proceed in such manner as he may deem best to obtain facts and information on which to base his estimate of the tax due. As soon as the Finance Director shall procure such facts and information as ne is able to obtain upon which to base the assessment of any tax imposed by this chapter and payable by any retailer who has failed or refused to collect the same and to make such report and remittance, he shall proceed to determine and assess against such retailer the tax, interest and penalties provided for by this chapter. In case such determination is made, the Finance Director shall give a notice of the amount so assessed by serving'it personally or by deposit - ing it in the United States mail, postage prepaid, addressed to the retailer so assessed at his last known place of address. Such retailer may within ten (10) days after the serving or mailing of such notice make application in writing to the Finance Director for a hearing on the amount assessed. If . application by the retailer for a hearing is not made within - the time prescribed, the tax, interest and penalties, if any,- determined by the Finance Director shall become final and con - clusive and immediately due and payable. If such application is made, the Finance Director shall give not less than five (5) days' written notice in the manner prescribed herein to 3. the retailer to show cause at a time and place fixed in said notice why said amount specified therein should not be fixed for such tax, interest and penalties. At such hearing, the retailer may appear and offer evidence why such specified tax, interest and penalties should not be so fixed. After such hearing, the Finance Director shall determine the proper tax to be remitted and shall thereafter give written notice.. to the retailer in the manner prescribed herein of such determination and the amount of such tax, interest and penalties. The amount determined to be due shall be payable after fifteen (15) days unless an appeal is taken as provided in Section 6858. SECTION 6858. Appeal. Any retailer aggrieved after such hearing by any decision 7othe Finance Director with respect to the amount of such tax, interest and penalties, if any, may appeal to the City Council by filing a notice of appeal with the City Clerk within fifteen (15) days of the serving or mailing of the determination of tax due. The City Council shall fix a time and place for hearing such appeal, and the City Clerk shall give notice in writing to such retailer at his last known place of address. The findings of the City Council shall be final and conclusive and shall be served upon the appellant in the manner prescribed above for service of notice of hearing. Any amount found to be due shall be immediately due and payable upon the serving of notice. SECTION 6859. Records. It shall be the duty of every retailer liable for t e co ection and payment to the City of any tax imposed by this chapter to keep and preserve, for a period of three (3) years, all records as may be necessary to determine the amount of such tax as he may have been liable for the collection of and payment to the City, which records the Finance Director shall have the right to inspect at all reasonable times. SECTION 6860. Refunds. (a) Whenever the amount of any tax, interest or penalty has been overpaid or paid more than once or has been erroneously or illegally collected or received by the City under this chapter, it may be refunded as provided in sub- paragraphs (b) and (c) of this section provided a claim in writing therefor, stating under penalty of perjury the spe- cific grounds upon which the claim is founded, is filed with the Finance Director within one (1) year of the date of pay- ment. The.claim shall be on forms furnished by the Finance Director. (b) A retailer may claim a refund or take as credit against taxes collected and remitted the amount overpaid, paid more than once or erroneously or illegally collected or received when it is established in a manner prescribed by the Finance Director that the person from whom the tax has been collected was not a user or consumer as that term is defined in subsection (b) of Section 6851; provided, however, that neither a refund nor a credit shall be allowed unless the ,amount of the tax so collected has either been refunded to the purchaser erroneously required to pay the tax or otherwise credited to him. (c) No refund shall be paid under the provisions of this section unless the claimant establishes his right thereto by written records showing entitlement thereto. SECTION 6861. Actions to Collect. Any person using or consuming cigarettes within t e City who has not paid the tax 4. I-1 ATTEST: 5. required by the provisions of this chapter, and any retailer who has failed to collect or who has collected but not remitted any tax required to be paid by the provisions of this chapter, shall be liable to an action brought in the name of the City for the recovery of such amount. SECTION 6862. Failure to Re inter or File Reports, etc. Any retailer or other person w o ai is or re uses to register as required herein, or to furnish any return required to be made, or who fails or refuses to furnish a supplemental return or other data required by the Finance Director, or who renders a false or fraudulent return or claim, and any person required to make, render, sign or verify any report or claim who makes any false or fraudulent report or claim with intent to defeat or evade the determination of any amount due required by this chapter to be made, is guilty of a misdemeanor. SECTION 6863. Effective Date. The tax imposed by this chapter shall become operative an be imposed on October 1, 1966, and shall not apply prior to said date. SECTION 2, This ordinance shall be published once in the official newspaper of the City, and the same shall be effective 30 days after the date of its adoption. This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 27th day of June 1966, and was adopted on the 11th day of July 1966, by the following vote, to wit: AYES, COUNCILMEN: Rogers, Parsons, Marshall, Comer. Cook, Forgit NOES, COUNCILMEN: None ABSENT COUNCILMEN: Shelton I-1 ATTEST: 5.