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Ordinance 29ORDINANCE N0. 29 AN ORDINANCE OF THE CITY OF CUPERTINO, IMPOSING A CITY SALES AND USE TAX; PROVIDING FOR THE PERFORMANCE BY THE STATE BOARD OF EQUALIZATION OF ALL FUNCTIONS INCIDENT TO THE ADMINISTRATION, OPERATION AND COLLECTION OF THE SALES AND USE TAX HEREBY IMPOSED, AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF. The City Council of the City of Cupertino does ordain as follows: Section 1. SHORT TITLE. This Or~.inance shall be known as the Uniform Local Sales and Use Tax Ordinance of the City of Cupertino. Section 2. PURPOSE. The City Council of the City of Cupertino hereby declares that this ordinance is adopted to achieve the follow- ing, among other, purposes, and directs that the provisions hereof be interpreted in order to accomplish those purposes: (a) To adopt a sales and use tax ordinance which complies with the requirements and limitations contained in Part 1.5 of Division 2 of the Revenue and Taxation Code of the State of California; (b) To adopt a sales and use tax ordinance which 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 1.5 of Division 2 of the said Revenue ani Taxation Code; (c) To adopt a sales and use tax ordinance which imposes a ninety-one percent of one percent tax and provides a measure there- for that can be administered and collected by the State Board of Equalization in a manner that adapts itself as fully as practical 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 California State Sales and Use Taxes; (d) To adopt a sales and use tax ordinance which can be administered in a manner that will to the degree possible consistent with the provisions of Part 1.5 of Division 2 of the said Revenue and Taxation Code, minimize the cost of collecting city sales and use taxes and at the same time minimize the burden of record keep= ing upon persons subject to taxation under the provisions of this ordinance. (e) To adopt a sales and use tax ordinance which can be administered in a manner that will exclude the receipts of particula r sales from the measure of the sales tax imposed by this City which have been included in the measure of the sales tax imposed by any other city and county, county other than the county in which this city is located, or City in this State, and avoid imposing a use tax on the storage, use or other consumption of tangible personal property in this City when the gross receipts from the sale of, or the use of, that property has been subject to a sales or use tax by any other city and county, county other than the county in which this City is located, or City in this State, pursuant to a sales and use tax ordinance enacted under the provisions of Part 1.5 of Division 2 of the said Revenue and Taxation Code. Section 3. OPERATIVE DATE, CONTRACT WITH STATE. This ordinance shall become operative on October 1, 195 , and. prior thereto this City shall contract with the State Board of Equalization to perform all functions incident to the administration and operation of this sales and use tax ordinance; provided, that if this City shall not have contracted with the said State Board of Equalization, as above set forth, prior to October 1, 1956, this ordinance shall not be operative until the first ~.ay of the first calendar quaker following the execution of such a contract by the City and by the State Board of Equalization, provided further that this Ordinance shall not become operative prior to the operative date of the Uni- fo rm Local Sales and Use Tax Ordinance of the County of Santa Clara. Section ~. SA LES TAX, a 1 For the privilege of selling tangible personal property at retail a tax is hereby imposed upon all retailers in the City at the rate of ninety-one percent of one percent of the gross receipts of the retailer from the sale of all tangible personal property sold at retail in the City of Cupertino on and after the operative date of this Ordinance. (2) For the purposes of this Ordinance, all retail sales shall be presumed to have been consummated at the place of business of the retailer unless the tangible personal property sold is delivered by the retailer or his agent to on out-of-state destination or to a common carrier for delivery to an out-of-state destination. Delivery charges shall be included in the gross receipts by which the tax is measured, regardless of the place to which delivery is made, when such charges are included in the measure of the sales or use tax imposed by the State of California. In the event a retailer has no permanent place of business in the State of California, or has. more than one place of business, the place or places at which retail sales are consummated shall be as determined under rules and regulations prescribed and adopted by the Board of Equalization. (b) (1) Except as hereinafter provided, and except insofar as they are inconsistent with the provisions of Part 1.5 of Division 2 of the said Revenue and Taxation Code, all of the provisions of Part 1 of Division 2 of said Code, as amended and in force and effect on October 1, 1956, applicable to sales tax are hereby adopted and made a part of this section as though fully set forth herein . (2) Wherever, and to the extent that, in Part 1 of Division 2 of the said Revenue and Taxation Code the State of California is named or referred to as the taxing agency, the City of Cupertino shall be substituted therefor. Nothing in this subdivision shall be deemed to require the substitution of the name of the City of Cupertino for the word "State" when the word is used as part of the title of the State Controller, the State Treasurer, the State Board of Control, the State Board of Equalization, or the name of the State Treasury, or of the Constitution of the State of California; nor shall the name of the City be substituted for that of the State in any section when the result of that substitution would require action to be taken by or against the City or any agency thereof, rather than by or against the State Board of Equalization, in per- forming the functions incident to the administration or operation of this ordinance; and neither shall the substitution be deemed to have been made 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 provide an exemption from this tax with respect to certain gross receipts which would not otherwise be exempt from this tax while those gross receipts remain subject to tax by the State under the provisions of Part 1 of Division 2 of the said Revenue and Tax- ation Code, nor to impose this tax with respect to certain gross receipts which would not be subject to tax by the State under the provisions of that Code; and, in addition, the name of the City sl~a.ll not be substituted for that of the State in Sections 6701, 6702; (except in the last sentence thereof) 6711, 6715, 6737 ~797~ and 6828 of the said Revenue and Taxation Code as adopted. (3) If a sellers permit has been issued to a retailer under Section 6068 of the said revenue and Taxation Code, an additional seller's permit shall not be required by reason of this section. (~-) There shall be excluded from the gross receipts by which the tax is measured: a. The amount of any sales or use tax imposed by the State of California trpQn a retailer or consumer. b. Receipts from the sale of tangible personal property upon which a sales or use tax has become due by reason of the same transaction to any other city and county, county other than the county in which this city is located, or city in this state under a sales or use tax ordinance enacted by that city and county other than the county in which this City is located, or city in this State in accordance with Part 1.5 of Division 2 of the said Revenue and Taxation Code. c. Receipts from sales to operators of common carrier and waterborne vessels of property to be used or consumed in the opera- tion of such common carriers or w~.terborne vessels principally out- side of this City. Section 5. USE TAX. a An excise tax is hereby .imposed on the storage, use or other consumption in the City of Cupertino of tangible personal property purchased from any retailer on or after the operative date of this ordinance, for storage, use or other consumption in the City at the rate of ninety=one percent of one percent of the sales price of the property. The sales price shall include delivery charges when such charges are subject to ,3tate sales or use tax regardless of the place to which delivery is made. (b) (1) Except as hereinafter provided, and except insofar as they are inconsistent with the previsions of Part 1.5 of Division 2 of said Revenue and Taxation Coc~.e, all of the provisions of Part 1 of_ Division 2 of said Code, as amended and in force and effect on October 1, 1956, applicable to usc~ taxes are hereby adopted and made a part of this section as though :E'ully set forth herein. (2) Wherever, and to the extant that, in Part 1 of Division 2 of the said Revenue and Taxation Code the State of California is named or referred to as the taxint; agency, the City of Cupertino shall be substituted therefor. Nothing in this subdivision shall be deemed to require the substitu'~ion of the name of the City of Cupertino for the word "State" whE;n that word is used as part of the title of the State Controller, thf~ State Treasurer, the State Board of Control, the State Board of Equalization, or the name of the State Treasury, or of the Constitution of the State of California; nor shall the name of the City be substituted for that of the State in any section when the result of that substitution would require action to be taken by or against i;he City or any agency therefor rather than by or against the Stai;e Board of Equalization, in per- forming the functions incident to the administration or operation of this ordinance; and neither shall the substitution be deemed to have been made in those sections, including but not necessarily limited to, sections referring to the extE~rior boundaries of the State of California, where the result of tYie substitution would be to provide an exemption from this tax with rE~spect to certain storage, use or other consumption of tangible per>onal property which would not otherwise be exempt from this tax while such storage, use or other consumption remains subject to tai: by the State under the provisions of Part 1 of Division 2 of the said Revenue and Taxation Code, or to impose this tax with respect to cE~rtain storage, use or other con- sumption of tangible personal proY~erty which would not be subject to tax by the State under the saicL provisions of that Code; and in addition, the name of the City sh~.ll not be substituted for that of the State in Sections 6701, 6702 (except in the last sentence there- of) , 6711, 6715, 6737, 6797 and 6~>28 of the said Revenue and Taxa- tion Code as adopted. (3) There shall be exempt from the tax due under this section: a. The amount of any sales or use tax imposed by the State of California upon a retailer or consumer. b. The storage, use or othE~r consumption of tangible personal property, the gross receipts from the sale of or the cost of which has been subject to sales or use t:ax under a sales or use tax ordinance enacted in accordance w3.th Part 1.5 of Division 2 of the said Revenue and Taxation Code by any other city and county, county other than the county in which th3.s city is located or city in this State. c. The storage or use of tangible personal property in the transportation or transmission of persons, property or communications, or in the generations, transmission or distribution of electricity or in the manufacture, transmission or distribution of gas in intra- state, interstate or foreign commerce by public utilities which are regulated by the Public Utilities Commission of the State of California. d. The use or consumption of property purchased by operators of common carrier and waterborne vessels to be used or consumed in the operation of such common carriers or waterborne vessels principally outside the City. Section 6. AMENDMENTS. All amendments of the said Revenue and Taxation Code enacted subsequent to the effective date of this ordinance which relate to the sales and use tax and which are not inconsistent with Part 1.5 of Division 2 of the said Revenue and Taxation Code shall automatically become a part of this ordinance. Section 7. ENJOINING COLLECTION FORBIDDEN. No injunction or write of mandate or other legal or equitable process shall issue in any suit, action or proceeding in any court against the State or this City, or against any officer of the State or this City, to pre- vent en enjoin the collection under this ordinance, or Part 1.5 of Division 2 of the Revenue and Taxation Code. of any tax or any amount of tax required to be collected. Section 8. PENALTIES. Any person violating any of the pro- visions of this ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punishable by a fine of not more than five hundred dollars $500.00) or by imprisonment for a period of not more than six (6) months in jail, or by both such fine and imprisonment. Section g. SEVERABILITY. If any section, subsection, sentence, clause, chrase or portion of this ordinance, including but not limited to any exemption, is for any reason held tp be in- valid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining po~'tions of this ordinance. The Council of the City of Cupertino hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. Section 10. URGENCY CLAUSE. This Ordinance is an urgency Ordinance a fecting, and for the immediate preservation of, the public peace, health, safety, comfort, convenience and gene ral welfare, and the same shall therefore become effective immediately upon the final passage and adoption thereof. The facts constitut- ing such urgency are as follows: The Legislature of the State of California has enacted the Bradley-Burns Sales and Use Tax Law in order to provide for uni- form administration, operation and collection of local sales and use taxes. The County of Santa Clara has adopted a Uniform Sales and Use Tax Ordinance. The City of Cupertino must act immediately to adopt this Ordinance in order to comply with regulations of the State and County, and to enable the City of Cupertino to contract with the State Board of Equalization for performance by the Board of all the functions incident to the administration or operation of City Sales and Use Taxes before October 1, 1956. POSTING CLAUSE. Copy of this Ordinance shall be posted in at least three 3 public places in the City of Cupertino within fifteen (15) days after its passage as provided in Section 36933 of the Government Code of the State of California. The foregoing Ordinance was introduced at a special meeting of the City Council of the City of Cupertino on the 27th day of September, 1956. Passed and adopted at a special meeting of the City Council of the City of Cupertino on the 27th day of September, 1956, by the following vote: AYES: Councilmen, Wilson, Lindenmeyer, Meyerholz, Nathanson Saich NOES: Councilmen, None ABSENT: Councilmen, None Approved: /s/ Warner M. Wilson Mayor, City of Cupertino Attest: r~ / / ' p ,, City Jerk I, LAWRENCE K. MARTIN, City Clerk of the City of Cupertino and ex officio clerk of the legislative body of said City do hereby cert~Qr that the foregoing is a true and correct copy of Ordinance No. 2g on file in my office and that the same has been posted pursuant to law. IN W~NESS WHEREO~~hereunto set my hand and City Seal this ~ day of ~ l9 ~;~ . City Clerk