ORDINANCE NO. ____

AN ORDINANCE AMENDING VARIOUS PROVISIONS OF THE ASHLAND FOOD AND BEVERAGE TAX IN ASHLAND MUNICIPAL CODE CHAPTER 4.34

THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS:

SECTION 1. Section 4.34.050 of the Ashland Municipal Code is amended to read:

4.34.050 Reporting and remitting.
On or after July 1, 1993, every operator shall, on or before the last day of the month following the end of each calendar quarter (in the months of April, July, October and January), make a return to the director, on forms provided by the City, specifying the total sales subject to this chapter and the amount of tax collected under this chapter. At the time the return is filed, the full amount of the tax collected shall be remitted to the director. A return shall not be considered filed until it is actually received by the director. Payments received by the director for application against existing liabilities will be credited toward the period designated by the taxpayer under conditions which are not prejudicial to the interest of the City. A condition which is considered prejudicial is the imminent expiration of the statute of limitations for a period or periods. Nondesignated payments shall be applied in the order of the oldest liability first, with the payment credited first toward any accrued penalty, then to interest, then to the underlying tax until the payment is exhausted. Crediting of a payment toward a specific reporting period will be first applied against any accrued penalty, then to interest, then to the underlying tax. The director, when in the director's discretion determines that it will be in the best interest of the City, may specify that a different order of payment credit should be followed with regard to a particular tax or factual situation. The director may establish shorter reporting periods for any operator if the director deems it necessary in order to insure collection of the tax and the director may require further information in the return relevant to payment of the liability. When a shorter return period is required, penalties and interest shall be computed according to the shorter return period. Returns and payments are due immediately upon cessation of business for any reason. All taxes collected by operators pursuant to this chapter shall be held in trust for the account of the City until payment is made to the director. A separate trust bank account is not required in order to comply with this provision. (Ord 2885, Amended, 08/06/2002)

SECTION 2. Section 4.34.060 of the Ashland Municipal Code is amended to read:

4.34.060 Penalties and Interest.
A. Any operator who fails to remit any portion of any tax imposed by this chapter within the time required, shall pay a penalty of ten percent of the amount of the tax, in addition to the amount of the tax.

B. Any operator who fails to remit any delinquent remittance on or before a period of 60 days following the date on which the remittance first became delinquent, shall pay a second delinquency penalty of ten percent of the amount of the tax in addition to the amount of the tax and the penalty first imposed.

C. If the director determines that the nonpayment of any remittance due under this chapter is due to fraud, a penalty of 25% percent of the amount of the tax shall be added thereto in addition to the penalties stated in subparagraphs A and B of this section.

D. In addition to the penalties imposed, any operator who fails to remit any tax imposed by this chapter shall pay interest at the rate of one percent 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.

E. Every penalty imposed and such interest as accrues under the provisions of this section shall become a part of the tax required to be paid. (Revised June 1993)

F. Notwithstanding subsection 4.34.020.C, all sums collected pursuant to the penalty provisions in paragraphs A, B and C of this section shall be distributed to the City of Ashland Central Service Fund to offset the costs of auditing and enforcement of this tax.

SECTION 3. Section 4.34.100 of the Ashland Municipal Code is amended to read:

4.34.100 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 subparagraph B of this section, provided a claim in writing, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the director within one year of the date of payment. The claim shall be on forms furnished by the director.

B. The director shall have 20 calendar days from the date of receipt of a claim to review the claim and make a determination in writing as to the validity of the claim. The director shall notify the claimant in writing of the director's determination. Such notice shall be mailed to the address provided by claimant on the claim form. In the event a claim is determined by the director to be a valid claim, an operator 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 in a manner prescribed by the director. The operator shall notify director of claimant's choice no later than 15 days following the date director mailed the determination. In the event claimant has not notified the director of claimant's choice within the 15 day period and the operator is still in business, a credit will be granted against the tax liability for the next reporting period, if the operator is no longer in business, a refund check will be mailed to claimant at the address provided in the claim form.

C. No refund shall be paid under the provisions of this section unless the claimant established the right by written records showing entitlement to such refund and the director acknowledged the validity of the claim.

SECTION 4. Section 4.34.150 of the Ashland Municipal Code is repealed.

SECTION 5. The amendments to Section 4.34.050 shall be considered effective as of January 1, 2003. Any operator which may be entitled to a refund or a credit for penalties assessed and paid due to the application of payments pursuant to AMC Section 4.34.050 as it existed prior to enactment of this ordinance, but after January 1, 2003, must file a written claim within 30 days from the effective date of this ordinance for a refund of such penalties with the director. Upon receipt of a written claim for refund of penalties assessed, the director will, within 30 calendar days, make a determination as to whether any refund is due. In the event a refund is due, an operator 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 in a manner prescribed by the director. The operator shall notify director of the operator's choice no later than 15 days following the date director mailed the determination. In the event the operator has not notified the director of the operator's choice within the 15 day period and the operator is still in business, a credit will be granted against the tax liability for the next reporting period, if the operator is no longer in business, a refund check will be mailed to claimant at the address provided in the claim form. Any operator who fails to file a claim for refund as set forth in this subsection shall be deemed to have waived any entitlement to refund of overpayment of penalties.

The foregoing ordinance was first read by title only in accordance with Article X, Section 2(C) of the City Charter on the 16th day of December , 2003, and duly PASSED and ADOPTED this ____ day of _______, 2004.
Barbara M. Christensen, City Recorder

SIGNED and APPROVED this ____ day of _______, 2004.
Alan W. DeBoer, Mayor

Reviewed as to form:
Paul Nolte, City Attorney

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