[ Council Communication ]  [  Proposed Ordinance ]

Council Communication

Title:	Second Reading of an ordinance entitled "An Ordinance Amending Sections 4.34.050, 4.34.070, 4.34.110, 4.34.120, 4.34.130 and 4.34.140 of Food and Beverage Tax Code of the City of Ashland to Specify Application of Delinquent Payments, Clarify Appeals and Correct Errors."
Dept:	Legal Department
Date:	August 6, 2002
Submitted By:	Paul Nolte
Reviewed By: ........................	Greg Scoles, City Administrator

Synopsis:	This ordinance differs from the one presented for first reading on July 16, 2002, in that it extends the time for appealing the finance director's estimate of taxes from 15 days to 30 days. It also imposes the second penalty for failure to pay taxes at 60 days from the date due instead of 30 days. The council otherwise approved first reading of this ordinance which clarifies how payments are to be applied when an operator is delinquent in remitting taxes; provides that returns will not be considered as filed until they are actually received by the city and clarifies that when an operator owes taxes for previous reporting periods, any payments received are to be applied first to outstanding penalties and interest, then to delinquent taxes then to current taxes. The ordinance presented at first reading also modified section 4.34.070 to limit the appeal rights of an operator to those situations where the operator has failed to file a report thereby requiring the finance director to estimate the amount of taxes due. The operator can then appeal the amount of the estimate to the council.
Recommendation:	Staff recommends adoption of the ordinance as approved at first reading and with the changes extending the appeal period to 30 days and the second penalty to 60 days. Council may want to consider similar changes to the transient occupancy tax as both ordinances are essentially the same in terms of their procedures and enforcement sections.
Fiscal Impact:	No direct fiscal impact is anticipated should the proposed amendments be adopted. A savings in staff time will result from the more efficient administration of the tax code if the amendments are adopted.

End of Document - Back to Top

ORDINANCE NO.

AN ORDINANCE AMENDING SECTIONS 4.34.050, 4.34.060.B, 4.34.070, 4.34.080, 4.34.110, 4.34.120, 4.34.130 AND 4.34.140 OF FOOD AND BEVERAGE TAX CODE OF THE CITY OF ASHLAND TO SPECIFY APPLICATION OF DELINQUENT PAYMENTS, CLARIFY APPEALS AND CORRECT ERRORS.

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

Annotated to show differences in the code sections modified at first reading on July 16, 2002. Deletions are lined through and additions are underlined.

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

SECTION 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. Any payment made under this section shall first be applied to any delinquent taxes owed for previous reporting periods. If the delinquent taxes include penalties or interest the payment shall first be applied to penalties then to interest then to the underlying tax. 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.

SECTION 1A. Section 4.34.060.B of the Ashland Municipal Code is amended to read:

B. Any operator who fails to remit any delinquent remittance on or before a period of 30 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.

SECTION 2. Section 4.34.070 of the Ashland Municipal Code is amended to read:

SECTION 4.34.070 Failure to Collect and Report Tax--Determination of Tax by Director. If any operator should fail to make, within the time provided in this chapter, any report of the tax required by this chapter, the director shall proceed in such manner as deemed best to obtain facts and information on which to base the estimate of tax due. As soon as the director shall procure such facts and information as is able to be obtained, upon which to base the assessment of any tax imposed by this chapter and payable by any operator, the director shall proceed to determine and assess against such operator the tax, interest and penalties provided for by this chapter. In case such determination is made, the director shall give a notice of the amount so assessed by having it served personally or by depositing it in the United States mail, postage prepaid, addressed to the operator so assessed at the last known place of address. Such operator may make an appeal of such determinations as provided in section 4.34.080. If no appeal is filed, the director's determination is final and the amount thereby is immediately due and payable.

SECTION 2A. Section 4.34.080 of the Ashland Municipal Code is amended to read:

SECTION 4.34.080 Appeal. Any operator aggrieved by any decision of the 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 administrator within 15 30 days of the serving or mailing of the determination of tax due. The council shall fix a time and place for hearing such appeal, and the city administrator shall give five days written notice of the time and place of hearing to such operator at the last known place of address. The council shall hear and consider any records and evidence presented bearing upon the director's determination of amount due, and make findings affirming, reversing or modifying the determination. The findings of the 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 service of notice.

SECTION 3. Section 4.34.110 of the Ashland Municipal Code is amended to read:

SECTION 4.34.110 Actions to Collect. Any tax required to be paid by any operator under the provisions of this chapter shall be deemed a debt owed by the operator to the city. Any such tax collected by an operator which has not been paid to the city shall be deemed a debt owed by the operator to the city. Any person owing money to the city under the provisions of this chapter shall be liable to an action brought in the name of the City Of Ashland for the recovery of such amount.

SECTION 4. Section 4.34.120 of the Ashland Municipal Code is amended to read:

SECTION 4.34.120 Violations--Infractions. Any operator or other person who fails or refuses to comply as required herein, or to furnish any return required to be made, or fails or refuses to furnish a supplemental return or other data required by the director, or who renders a false or fraudulent return or claim, or who fails, refuses or neglects to remit the tax to the city by the due date, is guilty of an infraction and shall be punished as set forth in section 1.08.020 of the Ashland Municipal Code.

SECTION 5. Section 4.34.130.C of the Ashland Municipal Code is amended to read:

SECTION 4.34.130 Confidentiality. Except as otherwise required by law, it shall be unlawful for the city, any officer, employee or agent to divulge, release or make known in any manner any financial information submitted or disclosed to the city under the terms of this chapter. Nothing in this section shall prohibit:

1. The disclosure of the names and addresses of any persons who are operating a restaurant; or

2. The disclosure of general statistics in a form which would prevent the identification of financial information regarding an individual operator; or

3. Presentation of evidence to the court, or other tribunal having jurisdiction in the prosecution of a claim by the director or an appeal from the director for amount due the city under this chapter.

SECTION 6. Section 4.34.140 of the Ashland Municipal Code is amended to read:

SECTION 4.34.140 Examining Books, Records, or Persons. The city, for the purpose of determining the correctness of any tax return, or for the purpose of an estimate of taxes due, may examine or may cause to be examined by an agent or representative designated by it for that purpose, any books, papers, records, or memoranda, including copies of operator's state and federal income tax return, bearing upon the matter of the operator's tax return.

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 July, 2002, and duly PASSED and ADOPTED this ________day of __________________, 2002.
Barbara Christensen, City Recorder

SIGNED and APPROVED this _____day of ____________, 2002.
Alan W. DeBoer, Mayor

End of Document - Back to Top