6288-98ORDINANCE NO. 6288-98
AN ORDINANCE OF THE CITY OF CLEARWATER, FLORIDA, RELATING
TO `TELECOMMUNICATION SERVICES AND TAXATION; AMENDING
SECTIONS 29.72, 2913, 29.74, AND 29.76, CODE OF ORDINANCES, AND
ADDING A ' NEW SE=CTION 29.77, CODE OF ORDINANCES, TO BRING
SAID ORDINANCES INTO COMPLIANCE WITH STATE STATUTES;
PROVIDING AN EFFECTIVE DATE.
WHEREAS, Sections 29.72, 29.73, 29.74, and 29.76, Code of Ordinances, relating to
telecommunications services and taxation, needed revision because of recent changes in state statutes;
and
WHEREAS, Section 29.77, Code of Ordinances, relating to telecommunications services and
taxation, is a new section that needs to be enacted because of recent changes in state statutes; and
WHEREAS, the City Commission finds that these changes in city ordinances are needed to be in
compliance with the recent changes in state statutes; now therefore,
BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF
CLEARWATER, FLORIDA:
Section 1. Section 29.72, Code of Ordinances, is amended to read:
Sec. 29.72. Levy
(1) Utilities. There is levied by the city on every purchase in the city of electricity, metered or bottled gas
(natural, liquefied petroleum gas or manufactured), and water service, a tax of ten percent of the
payments received by the seller of the item taxed by this section from the purchaser for the purchase of
such service. The tax levied by this sub section shall be collected by the seller of the item subject to this
tax from the purchaser at the time of payment for such service.
(2) Fuel oil. There is hereby further levied by the city a tax on every purchase in the city of fuel oil at the
rate of $0.04 per gallon. This tax shall in every case be paid by the purchaser of fuel oil to the seller of fuel
oil. The tax levied In this section on fuel oil shall be collected by the seller of fuel oil from the purchaser at
the time of payment for such service. The term "fuel oil" as used in this subsection shall Include fuel oil
grade nos. 1, 2, 3, 4, 5, and 6, kerosene and coal oil.
(3) Telecommunications services. There is levied by the city a tax on every purchase in the city of
telecommunication service that which originates and terminates in this state, at the rate of 7 percent of
the total amount charged for any telecommunication service the source of which is ascribed to the city.-
the basis of billing address or service address as used consistent) b the seller, provided within the city
or, if the location of the telecommunication services provided cannot be determined, the total amount billed
for such telecommunication services to a telephone or telephone number, a telecommunication s'number
or device or a customer's billing address located within the city, excluding public telephone charges
collected on site, charges for any foreign exchange service or any private line service except when such
services are used or sold as a substitute for any telephone company switched service or dedicated facility
by which a telephone company provides a communication path, access charges, and any customer
access line charges paid to a local telephone company. However, telecommunications services as
defined in §203.12(5), F.S. as may be amended from time to time to, shall be taxed only on the monthly
recurring customer service charges excluding variable usage charges.
1}
} Section 2. Section 29.73, Code of Ordinances, is amended to read:
Ordinance No. 6288-98
Sec 29.73. Payment; coiloction.
It shall be the duty of every seller of electricity, metered or bottled gas (natural or manufactured), water
service, fuel oil or telecommunication service, to collect from the purchaser, for the use of the city, the tax
hereby levied in this article, at the time of collecting the selling price charged for each transaction, and to
report and pay over, on or before the 461h 20"' day of each calendar month, or quarter if apQlicable. or if
the twentieth day-is either a legal holiday or is not a city business day, then on or before the first city,
business day, that Is not also a legal-holiday, unto the finance director, all such taxes levied and collected
during the preceding calendar month. Any seller of electricity-metered or bottled gas (manufactured or
natural fuel oil water service and telecommunications service _failing to remit to the City on or before the
twentieth 20th day of each calendar month will be subject to the rovisions of Sec. 29.77 paragraph 7.
Section 3. Section 29.74, Code of Ordinances, is amended to read:
Sec 28.74. Records of service.
Each seller of electricity, metered or bottled gas (natural or manufactured), water service, fuel oil and
telecommunication service shall keep senplete records showing all sales in the city of such commodities
or service, which records shall show the price charged upon each sale, the date thereof, and the date of
payment therefor. Dui authorized agents of the city may during the sellers normal business hours at the
official location of the seller's books and records audit the records of an seller of a service that is taxable
b the city under 166.231 F.S. or-4166,232, F.S. for the purpose of ascertaining the correctness of an
return that has been filed or payment that has been made if the city's power to assess tax or rant a
refund is not barred b the applicable limitations period. Each such seller must provide to the city., upon 60
days' written notice access to applicable records for such service except that extensions of this 60-da
period will be granted if reasonably requested by the seller. and-eweh swards-Ghallbe kept-open-fey
inspeGtl--.- by the duly therieed a inesG4iGufs-e#-a
du Fight,-au{#eFity to mal4e-sush4fanssript4hereef
ckAng-such-t! es-a&4he-may-desire
(2) Each seller of services that are taxable under 4.166.231. F.S._or § 166.232, F.S. shall preserve
applicable records relating to such taxes until the expiration of the time within which the cit ma make an
assessment with respect to that tax:-however, a seller is not required to retain duplicative or redundant
records. The term "applicable_record.s" means records kept in the ordinarv•course of business which
establish the collection and remittance of taxes due.
Section 4. Section 29.76, Code of Ordinances, is amended to read:
Sec 29.76.Exemptions.
(t) The United States of America, the State, and political subdivisions and agencies there of are hereby
exempted from payment of the taxes imposed by section 29.72. Such tax shall not apply to sales of
bottled water.
(2) There is excluded from the tax levied and imposed pursuant to section 29.72 the following;
(a) Purchases of special fuels as defined in §206.86, F.S.;
(b) The purchase of not more than five gallons of fuel oil delivered'at the seller's place of business into
the purchaser's container of not more than five gallon capacity; .
(c) The purchase of fuel oil or kerosene for use as an aircraft engine fuel or propellant or for use in
internal combustion engines;
ordinance No. 6283-98
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(d) The purchase of natural gas or fuel oil by a public or private utility, Including municipal corporation
and rural electric cooperative associations, either for resale or for use as fuel In the generation of
electricity;
(c) The purchase of local telephone service or other telecommunications service for use in the conduct
of a telecommunications service for hire or otherwise for resale.
(f) The purchase of any Item otherwise subject to the tax levied by section 29.72 by any recognized
church in this state for use exclusively for church purposes and... purchases made by any_reliaious
institution that ossesses a consumer certificate of exemption issued under chapter 212, F.S.
Section 5. Section 29.77, Code of Ordinances, Is enacted to read:
29.77 Administrative provisions: rights and remedies.
(1 The city play.-during the seller's normal business hours at the official location of the seller's books
and records audit the records of an sailer of a service that is taxable b the city under 166.231 F.S. or
§166.232. F.S. for the purpose of ascertaining whether taxable _services have „been „provided or the
correctness of an return that has been filed or payment that has been made. Each such seller must
provide to the city, upon-60 da s' written notice of intent to audit from the city, access to applicable
records for such service except an extension of this 60-day eriod will be ranted if reasonably re guested
b the seller. The seller may at its option waive the 60-day notice requirement. If either the ci or the
seller requires an additional extension it must give notice to the other no less than 30 days before the
existln extension expires, except in cases of bona fide emer enc or waiver of the notice requirement b
the other party. In an-audit, the seller is liable only for its taxable accounts collected which corres and to
the information provided to it b the ci under 166.233 3 F.S. As used in this section "applicable
records" means records kept in the ordinary course of business which establish the collection and
remittance of taxes due. Such applicable records may be provided to the-city on an electronic medium if
agreed to b the seller and the cit. No fee or an portion of a fee for audits conducted on behalf of the ci
shall be based upon the amount assessed or collected as a result of the audit and no determination
based upon an audit conducted in violation of this prohibition shall be valid.
2 Each seller of services that are taxable under 166.231 F.S. or 166.232 F.S. shall reserve
applicable records relating to such taxes until the expiration of the time within which the ci may make an
assessment with respect to that tax, however, a seller is not required to retain duplicative or redundant
records.
3) Before auditinq a seller under subsection (1). the city shall. upon reauest of the seller. discuss with the
seller the city's proposed audit methodology. The city shall prepare and furnish to the seller a report of
each audit which identifies the nature of an deficient or overpayment, the amount thereof, and the
manner in which the amount was computed. In addition, the city, upon„reauest and no less than 445 days
before issuing a determination under subsection (8), shall furnish the seller with all other Information or
material in possession of the city or its agents, which is necessary to supplement the audit findings.
(a) The city may issue a proposed assessment oftax_levied _under §166.231,_F.S_. or §166.232, F.S.
within 3 years after the date the tax was due. However, this limitation is tolled for 1 year if within the 3-
year period the municiparRy_ ssues to the seller a -notice of intent to audit. If the_audit _cannot be completed
prior to the expiration of this limitation period as extended by tolling, and such condition is due to the
seller's refusal or delay In allowing access to applicable records, the city may make a proposed
assessment from an estimate based upon the best information available for the taxable period, unless the
seller agrees in writing to extend the limitation period. The city may also make a proposed assessment
from such an estimate if. notwithstandina aareed extensions of the limitation oeriod to a date which is 3
years following Issuance of the notice of intent to audit, the seller does not allow access to applicable
records prior to such date.
Ordinance No. 6288-98
(b) A seller may apply to the city for refund of. or may take a credit for. anv overpavment of tax or interest
or penalty thereon within 3 years following remittance by the seller, and the city will refund or allow the
seller credit for such overpayments as were remitted to the city. However, In the case of an overpayment
which the seller has previously refunded or credited to a purchaser in accordance with subsection (6), the
limitation period for the seller's refund application or credit shall expire 3 years following the seller's
remittance to the municipality or 60 days following the seller's issuance of the refund or credit to the
purchaser, whichever is later.
c Upon expiration of the periods set forth in this subsection the city's right to assess tax Interest or
anal and the seller's right to apply for a refund or credit expire and are barred unless fraud has
occurred: however, sellers and the city may enter into agreements to extend these periods,
5 Notwithstanding subsection 4 the city shall offset a seller's overpayment of an tax Interest or
enai revealed b an audit against an deficiency of tax interest or penalty which is determined to be
due for the same audit period, and such offsets must be reflected in an ro osed assessment. If the
overpayments by the seller exceed the deficiency, the. city, will refund to the seller the amount by which the
aggregate overpayments exceed the total deficiency. -Absent proof to the contrary, the methodology that Is
employed in computing the amount of a deficiency Is presumed to yield an appropriate computation of the
amount of any overpayments. As used in subsection. (4)_and this subsection, "overpay ment" to the city
means and includes all remittances of public service tax Interest, or penalty which were not due to the
city, including amounts properly collected but remitted _to_an incorrect municipality.
6) Anv purchaser of a service may request from a seller a refund of, or credit for, taxes collected from the
purchaser upon the around that the amounts collected were not due to the city. The seller shall issue the
refund or allow a credit to the purchaser entitled thereto, it the request is made within 3 years following
collection of the tax from the purchaser. In any event, a seller shall issue a refund or credit to a purchaser
within 45 days following the seller's determination of the amount of taxes collected from the purchaser
within the preceding 3 ears that were not due to the city.
(7) The city is authorized to assess Interest and penalties in accordance with this subsection for failure to
pay any tax when due or to file any required return, except that no penalty shall be assessed. absent willful
neglect, willful negligence, or fraud. Interest will be assessed at a maximum rate of 1 percent per month of
the delinquent tax from the date the tax was due until aid. Penalties will be assessed at a maximum rate
of 5 percent per month of the delinquent tax not to exceed a total penalty of 25 percent, except that in no
event will the penalty, for failure to file a return be less than 15. In the case of a fraudulent return or a
willful Intent to evade payment of the lax the seller making such fraudulent return or willful) attempting to
evade payment of the tax shall be liable for a specific Penalty of 100 ercent of the tax. Interest and
penalties shall be computed on the net tax due after application of an overpayments. Interest and
penalties shall be computed on the net tax due after application of an overpayments, and are sub ect to
compromise pursuant to subsection (14).
B An proposed assessment or finding of amounts due the seller constitutes a determination of the city
for purposes of this section. A determination will separately state the amounts of tax, interest, and penalty
claimed to be due or to be refunded, will be accompanied by a written narrative explanation of the basis
for the city's determinations will inform the seller of the remedies available to it if it disagrees with any
such determination and will state the consequences of the seller's failure to comply with any demand of
the city which is stated in the determination.
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Ordinance No. 6288-98
9 A seller may file with the city a written protest of an determination within 60 days after the
determination is Issued. The city will consider the protest and will within 60 days, issue a written notice of
decision to the seller. The seller ma etition the city for reconsideration of a notice of decision within 30
days after the Issuance of the notice-and, following reconsideration of such a petition.. -the-city- will within
30 days, issue a written notice of reconsideration to the seller.
10 A determination becomes Tina! 60 days after the date of Issuance unless the seller, before the 60-
day period expires, has filed a Protest or secured a written extension of time within which to file a protest.
If the seller has secured a written extension of time and fails to file a protest within the extended time
period, the proposed assessment becomes a final assessment at the expiration of the extended filing
period. If a protest is time) Filed and the seller and the municipality- are unable to resolve the-disputed
Issues the determination becomes final as of the date of issuance of the notice of decision unless the
seller time) files a petition for reconsideration. If a petition for reconsideration is time) filed the
determination becomes final upon issuance of a notice of reconsideration.
(11) _A notice of decision or a notice of reconsideration must address each issue raised in the protest or
petition, must explain the reasoning underlying the conclusions reached and must advise the seller of the
remedies available to it if it disagrees with the cg's disposition of the issues.
12) A seller may contest the legali of any determination by filinq an action in circuit court within 60 davs
after the date the determination becomes final. However, in an action filed in circuit court to contest the
legality of any tax, penalty, or interest assessed under this section the plaintiff must pay the city the
amount of the tax, penalty, and accrued interest which is not being contested by the seller. Venue lies in
Pinellas County where the city, is located. The defendant in any such action is the city.
13 A seller's failure to protest a determination under this section administrative) or •udicialt does not
waive. or impair the seller's right to seek refund of anv overpavment within the time allowed under
subsection (4).
14 A seller's liability for an tax interest or enai may be settled or com romised h the city upon the
rounds of doubt as to liability-or doubt as to the collectibili of such tax interest or penaily. The city and
a seller may enter into a written closing agreement that reflects the terms of an settlement or
compromise. When such a closing -agreement has been a roved on behalf of the city and the seller, it is
final conclusive and binding on the parties with respect to all matters set forth therein and except upon a
showing of fraud or misrepresentation of material fact additional assessment may not be made a ainst
the seller for the tax interest or penalty specified in the closing agreement for the time period specified in
the closing agreement,-and the seller may not institute an 'udicial or administrative-proceeding to recover
an tax interest or Penalty aid under the closing agreement. In issuing a determination the city will
include in its notification thereof to the seller the names of the persons authorized to approve
compromises and to execute closing agreements. The city may also enter Into-agreements for schedulin
payments of taxes interest and penalties, which agreements will recognize both the seller's financial
condition and the best interest of the city, if the seller gives accurate, current information and meets all
other tax obligations on schedule.
15) All notices of intent to audit, determinations, notices of decisions, and notices of reconsideration
issued. under this section must be transmitted to the seller by certified mail, return receipt requested, and
the date of issuance is the postmark date of the transmittal. All protests and petitions for reconsideration
are timely filed if postmarked or received by-the city within the time prescribed by this section. If mailed,
protests and petitions must _be_transmitted _b_y certified mail, return recelpt„requested.
(16) A seller may pay any contested amount, in whole or in part, at anytime, and the payment does not
impair any of the seller's remedies as provided in this section.
Ordinance No. 6288-98
(17 The city will furnish sellers with prompt, accurate responses to questions and to requests for tax
asslstance,
(18)__In_all_matters connected with the_administration _of the public service tax, _sellers -have _th_e right:
a To be represented b counsel or other qualified re resentatives:
(b) To procedural safeguards with respect to the recording of interviews during tax determination
processes conducted by the municipality: and
fcl To have audits, inspections of records, and Interviews conducted at a reasonable time and _place_
(19) The city may communicate with other municipalities concerning the following:
a Technical information concerning a seller's tax and accounting system necessary to conduct an
accurate and efficient audit of a specific com an • however In no event shall the information include an
data relevant to a specific purchaser or account or the seller's tax treatment of specific services:
(b )-Names. and addresses of companies selling taxable services within their respective jurisdictionsi and
(c) _The_name of any company Issued a refund of taxes and the total amount of taxes refunded to such
company-.
(201 Except as otherwise provided in this subsection, the city will-not assess_ or attempt to assess a seller
for anv costs incurred by or charaed to the city in connection with performinq an audit of the seller's books
and records, including all travel expenses. Any assessment or proposed assessment of such costs shall
be void and unenforceable. The city may, however, assess and collect from the seller the reasonable
travel expenses incurred by or charged to the city, in connection with performing an audit of the seller's
books and records if the seller received timely notice requesting access to such books and records in
accordance with subsection (1) and the seller failed or refused to allow such access and did not propose
an alternative date on which the audit was to commence, or if the seller and the city agreed in writing. to an
alternative date on which the audit was to commence but the seller then failed or refused to permit
reasonable access to its books and records on the alternative date.
21 The provisions of this section other than subsection 6 shall not-apply to the extent that the seller is
the-city levying the tax under audit or a separate utili authority, board or commission of such
municipality.
Section 5. This ordinance shall take effect immediately upon adoption.
PASSED ON FIRST READING
May 21, 1996,
PASSED ON SECOND AND FINAL
READING AND ADOPTED
Approved as to form:
Pamela K. kin, City Attorney
Rita Garvey, h'layor-Commissi
Attest:
Cyn E. Goudeau, City Clerk
Ordinance No. 6288-98