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HomeMy WebLinkAboutORD788ORDINANCE NO.788 AN ORDINANCE OF THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION,ARIZONA,RELATING TO THE PRIVILEGE LICENSE TAX;ADOPTING "A PUBLIC RECORD OF THE CITY OF APACHE JUNCTION,ARIZONA -AMEND- MENTS TO THE CITY TAX CODE"BY REFERENCE;REPEALING ANY CONFLICTING PROVISIONS;PROVIDING FOR SEVERABILITY;AND PROVIDING PENALTIES. BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION,ARIZONA: SECTION I IN GENERAL That certain document known as "A Public Record of the City of Apache Junction,Arizona -Amendments to the City Tax Code",three copies of which are on file in the office of the City Clerk of the City of Apache Junction,Arizona,which document was made a public record by Resolution No.91-24 of the City of Apache Junction,Arizona,i s hereby referred to,adopted and made a part hereof as i f fully set out in this ordinance. SECTION I I REPEALING ANY CONFLICTING PROVISIONS All ordinances and parts of ordinances in conflict with the pro- visions of this ordinance or any part of the code adopted herein by reference are hereby repealed. SECTION III PROVIDING FOR SEVERABILITY I f any section,subsection,sentence,phrase,clause or portion of this ordinance or any part of the code adopted herein by reference is, for any reason,held to be invalid or unconstitutional by any court of competent jurisdiction,such decision shall not affect the validity of the remaining portions thereof. SECTION IV PROVIDING PENALTIES Any person found guilty of violating any provision of these amend- ments to the tax code shall be guilty of a class one misdemeanor.Each day that a violation continues shall be a separate offense punishable as herein above described. PASSED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION,ARIZONA,THIS 18TH DAY OF JUNE 1991 SIGNED AND ATTESTED TO THIS ORDINANCE NO.788 PAGE ONE OF TWO 19TH DAY OF JUNE ,1991. THOMAS DAMIANO Mayor ATTEST: LLYKATHLEENCONNELLY City Clerk APPROVED AS TO FORM: ORDINANCE NO.788 PAGE TWO OF TWO A PUBLIC RECORD OF THE CITY OF APACHE JUNCTION AMENDMENTS TO THE CITY TAX CODE Section 1.Section 8A-540 of the city tax code is amended to read: Sec.8A-540.Interest and civil penalties. (a)Any taxpayer who failed to pay any of the taxes imposed by this Chapter which were due or found to be due before the delinquency date shall be subject to and shall pay Interest upon such tax at the rate of one percent (1%) per month, until paid.Fractions of a month shall be considered to constitute a full month for the purpose of computing interest.Said interest may be neither waived by the Tax Collector nor abated by the Hearing Officer except as it might relate to a tax abated as provided by Section 8A-570. (b)In addition to interest assessed under subsection (a) above, any taxpayer who failed to pay any of the taxes Imposed by this Chapter which were due or found to be due before the delinquency date shall be subject to and shall pay any or all of the following civil penalties, in addition to any other penalties prescribed by this Chapter: (1)A taxpayer who fails to file a return for a tax imposed by this Chapter shall pay a penalty of five percent (5%) of the tax for each month or fraction of a month elapsing between the delinquency date of the return and the date on which it is filed, unless the taxpayer shows that the failure is due to reasonable cause and not due to willful neglect.This penalty shall not exceed twenty-five percent (25%) of the tax due. (2)A taxpayer who fails to pay the tax within the time prescribed shall pay a penalty of ten percent (10%) of the unpaid tax, unless the taxpayer shows that the failure is due to reasonable cause and not due to willful neglect.If the taxpayer is also subject to a penalty under subsection (b)(1) above for the same tax period, the total penalties under subsection (b)(1) and this subsection shall not exceed twenty-five percent (25%). (3)A taxpayer who fails or refuses to file a return on notice and demand by the Tax Collector shall pay a penalty of twenty-five percent (25%) of the tax,unless the taxpayer shows that the failure is due to reasonable cause and not due to willful neglect. (4)If the cause of a tax deficiency is determined by the Tax Collector to be due to negligence, but without regard for intent to defraud, the taxpayer shall pay a penalty of ten percent (10%) of the amount of deficiency. (5)If the cause of a tax deficiency is determined by the Tax Collector to be due to civil fraud or evasion of the tax, the taxpayer shall pay a penalty of fifty percent (50%) of the amount of deficiency. (0)Penalties and interest imposed by this Section are due and payable upon notice by the Tax Collector. (d)The assessment of the penalties prescribed by subsections (b)(3) through (b)(5) above must be approved on a case -by -case basis by the Tax Collector prior to such assessment. (e)The Tax Collector may waive or adjust penalties imposed by subsections (b)(1) and (b) (2) above upon a finding that: (1)in the past, the taxpayer has consistently filed and paid the taxes imposed by this Chapter in a timely manner; or (2)the amount of the penalty is greatly disproportionate to the amount of the tax; or (f) (g) (3)the failure of a taxpayer to file a return and/or pay any tax by the delinquency date was caused by any of the following circumstances which must occur prior to the delinquency date of the return in question: (A)the return was timely filed but was inadvertently forwarded to another taxing jurisdiction. (B)erroneous or insufficient information was furnished the taxpayer by the Tax Collector or his employee or agent. (C)death or serious illness of the taxpayer, member of his immediate family, or the preparer of the reports immediately prior to the due date. (D)unavoidable absence of the taxpayer immediately prior to the due date. (E)destruction, by fire or other casualty, of the taxpayer's place of business or records. (F)prior to the due date, the taxpayer made application for proper forms which •could not be furnished in sufficient time to permit a timely filing. A taxpayer may also request a waiver or adjustment of penalty for a reason thought to be equally substantive to those reasons itemized above.All requests for waiver or adjustment of penalty must be In writing and shall contain all pertinent facts and other reliable and substantive evidence to support the request.In all cases, the burden of proof is upon the taxpayer. No request for waiver of penalty under subsection (e)above may be granted unless written request for waiver is received by the Tax Collector within forty-five (45) days following the imposition of penalty.Any taxpayer aggrieved by the refusal to grant a waiver under subsection (e) above may appeal under the provisions of Section 8A,570 provided that such petition of appeal is received by the Tax Collector within forty-five (45) days of the taxpayer's receipt of notice by the City that waiver has been denied. For the purpose of this Section, "reasonable cause" shall mean a reasonable basis for the taxpayer to believe that the tax did not apply to the business activity or the storage or use of the taxpayer's tangible personal property in this City. Section 2.Section 8A-555 of the city tax code is amended to read: Sec. 8A-555.Tax Collector may examine books and other records; failure to provide records. (a)The Tax Collector may require the taxpayer to provide and may examine any books, records, or other documents of any person who,in the opinion of the Tax Collector, might be liable for any tax under this Chapter, for any periods available to him under Section 8A-550. (b)In order to perform any examination authorized by this Chapter, the Tax Collector may issue an Administrative Request for the attendance of witnesses or for the production of documents, as provided by Regulation. (c)If a taxpayer fails or refuses to furnish any information requested in writing by the Tax •Collector, the Tax Collector may, in addition to penalties prescribed under Section 8A-540, impose an additional penalty of twenty-five percent (25%) of the amount of any deficiency of tax assessed by the Tax Collector concerning the assessment of which the information was required, unless the taxpayer shows that the failure is due to reasonable cause and not due to willful neglect. (d)The Tax Collector may use any generally accepted auditing procedures,including sampling techniques, to determine the correct tax liability of any taxpayer.The only responsibility of the Tax Collector is that the procedures used are in accordance with generally accepted auditing standards.The taxpayer must prove by clear and convincing evidence that the methods chosen do not comply with generally accepted auditing standards. (e)The fact that the taxpayer has not maintained or provided such books and records which the Tax Collector considers necessary to determine the tax liability of any person does not preclude the Tax Collector from making any assessment.In such cases, the Tax Collector is authorized to use estimates,projections,or samplings,to determine the correct tax.The provisions of Section 8A -545(b), concerning estimates, shall apply. The Tax Collector shall give the taxpayer written notice of his determination of a deficiency by certified mail, and the tax deficiency, plus interest and penalties, is final forty-five (45) days from the date of receipt of the notice by the taxpayer,unless an appeal Is taken pursuant to the provisions of Sections 8A-570 through 8A-575. (f) Section 3.Section 8A-570 of the city tax code is amended to read: Sec. 8A-570.Administrative review; petition for hearing or for redetermination; hearing or redetermination; finality of order. •(a)Informal Conference.A taxpayer shall have the right to discuss any proposed assessment with the auditor prior to the issuance of any assessment,but any such informal conference is not required for the taxpayer to file a petition for administrative review. (b)Payment of tax under protest.Any payment of tax under protest not made in accordance with the provisions of this Section shall have no force or effect, and, if made, will be accepted by the Tax Collector and credited to the taxpayer as though not made under protest. (c)Administrative Review. (1)Filing a Petition.Other than in the case of a jeopardy assessment, a taxpayer may contest the applicability or amount of any tax, penalty, or interest imposed upon or paid by him pursuant to this Chapter by filing a petition for a hearing or for redetermination with the Tax Collector as set forth below: (A)within forty-five (45) days of receipt by the taxpayer of notice of a determination by the Tax Collector that a tax, penalty, or interest amount is due, or that a request for refund or credit has been denied; or (B)by voluntary payment of any contested amount when accompanied.by a timely filed return and a petition requesting a refund of the protested portion of said payment; or (C)by petition accompanying a timely filed return contesting an amount reported but not paid; or (D)by petition requesting review of denial of waiver of penalty as provided in subsection 8A -540(f). (2)Extension to file a petition.In all cases, the taxpayer may request only one (1) extension from the Tax Collector.Such request must be in writing, state the reasons for the requested delay and time of delay requested, and must be filed with the Tax Collector within the period allowed above for originally filing a petition.The Tax Collector shall allow such extension to file a petition, when such written request has been properly and timely made by the taxpayer, but such extension shall not exceed forty-five (45) days beyond the time provided for originally filing a petition. (3)Requirements for petition. (A)The petition shall be in writing and shall set forth the reasons why any correction, abatement, or refund should be granted, and the amount of reduction or refund requested. The petition may be amended at any time prior to the time the taxpayer rests his case at the hearing or such time as the Hearing Officer allows for submitting of amendments in cases of redeterminations without hearings.The Hearing Officer may require that amendments be in writing, and in that case,he shall provide a reasonable period of time to file the amendment.The Hearing Officer shall provide a reasonable period of time for the Tax Collector to review and respond to the petition and to any written amendments. (B)The taxpayer, as part of the petition, may request a hearing which shall be granted by the Hearing Officer.If no request for hearing is made the petition shall be considered to be submitted for decision by the Hearing Officer on the matters contained in the petition and in any reply made by the Tax Collector. (C)The provisions of this Section are exclusive,and no petition seeking any correction, abatement, or refund shall be considered unless the petition is timely and properly filed under this Section. (4)Transmittal to Hearing Officer.The City Revenue Officer shall designate a Hearing Officer, who may be other than an employee of the City.The Tax Collector, if designated to receive petitions, shall forward any petition to the Hearing Officer within ten (10) days after receipt, accompanied by documentation as to timeliness.In cases where the Hearing Officer determines that the petition is not timely or not in proper form, he shall notify both the taxpayer and the Tax Collector; and in cases of petitions not in proper form only,the Hearing Officer may,at his discretion, provide the taxpayer with an extension up to forty-five (45) days to correct the petition. (5)Hearings shall be conducted by a Hearing Officer and shall be continuous until the Hearing Officer closes the record.The taxpayer may be heard in person or by his authorized representative at such hearing.Hearings shall be conducted informally as to the order of proceeding and presentation of evidence.The Hearing Officer shall admit evidence over hearsay objections where the offered evidence has substantial probative value and reliability.Further, copies of records and documents prepared in the ordinary course of business may be admitted, without objection as to foundation, but subject to argument as to weight, admissibility, and authenticity. Summary accounting records may be admitted subject to satisfactory proof of the reliability of the summaries.In all cases, the decision of the Hearing Officer shall be made solely upon substantial and reliable evidence.All expenses incurred in the hearing shall be paid by the party incurring the same. (6)Redeterminations upon a "petition for redetermination"shall follow the same conditions, except that no oral hearing shall be held. (7)Hearing Ruling.In either case, the Hearing Officer shall issue his ruling not later than forty-five (45) days after the close of the record by the Hearing Officer. (d)Stipulations that future tax is also protested.A taxpayer may enter into a stipulation with the Tax Collector that future taxes of similar nature are also at issue in any protest or appeal.However, unless such stipulation is made, it is presumed that the protest or appeal deals solely and exclusively with the tax specifically protested and no other. When a taxpayer enters into such a stipulation with the Tax Collector that future taxes of similar nature will be included in any redetermination, hearing, or court case, it is the burden of that taxpayer to identify, segregate, and keep record of such income or protested taxable amount in his books and records in the same manner as the taxpayer is required to segregate exempt income.Failure to do so shall be considered a waiver by the taxpayer of such stipulation. (e)When an assessment is final. (1)If a request for administrative review and petition for hearing or redetermination of an assessment made by the Tax Collector is not filed within the period required by subsection (c) above, such person shall be deemed to have waived and abandoned the right to question the amount determined to be due and any tax, interest, or penalty determined to be due shall be final as provided in subsections 8A -545(a) and 8A -555(f). (2)The decision made by the Hearing Officer upon administrative review by hearing or redetermination shall become final thirty (30)days after notice by the Tax Collector of any refund, abatement, or assessment amount recalculated to conform to the Hearing Officer's decision has been received by the petitioner,unless the petitioner appeals the order or decision in the manner provided in Section 8A-575. Any tax due shall be paid within thirty (30)days after such notice either unconditionally or under protest as part of an appeal procedure for judicial review. Section 3.Section 8A-571 of the city tax code is amended to read: Sec. 8A-571.Jeopardy assessments. (a)If the Tax Collector believes that the collection of any assessment or deficiency of any amounts imposed by this Chapter will be jeopardized by delay, he shall deliver to the taxpayer a notice of such finding and demand immediate payment of the tax or deficiency declared to be in jeopardy, including interest, penalties, and additions. (b)Jeopardy assessments are immediately due and payable,and the Tax Collector may immediately begin proceedings for collection.The taxpayer, however, may stay collection by filing, within ten (10) days after receipt of notice of jeopardy assessment, or within such additional time as the Tax Collector may allow, by bond or collateral in favor of the City in the amount Tax Collector declared to be in jeopardy in his notice. (c)"Bond or Collateral",as required by this Section, (1)shall mean either: (A)a bond issued in favor of the City by a surety company authorized to transact business in this State and approved by the Director of Insurance as to solvency and responsibility, or (B)collateral composed of securities or cash which are deposited with, and kept in the custody of, the Tax Collector. (2)shall be of such form that it may, at any time without notice, be applied to any tax, penalties, or interest due and payable for the purposes of this Chapter.Securities held as collateral by the Tax Collector must be of a nature that they may be sold at public or private sale without notice to the taxpayer. (d)If bond or collateral is not filed within the period prescribed by subsection (b) above, the tax collector may treat the assessment as final for purposes of any collection proceedings.The taxpayer nevertheless shall be afforded the appeal rights provided in Sections 8A-570 and 8A-575.The filing of a petition by the taxpayer under Section 8A-570,however,shall not stay the tax collector's rights to pursue any collection proceedings. (e)If the taxpayer timely files sufficient bond or collateral, the jeopardy requirements are deemed satisfied, and the taxpayer may avail himself of the provisions of Section 8A-570, including requests for additional time to file a petition. (f) Section 5.Section 8A-575 of the city tax code is amended to read: Sec. 8A-575.Judicial review. (a)A taxpayer, after payment of any tax, penalty, or interest upheld by the Hearing Officer, may bring action against the City in the appropriate Court of this County for recovery of the payment. (b)The Tax Collector may seek judicial review of all or any part of a Hearing Officer's decision by initiating an action in the appropriate Court of this County. (c)An action for judicial review shall not be commenced more than thirty (30) days after receipt of notice by the taxpayer of any refund or assessment recalculated or reduced to conform to the Hearing Officer's decision.Failure to bring the action within thirty (30) days shall constitute a waiver of any right to judicial review,except as provided in subsection (f) below. (d)The court shall consider only those grounds and issues set forth in the petition filed under subsection 8A -570(c), or amendments allowed by the Hearing Officer during the review process and prior to the issuance of his ruling. (e)The issuance of an adjusted or corrected assessment or notice of refund due to the taxpayer,where made by the Tax Collector pursuant to the decision of the Hearing Officer, shall not be deemed an acquiescence by the City or the Tax Collector in said decision,nor shall it constitute a bar or estoppel to the institution of an action or counterclaim by the City to recover any amounts claimed to be due to it by virtue of the original assessment. After the initiation of any action in the appropriate court by either party, the opposite party may file such counterclaim as would be allowed pursuant to the Arizona Rules of Civil Procedure. Section 6.Section 8A-577 of the city tax code is amended to read: Sec. 8A-577.Refunds of taxes paid under protest. In the event the Hearing Officer's decision or a final judgment by the Court is rendered in favor of the taxpayer to recover protested taxes, it shall be the duty of the Tax Collector, upon receipt of such decision or of a certified copy of such final judgment, to authorize a warrant in favor of the taxpayer in an amount equal to the amount of the tax found by such decision or by the final judgment to have been paid under protest, and such warrant shall include the amount of interest or other cost that may have been recovered against the City by the final judgment in such action in the courts, to be paid from the Privilege Tax revenue accounts. Section 7.Section 8A-590 of the city tax code is amended to read: Sec. 8A-590.Civil actions. (a)Liens. (1)Any tax, penalty, or interest imposed under this Chapter which has become final, as provided in this Chapter, shall become a lien when the City perfects a notice and claim of lien setting forth the name of the taxpayer, the amount of the tax, penalty, and interest, the period or periods for which due, the date of accrual thereof and stating that the City claims a lien therefor. (2)The notice of claim of lien shall be signed by the City Revenue Officer/City Clerk under his official seal or the official seal of the City,and,with respect to real property, shall be recorded in the office of the County Recorder of any county in which the taxpayer owns real property, and, with respect to personal property shall be filed in the office of the Secretary of State.After the notice and claim of lien is recorded or filed, the taxes, penalties, and interest in the amounts specified therein shall be a lien on all real property of the taxpayer located in such county where recorded, and all tangible personal property of the taxpayer within the State, superior to all other liens and assessments recorded or filed subsequent to the recording or filing of the notice and claim of lien. (3)Every tax imposed by this Chapter, and all increases, interest, and penalties thereon, shall become from the time the same Is due and payable a personal debt from the person liable to the City,but shall be payable to and recoverable by the Tax Collector and which may be collected in the manner set forth in subsection (b) below. (4)Any lien perfected pursuant to this Section shall,upon payment of the taxes, penalties, and interest affected thereby, be released by the Tax Collector in the same manner as mortgages and judgments are released.The Tax Collector may, at his sole discretion, release a lien in part, that is, against only specified property, for partial payment of moneys due the City. (b)Actions to recover tax.An action may be brought by the City Attorney or other legal advisor to the City designated by the City Council, at the request of the Tax Collector, in the name of the City, to recover the amount of any taxes, penalties, and interest due under this Chapter; provided that: (1)no action or proceeding may be taken or commenced to collect any taxes levied by this Chapter until the amount thereof has been established by assessment, correction, or reassessment; and (2)such collection effort is made or the proceedings begun: (A)within six (6) years after the assessment of the tax; or (B)prior to the expiration of any period Of collection agreed upon in writing by the Tax Collector and the taxpayer before the expiration of such six (6) year period, or any extensions thereof; or (C)at any time for the collection of tax arising by reason of a tax lien perfected, recorded, or possessed by the City under this Section. Section 8.Regulation 8A-555.1 of the city tax code is amended to read: Reg. 8A-555.1.Administrative Request for the attendance of witnesses or the production of documents; service thereof; remedies and penalties for failure to respond. (a)If a taxpayer refuses or fails to comply in whole or in part with a request to provide records authorized by Section 8A-555,the Tax Collector may issue his written Administrative Request which shall: (1)designate the individual to provide information. (2)describe specifically or generally the information to be provided, and any documents sought to be examined. (3)state the date, time, and place in which the individual shall appear before the Tax Collector to provide the information and to produce the documents sought. (4)be directed to: (A)any director, officer, employee, agent, or representative of the person sought to be examined; or (B)any independent accountant, accounting firm, bookkeeping or financial service retained or employed by such person for any purpose connected with business activity subject to taxation; or (C)any other person who, in the opinion of the Tax Collector, has knowledge of facts bearing upon any tax liability of the person or taxpayer from whom information is sought. (b)The failure of a taxpayer to comply with reasonable requests for records without good reason or cause may, in the exercise of judicial discretion by a court, be held to constitute a failure to exhaust administrative remedies.