HomeMy WebLinkAboutFin Transactions and Use Tax Agreements____________________________________________________________________________________
FOR CITY CLERK ONLY
Council Meeting: December 21, 2020
Disposition: Resolutions 14882 x 14883
Agenda Item No: 5.c
Meeting Date: December 21, 2020
SAN RAFAEL CITY COUNCIL AGENDA REPORT
Department: Finance
Prepared by: Nadine Atieh Hade,
Finance Director
City Manager Approval: ______________
TOPIC: TRANSACTION AND USE TAX AGREEMENTS
SUBJECT: CONSIDERATION OF ADOPTION OF:
1.A RESOLUTION APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE TWO
AGREEMENTS WITH THE CALIFORNIA DEPARTMENT OF TAX AND FEE
ADMINISTRATION (CDTFA) FOR IMPLEMENTATION OF THE CITY'S TRANSACTIONS AND
USE TAX.
2.A RESOLUTION AUTHORIZING EXAMINATION OF SALES AND USE TAX AND
TRANSACTIONS AND USE TAX RECORDS.
RECOMMENDATION: Staff recommends the City Council adopt the resolutions authorizing the Mayor
to execute agreements with the California Department of Tax and Fee Administration (“CDTFA”) and
authorizing examination of sales and use tax and transactions and use tax records.
BACKGROUND: The County Registrar has certified the results of the November 3, 2020 election,
showing that Measure R, the new 0.25% transactions and use tax was adopted by a majority vote of the
City electors voting at the election. The City Clerk has now designated the measure as Ordinance No.
1986. The new transactions and use tax will go into effect on April 1, 2021. Under the State Revenue
and Taxation Code, prior to the operative date of the Ordinance, the City is required to contract with the
CDTFA to perform all the functions incident to the administration and operation of the Ordinance.
The CDTFA has provided the City with two forms of agreement containing the provisions required by law.
In addition to a contract providing for CDTFA administration of the transactions and use tax (the
“Administrative Agreement”), there is a second agreement covering the activities required of the CDTFA
in its preparation to administer the transaction and use tax (the “Preparatory Agreement”). The CDTFA
is authorized to assess a separate fee for these activities, which include developing procedures,
programming for data processing, developing and adopting appropriate regulations, designing and
printing forms, developing instructions for the Department's staff and for taxpayers and other direct and
indirect costs as permitted under Government Code section 11256. Under the terms of the agreement,
the costs to be assessed are the actual cost to CDTFA, and, in no event shall CDTFA’s costs exceed
$175,000.
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2
ANALYSIS: Implementation of the City’s new transactions and use tax requires that the City execute
the Administration and Preparatory Agreements with the CDTFA. The City will comply with the CDTFA
requirement if the Council adopts the Resolution approving and authorizing the Mayor to execute these
agreements. Any delay in the approval of these agreements may delay the implementation and collection
of the new tax.
Due to the proprietary and confidential nature of sales and use tax-related information and the legal
restrictions on its distribution and use, the CDTFA requires a City Council resolution to allow the City’s
authorized agents to access transaction and use tax records. Because the transaction and use tax
approved under Measure R is a new tax, a new resolution is required that authorizes HdL, a company
that specializes in sales tax consulting and audit services and that has been providing these services to
the City for several years, to access and examine the City’s transactions and use tax records. The
resolution also confirms the existing authority of the City Manager to designate City employees whose
job functions justify access to the City’s sales and use tax and transactions and use tax records.
FISCAL IMPACT: The CDTFA will charge its actual costs for the preparation to administer the tax (not
to exceed $175,000) and will charge an on-going administration fee calculated based upon the gross tax
revenue collected. These costs will be deducted from the gross tax revenue and the net tax revenue will
be dispersed to the City.
RECOMMENDED ACTION: Adopt the resolutions authorizing the Mayor to execute agreements with the
CDTFA and authorizing examination of sales and use tax and transactions and use tax records.
ATTACHMENT:
1. Resolution authorizing the Mayor to execute two agreements with the California Department of
Tax and Fee Administration for implementation of City Transactions and Use Tax, with attached
Preparatory and Administrative Agreements.
2. Resolution authorizing examination of sales and use tax and transactions and use tax records.
RESOLUTION NO. 14882
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
AUTHORIZING THE MAYOR TO EXECUTE TWO AGREEMENTS WITH THE
CALIFORNIA DEPARTMENT OF TAX AND FEE ADMINISTRATION FOR
IMPLEMENTATION OF A LOCAL TRANSACTIONS AND USE TAX.
WHEREAS, on December 7, 2020, the City Council certified the passage of Measure R by a majority
vote of the electors voting at the November 3, 2020 General Municipal Election; and
WHEREAS, Measure R, now designated by the City Clerk as Ordinance No. 1986, amends the City
Municipal Code to add new Chapter 3.19(A) providing for a local transactions and use tax; and
WHEREAS, the California Department of Tax and Fee Administration (Department) administers and
collects the transactions and use taxes for all applicable jurisdictions within the state; and
WHEREAS, the Department will be responsible to administer and collect the transactions and use tax
for the City; and
WHEREAS, the Department requires that the City enter into a “Preparatory Agreement” and an
“Administration Agreement” prior to implementation of said taxes, and
Whereas, the Department requires that the City Council authorize the agreements;
NOW, THEREFORE BE IT RESOLVED by the City Council of the City of San Rafael that the
“Preparatory Agreement” attached as Exhibit A and the “Administrative Agreement” attached as
Exhibit B are hereby approved and the Mayor is hereby authorized to execute each agreement, subject
to final approval as to form by the City Attorney.
* * * * * *
2
I, LINDSAY LARA, Clerk of the City of San Rafael, hereby certify that the foregoing Resolution was
duly and regularly introduced and adopted at a regular meeting of the City Council of said City held on
Monday, the 21st day of December 2020 by the following vote, to wit:
AYES: COUNCILMEMBERS: Bushey, Kertz, Llorens Gulati, & Mayor Kate
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
LINDSAY LARA, City Clerk
7600-20207069
AGREEMENT FOR PREPARATION TO ADMINISTER AND OPERATE
CITY'S TRANSACTIONS AND USE TAX ORDINANCE
In order to prepare to administer a transactions and use tax ordinance adopted in accordance
with the provision of Part 1.6 (commencing with Section 7251) of Division 2 of the Revenue and
Taxation Code, the City of San Rafael, hereinafter called City, and the CALIFORNIA DEPARTMENT
OF TAX AND FEE ADMINISTRATION, hereinafter called Department, do agree as follows:
1. The Department agrees to enter into work to prepare to administer and operate a
transactions and use tax in conformity with Part 1.6 of Division 2 of the Revenue and Taxation Code
which has been approved by a majority of the electors of the City and whose ordinance has been
adopted by the City.
2. City agrees to pay to the Department at the times and in the amounts hereinafter specified
all of the Department's costs for preparatory work necessary to administer the City's transactions and
use tax ordinance. The Department's costs for preparatory work include costs of developing
procedures, programming for data processing, developing and adopting appropriate regulations,
designing and printing forms, developing instructions for the Department's staff and for taxpayers, and
other appropriate and necessary preparatory costs to administer a transactions and use tax ordinance.
These costs shall include both direct and indirect costs as specified in Section 11256 of the
Government Code.
3. Preparatory costs may be accounted for in a manner which conforms to the internal
accounting and personnel records currently maintained by the Department. The billings for costs may
be presented in summary form. Detailed records of preparatory costs will be retained for audit and
verification by the City.
4. Any dispute as to the amount of preparatory costs incurred by the Department shall be
referred to the State Director of Finance for resolution, and the Director's decision shall be final.
5. Preparatory costs incurred by the Department shall be billed by the Department periodically,
with the final billing within a reasonable time after the operative date of the ordinance. City shall pay
to the Department the amount of such costs on or before the last day of the next succeeding month
following the month when the billing is received.
6. The amount to be paid by City for the Department's preparatory costs shall not exceed one
hundred seventy-five thousand dollars ($175,000). (Revenue and Taxation Code Section 7272.)
7600-20207069
7. Communications and notices may be sent by first class United States mail.
Communications and notices to be sent to the Department shall be addressed to:
California Department of Tax and Fee Administration
P.O. Box 942879 MIC: 27
Sacramento, California 94279-0027
Attention: Administrator
Local Revenue Branch
Communications and notices to be sent to City shall be addressed to:
City of San Rafael ATTN: Nadine Atieh Hade
1400 Fifth Avenue Rm 204
San Rafael. CA 94901
8. The date of this agreement is the date on which it is approved by the Department of General
Services. This agreement shall continue in effect until the preparatory work necessary to administer
City's transactions and use tax ordinance has been completed and the Department has received all
payments due from City under the terms of this agreement.
CITY OF SAN RAFAEL
By
V4v, (Signature)
Kate Colin
(Typed Name)
Mavor
(Title)
(Rev II/17)
2
CALIFORNIA DEPARTMENT OF TAX
AND FEE ADMINISTRATION
By
Administrator
Local Revenue Branch
APPROVED
Aug 19 2021
EE -bb
OFFICE OF LEGAL SERVICES
DEPT. OF GENERAL SERVICES
7600-20207069
AGREEMENT FOR STATE ADMINISTRATION
OF CITY TRANSACTIONS AND USE TAXES
The City Council of the City of San Rafael has adopted, and the voters of the City of
San Rafael (hereafter called "City" or "District") have approved by the required majority vote, the City
of San Rafael Transactions and Use Tax Ordinance (hereafter called "Ordinance"), a copy of which is
attached hereto. To carry out the provisions of Part 1.6 of Division 2 of the Revenue and Taxation
Code and the Ordinance, the California State Department of Tax and Fee Administration, (hereinafter
called the "Department") and the City do agree as follows:
ARTICLE I
DEFINITIONS
Unless the context requires otherwise, wherever the following terms appear in the Agreement,
they shall be interpreted to mean the following:
1. "District taxes" shall mean the transactions and use taxes, penalties, and interest imposed
under an ordinance specifically authorized by Revenue and Taxation code Section 7285.9 and
in compliance with Part 1.6, Division 2 of the Revenue and Taxation Code.
2. "City Ordinance" shall mean the City's Transactions and Use Tax Ordinance referred to
above and attached hereto, Ordinance No.1986, as amended from time to time, or as deemed to be
amended from time to time pursuant to Revenue and Taxation Code Section 7262.2.
ARTICLE II
ADMINISTRATION AND COLLECTION
OF CITY TAXES
A. Administration. The Department and City agree that the Department shall perform
exclusively all functions incident to the administration and operation of the City Ordinance.
7600-20207069
B. Other Applicable Laws. City agrees that all provisions of law applicable to the
administration and operation of the Department Sales and Use Tax Law which are not inconsistent with
Part 1.6 of Division 2 of the Revenue and Taxation Code shall be applicable to the administration and
operation of the City Ordinance. City agrees that money collected pursuant to the City Ordinance may
be deposited into the State Treasury to the credit of the Retail Sales Tax Fund and may be drawn from
that Fund for any authorized purpose, including making refunds, compensating and reimbursing the
Department pursuant to Article IV of this Agreement, and transmitting to City the amount to which
City is entitled.
C. Transmittal of money.
1. For the period during which the tax is in effect, and except as otherwise provided herein, all
district taxes collected under the provisions of the City Ordinance shall be transmitted to City
periodically as promptly as feasible, but not less often than twice in each calendar quarter.
2. For periods subsequent to the expiration date of the tax whether by City's self-imposed
limits or by final judgment of any court of the State of California holding that City's ordinance is
invalid or void, all district taxes collected under the provisions of the City Ordinance shall be
transmitted to City not less than once in each calendar quarter.
3. Transmittals may be made by mail or electronic funds transfer to an account of the City
designated and authorized by the City. A statement shall be furnished at least quarterly indicating the
amounts withheld pursuant to Article IV of this Agreement.
D. Rules. The Department shall prescribe and adopt such rules and regulations as in its
judgment are necessary or desirable for the administration and operation of the City Ordinance and the
distribution of the district taxes collected thereunder.
E. Preference. Unless the payor instructs otherwise, and except as otherwise provided in this
Agreement, the Department shall give no preference in applying money received for state sales and use
taxes, state -administered local sales and use taxes, and district transactions and use taxes owed by a
taxpayer, but shall apply moneys collected to the satisfaction of the claims of the State, cities, counties,
cities and counties, redevelopment agencies, other districts, and City as their interests appear.
(Rev.10l17) 2
7600-20207069
F. Security. The Department agrees that any security which it hereafter requires to be
furnished by taxpayers under the State Sales and Use Tax Law will be upon such terms that it also will
be available for the payment of the claims of City for district taxes owing to it as its interest appears.
The Department shall not be required to change the terms of any security now held by it, and City shall
not participate in any security now held by the Department.
G. Records of the Department.
When requested by resolution of the legislative body of the City under section 7056 of the
Revenue and Taxation Code, the Department agrees to permit authorized personnel of the City to
examine the records of the Department, including the name, address, and account number of each seller
holding a seller's permit with a registered business location in the City, pertaining to the ascertainment
of transactions and use taxes collected for the City. Information obtained by the City from examination
of the Department's records shall be used by the City only for purposes related to the collection of
transactions and use taxes by the Department pursuant to this Agreement.
H. Annexation. City agrees that the Department shall not be required to give effect to an
annexation, for the purpose of collecting, allocating, and distributing District transactions and use
taxes, earlier than the first day of the calendar quarter which commences not less than two months after
notice to the Department. The notice shall include the name of the county or counties annexed to the
extended City boundary. In the event the City shall annex an area, the boundaries of which are not
coterminous with a county or counties, the notice shall include a description of the area annexed and
two maps of the City showing the area annexed and the location address of the property nearest to the
extended City boundary on each side of every street or road crossing the boundary.
ARTICLE III
ALLOCATION OF TAX
A. Allocation. In the administration of the Department's contracts with all districts that
impose transactions and use taxes imposed under ordinances, which comply with Part 1.6 of Division 2
of the Revenue and Taxation Code:
(Rev 10/17) 3
7600-20207069
1. Any payment not identified as being in payment of liability owing to a designated
district or districts may be apportioned among the districts as their interest appear, or, in the discretion
of the Department, to all districts with which the Department has contracted using ratios reflected by
the distribution of district taxes collected from all taxpayers.
2. All district taxes collected as a result of determinations or billings made by the
Department, and all amounts refunded or credited may be distributed or charged to the respective
districts in the same ratio as the taxpayer's self -declared district taxes for the period for which the
determination, billing, refund or credit applies.
B. Vehicles, Vessels, and Aircraft. For the purpose of allocating use tax with respect to
vehicles, vessels, or aircraft, the address of the registered owner appearing on the application for
registration or on the certificate of ownership may be used by the Department in determining the place
of use.
ARTICLE IV
COMPENSATION
The City agrees to pay to the Department as the State's cost of administering the City Ordinance
such amount as is provided for by law. Such amounts shall be deducted from the taxes collected by the
Department for the City.
ARTICLE V
MISCELLANEOUS PROVISIONS
A. Communications. Communications and notices may be sent by first class United States
mail to the addresses listed below, or to such other addresses as the parties may from time to time
designate. A notification is complete when deposited in the mail.
(Rev 10/17) 4
7600-20207069
Communications and notices to be sent to the Department shall be addressed to:
California State Department of Tax and Fee Administration
P.O. Box 942879
Sacramento, California 94279-0027
Attention: Administrator
Local Revenue Branch
Communications and notices to be sent to the City shall be addressed to:
City of San Rafael ATTN: Nadine Atieh Hade
1400 Fifth Avenue Room 204
_San Rafael, CA 94901
Unless otherwise directed, transmittals of payment of District transactions and use taxes
will be sent to the address above.
B. Term. The date of this Agreement is the date on which it is approved by the Department of
General Services. The Agreement shall take effect on April 1, 2021. This Agreement shall continue
until December 31 next following the expiration date of the City Ordinance, and shall thereafter be
renewed automatically from year to year until the Department completes all work necessary to the
administration of the City Ordinance and has received and disbursed all payments due under that
Ordinance.
C. Notice of Repeal of Ordinance. City shall give the Department written notice of the repeal
of the City Ordinance not less than 110 days prior to the operative date of the repeal.
(Rev. 10/17) 5
7600-20207069
ARTICLE VI
ADMINISTRATION OF TAXES IF THE
ORDINANCE IS CHALLENGED AS BEING INVALID
A. Impoundment of funds.
1. When a legal action is begun challenging the validity of the imposition of the tax, the
City shall deposit in an interest-bearing escrow account, any proceeds transmitted to it under
Article II. C., until a court of competent jurisdiction renders a final and non -appealable judgment that
the tax is valid.
2. If the tax is determined to be unconstitutional or otherwise invalid, the City shall
transmit to the Department the moneys retained in escrow, including any accumulated interest, within
ten days of the judgment of the trial court in the litigation awarding costs and fees becoming final and
non -appealable.
B. Costs of administration. Should a final judgment be entered in any court of the State of
California, holding that City's Ordinance is invalid or void, and requiring a rebate or refund to
taxpayers of any taxes collected under the terms of this Agreement, the parties mutually agree that:
1. Department may retain all payments made by City to Department to prepare to
administer the City Ordinance.
2. City will pay to Department and allow Department to retain Department's cost of
administering the City Ordinance in the amounts set forth in Article IV of this Agreement.
3. City will pay to Department or to the State of California the amount of any taxes plus
interest and penalties, if any, that Department or the State of California may be required to rebate or
refund to taxpayers.
(Rev 10/17) 6
7600-20207069
4. City will pay to Department its costs for rebating or refunding such taxes, interest, or
penalties. Department's costs shall include its additional cost for developing procedures for processing
the rebates or refunds, its costs of actually making these refunds, designing and printing forms, and
developing instructions for Department's staff for use in making these rebates or refunds and any other
costs incurred by Department which are reasonably appropriate or necessary to make those rebates or
refunds. These costs shall include Department's direct and indirect costs as specified by Section 11256
of the Government Code.
5. Costs may be accounted for in a manner, which conforms to the internal accounting, and
personnel records currently maintained by the Department. The billings for such costs may be
presented in summary form. Detailed records will be retained for audit and verification by City.
6. Any dispute as to the amount of costs incurred by Department in refunding taxes shall
be referred to the State Director of Finance for resolution and the Director's decision shall be final.
7. Costs incurred by Department in connection with such refunds shall be billed by
Department on or before the 25th day of the second month following the month in which the judgment
of a court of the State of California holding City's Ordinance invalid or void becomes final. Thereafter
Department shall bill City on or before the 25th of each month for all costs incurred by Department for
the preceding calendar month. City shall pay to Department the amount of such costs on or before the
last day of the succeeding month and shall pay to Department the total amount of taxes, interest, and
penalties refunded or paid to taxpayers, together with Department costs incurred in making those
refunds.
CITY OF SAN RAFAEL
By NA-44�� L��
(Signature)
Kate Colin
(Typed Name)
Mayor
(Title)
(Rev 10/17) 7
CALIFORNIA STATE DEPARTMENT OF
TAX AND FEE ADMINISTRATION
By Ac4-, Ll
Administrator
Local Revenue Branch
APPROVED
Aug 19 2021
EE -bb
OFFICE OF LEGAL. SERVICES
DEPT. OF GENERAL SERVICES
7600-20207069
STATE OF CALIFORNIA )
COUNTY OF MARIN ) CERTIFICATION OF RECORD OF PROCEEDINGS
I, Lindsay Lara, City Clerk for the City of San Rafael, do hereby certify that the
attached document is a true and correct copy of the document contained in the records of
the City of San Rafael pertaining to Resolution 14882.
IN WITNESS WHEREOF, I have hereunto set my hand and the official seal of the
City of San Rafael this 30th day of December 2020.
Lindsay Lara, City Clerk
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RESOLUTION NO. 14883
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
AUTHORIZING EXAMINATION OF SALES AND USE TAX AND TRANSACTIONS AND
USE TAX RECORDS
WHEREAS, pursuant to Ordinance No. 1986 of the City of San Rafael and Section 7270 of the
Revenue and Taxation Code, the City entered into a contract with the California Department of Tax
and Fee Administration (CDTFA) to perform all functions incident to the administration and operation
of the Transactions and Use Tax Ordinance; and
WHEREAS, the City deems it desirable and necessary for authorized representatives of the City to
examine confidential transactions and use tax records of the California Department of Tax and Fee
Administration pertaining to transactions and use taxes collected by the CDTFA for the City pursuant
to that contract; and
WHEREAS, Section 7056 of the Revenue and Taxation Code sets forth certain requirements and
conditions for the disclosure of California Department of Tax and Fee Administration records and
establishes criminal penalties for the unlawful disclosure of information contained in or derived from,
the transactions and use tax records of the CDTFA;
NOW, THEREFORE IT IS RESOLVED AND ORDERED BY THE SAN RAFAEL CITY
COUNCIL AS FOLLOWS:
Section 1. That the City Manager or other officer or employee of the City of San Rafael designated in
writing by the City Manager to the California Dept of Tax and Fee Administration (hereafter referred to
as the CDTFA) is hereby appointed to represent the City with authority to examine transactions and use
tax records of the CDTFA pertaining to transactions and use taxes collected for the City by the CDTFA
pursuant to the contract between the City and the CDTFA. The information obtained by examination
of CDTFA records shall be used only for purposes related to the collection of the City’s transactions
and use taxes by the CDTFA pursuant to the contract.
The information obtained by examination of CDTFA records shall be used only for those governmental
functions of the City listed above.
Section 2. That Hinderliter, de Llama and Associates is hereby designated to examine the transactions
and use tax records of the California Department of Tax and Fee Administration pertaining to
transactions and use taxes collected for the City by the Department. The person or entity designated by
this section meets all of the following conditions:
a) has an existing contract with the City to examine those transactions and use tax records;
b) is required by that contract to disclose information contained in, or derived from those
transactions and use tax records only to the officer or employee authorized under Section 1 of
this resolution to examine the information;
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c) is prohibited by that contract from performing consulting services for a retailer during the term
of that contract;
d) is prohibited by that contract from retaining the information contained in or derived from those
transactions and use tax records after that contract has expired.
BE IT FURTHER RESOLVED that the information obtained by examination of the CDTFA records
shall be used only for purposes related to the collection of City’s transactions and use taxes by the
Board pursuant to the contracts between the City and the CDTFA.
Section 3. That this resolution supersedes all prior transactions and use tax resolutions of the City
adopted pursuant to subdivision (b) of Revenue and Taxation Section 7056.
I, LINDSAY LARA, Clerk of the City of San Rafael, hereby certify that the foregoing Resolution was
duly and regularly introduced and adopted at a regular meeting of the City Council of said City held on
Monday, the 21st day of December 2020 by the following vote, to wit:
AYES: COUNCILMEMBERS: Bushey, Kertz, Llorens Gulati & Mayor Kate
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
LINDSAY LARA, City Clerk