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SR-6-AA (2) 000 4tQf70 f.t,It.A FIN CMD sd\F \FINANCE\ADMIN\STFRPTS\SR1614 WPD JUl 2 2 1997 CouncIl Meeting July 22, 1997 Santa MOnica, CalifornIa TO Mayor and City Council FROM City Staff SUBJECT Recommendation to Adopt Resolution Opposing Assembly Bill 1614 as Currently Drafted and Recommendmg Various Changes INTRODUCTION Assembly Bill (AS) 1614, as currently drafted, would prohibit any local tax on telecommunication services, Including VOice, that would occur over the Internet This staff report recommends adoption of the attached resolution opposing AB1614 as currently drafted, and recommendmg vanous changes DISCUSSION The CIty's UtilIty User's Tax (UUT) has long been applIed to tradItIonal vOIce telecommunication services to the extent that those services are subject to the Federal EXCise Tax The capacity of the Internet IS expanding to accommodate telecommUnications, including VOice, currently provided by traditional service providers, and persons are shifting telecommumcatlons from the traditional service prOViders to the Internet As thiS happens, City UUT revenues Will be lost unless such Internet telecommumcatlon services are taxable by the City The attached copy of AB1614 would prohibit applYing the City'S UUT to such telecommunications proVided over the Internet - 1 - "AA JUl 2 2 1997 In addItion, to apply the City'S UUT to some telecommunication services providers and not to others violates the long established principal of tax neutrahty, wherein all similar service providers are to be treated In the same fair and equitable manner for tax purposes Staff recommends that AB1614 be amended to Indicate that It would not apply to local Utility User's Taxes on telecommUnication services occurring over the Internet to the extent that such Internet services are also subject to the Federal Excise Tax BUDGET AND FINANCIAL IMPACT Approval of the attached resolution does not have an Immediate budget or financial Impact However, If AB1614 becomes law as presently written, and if only about 10% of telecommUnication services proVided In the City are shifted from traditional service proViders to the Internet, the CIty would lose about $1 1 million/year In UUT revenue RECOMMENDA TION It IS recommended the Council adopt the attached resolution opposmg AB1614 as currently drafted and recommending vanous changes Prepared by Mike Dennls, Director of Finance -2- CAUFORNIA LEGlSLATt.'RE-1991-98 REGULAR SESSION ASSEMBLY BILL No. 1614 Introduced by Assembly Members Lempert, Cunneen, Alquist, Bowe~ Calde~ KaJoogian, Pera~ Sweeney, and - Wayne June 3. 1997 An act to add Part 32 (commencmg WIth Section 65001) to Dlvlsion 2 of the Revenue and Taxanon Code. relanng to taxatIon. and declanng the urgency thereof, to take effect ImmedIately. LEGISLATIVE COUNSEL'S DIGEST AB 1614. as introduce~ Lempert. California Internet Tax Freedom Act. EXIsnng law unposes vanous state income. franchise. property. and eXCIse taxes and various user. regulatory, and franchIse fees in connection WIth activity or property witbia the junsdicnon of this state. Existing law authorizes counties. ClUes. and other local agenCIes to rmpose various taxes and fees m connectIon WIth acnVIty or property WIthin those Junsdicttons. ThIs bill would enact the "California Internet Tax Freedom Act" to proh1btt the imposition. assessment, or attempt to collect any tax or fee directly or indirectly on, or in connection With, the Intern~ any interaCtive computer services" or the- use of the Internet or any interactive computer services. The blll would make spectfied legislative findings and declarations In connection With that prolubitioD... 99 , AD 1614 -2- TIlls blll would declare that 1 t IS to take effect munedlatel y as an urgency statute. Yote' 2/3 Appropnanon; no. Fiscal conuructee: no. State-mandated local program: no. nte people of the Stare of CalifornIa do enact as follows: 1 SECTION 1 Part 32 (commencmg WIth Seco.on . 2 65001) IS added to DIVIsIon 2 of the Revenue and Taxation 3 Code, to read: 4 5 PART 32. CALIFORNIA INTERNET TAX 6 FREEDOM ACT 7 8 6500 L nus act shall be known and may be cited as the 9 "Caltforma Internet Tax. Freedom Act:' 10 65002. The LegIslature finds and declares all of the 11 followmg: 12 (a) As a massIve global network spannmg not only 13 state but mtemao.onal borders. the Internet IS mherently 14 a matter of interstate and foreIgn commerce WIthin the 15 JUTIsc:hCo.on of the Uruted States Congress under Secnon 16 8 of ArtIcle [ of the U filted States Consotuo.on. 17 (b) Even within the United States. the Internet does 18 not respect state lines and operates mdependently of 19 state boundanes. Addresses on the Internet are designed 20 to be geograph.1cally indifferent. Internet transmissions 21 are lDseositive to physical distance and can have multiple 22 geograplucal addresses. 23 (c) Because transInlssions over the Internet are made 24 through packet-switching. it is impossIble to determine 25 WIth any degree of certainty the precise geographic route. 26 or endpomts of specific Internet transmiSSlOns,.. and 27 mfeasible to separate intrastate. from interst~r~, and 28 do mesne from foreign. Internet tranSmissions. 29 (d) Inconsistent and un9rlmini!3trablc taxes imposed. 30 on Internet actIVIty by state. and local governments 31 threaten not only to- subject consumers. businesses. and 32 other users engaged in interstate and foreIgn commerce 33 to mulo.ple. confusing.. and burdensome taxation. but also 99 I - J - .-\B 1614 1 to restnct the growth and connnued technologIcal 2 mawranon of the Internet itself. and to call mto questIon 3 the contInued Viability of th.1s dynanuc medtum. 4 (e) Because me tax laws and regulanons of so many 5 Junsdicuons were estabhshed before the Internet or 6 mteractive computer services. therr apphcauon to Uns 7 new medium in umntended and unpredictable ways 8 threatens every Internet user, access provIder, vendor. 9 and mteracnve computer service provider. 10 (I) The electI'omc marketplace of services, products. 11 and Ideas aVatlable through the Imerner or mteracnve 12 computer serviCes can be espeCIally benefiCial to semor 13 cluzens. che phYSically challenged. cltlzens In rural areas. 14 and small busmesses. It also offers a vanety of uses and 15 benefits for educauonal msututIons and chamable 16 orgamzanons. 17 (g) Consumers. bUSInesses, and others engagIng In 18 mterstate and foreIgn commerce through the Internet or 19 mteractIve computer services could become subject to 20 more than 30.000 separate taxIng Junsdtctlons m the 21 Urnted States alone. 22 (h) The consistent and coherent nanonal policy 23 regarding taxanon of Internet actIvity that is needed co 24 aVOid burdemng this evolvmg form of interstate and 25 foreign commerce can best be achieved by the United 26 States exel'Clsmg its authonty under clause 3 of Article I 27 of SectIon 8 of the United States ConstitutIon. 28 65003. For purposes of this part: 29 (a) "Internet" meanlt the global information system 30 that is lOgIcally linked together by a globally umque 31 address space based on the Internet Protocol (IP), or Its 32 subsequent extensIOns; and is able to support 33 commumcations using the Transmission Control 34 ProtocollIntemet Protocol (TCPIIP) suite. or Itr 35 subsequent extensions. or other- IP-compauble protocols~ 36 and provides. uses. or makes accessible, either publicly or 37 pn vately. lugh level services layered on the 3 g commumcations and. related. infrastructure descnbed 39 herem. 99 I . . AD 1614 -4- L (b) "Interacuve computer service" means any ., mformauon. service. system. or access software provider .. 3 that provides or enables computer access by multIple 4 users to a computer server. mc1udmg specIfically a 5 service or system that proVIdes access to the Internet and 6 such systems operated or senrices offered by l1branes or 7 educauonal mstltunons. 8 (c) "Tax" . means any enforced proportlonal 9 conlI1bunon Imposed for the support of the state or any 10 polmcal SUbdlVJ.slon of the state. 11 (d) "Fee" means any franchIse fee or regulatory fee 12 Imposed by the state or any polItIcal SubdlVlslon of dte 13 state. "Fee" does not mc1ude any user fee Imposed by any 14 state or local agency that provides Internet semces or 15 access to a user. 16 65004. (a) Except as provided In subdivIsion (b), 17 neither the state nor any local government., mcludtng any 18 pohacal subchvlslon, may Impose, assess, or attempt to 19 collect any tax or fee directly or mdrrectly on, or in 20 connection With. any of the followmg: 21 ( 1) The Internet. 22 (2) Any mteracnve computer seIV1ces~ 23 (3) The use of the Internet or any interactive 24 computer services. 25 (b) The prolubitIon m subdivision (a) again~t the 26 Imposlnon of taxes or fees shall not apply to any of the- 27 follOWIng: 28 (1) Taxes Imposed on, or measured by, net income 29 denved from the Internet or- tnteractive computer 30 services. 31 (2) Any fairly apportioned business license tax applied 32 to any bUSIness that has a business location m the taxIng 33 Junsd.1cnon. 34 (3) Any ad valorem tax or fee imposed pursuant to 35 Arnc1e xm or Arncle xmA of the CalifQmia 36 Constttution. 37 (4) The authority of the sta~ or any political 38 SUbdivIsIon thereof. to impose a sales or use tax on any sale 39 or other transactiOIl effected. by use of the Internet or 99 I -5- AB 1614 1 mteracnve computer semces If both of the followmg 2 apply: 3 (A) The taX IS the same as the taX imposed and 4 collected by the state. or polincal SubdiVIsion thereof. on 5 any sale or mterstate transacnon effected by ma1l order. 6 telephone. or other remote means WIth,n Its taxmg 7 J unsdictlon. 8 (B) The obliganon to collect the tax from sales or other . 9 transacttons effected by use of the Internet or tnteracnvc 10 computer services IS lIDposed on the same person or 11 ennty as in the case of sales or transactions effected by 12 mall order. telephone. or other remote means. 13 (5) Any other tax or fee that IS not specIally Imposed 14 on the Internet, interacnve computer sel'Vlces, or the use 15 of the Internet or mteracbve computer seIV1ces~ 16 SEe. 2. Tb.1s act IS an urgency statute necessary for the 17 mlUlediate preservanon of the public peace. health, or 18 safety WltblD the meanmg of Article IV of the 19 Consntution and shall go mto imrnedtate effect. The facts 20 constituting the necessity are: 21 In order to mamtam the connnued viability of the 22 Internet and mamtam a umform policy of taxanon 23 relanng to Internet acn Vlty, It is necessary that this act 24 take effect immediately. , 0 99 I ,...., A 1/1-Y /{~ ~ ~. ~- ./ Q '1- .;.~ 1~; .,','. ~'...........J M;',~t':_ -," .....) "l' ,. A..u ..L... _'J'_ ___ <.I, .::,', -Estabhshed1926 - ~ ~'" July 21, 1997 City of Santa MOnica .... r." Ifj", 1685 Main Street I, .-11' , Santa MOnica, CA 90401 Subject City Council Resolution Opposing AS 1614 Dear Mayor O'Connor and CIty CouncIl The CalifornIa Taxpayers' ASSOCiation urges rejectIOn of the Santa MOnica City Council resolution opposing AS 1614, the Callforma Internet Tax Freedom Act This legislatIon IS critically Important to secunng a prominent pOSitIOn for California In the global marketplace of electronic commerce Growth In Internet access and consumer online servIces IS creating an Important new marketplace with Immense economic potential The California Taxpayers' ASSOCiation IS very concerned, however, that actions by local governments to exploit this new Industry with taxes or exactions would have a senous chlllmg effect on Its growth California should aVOid new taxes on this technology that could stifle ItS growth This state enJoys a posItion of world leadership In hIgh technology and faces an hlstonc opportunity to also be a world leader In the marketplace of electronic commerce It IS cntlcal that policy makers work proactlvely to prevent tax problems for this emergmg Industry, enabling California to attract thIs new commerce, Investment, and related jobs PreCIpItous actIon by local governments to begIn taxIng the Internet would frustrate rational polIcy development This could do senous damage to thIs emergmg mdustry and the new economic actiVity It would generate TaXing access to the Internet, as the city's draft resolution promotes, would harm electronic commerce by Impeding consumers' access to this new marketplace. It would also create great administrative difficulties for Internet service prOViders that are not based In Santa MOnica Assembly 81111614 IS a needed clear statement on this Important Issue Accordmgly, California Taxpayers' ASSOCiation urges your rejection of this proposed resolution :zeIY, ~;Ct ~ La;2:rthY Md!l:'A_ PreSident - TT IT E iPRESlc.m.EGI5"STMO~~ICA _0 CALlFORN IA T A XPA YERS I AssoCi A. TIOr\ 921 ",,,,,",h '''eot, S",Ie 8(){) . S'mmen",. 09581.' · '916' 441 0490 1" '.'61 441 -1619 . hllpA"'W' 11" o~ 7 /f_ 1 # ~ . t' ~ .'... .. -I" " ~ " f '.--1 :r"\ 1-,,, . "" 'I .... .. \. .\. ,6 .. ~ , -'of ,. .... ~_ . . to..... < .. .. -".... It .. "... t .' ~: it. r.,t-'lo . Ii ..;It.~ A~: : ". ;'\ 'iJ ~ ~F. "'.(";i. q'f~ Ii; f; t .f" .J ~ . - . .. . Business Coalition In Support of AS 1614 American AIrlines Pacific TelesIs Amencan Electronics ASSOCiation Phasecom, Inc Apple Computer Radius, Inc AT&T Remedy Corp Bank of Amenca San Diego Gas & Electnc Bay Networks Showtlme Bechtel Corporation SIlicon Valley Software Industry Coalition Board of EqualizatIon Sprint Brobeck, Phleger & Hamson Tandem California Alliance for Consumer Protection Target California Bankers ASSOCiation The Sports Channel California Taxpayers' ASSOCiatIon Unocal Corporation California Internet Industry Alliance USCS InternatIonal California Cable Table TeleVISion Assn Vanan California ASSOCIatIon of CompetItIve Wmk Communrcatrons Telecommunications Companies Xerox Corporation Contmental Airlines Cox Communications Crowley Mantlme Corporation Daniels Cable VIsion, Inc Dayton Hudson Discovery Networks EI Entertainment TeleVISion Edison Select Farmers Insurance Group Fireman's Fund Insurance Company GST Telecom GTE California Georgia PaCific Corporation Hewlett-Packard Home Box Office Home Network Home & Garden TeleviSIon Intel Intuit Jones InterCable Mel Med/aOne Mervyn's NBC Cable Network Octel Communications Corporation E -'.PRES-DNT'J..EGIS\Ae~61'" LST - -- , . FINANCE MD sd \F \ATTY\USERS\CLAUDIA\BILl1614 Council Meeting July 22, 1997 Santa MOnica, California RESOLUTION NUMBER 9170 (CITY COUNCIL SERIES) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA OPPOSING ASSEMBLY BILL 1614 AS CURRENTLY DRAFTED AND RECOMMENDING VARIOUS CHANGES WHEREAS, the CIty of Santa Monica has adopted a Utility User's Tax (UUT) Ordinance for the purpose of providing tax revenues to pay for essential mUnicipal services, including police, fire, and numerous other valuable community services, and WHEREAS, the City's Utility User's Tax applies to certain utility services, regardless of the technology employed to deliver those services, and Since neutrality In the application of a tax IS an essentIal pnnclple to assure fairness and equity among the tax paYing citizens of the City, and WHEREAS, the City of Santa Momca's Utility User's Tax (UUT) Ordinance Imposes a tax on the use of telecommunication services within the City In the same manner as the federal excise tax IS applied, regardless of the technology employed to deliver this service, and WHEREAS, access to the Internet over the public-switched network IS now offered by all major telecommUnicatIon providers for a small monthly fee, and the Internet has - 1 - , ? . become widely used by the publiC, for pnvate and commercial purposes, as a means of commUniCations, and WHEREAS, as a result of advances In digital technology, VOice quality communications are now possible over the Internet, and when similar VOice qualIty commUnications take place over the public-swItched network, they are taxable under the federal excise tax rules and the City's Utility User's Tax ordinance, and WHEREAS, to the extent that such VOice quality commumcatlons over the Internet are deemed taxable under the federal excise tax, now or In the future, charges for access to the Internet would be subject to the City'S Utility User's Tax, In the same manner as charges for access to local and long distance wire and wireless networks are today, and WHEREAS, Assembly 81111614 (CalifornIa) would propose to place a moratorium on all sorts of local taxation of the Internet, Including taxation of telecommumcatlons servIces over the Internet under the City's eXIstIng Utility User's tax ordInance, and WHEREAS, such legislation, If adopted as presently worded, could result In an unfair bias, faVOring the Internet telecommunication technology over numerous other technologies, and could, therefore, Violate the taxation pnnclple of neutralIty, and such legislation would create an economic Incentive to shift commUnications from a taxable technOlogy to an exempted one, resulting In a loss of local tax revenues to the City, -2- -J NOW, THEREFORE, THE CITY COUNCil OF THE CITY OF SANTA MONICA DOES HEREBY RESOLVE AS FOllOWS SECTION 1 Unless AS 1614 IS amended to permit neutrality of tax applicatIon under the City's eXisting UtIlity User's Tax ordinance, the City opposes AB 1614 SECTION 2 If neutrality IS assumed under such legIslation, then to the extent that the City's Utility User's Tax ordInance applies to telecommunication services over the Internet, It would only apply to the access fee (or similar fees for transmission services), and not to "content" or "commerce" taking place over the Internet SECTION 3 The CIty Clerk shall certify to the adoptIon of thiS ResolutIon and thenceforth and thereafter the same shall be In full force and effect APPROVED AS TO FORM '"\ ,-! I I "' I ,- ) ,.L ~L 1(_ tt-"- )vw. !...-I--if..-" 1..." Marsha Jones Moutne City Attorney - 3 - ~ Adopted and approved thIS 22nd of July 1997 :E' \ V1f; 0ciVt-- .. P OTo~or. Mavor \ . I. Mana!vi Stewart, Cny Clerk of the Cny of Santa MOllica. do hereby certIfy that the foregomg Resolutlon 9170(CCS) was duly adopted at a meetmg of the Cny CouncIl held on the 22nd of July. 1997 by the follo\\~ng vote" Ayes Councllmembers Femstem, Genser. Mayor Pro Tem Holbrook. Mayor O'Connor. Rosenstem :-.J oes Councilmembers Kane Abstam Councllmembers ~one Absent Councllmembers Ebner. Greenberg ATTEST ~,~ ~ o..J- \ Mana M Stewart. Cny Clerk