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G-615 - 08/11/1998 - TAX-UTILITY - Ordinances a ORDINANCE 98-TX-UT-G- 615 AN ORDINANCE FURTHER AMENDING ORDINANCE G-470, "AN ORDINANCE ESTABLISHING A UTILITY TAX WITHIN THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS" AND ESTABLISHING AN ELECTRICITY TAX WHEREAS, on July 23, 1991 the Village Board passed and the Village President approved Ordinance G-470 entitled "An Ordinance Establishing a Utility Tax Within the Village of Oak Brook, DuPage and Cook Counties, Illinois"; and WHEREAS, certain clarifications of Ordinance G-470 have been made from time to time, most recently in Ordinance G-599 which was passed and approved on October 14, 1997; and WHEREAS, the General Assembly recently passed Public Act 90-561 ("the Act")which amends the Illinois Municipal Code to replace the existing municipal utility tax imposed on persons engaged in the business of distributing, supplying furnishing or selling electricity, using rates based on the gross receipts of such persons from that business originating within the corporate limits of the Village, with a municipal utility tax imposed on the privilege of using or consuming electricity, using rates based on the kilowatt-hours of electricity used or consumed within the corporate limits of the Village; and WHEREAS, the Act establishes a series of maximum tax rates at which the Village may impose any municipal utility tax based on the kilowatt-hours of electricity used or consumed; and WHEREAS,the Act also provides that, upon the request of the corporate authorities of a municipality,the Illinois Commerce Commission ("ICC") shall within 90 days after receipt of such request, promulgate alternate maximum tax rates for the municipality; and WHEREAS, at the request of the Village pursuant to Resolution 98-TX-UT-R-706 entitled, "A Resolution Requesting the Illinois Commerce Commission To Promulgate Alternative Maximum Municipal Utility Tax Rates For The Use And Consumption Of Electricity In The Village Of Oak Brook, Illinois", the ICC has promulgated the maximum tax rates set forth below in Section 13-51; and WHEREAS, it is in the best interest of the Village to establish a separate electricity tax and adopt alternative maximum tax rates on the consumption of electricity within the Village; and WHEREAS, the Village's utility tax on utilities other than electricity are unaffected by the Act. THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS as follows: Section 1: That Section 13-2 of Article I entitled "Utility Tax" of Chapter 13 of the Code of Ordinances of the Village of Oak Brook is hereby amended to state as follows: "Section 13-2. Imposition. A tax is imposed on all persons engaged in the following occupations or privileges: 1. Persons engaged in the business of transmitting messages by means of electricity, or radio magnetic waves or fiber optics at the rate of three percent (3%) of the gross receipts from such business originating within the corporate limits of the Village. 98-TX-UT-G-615 Further Amending G-470, Utility Tax, Page 2 In the case of persons engaged in the business of transmitting messages through mobile equipment, such as cellular phones and paging systems, the gross receipts business shall be deemed to originate within the corporate limits of the Village only address to which the bills for the service are sent is within the Village's corporate Iii however, that address is not located within a municipality that imposes a tax under Compiled Statutes 5/8-11-2,then (1) if the party responsible for the bill is not an ins and the party's principal place of business in Illinois is in the Village, then the gross from the business shall be deemed to originate within the corporate limits of the Vil (2) if the party responsible for the bill is an individual and the party's principal resid Illinois is located in the Village, then the gross receipts from the business shall be c originate within the corporate limits of the Village. 2. Persons engaged in the business of distributing, supplying, furnishing or selling ga: or consumption within the corporate limits of the Village, and not for resale, at the i three percent (3%) of the gross receipts therefrom. 3. Persons engaged in the business of distributing, supplying, furnishing or selling elec use or consumption within the corporate limits of the Village, and not for resale, at t three percent (3%) of the gross receipts therefrom. The tax imposed under this sut 13-2(3) shall not apply with respect to gross receipts pertaining to bills for the distrib supply, furnishing or sale of electricity where the use or consumption of electricity is the tax imposed under Article V entitled "Electricity Tax." Section 2: That Section 13-8 of Article I entitled "Utility Tax"of Chapter 13 of the Code Ordinances of the Village of Oak Brook is hereby amended to state as follows: "Section 13-8. Mistakes and errors. If it shall appear that an amount of tax has been paid which was not due under the prov this article, whether as the result of a mistake of fact or an error of law, then such amoL be credited against any tax due, or to become due, under this article from the taxpayer made the erroneous payment; provided that no amounts erroneously paid more than th years prior to the filing of a claim therefore shall be so credited. If a taxpayer under this article is unable to use a credit authorized by this section solely the tax imposed by this chapter has been replaced by the tax imposed under Article VI "Electricity Tax", then the taxpayer may apply such credit against any tax due under Ari Section 3: That Chapter 13 of the Code of Ordinances of the Village of Oak Brook enti "Taxes" is amended by adding a new Article V entitled "Electricity Tax" as follows: Article V. Electricity Tax "Section 13-50. Definitions. For the purposes of this article, the following definitions shall apply: Exempt purchaser. School districts or units of local government. Person: Any natural, individual, firm, trust, estate, partnership, association,joint stocl, joint adventure, corporation, limited liability company, municipal corporation, the StatE its political subdivisions any State university created by statute, or a receiver, trustee, 98-TX-UT-G-615 Further Amending G-470, Utility Tax, Page 3 conservator or other representative appointed by order of any court. Persons maintaining a place of business in this State:Any person having or maintaining within this State, directly or by a subsidiary or other affiliate, an office, generation, facility, distribution facility, transmission facility, sales office or other place of business, or any employee, agent, or other representative operating within this State under the authority of the person or its subsidiary or other affiliate, irrespective of whether such place of business or agent or other representative is located in this State permanently or temporarily, or whether such person, subsidiary or other affiliate is licensed or qualified to do business in this State. Purchase at retail: Any acquisition of electricity by a purchaser for purposes of use or consumption, and not for resale, but shall include the use of electricity by a public utility, as defined in Section 8-11-2 of the Illinois Municipal Code (65 ILCS 5/8-11-2), directly in the generation, production, transmission, delivery or sale of electricity. Purchaser. Any person who uses or consumes,within the corporate limits of the Village, electricity acquired in a purchase at retail [other than an exempt purchaser]. Tax Collector. The person delivering electricity to the purchaser. Village: Village of Oak Brook, DuPage and Cook Counties, Illinois. Section 13-51. Tax Imposed A. Pursuant to Section 8-11-2 of the Illinois Municipal Code (65 ILCS 5/8-11-2) and any and all other applicable authority, a tax is imposed upon the privilege of using or consuming electricity acquired in a purchase at retail and used or consumed within the corporate limits of the Village at the following rates, calculated on a monthly basis for each purchaser: (i) For the first 2,000 kilowatt-hours used or consumed in a month; 0.310 cents per kilowatt-hour; (ii) For the next 48,000 kilowatt-hours used or consumed in a month; 0.220 cents per kilowatt-hour; (iii) For the next 50,000 kilowatt-hours used or consumed in a month; 0.199 cents per kilowatt-hour; (iv) For the next 400,000 kilowatt-hours used or consumed in a month; 0.194 cents per kilowatt-hour; (v) For the next 500,000 kilowatt-hours used or consumed in a month; 0.185 cents per kilowatt-hour; (vi) For the next 2,000,000 kilowatt-hours used or consumed in a month; 0.184 cents per kilowatt-hour; (vii) For the next 2,000,000 kilowatt-hours used or consumed in a month; 0.140 cents per kilowatt-hour; (viii) For the next 5,000,000 kilowatt-hours used or consumed in a month; 0.120 cents per kilowatt-hour; 98-TX-UT-G-615 Further Amending G-470, Utility Tax, Page 4 (ix) For the next 10,000,000 kilowatt-hours used or consumed in a month; 0.100 cents per kilowatt-hour; and (x) For all electricity used or consumed in excess of 20,000,000 kilowatt-hours in a month; 0.080 cents per kilowatt-hour. B. The tax is in addition to all taxes, fees and other revenue measures imposed by the Village, the State of Illinois or any other political subdivision of the State. C. Notwithstanding any other provision of this article, the tax shall not be imposed if and to the extent that imposition or collection of the tax would violate the Constitution or statutes of the United States of the Constitution of the State of Illinois. D. The tax shall be imposed with respect to the use of consumption of electricity by residential customers beginning with the first bill issued on or after October 1, 1998; and with respect to the use or consumption of electricity by nonresidential customers beginning with the first bill issued to such customers for delivery services in accordance with Section 16-104 of the Public Utilities Act (220 ILCS 5/16-104), or the first bill issued to such customers on or after January 1, 2001, whichever issuance occurs sooner. Section 13-52: Collection of Electricity Tax A. Subject to the provisions of Section 13-54 regarding the delivery of electricity to resellers, the tax imposed under this article shall be collected from purchasers by the person maintaining a place of business in this State who delivers electricity to such purchasers. This tax shall constitute a debt of the purchaser to the person who delivers the electricity to the purchaser and is recoverable at the same time and in the same manner as the original charge for delivering the electricity. B. Any tax required to be collected by this article, and any tax in fact collected, shall constitute a debt owed to the Village by the person delivering the electricity, provided that the person delivering electricity shall be allowed credit for such tax related to deliveries of electricity, the charges for which are written off as uncollectible, and provided further that if such charges are thereafter collected, the delivering supplier shall be obligated to remit such tax. C. Persons delivering electricity shall collect the tax from the purchaser by adding such tax to the gross charge for delivering the electricity. Persons delivering electricity shall also be authorized to add to such gross charge an amount equal to 3% of the tax they collect to reimburse them for their expenses incurred in keeping records, billing customers, preparing and filing returns, remitting the tax and supplying data to the Village upon request. For purposes of this article, any partial payment of a billed amount not specifically identified by the purchaser shall be deemed to be for the delivery of electricity. Section 13-53. Tax remittance and retum. A. Every tax collector shall on a monthly basis file a return in a form prescribed by the Village Treasurer, which shall include 1)the tax collector's name; 2) its principal place of business; 3) its kilowatt-hour usage during the month upon the basis of which the tax is imposed; and 4)the amount of the tax. The return and accompanying remittance shall be due on or before the last day of the month following the month during which the tax is collected or is required to be collected under Section 13-52. B. If the person delivering electricity fails to collect the tax from the purchaser or is excused 98-TX-UT-G-615 Further Amending G-470, Utility Tax, Page 5 from collecting the tax under Section 13-52, then the purchaser shall file a return in a form prescribed by the Village Treasurer and pay the tax directly to the Village in care of the Village Treasurer on or before the last day of the month following the month during which the electricity is used or consumed. Section 13-54: Resales. A. Electricity that is delivered to a person in this Village shall be considered to be for use and consumption by that person unless the person receiving the electricity has an active resale number issued by the Village Treasurer and furnishes that number to the person who delivers the electricity, and certifies to that person that the sale is either entirely or partially nontaxable as a sale for resale. B. If a person who receives electricity in the Village claims to be an authorized reseller of electricity, that person shall apply to the Village Treasurer for a resale number. The applicant shall state facts showing why it is not liable for the tax imposed by this article on any purchases of electricity and shall fumish such additional information as the Village may reasonably require. C. Upon approval of the application, the Village Treasurer shall assign a resale number to the applicant and shall certify the number to the applicant. D. The Village Treasurer may cancel the resale number of any person if the person fails to pay any tax payable under this article for electricity used or consumed by the person, or if the number(1)was obtained through misrepresentation, or(2) is no longer necessary because the person has discontinued making resales. E. (1) If a reseller has acquired electricity partly for use or consumption and partly for resale, the reseller shall pay the tax imposed by this article directly to the Village Treasurer pursuant to subsection B of Section 13-53 on the amount of electricity that the reseller uses or consumes, and shall collect the tax pursuant to Section 13-52 and remit the tax pursuant to subsection A of Section 13-53 on the amount of electricity delivered by the reseller to a purchaser. (2) Any person who delivers electricity to a reseller having an active resale number and complying with all other conditions of this section shall be excused from collecting and remitting the tax on any portion of the electricity delivered to the reseller, provided that the person reports to the Village Treasurer the total amount of electricity delivered to the reseller, and such other information that the Village may reasonably require. Section 13-55. Books and records. Every tax collector and every taxpayer required to pay the tax imposed by this article, shall keep accurate books and records of its business or activity, including contemporaneous books and records denoting the transactions that gave rise, or may have given rise, to any tax liability under this article. The books and records shall be subject to and available for inspection at all times during business hours of the day. Section 13-56. Credits and refunds. Notwithstanding any other provision of this Code, in order to permit sound fiscal planning and budgeting by the Village, no person shall be entitled to a refund of, or credit for, a tax imposed 98-TX-UT-G-615 Further Amending G-470, Utility Tax, Page 6 under this article unless the person files a claim for refund or credit within one year after the date on which the tax was paid or remitted to the Village in care of the Village Treasurer. Section 13-57. Penalty. Any taxpayer who fails to make a return, or who makes a fraudulent return, or who willfully violates any other provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars ($100) nor more than two hundred dollars ($200) and in addition shall be liable in a civil action for the amount of tax due. (See 65 ILCS 5/8-11-2)." Section 4: That nothing in this ordinance shall be construed as limiting any additional or further remedies that the Village may have for enforcement of this ordinance. Section 5: If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining provisions hereof. Section 6: That in the event that Public Act 90-561 is declared unconstitutional, or if Article V of Chapter 13 created by this ordinance is voided by court action, the provisions of Chapter 13, Article I, Section 13-2 of the Code of Ordinances of the Village of Oak Brook (commonly known as the Gross Receipts Utility Tax) shall remain in effect in all respects as if it had never been amended by this ordinance and any amounts paid to the Village by any person delivering electricity pursuant to this ordinance shall be deemed to have been paid pursuant to the Gross Receipts Utility Tax as it existed prior to the passage of this ordinance. Section 7: That this ordinance supersedes all ordinances or parts thereof adopted prior hereto which are in conflict herewith, to the extent of such conflict. Section 8: That the Village Clerk is hereby authorized and directed to publish this ordinance in pamphlet form as required by law and to transmit a certified copy of it to: Commonwealth Edison 1 N 423 Swift Road Lombard, IL 60148 Section 9: That this Ordinance shall be in full force and effect from and after its passage, approval and publication in pamphlet form as provided by law and the amendments provided herein shall be effective for services billed on or after October 1, 1998; provided, however, that any amounts due or payable for any tax periods ending prior to October 1, 1998 are nevertheless to remain payable as if this Ordinance had not been adopted. PASSED THIS 11th day of August, 1998. Ayes: Trustees Caleel, Kenny, Savino and President Bushy Nays: None Absent: Trustees Bartecki, McInerney and Shumate Abstain: None 98-TX-UT-G-615 Further Amending G-470, Utility Tax, Page 7 APPROVED THIS 11th day of August, 1998. •g 6 ill ge President ATTEST. k Approved as to Form: Y" a / Village Attomey Published 8-12-98 Pamphlet form Date Paper Not Published