HomeMy WebLinkAbout4055 Ordinance NO . 4055
(Amending or Repealing Ordinances)
CFN= 104 - Finance
Passed - 11/20/2012
Amend KCC Title 3 - New Chapter 3.28 B&O Tax Ordinance
Repealing Ordinance 4053
The date['Beginning July 1, 1998"1 has led to confusion This date will be deleted from cover sheets of
ordinance/resolution revision pages. This cover sheet will be deleted on electronic pages only, no other
deletions or changes have been made to the document—6/21/2012
ORDINANCE NO. 0'65
AN ORDINANCE of the City Council of the
City of Kent, Washington, repealing Ordinance No.
4053 and adding a new Chapter 3.29 to the Kent
City Code entitled, "Business and Occupation Tax -
Administrative Provisions."
THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON, DOES
HEREBY ORDAIN AS FOLLOWS:
ORDINANCE
SECTION 1. - Repealer. Ordinance No. 4053 is hereby repealed in
its entirety.
SECTION 2. - Amendment. Title 3 of the Kent City Code is
amended to adopt a new Chapter 3.29, entitled, "Business and Occupation
Tax - Administrative Provisions," as follows:
Chapter 3.29
Business and Occupation Tax - Administrative Provisions
1 Amend Title 3
New Chapter 3.29
Business & Occupation Tax Administrative Provisions
Ordinance
Sec. 3.29.010. Purpose. The purpose of this chapter is to
provide administrative guidelines and provisions to implement, administer
and enforce the city's business and occupation tax ordinance, chapter 3.28
of the Kent City Code.
Sec. 3.29.015. Application of chapter stated. The provisions
of this chapter shall apply with respect to the taxes imposed under chapter
3.28 KCC and under other titles, chapters, and sections in such manner
and to such extent as indicated in each such title, chapter or section.
Sec. 3.29.020. Definitions. For purposes of this chapter, the
definitions contained in chapter 3.28 KCC shall apply equally to the
provisions of this chapter unless the term is defined otherwise in this
chapter. In addition, the following definitions will apply:
A. "Reporting period." "Reporting period" means:
(1) A one-month period beginning the first day of each calendar
month (monthly); or
(2) A three-month period beginning the first day of January,
April, July or October of each year (quarterly); or
(3) A twelve-month period beginning the first day of January of
each year (annual).
B. "Return." "Return" means any document a person is required by
the city to file to satisfy or establish a tax or fee obligation that is
administered or collected by the city and that has a statutorily defined due
date.
C. "Successor." "Successor" means any person to whom a taxpayer
quitting, selling out, exchanging, or disposing of a business sells or
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Business & Occupation Tax Administrative Provisions
Ordinance
otherwise conveys, directly or indirectly, in bulk and not in the ordinary
course of the taxpayer's business, any part of the materials, supplies,
merchandise, inventory, fixtures, or equipment of the taxpayer. Any
person obligated to fulfill the terms of a contract shall be deemed a
successor to any contractor defaulting in the performance of any contract
as to which such person is a surety or guarantor.
D. "Tax year," "taxable year." "Tax year" or "taxable year" means the
calendar year.
Sec. 3.29.021. Definitions -- References to Chapter 82.32
RCW. Where provisions of Chapter 82.32 RCW are incorporated in
Section 3.29.090 of this chapter, "Department" as used in the RCW shall
refer to the "Director" as defined in section 3.28.030 and "warrant" as
used in the RCW shall mean "citation or criminal complaint."
Sec. 3.29.025. Registration requirements. Any person who
engages in any business or performs any act that is subject to the
provisions of Title 5 KCC or chapter 3.18 KCC, relating to utility business
taxes, chapter 3.20 KCC, relating to natural or manufactured gas line use
taxes, chapter 3.21 KCC, relating to gambling taxes, chapter 3.23 KCC
relating to lodging taxes, chapter 3.26, relating to admissions taxes, and
chapter 3.28 KCC, relating to business and occupation taxes, even if that
person is not subject to any tax imposed thereby, shall apply under the
rules and regulations as the department may prescribe and, upon
approval, receive from the department a registration certificate applicable
to all such business engaged in or activity performed.
No person shall engage in any business without being registered in
compliance with the provisions of this section, and any person who is so
registered must also comply with chapter 5.01 KCC.
3 Amend Title 3
New Chapter 3.29
Business & Occupation Tax Administrative Provisions
Ordinance
Sec. 3.29.030. Registration certificates. . The city will issue a
registration certificate, free of charge, acknowledging registration. The
registration certificate shall be personal and nontransferable and shall be
valid as long as the taxpayer continues in that business and pays any tax
imposed by the city.
In the event business is transacted at two or more separate places
by one taxpayer, a separate registration certificate for each place at which
business is transacted shall be required. These additional certificates shall
be issued at no additional fee. Where a taxpayer changes the nature of
business conducted or conducts additional activities upon which a tax is
imposed by Title 5 KCC or chapter 3.18 KCC, relating to utility business
taxes, chapter 3.20 KCC, relating to natural or manufactured gas line use
taxes, chapter 3.21 KCC, relating to gambling taxes, chapter 3.23 KCC
relating to lodging taxes, chapter 3.26, relating to admissions taxes, and
chapter 3.28 KCC, relating to business and occupation taxes, that
taxpayer shall apply for and receive a new registration certificate at no
additional fee.
Each registration certificate shall be numbered and shall show the
name, business location, mailing address and any other information that
the director deems necessary. The certificate of registration shall be
posted in a conspicuous place at the place of business for which it is
issued.
Where a place of business of the taxpayer is changed, the taxpayer
shall notify the department and upon approval, the department will issue a
new certificate at no additional fee.
Sec. 3.29.040. When due and payable - Reporting periods -
Monthly, quarterly, and annual returns - Threshold provisions or
4 Amend Title 3
New Chapter 3.29
Business & Occupation Tax Administrative Provisions
Ordinance
Relief from filing requirements - Computing time periods - Failure
to file returns.
(1) The tax imposed by this chapter shall be due and payable in
quarterly installments. At the director's discretion, businesses may be
assigned to a monthly or annual reporting period depending on the tax
amount owing or type of tax. Tax payments are due on or before the last
day of the next month following the end of the assigned reporting period
covered by the return.
(2) Taxes shall be paid as provided in this chapter and accompanied by
a return on forms as prescribed by the director. The return shall be
signed by the taxpayer personally or by a responsible officer or agent of
the taxpayer. The individual signing the return shall swear or affirm that
the information in the return is complete and true.
(3) Tax returns must be filed and returned by the due date whether or
not any tax is owed.
(4) For purposes of the tax imposed by chapter 3.28 KCC, any person
whose value of products, gross proceeds of sales, or gross income of the
business, subject to tax after all allowable deductions, is equal to or less
than Sixty Two Thousand Five Hundred Dollars ($62,500) in the current
quarter, and whose combined taxable business warehouse square footage
within the city is four thousand (4,000) square feet or less, and whose
combined taxable other business square footage is twelve thousand
(12,000) square feet or less, shall file a return, declare no tax due on their
return, and submit the return to the director. The gross receipts and
deduction amounts shall be entered on the tax return even though no tax
may be due.
(5) A taxpayer that commences to engage in business activity shall file
a return and pay the tax or fee for the portion of the reporting period
during which the taxpayer is engaged in business activity.
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(6) Except as otherwise specifically provided by any other provision of
this chapter, in computing any period of days prescribed by this chapter
the day of the act or event from which the designated period of time runs
shall not be included. The last day of the period shall be included unless it
is a Saturday, Sunday, or city or federal legal holiday, in which case the
last day of such period shall be the next succeeding day which is neither a
Saturday, Sunday, or city or federal legal holiday.
(7) If any taxpayer fails, neglects or refuses to make a return as and
when required in this chapter, the director is authorized to determine the
amount of the tax or fees payable by obtaining facts and information upon
which to base the director's estimate of the tax or fees due. Such
assessment shall be deemed prima facie correct and shall be the amount
of tax owed to the city by the taxpayer. The director shall notify the
taxpayer by mail of the amount of tax so determined, together with any
penalty, interest, and fees due; the total of such amounts shall thereupon
become immediately due and payable.
Sec. 3.29.050. Payment methods - Mailing returns or
remittances - Time extension - Deposits - Recording payments -
Payment must accompany return - NSF checks.
(1) Taxes shall be paid to the director in United States currency by
bank draft, certified check, cashier's check, personal check, money order,
cash, or by wire transfer or electronic payment if such wire transfer or
electronic payment is authorized by the director. If payment so received
is not paid by the bank on which it is drawn, the taxpayer, by whom such
payment is tendered, shall remain liable for payment of the tax and for all
legal penalties, the same as if such payment had not been tendered.
Acceptance of any sum by the director shall not discharge the tax or fee
due unless the amount paid is the full amount due.
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(2) A return or remittance that is transmitted to the city by United
States mail shall be deemed filed or received on the date shown by the
cancellation mark stamped by the Post Office upon the envelope
containing it. The director may allow electronic filing of returns or
remittances from any taxpayer. A return or remittance which is
transmitted to the city electronically shall be deemed filed or received
according to procedures set forth by the director.
(3) If a written request is received prior to the due date, the director,
for good cause, may grant, in writing, additional time within which to
make and file returns.
(4) The director shall keep full and accurate records of all funds
received or refunded. The director shall apply payments first against all
penalties and interest owing, and then upon the tax, without regard to any
direction of the taxpayer.
(5) For any return not accompanied by a remittance of the tax shown to
be due thereon, the taxpayer shall be deemed to have failed or refused to
file a return and shall be subject to the penalties and interest provided in
this chapter.
(6) Any payment made that is returned for lack of sufficient funds or for
any other reason will not be considered received until payment by certified
check, money order, or cash of the original amount due, plus a "non-
sufficient funds" (NSF) charge of twenty-five dollars ($25.00) is received
by the director.
(7) The Director is authorized, but not required, to mail tax return
forms to taxpayers, but failure of the taxpayer to receive any such forms
shall not excuse the taxpayer from filing returns and making payment of
the taxes or fees, when and as due under this chapter.
Sec. 3.29.060. Records to be preserved - Examination -
Estoppel to question assessment. Every person liable for any fee or
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tax imposed by this chapter shall keep and preserve, for a period of five
(5) years after filing a tax return, such records as may be necessary to
determine the amount of any fee or tax for which the person may be
liable; which records shall include copies of all federal income tax and
state tax returns and reports made by the person. All books, records,
papers, invoices, vendor lists, inventories, stocks of merchandise, and
other data including federal income tax and state tax returns and reports
shall be open for examination at any time by the director or its duly
authorized agent. Every person's business premises shall be open for
inspection or examination by the director or a duly authorized agent.
(1) If a person does not keep the necessary books and records within
the city, it shall be sufficient if such person (a) produces within the city
such books and records as may be required by the director, or (b) bears
the cost of examination by the director's agent at the place where such
books and records are kept; provided that the person electing to bear
such cost shall pay in advance to the director the estimated amount
thereof including round-trip fare, lodging, meals and incidental expenses,
subject to adjustment upon completion of the examination.
(2) If national security clearance status or federal regulation bars
access to certain documents, facilities or other necessary information, the
auditor can implement alternative audit methods that determine, as
accurately as possible and with the least possible expenditure of time, the
amount of tax due.
(3) Any person who fails, or refuses a department request, to provide
or make available records, or to allow inspection or examination of the
business premises, shall be forever barred from questioning in any court
action, the correctness of any assessment of taxes made by the city for
any period for which such records have not been provided, made available
or kept and preserved, or in respect of which inspection or examination of
the business premises has been denied. The director is authorized to
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determine the amount of the tax or fees payable by obtaining facts and
information upon which to base the estimate of the tax or fees due. Such
fee or tax assessment shall be deemed prima facie correct and shall be the
amount of tax owing the city by the taxpayer. The director shall notify the
taxpayer by mail the amount of tax so determined, together with any
penalty, interest, and fees due; the total of such amounts shall thereupon
become immediately due and payable.
Sec. 3.29.070. Accounting methods.
(1) A taxpayer may file tax returns in each reporting period with
amounts based upon cash receipts only if the taxpayer's books of account
are kept on a cash receipts basis. A taxpayer that does not regularly keep
books of account on a cash receipts basis must file returns with amounts
based on the accrual method.
(2) The taxes imposed and the returns required hereunder shall be
upon a calendar year basis.
Sec. 3.29.080. Public work contracts - Payment of fee and
tax before final payment for work. The director may, before issuing
any final payment to any person performing any public work contract for
the city, require such person to pay in full all license fees or taxes due
under this title from such person on account of such contract or otherwise,
and may require such taxpayer to file with the director a verified list of all
subcontractors supplying labor and/or materials to the person in
connection with said public work.
Sec. 3.29.090. Underpayment of tax, interest, or penalty —
Interest.
(1) If, upon examination of any returns, or from other information
obtained by the director, it appears that a tax or penalty less than that
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properly due has been paid, the director shall assess the additional
amount found to be due and shall add thereto interest on the tax only.
The director shall notify the person by mail of the additional amount,
which shall become due and shall be paid within thirty (30) days from the
date of the notice, or within such time as the director may provide in
writing.
(2) (a) The director shall compute interest in accordance with RCW
82.32.050 as it now exists or as it may be amended.
(b) If section 3.29.090(2)(a) is held to be invalid, then the
provisions of RCW 82.32.050 existing at the effective date of this
ordinance shall apply.
Sec. 3.29.095. Time in which assessment may be made.
The director shall not assess, or correct an assessment for, additional
taxes, penalties, or interest due more than four years after the close of
the calendar year in which they were incurred, except that the director
may issue an assessment:
(1) Against a person who is not currently registered or licensed or has
not filed a tax return as required by this chapter for taxes due within the
period commencing 10 years prior to the close of the calendar year in
which the person was contacted in writing by the director;
(2) Against a person that has committed fraud or who misrepresented a
material fact; or
(3) Against a person that has executed a written waiver of such
limitations.
Sec. 3.29.100. Over payment of tax, penalty, or interest -
Credit or refund - Interest rate - Statute of limitations.
(1) If, upon receipt of an application for a refund, or during an audit or
examination of the taxpayer's records and tax returns, the director
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determines that the amount of tax, penalty, or interest paid is in excess of
that properly due, the excess amount shall be credited to the taxpayer's
account or shall be refunded to the taxpayer. Except as provided in
subsection (2) of this section, no refund or credit shall be made for taxes,
penalties, or interest paid more than four (4) years prior to the beginning
of the calendar year in which the refund application is made or
examination of records is completed.
(2) The execution of a written waiver shall extend the time for applying
for, or making a refund or credit of any taxes paid during, or attributable
to, the years covered by the waiver if, prior to the expiration of the waiver
period, an application for refund of such taxes is made by the taxpayer or
the director discovers that a refund or credit is due.
(3) Refunds shall be made by means of vouchers approved by the
director and by the issuance of a city check or warrants drawn upon and
payable from such funds as the city may provide.
(4) Any final judgment for which a recovery is granted by any court of
competent jurisdiction for tax, penalties, interest, or costs paid by any
person shall be paid in the same manner, as provided in subsection (3) of
this section, upon the filing with the director a certified copy of the order
or judgment of the court.
(5) (a) The director shall compute interest on refunds or credits of
amounts paid or other recovery allowed a taxpayer in accordance with
RCW 82.32.060 as it now exists or as it may be amended.
(b) If section 3.29.100(5)(a) is held to be invalid, then the
provisions of RCW 82.32.060 existing at the effective date of this
ordinance shall apply.
Sec. 3.29.110. Late payment - Disregard of written
instructions - Evasion - Penalties.
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(1) If payment of any tax due on a return to be filed by a taxpayer is
not received by the director by the due date, the director shall add a
penalty in accordance with RCW 82.32.090(1), as it now exists or as it
may be amended.
(2) If the director determines that any tax has been substantially
underpaid as defined in RCW 82.32.090(2), there shall be added a penalty
in accordance with RCW 82.32.090(2), as it now exists or as it may be
amended.
(3) If a citation or criminal complaint is issued by the director for the
collection of taxes, fees, assessments, interest or penalties, there shall be
added thereto a penalty in accordance with RCW 82.32.090(3), as it now
exists or as it may be amended.
(4) If the director finds that a person has engaged in any business or
performed any act upon which a tax is imposed under this title and that
person has not obtained from the director a registration certificate as
required by KCC 3.29.025 - .030, the director shall impose a penalty in
accordance with RCW 82.32.090(4), as it now exists or as it may be
amended. No penalty shall be imposed under this subsection (4) if the
person who has engaged in business without a registration certificate
obtains a registration certificate prior to being notified by the director of
the need to be registered.
(5) If the director determines that all or any part of a deficiency
resulted from the taxpayer's failure to follow specific written tax reporting
instructions, there shall be assessed a penalty in accordance with RCW
82.32.090(5), as it now exists or as it may be amended.
(6) If the director finds that all or any part of the deficiency resulted
from an intent to evade the tax payable, the director shall assess a
penalty in accordance with RCW 82.32.090(6), as it now exists or as it
may be amended.
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(7) The penalties imposed under subsections (1) through (5) above of
this section can each be imposed on the same tax found to be due. This
subsection does not prohibit or restrict the application of other penalties
authorized by law.
(8) The director shall not impose both the evasion penalty and the
penalty for disregarding specific written instructions on the same tax found
to be due.
(9) For the purposes of this section, "return" means any document a
person is required by the city to file to satisfy or establish a tax or fee
obligation that is administered or collected by the city, and that has a
statutorily defined due date.
(10) If incorporation into the Kent City Code of future changes to RCW
82.32.090 is deemed invalid, then the provisions of RCW 82.32.090
existing at the time this ordinance is effective shall apply.
Sec. 3.29.120. Cancellation of penalties.
(1) The director may cancel any penalties imposed under section
3.29.110(1) if the taxpayer shows that its failure to timely file or pay the
tax was due to reasonable cause and not willful neglect. Willful neglect is
presumed unless the taxpayer shows that it exercised ordinary business
care and prudence in making arrangements to file the return and pay the
tax but was, nevertheless, due to circumstances beyond the taxpayer's
control, unable to file or pay by the due date. The director has no
authority to cancel any other penalties or to cancel penalties for any other
reason except as provided in subsection (3).
(2) A request for cancellation of penalties must be received by the
director within 30 days after the date the department mails the notice that
the penalties are due. The request must be in writing and contain
competent proof of all pertinent facts supporting a reasonable cause
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determination. In all cases the burden of proving the facts rests upon the
taxpayer.
(3) The director may cancel the penalties in section 3.29.110(1) one
time if a person:
(a) Is not currently registered and filing returns;
(b) Was unaware of its responsibility to file and pay tax; and
(c) Obtained a registration certificate and any applicable business
licenses and filed past due tax returns within 30 days after being notified
by the department.
(4) The director shall not cancel any interest charged upon amounts
due.
Sec. 3.29.130. Taxpayer quitting business - Liability of
successor.
(1) Whenever any taxpayer quits business, sells out, exchanges, or
otherwise disposes of his business or his stock of goods, any tax payable
hereunder shall become immediately due and payable. Such taxpayer
shall, within ten (10) days thereafter, make a return and pay the tax due.
(2) Any person who becomes a successor shall become liable for the full
amount of any tax owing. The successor shall withhold from the purchase
price a sum sufficient to pay any tax due to the city from the taxpayer
until such time as: a) the taxpayer shall produce a receipt from the city
showing payment in full of any tax due or a certificate that no tax is due,
or b) more than six (6) months has passed since the successor notified the
Director of the acquisition and the director has not issued and notified the
successor of an assessment.
(3) Payment of the tax by the successor shall, to the extent thereof, be
deemed a payment upon the purchase price. If such payment is greater
in amount than the purchase price, the amount of the difference shall
become a debt due such successor from the taxpayer.
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(4) Notwithstanding the above, if a successor gives written notice to the
director of the acquisition, and the director does not within six (6) months
of the date it received the notice issue an assessment against the
taxpayer and mail a copy of that assessment to the successor, the
successor shall not be liable for the tax.
Sec. 3.29.140. Administrative Appeal. Any person, except one
who has failed to comply with section 3.29.060, aggrieved by the amount
of the fee or tax determined by the director to be required under the
provisions of this chapter may pay the amount due and appeal from such
determination by filing a written notice of appeal with the city clerk within
30 days from the date written notice of such amount was mailed to the
taxpayer. A $250.00 filing fee shall be submitted with the appeal, which
filing fee is required to process the appeal. The city's hearing examiner
shall, as soon as practical, fix a time and place for the hearing of such
appeal, and shall cause a notice of the time and place thereof to be
delivered or mailed to the parties. The hearing shall be conducted in
accord with the provisions of chapter 1.04 KCC. The decision of the
hearing examiner shall indicate the correct amount of the fee or tax
owing.
Sec. 3.29.150. Judicial Review of Director's Determination.
Any person, except one who has failed to comply with section 3.29.060,
having paid any tax as required and feeling aggrieved by the amount of
the tax assessed, and after first exhausting the right of administrative
appeal set forth in this chapter, may seek judicial review in the King
County Superior Court within 21 days of the date of the decision of the
hearing examiner. The taxpayer shall set forth the amount of the tax
imposed upon the taxpayer that the taxpayer concedes to be the correct
amount of tax and the reason why the tax imposed should be reduced or
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abated. The trial in the Superior Court shall be de novo in accordance
with the laws of the State of Washington. The burden shall rest upon the
taxpayer to prove that the tax paid by the taxpayer is incorrect, either in
whole or in part, and to establish the correct amount of the tax.
Sec. 3.29.160. Director to make rules. The director shall have
the power, from time to time, to adopt, publish and enforce rules and
regulations not inconsistent with this chapter or with law for the purpose
of carrying out the provisions of this chapter and it shall be unlawful to
violate or fail to comply with, any such rule or regulation.
Sec. 3.29.170. Ancillary allocation authority of Director. The
director is authorized to enter into agreements with other Washington
cities which impose an "eligible gross receipts tax":
(1) To conduct an audit or joint audit of a taxpayer by using an auditor
employed by the city of Kent, another city, or a contract auditor, provided,
that such contract auditor's pay is not in any way based upon the amount
of tax assessed;
(2) To allocate or apportion in a manner that fairly reflects the gross
receipts earned from activities conducted within the respective cities the
gross proceeds of sales, gross receipts, or gross income of the business,
or taxes due from any person that is required to pay an eligible gross
receipts tax to more than one Washington city.
(3) To apply the city's tax prospectively where a taxpayer has no office
or place of business within the city and has paid tax on all gross income to
another Washington city where the taxpayer is located; provided that the
other city maintains an eligible gross receipts tax, and the income was not
derived from contracts with the city.
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Sec. 3.29.180. Mailing of Notices. Any notice required by this
chapter to be mailed to any taxpayer, registrant or licensee shall be sent
by ordinary mail, addressed to the address of the taxpayer, registrant or
licensee as shown by the records of the director. Failure of the taxpayer,
registrant or licensee to receive any such mailed notice shall not release
the taxpayer, registrant or licensee from any tax, fee, interest, or any
penalties thereon, nor shall such failure operate to extend any time limit
set by the provisions of this chapter. It is the responsibility of the
taxpayer to inform the director in writing about a change in the taxpayer's
address.
Sec. 3.29.190. Tax declared additional. The tax and any
applicable fee herein levied shall be additional to any license fee or tax
imposed or levied under any law or any other ordinance of the City of Kent
except as herein otherwise expressly provided.
Sec. 3.29.200. Public disclosure - Confidentiality -
Information sharing.
(1) For purposes of this section, defined terms shall be as set forth in
section 3.29.020:
(a) "Disclose" means to make known to any person in any
manner whatever a return or tax information.
(b) "Tax information" means:
(i) A taxpayer's identity;
(ii) The nature, source, or amount of the taxpayer's
income, payments, receipts, deductions, exemption, credits, assets,
liability, net worth, tax liability deficiencies, over assessments, or
tax payments, whether taken from the taxpayer's books and
records or any other source;
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(iii) Whether the taxpayer's return was, is being, or will be
examined or subject to other investigation or processing; or
(iv) Other data received by, recorded by, prepared by, or
provided to the city with respect to the determination or the existence, or
possible existence, of liability, or the amount thereof, of a person under
chapter 3.28 KCC for a tax, penalty, interest, fine, forfeiture, or other
imposition, or offense. However, data, material, or documents that do not
disclose information related to a specific or identifiable taxpayer do not
constitute tax information under this section. Nothing in this chapter
requires any person possessing data, material, or documents made
confidential and privileged by this section to delete information from such
data, material or documents so as to permit its disclosure.
(c) "City agency" means every city office, department, division,
bureau, board, commission, or other city agency.
(d) "Taxpayer identity" means the taxpayer's name, address,
telephone number, registration number, or any combination thereof, or
any other information disclosing the identity of the taxpayer.
(2) Returns and tax information are confidential and privileged, and
except as authorized by this section, neither the director nor any other
person may disclose any return or tax information.
(3) This section does not prohibit the director from:
(a) Disclosing such return or tax information in a civil or criminal
judicial proceeding or an administrative proceeding:
(i) In respect of any tax imposed under chapter 3.28 if the
taxpayer or its officer or other person liable under this title is a party in
the proceeding; or
(ii) In which the taxpayer about whom such return or tax
information is sought and another state agency are adverse parties in the
proceeding.
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(b) Disclosing, subject to such requirements and conditions as
the director prescribes by rules adopted pursuant to section 3.29.160,
such return or tax information regarding a taxpayer to such taxpayer or to
such person or persons as that taxpayer may designate in a request for,
or consent to, such disclosure, or to any other person, at the taxpayer's
request, to the extent necessary to comply with a request for information
or assistance made by the taxpayer to such other person. However, tax
information not received from the taxpayer must not be so disclosed if the
director determines that such disclosure would compromise any
investigation or litigation by any federal, state, or local government
agency in connection with the civil or criminal liability of the taxpayer or
another person, or that such disclosure would identify a confidential
informant, or that such disclosure is contrary to any agreement entered
into by the department that provides for the reciprocal exchange of
information with other government agencies which agreement requires
confidentiality with respect to such information unless such information is
required to be disclosed to the taxpayer by the order of any court;
(c) Publishing statistics so classified as to prevent the
identification of particular returns or reports or items thereof;
(d) Disclosing such return or tax information, for official purposes
only, to the mayor or city attorney, or to any city agency, or to any
member of the city council or their authorized designees dealing with
matters of taxation, revenue, trade, commerce, the control of industry or
the professions;
(e) Permitting the city's records to be audited and examined by
the proper state officer, his or her agents and employees;
(f) Disclosing any such return or tax information to a peace
officer as defined in RCW 9A.04.110 or county prosecuting attorney, for
official purposes. The disclosure may be made only in response to a search
warrant, subpoena, or other court order, unless the disclosure is for the
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purpose of criminal tax enforcement. A peace officer or county
prosecuting attorney who receives the return or tax information may
disclose that return or tax information only for use in the investigation and
a related court proceeding, or in the court proceeding for which the return
or tax information originally was sought or where otherwise allowed to be
disclosed under this section;
(g) Disclosing any such return or tax information to the proper
officer of the internal revenue service of the United States, the Canadian
government or provincial governments of Canada, or to the proper officer
of the tax department of any state or city or town or county, for official
purposes, but only if the statutes of the United States, Canada or its
provincial governments, or of such other state or city or town or county,
as the case may be, grants substantially similar privileges to the proper
officers of the city;
(h) Disclosing any such return or tax information to the United
States department of justice, including the bureau of alcohol, tobacco,
firearms and explosives, the department of defense, the immigration and
customs enforcement and the customs and border protection agencies of
the United States department of homeland security, the United States
coast guard, the alcohol and tobacco tax and trade bureau of the United
States department of treasury, and the United States department of
transportation, or any authorized representative of these federal agencies
or their successors, for official purposes;
(i) Publishing or otherwise disclosing the text of a written
determination designated by the director as a precedent pursuant to RCW
82.32.410;
(j) Disclosing, in a manner that is not associated with other tax
information, the taxpayer name, entity type, business address, mailing
address, revenue tax registration numbers and the active/closed status of
such registrations, state or local business license registration identification
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and the active/closed status and effective dates of such licenses, reseller
permit numbers and the expiration date and status of such permits, North
American industry classification system or standard industrial classification
code of a taxpayer, and the dates of opening and closing of business.
Except that this subsection may not be construed as giving authority to
the City or any recipient to give, sell, or provide access to any list of
taxpayers for any commercial purpose;
(k) Disclosing such return or tax information that is also
maintained by another Washington state or local governmental agency as
a public record available for inspection and copying under the provisions of
chapter 42.56 RCW or is a document maintained by a court of record and
is not otherwise prohibited from disclosure;
(1) Disclosing such return or tax information to the United States
department of agriculture, or successor department or agency, for the
limited purpose of investigating food stamp fraud by retailers;
(m) Disclosing to a financial institution, escrow company, or title
company, in connection with specific real property that is the subject of a
real estate transaction, current amounts due the city for a filed tax
warrant, judgment, or lien against the real property;
(n) Disclosing to a person against whom the director has
asserted liability as a successor under section 3.29.130 return or tax
information pertaining to the specific business of the taxpayer to which the
person has succeeded;
(o) Disclosing real estate excise tax affidavit forms filed under
chapter 3.19 KCC in the possession of the city, including real estate excise
tax affidavit forms for transactions exempt or otherwise not subject to tax;
(p) Disclosing such return or tax information to the court or
hearing examiner in respect to the city's application for a subpoena if
there is probable cause to believe that the records in possession of a third
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party will aid the director in connection with its official duties under this
title or a civil or criminal investigation.
(4) (a) The director may disclose return or taxpayer information to a
person under investigation or during any court or administrative
proceeding against a person under investigation as provided in section
3.29.200(4). The disclosure must be in connection with the director's
official duties under KCC Title 3, or a civil or criminal investigation. The
disclosure may occur only when the person under investigation and the
person in possession of data, materials, or documents are parties to the
return or tax information to be disclosed. The director may disclose return
or tax information such as invoices, contracts, bills, statements, resale or
exemption certificates, or checks. However, the director may not disclose
general ledgers, sales or cash receipt journals, check registers, accounts
receivable/payable ledgers, general journals, financial statements,
expert's workpapers, income tax returns, state tax returns, tax return
workpapers, or other similar data, materials, or documents.
(b) Before disclosure of any tax return or tax information under
section 3.29.200(4), the director must, through written correspondence,
inform the person in possession of the data, materials, or documents to be
disclosed. The correspondence must clearly identify the data, materials, or
documents to be disclosed. The director may not disclose any tax return or
tax information under section 3.29.200(4) until the time period allowed in
subsection (c) of section 3.29.200(4) has expired or until the court has
ruled on any challenge brought under subsection (c) of section
3.29.200(4).
(c) The person in possession of the data, materials, or
documents to be disclosed by the director has twenty (20) days from the
receipt of the written request required under subsection (b) of section
3.29.200(4) to petition the superior court of the county in which the
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petitioner resides for injunctive relief. The court must limit or deny the
request of the director if the court determines that:
(1) The data, materials, or documents sought for
disclosure are cumulative or duplicative, or are obtainable from some
other source that is more convenient, less burdensome, or less expensive;
(ii) The production of the data, materials, or documents
sought would be unduly burdensome or expensive, taking into account the
needs of the director, the amount in controversy, limitations on the
petitioner's resources, and the importance of the issues at stake; or
(iii) The data, materials, or documents sought for
disclosure contain trade secret information that, if disclosed, could harm
the petitioner.
(d) The director must reimburse reasonable expenses for the
production of data, materials, or documents incurred by the person in
possession of the data, materials, or documents to be disclosed.
(e) Requesting information under subsection (b) of section
3.29.200(4) that may indicate that a taxpayer is under investigation does
not constitute a disclosure of tax return or tax information under this
section.
(5) Service of a subpoena issued by the court or by the hearing
examiner pursuant to chapter 2.32 KCC and the ancillary administrative
rules does not constitute a disclosure of return or tax information under
this section. Notwithstanding anything else to the contrary in this section,
a person served with a subpoena issued by the court or by the hearing
examiner may disclose the existence or content of the subpoena to that
person's legal counsel.
(6) Any person acquiring knowledge of any return or tax information in
the course of his or her employment with the city and any person
acquiring knowledge of any return or tax information as provided under
subsections (3)(d), (e), (f), (g), (h), (i), or (k) of this section, who
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discloses any such return or tax information to another person not entitled
to knowledge of such return or tax information under the provisions of this
section, is guilty of a misdemeanor. If the person guilty of such violation is
an officer or employee of the state, such person must forfeit such office or
employment and is incapable of holding any public office or employment in
this city for a period of two years thereafter.
Sec. 3.29.210. Tax constitutes debt. Any applicable fee or tax
due and unpaid under this chapter, and all interest and penalties thereon,
shall constitute a debt to the City of Kent and may be collected in the
same manner as any other debt in like amount, which remedy shall be in
addition to all other existing remedies.
Sec. 3.29.220. Unlawful actions - Violation - Penalties.
(1) It shall be unlawful for any person subject to the tax, fee, or
registration provisions of this chapter:
(a) To violate or fail to comply with any of the provisions of this
chapter or any lawful rule or regulation adopted by the director;
(b) To make any false statement on any license or registration
application or tax return;
(c) To aid or abet any person in any attempt to evade payment
of a license, or fee, or tax;
(d) To fail to appear or testify in response to a subpoena;
(e) To testify falsely in any investigation, audit, or proceeding
conducted pursuant to this chapter.
(2) Violation of any of the provisions of this chapter is a gross
misdemeanor. Any person convicted of a violation of this chapter may be
punished by a fine not to exceed $1,000, imprisonment not to exceed one
year, or both fine and imprisonment. Penalties or punishments provided
in this chapter shall be in addition to all other penalties provided by law.
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(3) Any person, or officer of a corporation, convicted of continuing to
engage in business after the revocation of a registration certificate shall be
guilty of a gross misdemeanor and may be punished by a fine not to
exceed $5,000, or imprisonment not to exceed one year, or both fine and
imprisonment.
Sec. 3.29.230 Suspension or Revocation of registration
P 9
certificate.
(1) The director, or designee, shall have the power and authority to
suspend or revoke any registration certificate issued under the provisions
of this chapter. The director, or designee, shall notify such registrant in
writing by certified mail of the suspension or revocation of his or her
registration certificate and the grounds therefor. Any registration
certificate issued under this chapter may be suspended or revoked based
on one or more of the following grounds;
(a) The registration certificate was procured by fraud or false
representation of fact.
(b) The registrant has failed to comply with any provisions of
chapters 3.28 and 3.29 KCC.
(c) The registrant has failed to comply with any provisions of the
Kent City Code.
(d) The registrant is in default in any payment of any license fee
or tax under chapters 3.28 and 3.29 KCC.
(e) The registrant or employee has been convicted of a crime
involving the business.
(2) Any registrant may, within 30 days from the date that the
suspension or revocation notice was mailed to the registrant, appeal from
such suspension or revocation by filing a written notice of appeal
("petition") setting forth the grounds therefor with the director. A copy of
the petition must be provided by the registrant to the director and the city
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attorney on or before the date the petition is filed with the city clerk. The
hearing shall be conducted in accordance with the procedures for hearing
contested cases set out in KCC 3.29.140. The hearing examiner shall set
a date for hearing said appeal and notify the registrant by mail of the time
and place of the hearing. After the hearing thereon the hearing examiner
shall, after appropriate findings of fact, and conclusions of law, affirm,
modify, or overrule the suspension or revocation and reinstate the
registration certificate, and may impose any terms upon the continuance
of the registration certificate.
No suspension or revocation of a registration certificate issued
pursuant to the provisions of this subchapter shall take effect until 30 days
after the mailing of the notice thereof by the director, and if appeal is
taken as herein prescribed the suspension or revocation shall be stayed
pending final action on the appeal. All registration certificates which are
suspended or revoked shall be surrendered to the city on the effective
date of such suspension or revocation.
The decision of the hearing examiner shall be final. The registrant
and/or the director may seek review of the decision by the Superior Court
of Washington in and for King County. If review is sought as herein
prescribed the suspension or revocation shall be stayed pending final
action by the Superior Court.
Sec. 3.29.240. Closing agreement provisions. The director
may enter into an agreement in writing with any person relating to the
liability of such person in respect of any tax imposed by any of the
chapters within this title and administered by this chapter for any taxable
period(s). Upon approval of such agreement, evidenced by execution
thereof by the director and the person so agreeing, the agreement shall be
final and conclusive as to the tax liability or tax immunity covered thereby,
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and, except upon a showing of fraud or malfeasance, or misrepresentation
of a material fact:
(1) The case shall not be reopened as to the matters agreed
upon, or the agreement modified, by the director or the taxpayer, and
(2) In any suit, action or proceeding, such agreement, or any
determination, assessment, collection, payment, abatement, refund, or
credit made in accordance therewith, shall not be annulled, modified, set
aside, or disregarded.
Sec. 3.29.250. Charge-off of uncollectible taxes. The director
may charge off any tax, penalty, or interest that is owed by a taxpayer, if
the director reasonably ascertains that the cost of collecting such amounts
would be greater than the total amount that is owed or likely to be
collected from the taxpayer.
SECTION 3. - Corrections by City Clerk or Code Reviser. Upon
approval of the City Attorney, the City Clerk and the code reviser are
authorized to make necessary corrections to this ordinance, including the
correction of clerical errors; ordinance, section, or subsection numbering;
or references to other local, state or federal laws, codes, rules, or
regulations.
SECTION 4. - Petition for referendum. A referendum procedure is
required pursuant to RCW 35.21.706 for cities first imposing a business
and occupation tax. A referendum petition may be filed with the City Clerk
within seven (7) days of passage of this ordinance. Within ten (10) days,
the City Clerk shall confer with the petitioner concerning the form and style
of the petition, issue the petition an identification number, and secure an
accurate, concise, and positive ballot title from the City Attorney. The
petitioner shall have thirty (30) days in which to secure the signatures of
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not less than fifteen (15) percent of the registered voters of the city, as of
the last municipal general election, upon petition forms which contain the
ballot title and the full text of the measure to be referred. The City Clerk
shall verify the sufficiency of the signatures on the petition and, if
sufficient valid signatures are properly submitted, shall certify the
referendum measure to the next election ballot within the city or at a
special election ballot as provided pursuant to RCW 35.17.260(2).
This above procedure shall be the exclusive method of referendum
for this ordinance and shall supersede the procedures provided under
chapters 35.17 and 35A.11 RCW and all other statutory or other provisions
for initiative or referendum that might otherwise apply.
SECTION 5. - Severabilitv. If any one or more section, subsection,
or sentence of this ordinance is held to be unconstitutional or invalid, that
decision shall not affect the validity of the remaining portion of this
ordinance and that remaining portion shall maintain its full force and
effect.
SECTION 6. - Effective Date. This ordinance shall take effect and
be in force beginning January 1, 2013, which is at least thirty (30) days
from and after its passage and publication as provided by law.
=e-- 1�
SU TT COOKE, MAYOR
ATTEST:
BRENDA ]ACOBER; CLERK �� _•��,
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APPROVED AS TO FORM:
:rj� 1qx6LA^'-
TOR BRUBAKER, CITY ATTORNEY
PASSED: -a 0- day of , 2012.
APPROVED: a-D day of , 2012.
PUBLISHED: 30 day of 12012.
I hereby certify that this is a true copy of Ordinance No.
passed by the City Council of the City of Kent, Washington, and approved
by the Mayor of the City of Kent as hereon indicated.
La
BRENDA JACOBER CI Y CLERK
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