AN ORDINANCE LEVYING A FRANCHISE TAX
ON THE GROSS RECEIPTS
OF ELECTRIC POWER COMPANIES ENGAGED
IN THE BUSINESS OF FURNISHING ELECTRICITY, ELECTRIC LIGHTS,
CURRENT OR POWER WITHIN THE CORPORATE LIMITS OF THE
TOWN OF NAGS HEAD, NORTH CAROLINA
WHEREAS, N.C. Gen. Stat. § 105-116 imposes an annual franchise or privilege tax on electric power companies engaged in the business of furnishing electricity, electric lights, current or power; and,
WHEREAS, N.C. Gen. Stat. § 105-116(d), provides that part of the taxes imposed thereunder are to be distributed to cities in accordance with N.C. Gen. Stat. § 105-116.1; and,
WHEREAS, N.C. Gen. Stat. § 105-116.1(b) provides that the “Secretary [of Revenue] must distribute to the cities part of the taxes collected under this Article [N.C. Gen. Stat. Chapter 105, Article 3] on electric power companies;” and,
WHEREAS, N.C. Gen. Stat. § 105-116(e) provides that “[s]o long as there is a distribution to cities from the tax imposed by this section, no city shall impose or collect any greater franchise, privilege or license taxes, in the aggregate, on the businesses taxed under this section, than was imposed and collected on or before January 1, 1947;” and,
WHEREAS, said N.C. Gen. Stat. § 105-116.1(b) states that the distribution to cities therein provided must be made within 75 days after the end of each calendar quarter; and,
WHEREAS, the most recent distribution pursuant to said statutes was scheduled to be made on March 15, 2002 and such distribution was not made by the Secretary of Revenue because of directives issued by the Governor of the State of North Carolina; and,
WHEREAS, N.C. Gen. Stat. § 160A-211(a) provides, among other things, that a city shall have power to levy privilege license taxes on all trades, occupations, professions, businesses, and franchises carried on within a city; and,
WHEREAS, by reason of the failure of the Secretary of Revenue to make the distribution as described, in order to provide revenues for the support of the functions of municipal government, consistent with N.C. Gen. Stat. Chapter 105, Article 3, and pursuant to N.C. Gen. Stat. § 160A-211, the Town of Nags Head desires to enact this Ordinance.
NOW, THEREFORE, BE IT ORDAINED by the governing body of the Town of Nags Head, State of North Carolina, as follows:
SECTION ONE
CITATION
This ordinance shall be known and may be cited as the Town of Nags Head’sFranchise Tax on Electric Power Ordinance, and shall be codified as ______.
SECTION TWO
DEFINITIONS
In addition to the common meanings of words, the following definitions shall be applicable herein:
“[City/Town/Village]” shall mean the Town of Nags Head.
“[City/Town/Village] Franchise Tax” shall mean the franchise enacted by this Ordinance.
“State Franchise Tax” shall mean the franchise or privilege tax imposed on an electric power company engaged in the business of furnishing electricity, electric lights, current or power as provided in N.C. Gen. Stat. Chapter 105, Article 3 entitled “Franchise Tax.”
“Revenue Act” shall mean Subchapter I of Chapter 105 of the General Statutes of North Carolina.
“Secretary of Revenue” shall mean the Secretary of Revenue of the State of North Carolina.
“State Franchise Tax Act” shall mean Article 3 of Chapter 105 of the General Statutes of North Carolina.
“Taxpayer(s)” shall mean any electric power company liable for the taxes imposed by this Ordinance.
“Tax collector” means the department of the towngovernment or the official agency of the state designated by law and authorized by law to administer the collection of the tax herein levied.
Except as otherwise provided in this Ordinance, the definitions of words, terms and phrases as set forth and/or applied in Article 3, Chapter 105 of the North Carolina General Statutes are hereby adopted by reference and made a part hereof. Reference to any provision or provisions in the General Statutes shall include the same as may be from time to time amended, modified, supplemented, revised or superceded.
SECTION THREE
RATIFICATION OF EXISTING PERMITS
All valid and subsisting permits to do business issued by the Secretary of Revenue pursuant to the Revenue Act are for the purposes of this ordinance, hereby ratified, confirmed, and adopted in lieu of any requirement for an additional Townpermit for the same purpose.
SECTION FOUR
LEVY OF TAX
A franchise tax is hereby levied and imposed for the period(s) designated in Section Five of this Ordinance upon the electric power companies engaged in the business of furnishing electricity, electric lights, current or power within the corporate limits of the Town. The tax shall be 3.09% of the companies’ taxable gross receipts from the business of furnishing electricity, electric lights, current or power. It is intended that taxable gross receipts hereunder shall be the same as those taxable under the State Franchise Tax Act.
** It is recommended that the same tax rate of 3.09% provided in G.S. 105-116.1 [the percentage distribution amount for cities] be inserted. It is our opinion that the restrictions found in G.S. 105-116(e) apply only when distributions are being made.
SECTION FIVE
PERIOD FOR WHICH TAX DUE
When a distribution to the Townas required under the State Franchise Tax Act shall not be made, the TownFranchise Tax shall be levied for the periods herein described. A period for which the tax shall be due shall begin on the first day of the first calendar month following the month during which a distribution under the State Franchise Tax Act was due, but not made, to the Town and shall continue from month to month until such time as a distribution as required under the State Franchise Tax Act shall be made. The Townshall notify Taxpayers within a reasonable time after a required distribution is or is not made by the Secretary of Revenue.
SECTION SIX
REPORT AND PAYMENT OF TAX
The tax shall be paid to the Tax Collector at the time and in the form and manner provided for the payment of sales and use taxes pursuant to and in accordance with N.C. Gen. Stat. § 105-164.16 as the same applies to a taxpayer who is consistently liable for more than one hundred dollars ($100.00) but less than ten thousand dollars ($10,000) a month. As applicable to sales and use taxes, such a taxpayer must file a return and pay the taxes due on a monthly basis. The tax shall be due and payable when a return is required to be filed.
SECTION SEVEN
REFUNDS
Upon the resumption of distributions by the Secretary of Revenue as required under the State Franchise Tax Act, a refund may be due to a Taxpayer as specified in this Section. A refund in the amount indicated herein below shall be due to a Taxpayer within thirty (30) days after presentation to the Townby the Taxpayer of a written certification made by the Secretary of Revenue stating that portion of the Town’s percentage distribution amount of the State Franchise Tax that was paid by the Taxpayer and allocable to the calendar quarter for which the most recent distribution was made. The amount of a refund shall equal the portion of the percentage distribution amount designated by the Secretary of Revenue.
SECTION EIGHT
PENALTIES AND REMEDIES
The provisions with respect to remedies and penalties applicable to the State Franchise Tax Act as contained in Article 9, Subchapter 1, Chapter 105 of the General Statutes, shall be applicable in like manner to the tax authorized to be levied and collected under this Ordinance, to the extent that the same are not inconsistent with the provisions hereof. The governing body of the Townmay exercise any power the Secretary of Revenue may exercise in collecting the State Franchise Tax.
SECTION NINE
ADMINISTRATION
In addition to the provisions herein and to the extent that the same are not inconsistent with the provisions of this Ordinance, the levy and collection of taxes herein imposed shall be otherwise administered in the same manner as the State Franchise Tax Act as contained in Article 9, Subchapter 1, Chapter 105 of the General Statutes.
SECTION TEN
CONFIDENTIALITY OF RECORDS
The confidential and privileged nature of the records and files concerning the administration of the Town Franchise Tax is legislatively recognized and declared, and to protect the same the provision of Chapter 105 of the North Carolina General Statutes are adopted by reference and made fully effective and applicable to administration of the tax levied herein as if set forth in full.
SECTION ELEVEN
ORDINANCE AS CUMULATIVE
The provisions hereof shall be cumulative, and in addition to any and all other taxing provisions of town ordinances.
SECTION TWELVE
SEVERABILITY
The provisions hereof are hereby declared to be severable, and if any section, paragraph, sentence, or clause of this ordinance is for any reason held invalid or inoperative by any court of competent jurisdiction, such decision shall not affect any other section, paragraph, sentence, or clause hereof.
SECTION THIRTEEN
SERVICE UPON ELECTRIC POWER COMPANIES
TheTownshall serve a copy of this ordinance upon the registered agent for any electric power companies affected hereby.
SECTION FOURTEEN
EFFECTIVE DATE
This ordinance shall become and be effective on the date and time as passed by the governing body of the Town.
Passed by the governing body of the Town of Nags Head, North Carolina on the _____ day of ______, 2002.
______
Robert W. Muller, Mayor
ATTEST:
______
Carolyn F. Morris, Town Clerk
APPROVED AS TO FORM:
______
Donald I. McRee, Town Attorney
First ReadingJune 19, 2002
Ayes:Mayor Pro Tem George Farah
Comr. Doug Remaley
Comr. Brant Murray
Noes:Mayor Robert Muller
Comr. Anna Sadler