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HomeMy WebLinkAbout2010-04-13; City Council; 20192; Amending Carlsbad Municipal Coder Section 3.12.120 - Refunds Establishing Pay First Litigate Later RuleCITY OF CARLSBAD - AGENDA BILL 8 AB# MTG. DEPT. 20,192 4/13/10 CA AMENDING CARLSBAD MUNICIPAL CODE SECTION 3.12.120 - REFUNDS ESTABLISHING A PAY FIRST LITIGATE LATER RULE DEPT. DIRECTOR CITY ATTORNEY CITY MANAGER RECOMMENDED ACTION: Introduce Ordinance No. CS-081 adding 3.12.120(e) to Carlsbad Municipal Code establishing a pay first litigate later rule in order to protect tax and fee revenue. ITEM EXPLANATION: California cities and counties have generally not needed to adopt ordinances requiring a tax payer to first pay contested taxes and then file a suit for refund because it was believed that California Constitution Article XIII, §32 already required that. However, a superior court in Los Angeles has sent Shockwaves around the State when it concluded that this constitutional provision did not apply and overturned an administrative law judge's finding in favor of the City of Anaheim for about $23 million and allowed the case to proceed without first paying the contested taxes. The reason for the constitutional provision is that cities and counties need to have some certainty in their budget planning processes and can rely on the collection of taxes to provide essential public services. The ruling by the superior court in Los Angeles County turns this constitutional provision on its head and allows a taxpayer to refuse to pay taxes and then file an action in court to prevent their collection. It is therefore recommended that the City enact a provision in its refunds of taxes procedures that would expressly require a taxpayer to pay the contested taxes first as a condition to filing a lawsuit challenging them. FISCAL IMPACT: This provision will ensure the collection of taxes even when they are judicially challenged. Requiring the payment of taxes prior to judicially challenging them will impact the City's cash flow but not disturb the right of a taxpayer to judicially challenge them. The City Council will then have the discretion to determine whether and how judicially challenged proceeds of taxes shall be expended. ENVIRONMENTAL IMPACT: This ordinance amendment is not a "project" within the definition of the California Environmental Quality Act in that it does not have a direct or indirect impact on the physical environment under CEQA Regulation 153789(b). EXHIBITS: 1. Ordinance No.CS-081 DEPARTMENT CONTACT: Ron Ball 760-434-2891 ron.ball@carlsbadca.gov FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED D D D CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN RETURNED TO STAFF OTHER -SEE MINUTES D D D D 1 2 3 4 WHEREAS, the City Council finds that it is in the best interest of the 5 City that a provision in its refunds of taxes procedures be enacted that would require 6 a taxpayer to pay contested taxes first as a condition to filing a lawsuit challenging 8 them. 9 10 11 Section 1: That Section 3.12.120(e) is hereby added to the Carlsbad 12 Municipal Code to read as follows: 13 3.12.120(e)-Refunds14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDINANCE NO. CS-081 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AMENDING CARLSBAD MUNICIPAL CODE SECTION 3.12.120 - REFUNDS NOW, THEREFORE, the City Council of the City of Carlsbad ordains as follows: It shall be a condition that, prior to the filing of any lawsuit, of any kind whatsoever, including a claim for refund of taxes, injunction or writ of mandate or other equitable process, the payment of all taxes, interest and penalties as determined by the City shall be required to be paid as a condition to seeking such judicial review of any tax liability. In addition, no such legal action shall be proper unless all of the administrative remedies provided by this chapter shall have first been exhausted. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EFFECTIVE DATE: This ordinance shall be effective thirty days after its adoption; and the city clerk shall certify the adoption of this ordinance and cause it to be published at least once in a newspaper of general circulation in the City of Carlsbad within fifteen days after its adoption. INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City Council on the 13tb day of April , 2010, and thereafter PASSED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad on the day of , 2010, by the following vote, to wit: AYES: NOES: ABSENT: APPROVED AS TO FORM AND LEGALITY: RONALD R. BALL, City Attorney CLAUDE A. LEWIS, Mayor ATTEST: LORRAINE M. WOOD, City Clerk