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G56-17 i Ordinance No. G56-17 AN ORDINANCE ESTABLISHING A MOTOR FUEL TAX WHEREAS, the City of Elgin is a home rule unit pursuant to Article VII Section 6 of the Illinois Constitution; and WHEREAS, as a home rule unit,the City of Elgin may exercise any power and perform any function pertaining to its government affairs,including, but not limited to,the power to regulate for the protection of the public health, safety, morals and welfare, and to tax; and WHEREAS, the City Council of the City of Elgin has determined that it is necessary and desirable to impose a tax upon the retail sale within the City of Elgin of motor fuel; and WHEREAS,the imposition of such a motor fuel tax pertains to the government and affairs of the City. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS: Section 1. That Title 4 of the Elgin Municipal Code, 1976, entitled"Revenue and Finance" be and is hereby further amended by adding a new chapter 4.22 thereto entitled"Motor Fuel Tax"to read as follows: "Chapter 4.22 MOTOR FUEL TAX "4.22.010: MOTOR FUEL TAX: This chapter shall be known and cited as the "Elgin Motor Fuel Tax Ordinance". The tax imposed in this chapter shall be known and cited as the "Elgin Motor Fuel Tax". 4.22.020: DEFINITIONS: For the purposes of this chapter whenever any of the following words, terms or phrases are used, they shall have the meaning ascribed to them in this section. A. Motor fuel means all volatile and inflammable liquids or gas produced, blended or compounded for the purpose of or which is suitable for operating a motor vehicle. "Motor fuel" includes, but is not limited to, gasoline, gasohol, diesel oil, ethanol, motor benzol, motor benzene, propane gas fuel, kerosene and "special fuel' as defined in the Illinois Motor Fuel Tax law, as amended, and blends thereof. B. Motor fuel retailer means any person who is engaged in the business of selling motor fuel in the City of Elgin to a purchaser for the purchaser's use or consumption, and not for resale in any form. C. Person means any natural person, receiver, administrator, executor, conservator, assignee, trust in perpetuity, trust, estate, firm, co-partnership,joint venture, club, company, business trust, domestic or foreign corporation, association, syndicate, society or any group of individuals acting as a unit, whether mutual, cooperative, fraternal, nonprofit or otherwise; whenever the term "person" is used in any clause prescribing and imposing a penalty, the term as applied to associations means the owners or part-owners thereof, and as applied to corporations, the officers thereof. D. Retail sale means any sale to a person for that person's use or consumption and not for resale to another. 4.22.030: IMPOSITION OF TAX: A tax is hereby imposed on the retail sale of motor fuel in the City of Elgin at the rate of four cents ($0.04) per gallon or fraction thereof. Such tax is to be paid by the purchaser, and nothing in this section shall be construed to impose the tax upon the occupation of selling motor fuel. The ultimate incidence of and liability for payment of said tax shall be borne by the purchaser. It shall be a violation of this section for any motor fuel retailer to fail to add this tax to the retail price of motor fuel or to absorb such tax. The Elgin motor fuel tax shall be in addition to any and all other taxes. 4.22.040: REGISTRATION: Motor fuel retailers doing business in the City of Elgin on the effective date of this Chapter shall register with the City's Finance Director within twenty (20) days after such effective date. A person becoming a motor fuel retailer in the City of Elgin after the adoption of this Chapter shall register with the City's Finance Director within twenty (20) days after commencement of business. 4.22.050: COLLECTION: The motor fuel retailer shall have the duty to collect the tax imposed herein from each purchaser. 4.22.060: NOTICES: Any notice or other written communication from the City regarding the tax imposed by this chapter shall be sent to the owner at the address provided in the registration by the motor fuel retailer. -2- 4.22.070: SALES PRESUMED TAXABLE: It shall be presumed that all sales of motor fuel in the City of Elgin are subject to the tax under this Chapter until the contrary is established, by clear and convincing evidence. The burden of proving that a sale is not taxable under this Chapter shall be on the motor fuel retailer, purchaser or user so claiming. 4.22.080: RULES AND REGULATIONS: The City Manager of the City may promulgate rules and regulations not inconsistent with the provisions of this chapter concerning the enforcement and application of this chapter. The term "rules and regulations" includes, but is not limited to, a case-by-case determination whether or not the tax imposed by this chapter applies. 4.22.090: FILING OF RETURN; PAYMENT OF TAX: The owner of each motor fuel retailer within the City shall file tax returns showing tax receipts received during each monthly period on forms prescribed by the Finance Director. The returns shall be due on or before the last day of the calendar month next succeeding the end of the monthly filing period. At the time of filing such returns,the owner shall pay to the City all taxes due for the period to which the tax return applies, less a commission of one percent (1%) of the amount of the tax, which is allowed to reimburse the owner for the expenses incurred in keeping records, billing,preparing and filing returns,remitting the tax and supplying data to the City upon request.No commission may be claimed by an owner for taxes not timely remitted to the City. 4.22.100: LATE PAYMENT AND/OR FILING; FAILURE TO PAY AND/OR FILE: A. If for any reason a tax imposed under this chapter is not paid when due, a penalty of five percent (5%) on the amount of tax which remains unpaid shall be added and collected. Whenever any person shall fail to pay any tax as provided in this chapter, the Corporation Counsel upon the request of the Finance Director shall bring or cause to be brought an action to enforce the payment of the tax on behalf of the City in any court of competent jurisdiction. B. If no return is filed or tax paid before the Finance Director issues a notice of tax liability under section 4.22.150, a penalty of twenty-five percent (25%) of the full amount of tax claimed due shall be added thereto. If a penalty is assessed under this subsection, no penalty shall be assessed under subsection A. 4.22.110: INTEREST: Interest shall accrue on any late payment, underpayment or nonpayment of tax at the rate of one percent (1.00%) added per month to the amount of tax unpaid and uncollected. -3- i 4.22.120: RECORDS: A. Each motor fuel retailer shall have the duty to maintain complete and accurate records and accounts for a period of at least the most recent forty-eight(48)months, unless otherwise authorized by the City, showing the gross receipts for the sale of motor fuel and the Elgin motor fuel tax collected from purchasers thereof. B. The Finance Director or his/her designee shall at all reasonable times during business hours have full access to such books and records. C. To the fullest extent permitted by law,the financial records of any motor fuel retailer submitted pursuant to this chapter or any rule and regulation promulgated thereunder shall not be available for public inspection in order to protect the owners' right to privacy. 4.22.130: EXEMPTIONS: The tax imposed under this chapter shall not apply to or be imposed upon any federal, state or local governmental bodies. 4.22.140: SUSPENSION OR REVOCATION OF LICENSES FOR FAILURE TO PAY TAX; HEARING: If a City official responsible for the issuance of a city license,permit or other approval,after hearing held by or for him, shall find that any person has willfully evaded payment or collection and remittance of the tax imposed by this chapter,he may suspend or revoke such city license, permit or other approval held by such tax evader. The person shall have an opportunity to be heard at such hearing to be held not less than seven(7)days after notice is given to him of the time and place of the hearing to be held, addressed to him at his last known place of business. Pending said notice, hearing and finding, any license, permit or other approval issued by the City to the person may be temporarily suspended.No suspension or revocation hereunder shall release or discharge said person from his civil liability for the payment or collection and remittance of the tax, nor from prosecution for such offense. 4.22.150: NOTICE OF TAX LIABILITY; DEMAND FOR PAYMENT OF TAX; SUIT: A. In the event any person fails to file a return when and as herein required,or if it shall appear to the Finance Director that the amount of any tax payment is incorrect in that it does not include all taxes payable for such calendar period, or if the Finance Director shall find that the collection of any taxes which have accrued but are not yet due will be jeopardized by delay, and declares said taxes to be immediately due and payable,or if it shall appear to the Finance Director that he or she had made any final assessment which did not include taxes payable for the periods involved, or if it appears to the Finance Director that any person has,by reason of any act or omission or by operation of any law, become liable for any taxes, interest or penalties not -4- originally incurred by him, the Finance Director may in any of the above events determine and assess the amount of such taxes or deficiency, as the case may be, together with the interest and penalties due and unpaid. Any such determination and assessment shall be made by the Finance Director upon his or her best judgment and information,and it shall be permissible for the Finance Director to show a figure that represents the tax due for any given six(6)months instead of showing the amount of tax due for each month separately. The Finance Director shall immediately serve notice of tax liability upon such person and make a demand for payment of the tax together with interest and penalties thereon. If the person incurring any such liability has died, such demand may at the discretion of the Finance Director be made against his personal representative. Such determination and assessment by the Finance Director shall be final at the expiration of forty-five(45)days from date of the service of such written notice thereof and demand for payment,unless such person shall have filed with the Finance Director a written petition pursuant to section 4.22.160, specifying its objections thereto. B. The Finance Director may amend his or her determination and assessment at any time before it becomes final. In the event of such amendment the person affected shall be given notice and an opportunity to be heard in connection therewith. C. Whenever any person shall fail to pay any tax herein provided, the Corporation Counsel shall,upon the request of the Finance Director,bring or cause to be brought, an action to enforce the payment of the tax on behalf of the City in any court of competent jurisdiction. Such action shall be in addition to any other remedy afforded the City under this chapter or under any other law, including a prosecution for violation of this chapter. 4.22.160: HEARINGS: A. Any person issued a notice of tax liability pursuant to section 4.22.150,or otherwise aggrieved by any determination of the Finance Director made pursuant to this chapter, shall have the right to seek a redetermination by the Finance Director, subject to the provisions stated herein below. B. Any person seeking a redetermination by the Finance Director shall file a written petition for redetermination within forty-five(45)days after receipt of the applicable notice. The petition must be received by the Finance Director or in the Finance Department prior to the expiration of the forty-five (45)-day period, or on the first date the Finance Department is open for business after such date if closed on such date. Mailing such petition on such date shall be insufficient. If the petition is not filed within this time period, then the determination of the Finance Director shall become final and not subject to further review,and the Finance Director may proceed with enforcement as provided under this chapter. C. The petition shall state the reason or reasons why the determination by the Finance -5- Director is incorrect or invalid, as the case may be, and state the relief sought from the Finance Director. Upon receipt of the petition, the Finance Director shall promptly set a time and date for a hearing on the petition and shall notify the petitioner of the same not less than fourteen (14) days prior to the date set for hearing. A hearing date may be continued by the Finance Director for any reason provided for in this chapter, or for other good cause. All such hearings shall be held in the City Hall, if feasible. D. At such hearing, the Finance Director shall give the petitioner an opportunity to be personally heard and present whatever information or witnesses as he considers pertinent and relevant to the issue. Upon conclusion of such hearing, and after consideration of any information presented by the petitioner and such other information as may be available to the Finance Director, a decision shall be made by the Finance Director either cancelling, increasing, modifying, or affirming such determination,and notice of such decision shall be given in writing to the petitioner. Such notice shall contain a statement by the Finance Director of the cost of the certification of the record computed at the rate of five cents($0.05)per one hundred (100) words, which cost shall be charged to the petitioner if the determination or assessment is affirmed. The record shall consist of the notices and demands caused to be served by the Finance Director, the original determination and/or assessment of the Finance Director, the written petition for redetermination, the information and exhibits introduced at such hearing or certified copies thereof, the decisions of the Finance Director and such other documents filed in the proceeding. E. The decision of the Finance Director reached at the conclusion of such hearing shall be final,and the Finance Director may enforce such decision in the manner provided for under this chapter or such other manner as may be available by law. 4.22.170: FAILURE TO MAKE RETURN; FRAUDULENT RETURN: Any person required to make a return pursuant to this Chapter who fails to make a return,or who makes a fraudulent return, or who willfully violates any other provision of this ordinance is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than two hundred dollars ($200) no more than seven hundred fifty dollars ($750) and in addition shall be liable in a civil action for the amount of tax due,plus interest,penalties and costs. Such remedies shall be in addition to any other remedies available to the City including,but not limited to,the suspension or revocation of any city license,permit or other approval. 4.22.180: PREPARATION; SERVICE OF CITATIONS: The Finance Director and his designees are deemed peace officers for the purposes of this chapter and may prepare and serve citations personally or by certified mail for violations of this chapter. -6- 4.22.190: SEVERABILITY: If any provision,clause,sentence,paragraph,section or part of this chapter or the application thereof to any person or circumstance shall, for any reason, be adjudged by a court of competent jurisdiction to be unconstitutional or invalid, said judgment shall not affect, impair or invalidate the remainder of this chapter and the application of such provision to other persons or circumstances,but shall be confined in its operation to the provision,clause, sentence, paragraph, section or part thereof directly involved in the controversy in which such judgment shall have been rendered and to the person or circumstance involved. It is hereby declared to be the legislative intent of the City Council that this chapter would have been adopted had such unconstitutional or invalid provision, clause, sentence, paragraph, section or part thereof had not been included." Section 2. That all ordinances or parts of ordinances in conflict with the provisions of this ordinance be and are hereby repealed to the extent of such conflict. Section 3. That this ordinance shall be in full force and effect on and after July 1,2018,upon its passage and publication in the manner provided by law. David J. Ka in, yor Presented: December 20, 2017 Passed: December 20, 2017 a , Vote: Yeas: 9 Nays: 0 �� Recorded: December 20, 2017 Published: December 21, 2017 4 � Attest, t i Kimberly Dewis, Ci erk -7-