Susanville Indian Rancheria [Ordinances]

AN ORDINANCE OF THE SUSANVILLE INDIAN RANCHERIA ADOPTING A TRIBAL SALES TAX

Section 2. Definitions

1. "Business" means any person engaged in an activity with the object or result of gain, benefit or advantage for the person so engaged, either direct or indirect, and where appropriate to the context in which the term is used, the activity itself.

2. "Consumer" means any person who purchases and property from any business doing business on the reservation where the purchase occurs on the reservation.

For purposes of this section a purchase occurs on the reservation when property is purchased from a business physically located on the reservation or from a business physically located outside the boundaries of the reservation, but delivered to the consumer on the reservation by the business directly or through a third party such as a common carrier.

3. The term "person" includes but is not limited to any individual, firm, copartnership, joint venture, association, social club, fraternal organization, corporation, estate, trust, business trust, receiver, assignee for the benefit of creditors, trustee, trustee in bankruptcy, syndicate, the United States, the State of California, any county, city and county, municipality, district, or other political subdivision of the State of California, another state or its political subdivisions, the Tribe, or any of its political subdivisions, or any other group or combination acting as a unit.

4. "Purchase" means and includes:

(a). Any transfer of title or possession, exchange or barter, conditional or otherwise, in any manner or by any means whatsoever, of property for a consideration. "Transfer or possession" includes only transactions found by the taxing authority to be in lieu of a transfer of title, exchange, or barter.

(b). A transaction whereby the possession of property is transferred but the seller retains the title as security for the payment of the price.

(c). A transfer for a consideration of property which has been produced, fabricated, or printed to the special order of this customer, or of any publication.

(d). Any lease of property in any manner or by any means whatsoever, for consideration.

5. "Reservation" means the Susanville Indian Rancheria.

6. "Sale" or "sold" means and includes:

(a). Any transfer of title or possession, exchange or barter, conditional or otherwise, in any manner or by any means whatsoever, of property for a consideration. "Transfer of possession" includes only transactions found by the taxing authority to be in lieu of a transfer of title, exchange, or barter.

(b). The producing, fabricating, processing, printing, or imprinting of property for a consideration for consumers who furnish either directly or indirectly the materials used in the producing, fabricating, processing, printing, or imprinting.

(c). The furnishing and distributing of property for a consideration by social clubs and fraternal organizations to their members or others.

(d). The furnishing, preparing, or serving for a consideration of food, meals, or drinks.

(e). A transaction whereby the possession of property is transferred but the seller retains the title as security for the payment of the price.

(f). A transfer for a consideration of the title or possession of property which has been produced, fabricated, or printed to the special order of the customer or of any publication.

(g). Any lease of property in any manner or by any means whatsoever, for a consideration.

7. "Sales price" means the total amount valued in money paid or agreed to be paid or charged to the consumer for any item of property in a sale between the transferor and the transferee, excluding any separately itemized charges for installing or servicing property.

8. "Sales tax" means the tax imposed by Section 1. of this ordinance.

9. "Tangible personal property subject to this Ordinance" or "property" means construction materials and components, and other tangible personal property incorporated into, attached to, or affixed to real property by licensed construction contractors in the performance of a construction contract and which, when combined with other tangible personal property, loses its identity to become an integral and inseparable part of the real property. It also means and includes fixtures sold in connection with the performance of a construction contract by a licensed construction contractor, which includes items necessary to a building or other structure that do not lose their identity as accessories when installed. "Tangible personal property" as used in this paragraph, means personal property which may be seen, weighed, measured, felt or touched, or which is in any other manner perceptible to the senses.

10. "Tribal taxing authority" means the Susanville Indian Rancheria Tribal Business Council, when the construction contractor is performing a contract to which the Council is a party and the Modoc Lassen Indian Housing Authority (HA), when HA is a party to the construction contract with respect to which taxes are imposed by this Ordinance. The HA shall cease to act as tribal taxing authority at any time that the Tribal Business Council so provides by resolution. Copies of any such resolution shall be given to the HA and any taxpayers affected thereby within ten (10) days after its adoption.

11. "Tribe" means the Susanville Indian Rancheria Tribe.

Section 3. Returns

1. Any business subject to sales tax shall report all sales subject to the tax to the Tribal Taxing Authority as provided in this section.

2. Any business subject to sales tax shall report all sales subject to the tax to the Tribal Taxing Authority on such forms and at such times as the taxing authority prescribes by regulation as authorized by Section 5 of this Ordinance.

Section 4. Payment

Each business shall pay sales tax to the Tribal Taxing Authority upon demand of the taxing authority. Failure to pay the tax within ten (10) days of demand shall render such business liable to the authority as on any other debt. Moreover, the authority shall have the right to set off the amount owing as a sales tax against any monies the authority or the Tribe may otherwise owe the taxpayer. This remedy shall be in addition to any other remedy the authority may have to collect or enforce the payment of sales taxes due and unpaid under this Ordinance. Nothing contained in this Ordinance shall be construed as waiving sovereign immunity of the Tribe, its tribal government or the taxing authority.

Section 5. Tribal Taxing Authority

1. Authority. The Tribe hereby establishes the Tribal Business Council in accordance with Section 2, subsection 10, to act as the Tribal Taxing Authority to administer and enforce provisions of this Ordinance pursuant to this Section 5. The Tribal Taxing Authority shall act as a branch of the tribal government for this purpose and shall exercise all of the powers of the tribal government necessary or convenient to the administration and enforcement of this Ordinance; provided the Council adopts a resolution of its governing board or otherwise lawfully obligates itself to administer and enforce this Ordinance strictly in accordance with its terms and subject to the procedures and limitations expressed herein.

2. Powers. In order to administer and enforce the provisions of this Ordinance, the Tribal Taxing Authority shall have the power to:

(a). Appoint one or more officials to act as tax officials and to specify that said officials have the right to assess and collect sales taxes according to regulations adopted by the taxing authority governing board and approved by the Tribe in accordance with its Constitution.

(b). To adopt regulations governing taxpayer reporting responsibilities, procedures for enforcing compliance with reporting responsibilities, procedures for assessing tax liability, procedures for collecting taxes that are due but unpaid, and procedures for remitting collected taxes to the Tribe. Said regulations shall only become effective fifteen (15) days after the taxing authority provides a copy of the proposed regulations to the governing body of the Tribe and said governing body either fails to make any comment during that period or approves the regulations. If said governing body disapproves any portion of the proposed regulations, it shall specify its objections and how the regulation can be changed to meet its approval. If the taxing authority makes the requested changes, the regulations shall become effective immediately without further notice to the Tribe, except that a copy of the adopted regulations shall be promptly provided to the Tribe. Any unresolved disputes regarding regulations shall be resolved pursuant to subsection ...[text missing]

4. The regulations shall, at a minimum: [digitizer's note: numbering out of sequence]

(1). provide the taxpayer with prior notice of assessed tax liability and an opportunity for a hearing before a hearing officer or panel established by the taxing authority. All decisions of the hearing officer or panel shall be final for the Tribe.

(2). protect the taxpayer from paying both state sales tax with respect to the same sale by providing a procedure whereby by taxpayer can establish to the satisfaction of the taxing authority that it has done everything legally required under state law to exempt the sale from state sales tax and that the State Board of Equalization nevertheless has assessed and demanded payment of the sales tax with respect to the sale. If the taxpayer makes such a showing within reasonable time limits established by taxing authority regulations, the taxing authority, at its option, shall waive the tribal sales tax, refund the tax if already collected or enter an agreement with the taxpayer under which the taxpayer assigns its rights to the taxing authority and the taxing authority agrees to indemnify and hold the taxpayer harmless from any costs associated with opposing the state sales tax and any state sales tax liability in order that the taxing authority can legally challenge the states authority or jurisdiction to impose its tax with respect to the sale; and

(3). provide that all sales tax collected by the authority shall be deposited in a separate interest bearing account to the credit of the Tribe and that the Tribe's share of all taxes collected with respect to a sale shall be remitted to the tribal general fund within three (3) months after the time to appeal any decision of the taxing authority with respect to the sale has expired or final decisions of the taxing authority have been rendered after appeal or any challenge to a state sales tax is finally resolved. In the case of sales tax imposed in connection with a contractors performance of a construction contract on the reservation, said taxes shall be remitted to the tribal general fund within three (3) months after final payment has been made to the contractor, unless the taxing authority has exercised its option to challenge the state sales tax in which case the funds shall be remitted to the tribal general fund three (3) months after the challenge is finally resolved in favor of the taxing authority.

(c). As one means of collecting taxes that are due but unpaid to set off the uncollected taxes against any debts owed by the taxing authority or the Tribe or any branch of the tribal government to the taxpayer. For purposes of collecting such taxes only and only to the extent necessary for that purpose, the Tribe assigns to the taxing authority any debts that it now owes or may incur in the future to any taxpayer; and

(d). Where the Tribal Business Council acts as the tribal taxing authority as provided in Section 2, subsection 10, it shall have the authority to levy liens in funds in the possession of any agency or subdivision of the tribal government, including, but not limited to, the HA, which are due or become due to the taxpayer. Such liens may only be imposed after completion of the procedures required by subsection 2b., (1) of this Section 5. Any tribal agency or subdivision upon which such a lien is levied shall within five (5) working days of its receipt remit the amount of the levy to the Tribal Business Council. Said agency or subdivision shall send notice of the levy to the taxpayer within five (5) working days of its receipt.

(e). To take any other action necessary to administer or enforce this Ordinance, including filing in its own name or the Tribes name in any court of competent jurisdiction to collect sales taxes that are due but unpaid; provided that this power does not expressly or impliedly waive the Tribes or the taxing authorities sovereign immunity for suit or subject the taxing authority or the Tribe to any cross-claim, counter-claim, third party claim, or other countersuit.

3. Special: Provisions only applicable to the HA [digitizer's note: numbering out of sequence]

(a). Administrative Fee. To reimburse the HA for the cost of administering this Ordinance, including but not limited to staff time, supply and postage costs, legal fees and expenses and related overhead expenses, the HA shall retain ten (10) percent of all sales tax collected by it under this Ordinance and shall pursuant to subsection b (3) remit to the Tribe its share of the balance of all such taxes collected. No administrative fee shall apply where the Tribal Business Council is acting as the taxing authority.

(b). Resolving Disputes. Should the governing body of the Tribe dispute or object to any action of the HA or its tax officials, it shall notify the HA in writing of its complaint within fifteen (25) days of the action to which it objects, unless through the exercises of reasonable diligence it could not, within that time period, have discovered that the action occurred, in which case written notice shall be given within fifteen (15) days of the date the Tribe first learns of the action. The notice shall specify the action, the Tribes complaint and actions that the HA can take to correct the problem. If within fifteen (15) days from the date of notice. The HA has not corrected the problem to the Tribes satisfaction, the Tribe may request the convening of an arbitration panel, which shall be governed by the following rules and procedures:

(1). The panel shall consist of three (3) members: one appointed by the Tribe, one appointed by the HA and the third selected by mutual agreement of the Tribal and HA panel members.

(2). The panel shall make all decisions or rulings by majority vote on the basis of the evidence and argument submitted by the parties.

(3). It shall conduct such hearings on such notice and according to such rules of procedures as it deems appropriate, including rules governing discovery; provided that the parties shall be entitled to be represented at any such hearing or hearings by any person of their choosing including legal counsel and provided further that the technical rules or evidence shall not apply to the conduct of the hearings.

(4). The panel shall render a final written decision which shall have a right to appeal the final panel decision to any other forum, including any tribal, state or federal court; except that for purposes of enforcement, the final arbitration order can be submitted to any court of competent jurisdiction for confirmation as judgement of that court, the Tribe and the HA waiving their sovereign immunity for this purpose only.

(5). Notice. Whenever notice is required under this Ordinance, it shall be deemed given when personally delivered or deposited in the U.S. Mail with proper postage affixed thereto and addressed to the party to whom the notice is given as provided in an official statement of the partys address on file with the Tribe and the taxing authority. A taxpayer shall file its official statement of address with the taxing authority.

(6). Exemption. Be it noted that tribal members of the Susanville Indian Rancheria will be exempt from this Tax Ordinance.

Section 6. Effective date and Repealer.

This ordinance shall become immediately effective upon approval of the Tribe in accordance with its constitution, and shall remain in effect until reenacted by the Tribe.

CERTIFICATION

We, the undersigned, as duly elected officials of the Susanville Business Committee, do hereby certify that the foregoing ordinance was enacted by the Tribal Business Council of the Susanville Indian Rancheria at a duly called meeting held on July 8, 1994 with a vote of 6 for, 0 against and 0 abstaining, and that this ordinance has been reaffirmed as of the above date.

                        /s/                         
Nicolas Padilla, Tribal Chairman

Attest:

                       /s/                       
Josephine Valadez, Secy/Treas.

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