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Occupational License Tax Ordinance

ORDINANCE 9537

ADOPTED METROPOLITAN COUNCIL NOV. 25, 1992

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TO LEVY, COLLECT AND ENFORCE PAYMENT OF AN OCCUPATIONAL LICENSE TAX FOR THE YEAR 1993 AND FOR EACH SUBSEQUENT YEAR, ON ALL PERSONS, ASSOCIATION OF PERSONS, FIRMS AND CORPORATIONS PURSUING ANY TRADE, PROFESSION, VOCATION, CALLING OR BUSINESS IN THE CITY OF BATON ROUGE OR PARISH OF EAST BATON ROUGE, WHO ARE SUBJECT TO THE PAYMENT OF OCCUPATIONAL LICENSE TAXES UNDER THE CONSTITUTION AND LAWS OF LOUISIANA; TO PRESCRIBE THE MODE AND MANNER OF MAKING APPLICATION REQUIRED HEREUNDER; TO PROVIDE REMEDIES TO ENFORCE COMPLIANCE HEREWITH AND FOR MAKING FALSE STATEMENTS OR AFFIDAVITS IN RELATION THERETO; AND TO DEFINE CERTAIN WORDS AND TERMS USED HEREIN.

BE IT ORDAINED by the Metropolitan Council of the Parish of East Baton Rouge and City of Baton Rouge that:

Section 1.  LEVY

There is hereby levied an occupational license tax for the year 1993 and for each subsequent year, upon each person who may be subject to such license tax under the Constitution and laws of Louisiana, pursuing and conducting any business within the corporate limits of the City or within the Parish of East Baton Rouge.

Section 2.  MAXIMUM AMOUNT ALLOWED BY LAW

(A) The amount of the license tax levied herein in each case is hereby fixed, determined and ordained to be the same as the maximum allowed to be fixed, levied and collected by local governing authorities, and shall be graded in accordance with, the provisions of Louisiana Revised Statutes, Title 47, Section 341-363, both inclusive, as amended, and reenacted by Act 1017 of 1986 Regular Session and Act 18 of the First Extraordinary Session, 1986, and all other applicable laws of Louisiana, all of which for all purposes of this ordinance are made a part hereof by reference as if written herein in extenso.

(B) It is hereby declared to be the express intention of the Metropolitan Council of the City of Baton Rouge and Parish of East Baton Rouge to levy and collect hereunder the maximum occupational license taxes for parochial purposes, both as to amount and graduation, as are allowed under the laws of the state of Louisiana, and except as otherwise expressly provided in this ordinance.

Section 3. GENERAL DEFINITIONS

For the purposes of this Ordinance, unless the context clearly otherwise requires or unless otherwise defined in specific portions of the Ordinance, the following words shall have the respective meanings ascribed to each in this Section.

(A) Contractor: "Contractor" is synonymous with the term "Builder" and means a person, firm, partnership, corporation, association, or other organization, or a combination of them, which undertakes to or offers to undertake to, or purports to have the capacity to undertake to, or submits a bid to, or does himself or by or through others, construct, alter, repair, add to, subtract from, improve, move, wreck, or demolish any building, highway, road, railroad, excavation, or other structure, project, development or improvement, or to do any part thereof, including the erection of scaffolding or other structure or works in connection therewith and includes subcontractors and specialty contractors. As such, the word, "contractor" shall include oil field service contractors, which shall consist of those contractors performing general oil well servicing, maintenance, and construction when conducted as a single company unit. General oil well servicing shall include welding, pipe coating, pipe inspection, wireline service, automation, workover, logging, analysis, seismograph, installing and servicing equipment, packing, platform work, perforation, and completion.

(B) Separate location: As used in Section 7 of this Ordinance a separate location exists unless similar or associated type of business is operated as a unit under a single roof or on the same contiguous tract of land.

(C) Contractor's gross receipts: For the purposes of computing the license fee provided for in Section 16 of this Ordinance, a contractor's gross receipts are determined the same for all contractors, whether or not they have a lump sum contract or a cost plus contract. The gross receipts for a lump sum contract are based on the actual amount of the contract, whereas, the gross receipts for a cost plus contract are based on the actual cost of the contract to the owner including the amount added thereto as a fee.

(D) Director: The Director is the Director of Finance, for the City of Baton Rouge, Parish of East Baton Rouge, or his authorized designee or employee.

(E) Wholesale dealer: Except as specifically provided in this Ordinance, a "wholesale dealer" means any person who sells to other dealers who in turn resell.

(F) Retail dealers to institutional consumers: A "retail dealer to institutional consumers" includes all businesses selling, at retail from a fixed place of business, merchandise to dairymen, cattlemen, or farmers, to federal, state, parish, or municipal governments or institutions, to educational or charitable institutions, to hospitals, manufacturers, public utility companies, processors, refiners, fabricators, contractors, severers of natural resources, carriers of freight or passengers, pipe lines, hotels, and restaurants provided that such sales constitute the major portion of the business.

(G) A "peddler" means any person who for himself or any other person, goes from house to house, or place to place, or store to store, exposing and selling the merchandise which he carries with him and delivering the same at the time of or immediately after the sale or without returning to the base of business operation between the taking of the order and the delivery of the goods; however, any person who uses the same vehicle or a combination of one or more vehicles for the purpose of taking orders and delivering merchandise, regardless of the fact that the vehicle returns to the base of operations between the taking of the order and the delivery of the merchandise, shall be deemed a peddler, unless such person can show that the merchandise delivered is accompanied by an invoice or delivery ticket prepared at the base of operations and which conforms to the original order and that the person delivering the merchandise has permitted no deviation from the original order by allowing the purchaser to reject, cancel, increase, or decrease the quantity at the time of delivery or to offset against such quantity any merchandise delivered at a prior time which is being returned. This extension of the meaning of the term "peddler" shall not be interpreted so as to prevent rejection or cancellation of bona fide orders or the return of inferior merchandise, but shall be construed so as to prevent persons peddling merchandise from escaping their tax liability by subterfuge through means of so-called "standing order" or blanket advance orders, increase and decrease in quantities at the time of delivery, arbitrary rejections and cancellations, and offset of merchandise returned by reason of nonsale rather than obligation of warranty, all of which are hereby declared to be mere devices to prevent normal methods of operations so as to disguise the business of a peddler as an ordinary wholesale business. "Peddler" shall include but is not limited to hawkers, itinerant vendors, and any retail dealers not having a fixed place of business.

(H) Real estate broker: For carrying on each business of real estate broker, the license tax shall be based on gross income. "Gross income" for real estate brokers is defined as those fees from any source deposited into the real estate broker's agency's general fund account less escrow deposits, and less fees paid to cooperating real estate brokers. Notwithstanding any provisions herein to the contrary, the maximum amount paid by a real estate broker shall be two thousand, two hundred dollars.

(I) "Business" includes any business, trade, profession, occupation, vocation, or calling.

(J) "Person" includes an individual, firm, corporation, partnership, association, or other legal entity.

(K) "City" means the City of Baton Rouge.

(L) "Parish" means the Parish of East Baton Rouge.

(M) Fixed location: A "fixed location" means any permanent structure which is used to provide goods or services to consumers.

(N) Gross commissions for travel agencies. For carrying on each business of travel agency, the license tax shall be based on gross commissions. "Gross commissions" for travel agencies is defined as fees earned on the sales of tickets and provision of other services and shall not include actual ticket prices.

Section 4.  PAYMENT OF TAX

(A) Except as otherwise expressly provided, the first license tax herein authorized to be levied shall be due and payable to the Director (unless under the provisions of Section 8.05 of the Plan of Government of the Parish of East Baton Rouge and City of Baton Rouge, the Metropolitan Council of the City of Baton Rouge shall have entered into an agreement with the Sheriff of the Parish of East Baton Rouge for the collection of taxes for the year in question) as follows:

(1) In the case of any business which is subject to license under this Ordinance, commencing on or after the effective date of this Ordinance, the license tax shall be due and payable on such date of commencement.

(2) In the case of a business commenced prior to the effective date of this Ordinance, the license tax shall be due and payable on January 1, 1993.

(B) Annually thereafter all license taxes levied hereunder shall be due and payable on January first of each calendar year for which the license is due, except that for a new business commencing after January first of any calendar year, the first license shall be due and payable on the date the business is commenced.

All licenses unpaid after the last day of February of the calendar year for which they are due, or in the case of a new business, unpaid on the date such business is commenced shall be deemed delinquent and subject to the payment of  delinquent interest and penalty. Delinquent interest and penalty shall be computed from March first of the calendar year for which they are due.

(C) For ongoing businesses which cease operation between January first and the last day of February of the current license year, the license for the year shall be based on their gross receipts for the prior year, divided by three hundred sixty-five and multiplied by the number of days in which they were in operation.

Section 5. NEW BUSINESS: LICENSE DUE UPON COMMENCEMENT

In the case of a new business, the license tax is due and payable upon commencement of the business. Within forty days after commencing the business, each person shall compute in the manner provided by Section 9 the balance of the license tax, if any, owed for the year in which the business is started and pay such tax balance. When the business is begun prior to July first of any year, the tentative tax shall be the minimum annual rate for the particular class of business in cases in which the tax is based on gross receipts, sales, fees, premiums, or commissions, or the full annual rate in cases in which the tax is based on a specific amount per unit. When the business is begun on or after July first of any year, the tentative tax shall be one-half of the minimum annual rate or the specific amount per unit, as the case may be.

Section 6.  CHANGE OF OWNERSHIP OR LESSEE

(A) The license is issued in the name of the person making application and paying the initial fee and is not transferable or assignable. If at any time during the license year a change of ownership takes place, the license period is from January first, to the date of sale or change of lessee. A "change of ownership" occurs when a business is sold or leased, and does not include changes in partnership or corporate shares.

(B) The new owner or lessee shall obtain another business license, as the license issued to the former owner or lessee is not transferable or assignable. The license period for the new owner or lessee covers the date of transfer or ownership or lease to December thirty-first of the license year. The Director shall be notified within ten days when a change is effected.

Section 7. SEPARATE LICENSE REQUIRED FOR EACH LOCATION, BASED ON PRIMARY CLASS OF BUSINESS

Except as otherwise provided in this ordinance, only one license shall be required for each place of business, and the license shall be based upon the classification of business which constitutes the major portion of the taxable annual gross sales and receipts. However, any person operating coin vending or weighing machines shall obtain only one license, regardless of the locations of the machines. However, a separate license shall be required for hotels, motels, rooming houses, and boarding houses. Such license shall be in addition to the license required if other classes of business are operated in conjunction with the hotel, motel, rooming house, or boarding house.

Section 8.  CLASS OF BUSINESS

In order to calculate the license fee for a business location at which business activities are carried on that fall under more than one tax basis schedule, gross receipts, fees, or commissions for each group of activities falling under each schedule must be compared. The rate for the schedule which constitutes the major portion of the gross receipts, fees, or commissions will be used. However, the total gross receipts, fees, or commissions for all business activities carried on at the business location, minus any applicable deductions, are applied to the schedule to compute the fee.

Section 9.  PERIOD USED WHERE GROSS RECEIPTS ARE THE MEASURE OF THE LICENSE

(A) The basis for determining the amount of the annual licenses provided by this Ordinance, where the license is measured by gross receipts shall be as follows:

(1) If the business has been conducted previously by the same party, the annual gross receipts, gross fees, or gross commissions earned, whether received or accrued, during the preceding calendar year for which the license is issued shall be the basis for determining the amount of the annual license.

(2) If the business is begun during the calendar year for which the license is issued, the license for the year of commencement shall be based on the gross receipts, gross sales, gross premiums, gross fees, or gross commissions earned, regardless of whether received or accrued, during the first thirty days of business, multiplied by the number of months, or major fraction thereof remaining in the calendar year; however, any business which opens after June thirtieth of the year in question whose estimated gross receipts for the remainder of the year are less than one-half of the maximum gross revenue allowed in the minimum rate under the classification of the particular business, shall pay for the remainder of the year at one-half the minimum rate.

(3) If the business is begun less than thirty days before the end of the calendar year for which the license is to be issued, the tax shall be based on the gross receipts, gross sales, gross premiums, gross fees, or gross commissions earned, regardless of whether received or accrued, during the calendar year; however, one-half of the annual rate shall apply to such businesses whose gross receipts for the period operated during the calendar year is less than one-half of the maximum gross revenue allowed in the minimum rate under the classification of the particular business.

(4) The license tax of the business for the calendar year following that of commencement shall be based on the gross receipts, gross sales, gross premiums, gross fees, or gross commissions earned, regardless of whether received or accrued, during the previous year, divided by the number of days in operation during the year of commencement, and multiplied by three hundred sixty-five.

(B) The date of beginning business for the purposes of this Ordinance shall depend upon the type of business involved, and shall be governed by regulations promulgated by the Director according to law.

Section 10. TAXPAYERS REQUIRED TO KEEP RECORDS; CONFIDENTIALITY

(A) In general each person shall keep a reasonable record of his gross receipts, gross fees or commissions, or loans made. This record shall be kept separately for each place of business, and shall be subject to examination and inspection by the Director.

(1) Except as otherwise provided by law, the records and files of the Director or the records and files maintained pursuant to this ordinance, excluding ad valorem property taxes and ad valorem property tax assessment rolls, are confidential and privileged, and no person shall divulge or disclose any information obtained from such records and files except in the administration and enforcement of the tax laws of this state or of a political subdivision of this state.

(2) No person shall divulge or disclose any information obtained from any examination or inspection of the premises or property of any person in connection with the administration and enforcement of this Ordinance except to the taxing jurisdiction of his employment or, in the case of an already existing independent contractor arrangement, to the contracting taxing jurisdiction.

(3) Neither the Director nor any employee engaged in the administration or charged with the custody of any such records or files shall be required to produce any of them for inspection or use in any action or proceeding, except in an action or proceeding in the administration or enforcement of the tax laws of this state or of a political subdivision.

(4) Any officer, employee, or agent or any former officer, employee, or agent of any political subdivision of the state who unlawfully discloses any information obtained from a return of a taxpayer or records and files of the Director, contrary to the provisions of this Ordinance, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $500 dollars or be imprisoned for not more than six months, or both.

(5) Nothing contained in this Ordinance shall be construed to prevent such persons from disclosing a return of a taxpayer or the records of the Director as authorized by law in any judicial proceeding in which the state or any political subdivision thereof is a party.

(6) Nothing contained in this Ordinance shall require that the professional disclose any information, whatsoever, from the client file or patient chart.

Section 11.  APPLICATION OF LICENSES

(A) Every person subject to a license tax levied by this Ordinance shall apply to the Director for a license before the same becomes delinquent, as provided in this Ordinance. The application shall state all facts necessary to determine the amount of taxes due under this Ordinance.

(B) If the Director is not satisfied with the facts set forth in the application or for any reason desires to audit the books and records of the taxpayer, the Director may audit and inspect all records of the taxpayer that would have any bearing upon the amount of taxes due under this Ordinance.

(C) If an individual is an applicant for a license required by this Ordinance, the applications must be signed by him; if a partnership or an association of persons, by a member of the firm; and if a corporation, by the proper officer thereof.

(D) Any intentional false statement as to any material facts in the application for a license under this Ordinance shall constitute a misdemeanor, and any person convicted thereof shall be fined not more than two hundred dollars or imprisoned for not more than six months, or both.

Section 12.  FAILURE TO PAY TAX; DISTRAINT; JUDGMENT PROHIBITING FURTHER PURSUIT OF BUSINESS; COLLECTION BY SUMMARY PROCEEDINGS AUTHORIZED

(A) If any taxpayers against whom taxes have been assessed under the provisions of this ordinance shall refuse or neglect to pay such taxes within the time prescribed in this ordinance, it shall be lawful for the Director to enforce collection of such taxes, together with such interest and other additional amounts as are added by law, by distraint and sale of any property or rights to property belonging to the delinquent dealer.

(1)  Failure to pay any tax due, as provided in this ordinance, shall ipso facto, without demand or putting in default, cause said tax, interest, penalties and costs to become immediately delinquent, and the City and/or Parish is hereby vested with authority, on motion in a court of competent jurisdiction, to take a rule on the said taxpayer, to show cause in not less than two or more than ten days, exclusive of holidays, after the service thereof, which may be tried out of term and in chambers, and shall always be tried by preference, why said taxpayer should not be ordered to cease from further pursuit of business and in case said rule is made absolute, the order thereon rendered shall be considered a judgment in favor of the City and/or Parish, prohibiting such taxpayer from the further pursuit of said business until such time as he has paid the said delinquent tax, interest, penalties and every violation of the injunction shall be considered as a contempt of court and punished according to law.

(2)  Whenever any taxpayer fails to pay or remit any tax, penalty and interest assessed, as provided under this ordinance, the Director may proceed to enforce the collection thereof by distraint and sale.

Wherever the words "distraint" or "distrain" are used in this ordinance, they shall be deemed to mean the right to levy upon and seize and sell, or the levying upon, or seizing or selling, of any property or rights to property of the delinquent dealer by the officer charged with the enforcement of collection of the tax for the purposes of satisfying any tax, interest or penalties due under the provisions of this ordinance.

(3)  Whenever the Director shall distrain any property of a taxpayer, he shall cause to be made a list of the property or effects distrained, a copy of which, signed by the Director shall be sent by registered mail to the taxpayer at his last known address or business address or served on him in person.  This list shall be accompanied with a note of the sum demanded and a notice of the time and place where the property will be sold, if such a sale is necessary.  Thereafter, the Director shall cause a notice to be published in the official journal of the parish wherein distraint is made, specifying the property distrained, and the time and place of sale.  The sale shall be held not less than fifteen calendar days from the date of the notice mailed or served on the taxpayer or the date of publication in the official journal, whichever is later.  The Director may postpone such sale from time to time, if he deems advisable, but not for a time to exceed thirty calendar days in all.  If the sale is continued it shall be readvertised.

(4)  Any person, in possession of property or rights to property subject to distraint, upon which a levy has been made, shall, upon demand by the Director making such a levy, surrender such property or rights to the Director, unless such property or right is, at the time of such demand, subject to an attachment or execution under any judicial process.  Any person failing or refusing to surrender any such property or rights shall be liable to the City of Baton Rouge or Parish of East Baton Rouge in a sum equal to the value of the property or rights not so surrendered, but not exceeding the amount of the taxes, penalties, and interest and other costs and charges which are due.

(5)  The Director shall sell at public auction for cash to the highest bidder so much of the property distrained by him as may be sufficient to satisfy the tax, penalties, interests and costs due.  He shall give the purchaser a certificate of sale which will be prima facie evidence of the right regularity of his proceedings in making the sale, and which will transfer to the purchaser all rights, title and interest of the taxpayer in the property sold.

(6)  Out of the proceeds of the sale, the Director shall first pay all costs of the sale and then apply so much of the balance of the proceeds as may be necessary to pay the assessment.  Any balance beyond this shall be paid to the taxpayer.

(B)  In addition to any other procedure provided in this ordinance or elsewhere in the laws of this city, parish and state, and for the purpose of facilitating and expediting the determination and trial of all claims for taxes, penalties, interest, attorney fees, or other costs and charges arising under this ordinance, there is hereby provide a summary proceeding for the hearing and determination of all claims by or on behalf of the City and/or Parish, or by or on behalf of the Director for taxes, excises, and licenses and for the penalties, interest, attorney fees, costs or other charges due thereon, by preference in all courts, all as follows:

(1)  All such proceedings, whether original or by intervention or third opposition, or otherwise, brought by or on behalf of the City and/or Parish, or by or on behalf of the Director for the determination or collection of any tax, excise, license, interest, penalty, attorney fees, costs or other charge, claimed to be due under any provision of this ordinance, shall be summary and shall always be tried or heard by preference, in all courts, original or appellate, whether in or out of term time, and either in open court or chambers, at such time as may be fixed by the court, which shall be not less than two nor more than ten days after notice to the defendant or opposing party.

(2)  All defenses, whether by exception or to the merits, made or intended to be made to any such claim, must be presented at one time and filed in the court of original jurisdiction prior to the time fixed for the hearing, and no court shall consider any defense unless so presented and filed.  This provision shall be construed to deny to any court the right to extend the time for pleading defenses, and no continuance shall be granted by any court to any defendant except for legal grounds set forth in Article 1602 of the Louisiana Code of Civil Procedure.

(3)  That all matters involving any such claim shall be decided within forty-eight hours after submission, whether in term time or in vacation, and whether in the court of first instance or i an appellate court; and all judgments sustaining any such claim shall be rendered and signed the same day, and shall become final and executory on the fifth calendar day after rendition.  No new trial, rehearing or devolutive appeal shall be allowed.  Suspensive appeals may be granted, but must be perfected within five calendar days from the rendition of the judgment by giving of bond, with good and solvent security, in a sum double that the total amount of the judgment, including costs.  Such appeals, whether to a court of appeals or to the Supreme Court, shall be made returnable in not more than fifteen calendar days from the rendition of the judgment.

(4)  Whenever the pleadings filed on behalf of the City and/or Parish, or on behalf of the Director, shall be accompanied by an affidavit of the Director or of the counsel or attorney filing the same, that the facts as alleged are true to the best of the affiant's knowledge or belief, all of the facts alleged in said pleadings shall be accepted as prima facie true and as constituting a prima facie case, and the burden of proof to establish anything to the contrary shall rest wholly on the defendant or opposing party.

Section 13.  DIRECTOR AUTHORIZED TO MAKE RULES AND REGULATIONS

(A)  The Director shall make and enforce all rules and regulations necessary for the proper, complete, and equitable collection of the tax levied by this Ordinance.  He may adopt different rules and regulations and forms for different classes or kinds of businesses, uniform as to each class, if by so doing the collection of the full amount of taxes due under this Ordinance may be simplified and made more certain.

(B)  The Director may make and publish reasonable rules and regulations, not inconsistent with law, for the enforcement of the provisions of this Ordinance and collection of the revenue hereunder.

Section 14.  RECORDS TO BE KEPT BY DIRECTOR

The Director shall keep an accurate record showing the names of every person paying taxes under this Ordinance, together with the business pursued, the amount of the license, the date of the collection, and the payment thereof.

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