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Sales & Use Tax Ordinance 10127 Page 3

Page 1 of Ordinance
Page 2 of Ordinance
Page 4 of Ordinance
Page 5 of Ordinance

 

Section 7. COLLECTION OF TAX BY DEALER

a. (1) The tax herein levied shall be collected by the dealer from the purchaser or consumer, except for the collection of tax on the lease or rental of property for use offshore as otherwise provided in Section 1d(5) hereof. The dealer shall have the same right in respect to collecting the tax from the purchaser, or in respect to nonpayment of the tax by the purchaser, as if the tax were a part of the purchase price of the property or charges for services, and payable at the time of the sale; however, the taxing jurisdiction shall be joined as a party in any action or proceeding brought by the dealer to collect the tax.

(2) Every dealer located outside the taxing jurisdiction making sales of tangible personal property for distribution, storage, use or other consumption in this taxing jurisdiction, shall at the time of making sales, collect the tax imposed by this ordinance from the purchaser.

(3) Where the purchaser has failed to pay and a dealer has failed to collect a tax upon a sale as imposed by this ordinance, then in addition to all other rights, obligations and remedies provided, such tax shall be payable by the purchaser directly to the taxing jurisdiction, and it shall be the duty of the purchaser to file a return thereof with the Director and to pay the tax imposed thereon to the taxing jurisdiction within fifteen (15) days after such sale was made or rendered.

b. (1) The dealer shall, as far as practicable, add the exact amount of the tax imposed under this ordinance, or the average equivalent thereof, in conformity with the rules and regulations to be issued by the Director, to the sales price or charge, and when added, such tax shall constitute a part of such price or charge, and shall be a debt from the purchaser or consumer to the dealer, until paid, and shall be recoverable at law in the same manner as other debts. Any dealer who shall neglect, fail or refuse to collect the tax herein provided upon any, every and all retail sales made by him or his agent or employee, which is subject to the tax imposed in this ordinance, shall be liable for, and pay the tax himself.

(2) Where the tax collected for any period is in excess of the total amount of sales taxes imposed in the taxing jurisdiction, the total collected must be paid over to the taxing jurisdiction, less the commission to be allowed the dealer as hereinafter set forth.

c. A person engaged in any business taxable under this ordinance shall not advertise or hold out to the public in any manner, directly or indirectly, that he will absorb all or any part of the tax, or that he will relieve the purchaser from the payment of all or any part of the tax.

d. The sums of money collected by the dealer for payment of any taxes imposed herein shall be and remain the property of the Taxing Jurisdiction.

Section 8. CERTIFICATE OF AUTHORITY

a. In order to aid in the administration and enforcement of the provisions of this ordinance, and to collect all of the taxes imposed by this ordinance, dealers purchasing or importing tangible personal property for resale commencing business after the effective date of this ordinance, or opening new places of business after such date, shall within three (3) days after such commencement or opening file with the Director a certificate of registration on a form prescribed by him. The Director shall, within five (5) days after such registration, issue without charge to each dealer who purchases or imports for resale a certificate of authority empowering such dealer to collect the tax from the purchaser, and duplicates thereof, for each additional place of business of such dealer. Each certificate or duplicate shall state the place of business to which it is applicable. Such certificate of authority shall be prominently displayed in the places of business of the dealer. A dealer who has no regular place of doing business shall attach such certificate to his cart, stand, truck, or other merchandising device. Such certificate shall be nonassignable and non-transferrable and shall be surrendered immediately to the Director upon the dealer's ceasing to do business at the place therein named.

b. A wholesale dealer or jobber shall collect the tax imposed by this ordinance unless the purchaser shall have filed a certificate of registration as prescribed herein and received a certificate of authority to collect the tax imposed by this ordinance; however, the payment of the tax by such purchaser shall not relieve the purchaser of the duty hereunder imposed upon such purchaser to collect the tax upon any resale made by him. Such purchaser who shall thereafter file a certificate of registration and receive a certificate of authority to collect the tax may, upon application therefor, receive a refund of the taxes paid by him upon property thereafter resold by him, and upon the receipts from which he shall have collected and paid over to the taxing jurisdiction, the tax herein imposed.

Section 9. IMPORT PERMITS

a. In order to prevent the illegal importation of tangible personal property which is subject to the tax into the taxing jurisdiction and to strengthen and make more effective the manner and method of enforcing payment of the tax imposed by this ordinance, the Director is hereby authorized and empowered to put into operation a system of permits whereby any person or dealer may import tangible personal property by truck, automobile or other means of transportation other than a common carrier, without having the truck, automobile, or other means of transportation seized and subjected to legal proceedings for its forfeiture. Such system of permits shall require the person or dealer who desires to import tangible personal property into the taxing jurisdiction which property is subject to tax imposed by this ordinance, to apply to the Director for a permit stating the kind of vehicle to be used, the name of the driver, the license number of the vehicle, the kind or character of tangible personal property to be imported, the date, the name and address of the consignee, and such other information as the Director may deem proper or necessary to prevent the illegal importation of tangible personal property into the taxing jurisdiction. Such permits shall be free of cost to the applicant and may be obtained at the office of the Director.

b. The importation into the taxing jurisdiction of tangible personal property which is subject to tax by truck, automobile or other means of transportation other than a common carrier, without having first obtained a permit as described hereinabove (if the tax imposed by this ordinance on tangible personal property has not been paid) shall be construed as an attempt to evade payment of the tax and is hereby prohibited and the truck, automobile or means of transportation other than a common carrier, and taxable property may be seized by the taxing jurisdiction in Order to secure the same as evidence in a trial, and shall be subject to forfeiture and sale in the manner provided for in this ordinance.

c. The failure of any dealer who imports tangible personal property from outside the taxing jurisdiction into the taxing jurisdiction for use or consumption or distribution or storage, to be used or consumed in the taxing jurisdiction, or who imports for lease or rental, any tangible personal property subject to the provisions of this ordinance, to pay any tax, interest, penalties or costs under this ordinance, shall ipso facto make the tax, interest, penalties and costs delinquent and shall be construed as an attempt to avoid their payment, which shall be sufficient grounds for attachment of such tangible personal property wherever it may be located or found, whether the delinquent dealer be a resident or nonresident of the taxing jurisdiction, and whether the tangible personal property be in the possession of the delinquent dealer or in the possession of other persons. It is the intention of this ordinance to prevent the disposition of tangible personal property in order to insure payment of the tax imposed by this ordinance, together with interest, penalties and costs, and such authority to attach is hereby specifically authorized and granted to the taxing jurisdiction.

Section 10. RETURNS AND PAYMENTS OF TAX; DELINQUENT INTEREST, PENALTY, ATTORNEY FEES; VENDORS' COMPENSATION

a. The taxes levied hereunder shall be due and payable on the last day of the month in which this ordinance takes effect. For the purpose of ascertaining the amount of tax payable under this ordinance, it shall be the duty of all dealers, on or before the twentieth (20th) day of the month following the month in which this tax shall become effective, to transmit to the taxing jurisdiction, upon forms prescribed, prepared and furnished by the Director, returns showing the gross sales or purchases arising from all sales or purchases taxable under this ordinance during the preceding calendar month, or during the part of the preceding calendar month, running from the effective date of this ordinance to the end of such month. Thereafter, like returns shall be prepared and transmitted to said Director by all dealers on or before the twentieth (20th) day of each month for the preceding calendar month. Such returns shall show further information as the Director may require to enable him to correctly compute and collect the tax herein levied. Such returns shall be signed by the dealer filing the same and his signature thereon shall constitute a warranty on the part of the dealer that he has read and examined the returns and that to the best of his knowledge and belief, the same are true, correct and complete. Every dealer, at the time of making the return required hereunder, shall compute and remit to the taxing jurisdiction the required tax due for the preceding calendar month.

b. The Director may agree with a dealer to allow for quarterly reporting and remitting of the  taxes under the sales and use tax ordinance when such taxes amount to $50 or less per month.

c. The Director may agree with a dealer to allow for the collection of sales taxes by the dealer from his particular independent agents, such tax to be remitted to the Director.

d. The Director may agree with certain dealers or purchasers to accept their sales and use tax returns and remittances on an irregular basis, when past returns and knowledge of common business practice indicate to the Director that the only tax liability is as a result of infrequent transactions upon which sales or use tax is due.

e. For the purpose of compensating the dealer in accounting for and remitting the tax levied by this ordinance, each dealer shall be allowed one (1%) percent of the amount of tax due and accounted for and remitted to the taxing jurisdiction in the form of a deduction in submitting his report and paying the amount due by him, provided the amount due was not delinquent at the time of payment.

f. At the time of transmitting the return required hereunder to the Director, the dealer shall remit to the taxing jurisdiction therewith the amount of the tax due under the applicable provisions of this ordinance, and failure to so remit such tax shall cause the tax to become delinquent.

g. (1) If the amount of tax due by the dealer is not paid on or before the twentieth (20th) day of the month next following the month for which the tax is due, there shall be collected with said tax, interest upon said unpaid amount at the rate of one and one quarter (1-1/4%) percent per month, or fractional part thereof. In addition there shall be collected a penalty equivalent to five (5%) percent per month, or fraction thereof, not to exceed twenty-five (25%) percent in aggregate, of the tax due, when such tax is not paid on or before the twentieth (20th) day of the month next following the month for which the tax is due. Both interest and penalty will be computed from the first day of the month next following the month for which the tax is due. In the event of suit, attorney's fees will be charged the dealer at the rate of ten (10%) percent on the aggregate of tax, interest and penalty. All interest and penalties due for subsequent months will be assessed and due as of the first day of each succeeding month. The Parish Attorney is authorized to employ private counsel to assist in the collection of any sales and use taxes, penalties or interest due under this ordinance, or to represent him in any proceeding under this ordinance.

(2) All taxes, interest and penalties imposed under this ordinance shall be paid to the taxing jurisdiction in the form of remittance required by the Director.

(3) All penalties and interest imposed by this ordinance shall be payable to and recoverable by the taxing jurisdiction in the same manner as if they were part of the tax imposed. If the failure to pay any such tax when due is explained to the satisfaction of the Director, he may remit or waive payment of the whole, or any part, of any penalty, and may remit and waive payment of any interest charged in excess of the rate of one and one quarter (1-1/4%) percent per month.

h. For the purpose of collecting and remitting to the taxing jurisdiction the tax imposed by this ordinance, the dealer is hereby declared to be the agent of the taxing jurisdiction.

i. Anything to the contrary in this ordinance notwithstanding, rental-purchase agreements, as defined in Louisiana Act 204 of 1991, shall be deemed to be sales and the tax due on such transactions shall be payable in equal monthly installments over the entire term of the rental-purchase agreement, rather than at its inception.

j. However, a person who leases or rents tangible personal property to customers who provide information to such person that they will use the property only offshore beyond the territorial limits of the state shall not be included in the term "dealer" for purposes of the collection of the rental or lease tax imposed by this ordinance on such lease or rental contracts. For purposes of this subparagraph, "use" means the operational or functional use of the property and not other uses related to its possession such as transportation, maintenance, and repair. It is the intention of this subparagraph that the customers of such persons shall remit any tax due on the lease or rental of such property directly to the Taxing Jurisdiction.

Section 11. RECORDS

a. Every dealer required to make a report or pay any tax under this ordinance shall keep and preserve verifiable records of the sales, purchases or leases taxable under this ordinance, and such other books of account as may be necessary to determine the amount of the tax due hereunder, and such other information as may be required by the Director. Each dealer shall secure, maintain and keep, until the taxes to which they relate have prescribed, a complete record of tangible personal property received, used, sold at retail, distributed, or stored, leased or rented, within the taxing jurisdiction by such dealer, together with invoices, bills of lading, and other pertinent records and papers as may be required by the Director for the reasonable administration of this ordinance, and a complete record of all sales or purchases of services taxable under this ordinance until the taxes to which they relate have prescribed. These records shall be open to examination by the Director at all reasonable hours.

b. All wholesale dealers and jobbers in the taxing jurisdiction shall keep and preserve verifiable records of all sales of tangible personal property in the taxing jurisdiction whether such sales be for cash or on terms of credit. These records shall include the name and address of the purchaser, the date of the purchase, the article purchased, and the price at which the article is sold to the purchaser. These records shall be kept until the taxes to which they relate have prescribed and shall be open to examination by the Director at all reasonable hours.

c. For the purpose of enforcing the collection of the tax levied by this ordinance, the Director is hereby specifically authorized and empowered to examine, at all reasonable hours, the books, records and other documents of all transportation companies, agencies or firms operating in the taxing jurisdiction, whether said companies, agencies or firms conduct their business by truck, rail, water, airplane, or otherwise, in order to determine what dealers, as provided in this ordinance, are importing or are otherwise shipping articles of tangible personal property which are liable for said tax. In the event said transportation company, agency or firm shall refuse to permit such examination of its books, records and other documents by the Director, as aforesaid, the Director may proceed by rule, in term time or in chambers, in any court of competent jurisdiction and require said transportation company, agency or firm to show cause why the Director should not be permitted to examine its books, records or other documents, and in case said rule be made absolute, the same shall be considered a judgment of the court and every violation of the judgment as a contempt thereof and punished according to law.

Section 12. DIRECTOR'S AUTHORITY TO EXAMINE AND AUDIT

a. For the purpose of administering this ordinance, the Director may make or cause to be made an examination or investigation of the place of business, if any, the tangible personal property, and the books, records, papers, vouchers, accounts, and documents of any dealer. It shall be the duty of every dealer and every director, official, agent or employee of every dealer, to exhibit to the Director the tangible personal property and all of the books, records, papers, vouchers, accounts, and documents of the dealer and to facilitate any such examination or investigation, as far as it may be in his or their power so to do.

b. It shall be lawful for the Director to receive the written oath of any person signing any application, deposition, statement or report required by the Director, in the administration of this ordinance.

c. The Director may conduct hearings and have administered and examined under oath any dealer and the directors, officers, agents and employees of any dealer, and any other witnesses relative to the business of such dealer in respect to any matter incident to the administration of this ordinance. Such examinations or hearings shall be at a time convenient to the dealer within fourteen (14) days after requested by the Director in writing.

Section 13. DIRECTOR'S AUTHORITY TO DETERMINE THE TAX

a. (1) After a report or return is filed under the provisions of the ordinance, the Director shall cause to be made such further audit or investigation as he may deem necessary, and if therefrom he shall determine that there is a deficiency with respect to the payment of any tax due hereunder, he shall assess the additional amount of tax and any penalties and interest due. The assessment so made shall be considered prima facie correct and the burden shall be on the dealer to show the contrary.

(2) In the event any dealer fails to make a report and pay the tax as provided by this ordinance, or in case the dealer makes a grossly incorrect report or a report that is false or fraudulent, it shall be the duty of the Director to make an estimate for the taxable period of the retail sales, or sales of services, of such dealer, or of the gross proceeds from rentals or leases of tangible personal property by the dealer, and an estimate of the cost price of all articles of tangible personal property imported by the dealer for use or consumption or distribution or storage, to be used or consumed in the taxing jurisdiction, and assess and collect the tax and interest, plus penalty, if such have accrued, on the basis of such assessment, which shall be considered prima facie correct, and the burden to show the contrary shall rest upon the dealer.

b. In the event the dealer has imported the tangible personal property and he fails to produce an invoice showing the cost price of the articles which are subject to tax, or the invoice does not reflect the true or actual cost price, the Director shall ascertain, in any manner feasible, the true cost price and assess and collect the tax with interest, plus penalties, if such have accrued, on the true cost price as assessed by him. The assessment so made shall be considered prima facie correct, and the burden shall be on the dealer to show the contrary.

c. In the case of the lease or rental of tangible personal property, if the consideration given or reported by the dealer does not, in the judgment of the Director, represent the true or actual consideration, then the Director may fix the same and collect the tax thereon for the taxing jurisdiction in the same manner as above provided, with interest, plus penalties, if such have accrued.

d. All taxes, penalties and interest assessed pursuant to the provisions of this ordinance shall be paid within thirty (30) days after notice and demand shall have been mailed to the dealer liable therefor by the taxing jurisdiction.

e. If taxes, penalties and interest assessed shall not be paid within thirty (30) days, there shall be added to the amount assessed, in addition to interest as hereinabove provided, and any other penalties provided by this ordinance, a sum equivalent to five (5%) percent of the tax.

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