2004 Birmingham Business License Code

CITY OF BIRMINGHAM, ALABAMA
2004
(Contains amendments adopted August 26, 2003, effective January 1, 2004)
BUSINESS LICENSE CODE

Ordinance No. 97-183
OCCUPATIONAL TAX CODE

SALES TAX CODE

USE TAX CODE

LEASE TAX CODE

LODGINGS TAX CODE

Folasade A. Olanipekun Director of Finance
Michael Johnson Deputy Director of Finance
Lois B. Brown Tax and License Administrator Department of Finance Birmingham, Alabama
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Table of Contents
Business License Code ................................................................................................................ iii Article I - Schedule of Licenses ..........................................................................................1 Section 1. Schedule of License Fees ......................................................................1 Section 2. Transient Dealers ................................................................................77 Section 3. Alcoholic Beverages-Liquor, Beer, Wine ...........................................83 Article II - Business License Enforcement Provisions .....................................................93 Business License Code Index ........................................................................... Not Included Occupational Tax Code (Article I) ...........................................................................................209 Occupational Tax Rules and Regulations (Article II) .............................................................239 Occupational Tax Code & Rules and Regulations Index ................................. Not Included Sales Tax Code ...........................................................................................................................279 Sales Tax Code Index ...................................................................................... Not Included Use Tax Code .............................................................................................................................333 Use Tax Code Index ......................................................................................... Not Included Lease Tax Code ..........................................................................................................................387 Lease Tax Code Index ...................................................................................... Not Included Lodgings Tax Code ....................................................................................................................431 Lodgings Tax Code Index................................................................................. Not Included
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THE BUSINESS LICENSE CODE
Adopted by Ordinance No. 97-183 on December 23, 1997
Effective January 1, 1998 and continuing in effect until amended or repealed
Amended by Ordinance No. 98-106 adopted 06/30/98 Amended by Ordinance No. 99-208 adopted 12/21/99 Amended by Ordinance No. 00-207 adopted 12/12/00 Amended by Ordinance No. 02-173 adopted 12/10/02 Amended by Ordinance No. 03-133 adopted 08/26/03
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THE BUSINESS LICENSE CODE of the CITY OF BIRMINGHAM, ALABAMA
ARTICLE I
SCHEDULE OF BUSINESS LICENSES
Section 1. The following is hereby declared to be the schedule of licenses for the calendar year commencing January 1, 1998, for divers businesses, vocations, occupations and professions engaged in or carried on, in the City of Birmingham in said calendar year, and each and every person, firm, company or corporation engaged in any business, vocation, occupation or profession enumerated herein, in said calendar year shall pay and take out such licenses in such sums as are herein provided:
001 - ABSTRACT OF TITLE AND TITLE INSURANCE Each person, firm, or corporation making abstracts of title and providing title insurance, shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of...............................................................................................................$250.00 Where no abstracts of title are furnished and only title insurance is provided the license shall be 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of ..........................................................................................................................................$100.00
002 - ADVERTISING CONTRACTORS Each person, firm or corporation contracting either for advertising in street cars, motor vehicles or through the use of film displays in theaters, or in moving picture houses, or who does bill posting, sign tacking, distributing advertising matter and/or is engaged in the business of window dressing for hire, other than on regular salary, where gross annual business is Less than $5,000 ....................................................................................................................$ 60.00 $ 5,000 and less than $10,000 .................................................................................................120.00 $10,000 and less than $15,000 ...............................................................................................180.00 $15,000 and less than $20,000 ................................................................................................240.00 $20,000 and less than $25,000 ................................................................................................300.00 $25,000 and less than $30,000 ................................................................................................360.00 $30,000 and less than $35,000 ................................................................................................420.00 $35,000 and less than $40,000 ................................................................................................480.00 $40,000 and over.....................................................................................................................540.00 003 - ADVERTISING SOLICITATION Each person, firm or corporation who solicits within the City of Birmingham intrastate advertising to be done for persons, firms or corporations having places of business in the City of Birmingham by means of radio broadcasting or televising through radio or television stations situated in Jefferson 2
County, Alabama, shall pay a license of ...............................................................................$300.00 It is intended that no license shall be levied by this schedule upon interstate radio broadcasting, televising and/or advertising solicitation.
004 - ADVERTISING VEHICLES Each person, firm or corporation operating a vehicle on or over any public street or sidewalk of the City of Birmingham primarily as an instrument for advertising in the aid of a business enterprise, shall first secure from the Director of Finance a permit covering the operation of such vehicle, to be paid for at the following rate: Per vehicle, per annum..........................................................................................................$120.00 Per vehicle, per week ................................................................................................................15.00 Per vehicle, per day .....................................................................................................................3.00 The foregoing permit fees are to be paid in addition to any and every occupational license fee that may be due on the business that is being advertised. There shall be no proration of the license amount because of said business having operated for only a portion of the calendar year.
006 - ADVERTISING AGENTS Each person, firm or corporation engaged in contracting for advertising or conducting an advertising bureau or agency, where gross annual business is Less than $5,000 ....................................................................................................................$ 30.00 $ 5,000 and less than $10,000 ...................................................................................................60.00 $10,000 and less than $15,000 ..................................................................................................90.00 $15,000 and less than $20,000 ................................................................................................120.00 $20,000 and over.....................................................................................................................150.00
007A - AGENTS, DEALERS OR OTHER BUSINESS Each person, firm, or corporation who as principal, agent or in any other capacity shall engage in or transact any trade, business, commerce, occupation, vocation or profession and for whom no other license is specifically required by the Code, shall pay a license as follows: Where gross annual business from said business from the previous year is Less than $ 5,000 .................................................................................................................$ 30.00 $ 5,000 and less than $10,000 ...................................................................................................50.00 $10,000 and less than $15,000 ..................................................................................................75.00 $15,000 and less than $20,000 ................................................................................................100.00 Plus an amount equal to 1/10 of 1% of gross annual business in excess of $20,000, with a minimum license of $30.00 in any case. 3
007B - AGENTS, DEALERS, HOLDING COMPANIES - MAINTAINING AN OFFICE Any person, firm, or corporation, who shall maintain, keep in repair or otherwise man any office, store, warehouse, place of business, telephone wires, telegraph wires, right of way, easement, land or other facility or facilities situated in the City of Birmingham in connection with any business, vocation, occupation or profession which is not subject to a license under any other schedule of this Code, or under Schedule 007A of this license code shall pay for the protection afforded by the laws, ordinances, rules and regulations of the City of Birmingham and its agencies to such person, firm or corporation in connection with the maintaining, keeping in repair or otherwise manning any such office, store, warehouse, place of business, telephone wires, telegraph wires, right of way, easement, land or other facility or facilities an annual license fee or tax as follows: Where there was employed in connection with the maintaining, keeping in repair or otherwise manning any such office, store, warehouse, place of business, telephone wires, telegraph wires, right of way, easement, land or other facility or facilities during the next preceding calendar year in the City of Birmingham an average daily number of: Less than two persons ............................................................................................................$ 30.00 Two but less than four persons .................................................................................................60.00 Four but less than six persons ...................................................................................................90.00 Six but less than ten persons ...................................................................................................120.00 Ten but less than fifteen persons.............................................................................................150.00 Fifteen persons ........................................................................................................................180.00 Plus $10.00 for each person in excess of fifteen. There shall be no proration of the license amount because of said business having operated for only a portion of the calendar year.
008 - MANUFACTURER OF ARTIFICIAL LIMBS OR PROSTHESES, AWNINGS OR TENT, BAG, BASKET, BOX, AND/OR CRATE FACTORY, COFFINS, FURNITURE OR FIXTURES, DRESSES, UNDERWEAR, SHIRTS, OTHER CLOTHING, DOLLS, MATTRESSES INCLUDING MATTRESS RENOVATION, AND CLEANING Each person, firm or corporation shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of ................................................$100.00
009 - AIRCRAFT Each person, firm or corporation engaged in the manufacture and/or sale of aircraft and/or the alteration or repairing of same, shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of ................................................$100.00
010A - BURGLAR/FIRE ALARM COMPANIES (SALES, INSTALLATION, AND MONITORING) Each person, firm, partnership or corporation engaged in the business of selling and installing, replacing, monitoring, servicing, repairing, altering, maintaining, and/or leasing, any alarm system, or causing any alarm system to be sold and installed, replaced, monitored, serviced, repaired, altered, maintained, and/or leased, in or on any building or structure shall pay a license as follows: Where gross annual business from said business from the previous year is Less than $5,000 .....................................................................................................................$30.00 $5,000 and less than $10,000 ....................................................................................................50.00 $10,000 and less than $15,000 .................................................................................................75.00 $15,000 and less than $20,000 ................................................................................................100.00 Plus an amount equal to 1/10 of 1% of gross annual business in excess of $20,000. It shall be unlawful for any person or entity engaged in the business of installing alarms to install an alarm designed to provoke police or emergency response unless such person possesses a current, valid city business license and is knowledgeable and competent to make such installation. (Ord. No. 86-266) Effective January 1, 1998, no license will be issued to installers until applicant has obtained a State license issued by the Alabama Electronic Security Board of Licensure. (Title 34, Chapter 1A, Code of Alabama 1975)
010B - BURGLAR/FIRE ALARM COMPANIES (INSTALLATION AND MAINTENANCE ONLY)Each person, firm, partnership or corporation engaged in the business of installation, maintenance, service or repair, alteration, or moving of alarm systems, in or on any building or structure shall pay a license as follows: Where gross annual business from said business from the previous year is Less than $5,000 ....................................................................................................................$30.00 $5,000 and less than $10,000 ...................................................................................................50.00 $10,000 and less than $15,000 ..................................................................................................75.00 $15,000 and less than $20,000 ................................................................................................100.00 Plus an amount equal to 1/10 of 1% of gross annual business in excess of $20,000. It shall be unlawful for any person or entity engaged in the business of installing alarms to install an alarm designed to provoke police or emergency response unless such person possesses a current valid city business license and is knowledgeable and competent to make such installation. (Ord. No. 86-266) Effective January 1, 1998, no license will be issued to installers until applicant has obtained a State license issued by the Alabama Electronic Security Board of Licensure. (Title 34, Chapter 1A, Code of Alabama 1975)
011 - AMUSEMENT DEVICES Each person, firm or corporation operating in municipally-owned parks shall pay a license of 1% of the gross receipts from said business from the previous year.
012 - ARCHITECTS Each person, firm, partnership, or corporation, including any such business in which more than one person is so engaged, each person shall pay a license as follows: Where gross annual business is Less than ................................................................................................................................$ 30.00 $ 5,000 and less than $10,000 ...................................................................................................50.00 $10,000 and less than $17,500 ..................................................................................................75.00 $17,500 and less than $25,000 ................................................................................................100.00 $25,000 and less than $32,500 ...............................................................................................125.00 $32,500 and less than $40,000 ...............................................................................................150.00 $40,000 and less than $50,000 ................................................................................................200.00 $50,000 and less than $75,000 ................................................................................................250.00 $75,000 and less than $100,000 ..............................................................................................300.00 $100,000 and less than $125,000 ............................................................................................350.00 $125,000 and less than $150,000 ............................................................................................400.00 $150,000 and less than $175,000 ............................................................................................450.00 $175,000 and less than $200,000 ............................................................................................500.00 $200,000 and less than $250,000 ............................................................................................550.00 $250,000 and less than $300,000 ............................................................................................600.00 $300,000 and less than $400,000 ............................................................................................700.00 $400,000 and less than $500,000 ............................................................................................800.00 $500,000 and less than $600,000 ............................................................................................900.00 $600,000 and less than $800,000 .........................................................................................1,000.00 $800,000 and less than $1,000,000 ......................................................................................1,200.00 $1,000,000 and less than $1,400,000 ...................................................................................1,400.00 $1,400,000 and less than $2,000,000 ..................................................................................1,800.00 $2,000,000 and less than $2,600,000 ...................................................................................2,200.00 $2,600,000 and less than $3,200,000 ...................................................................................2,400.00 $3,200,000 and over.............................................................................................................2,500.00
014 - ATTORNEYS (a) Each person, or where a partnership (but not including associations as defined in subsection (b) herein), each member of partnership, where gross professional fees from services rendered, within the City of Birmingham during the year next preceding are Less than $5,000 ...................................................................................................................$ 30.00 $ 5,000 and less than $10,000 ..................................................................................................50.00 $10,000 and less than $15,000 ..................................................................................................75.00 $15,000 and less than $20,000 ................................................................................................100.00 6
$20,000 and less than $25,000 ................................................................................................125.00 $25,000 and less than $30,000 ............................................................................................... 150.00 Plus an amount equal to 4/10 of 1% of subject professional fees in excess of $30,000, with a minimum license of $30.00 in any case. (b) Each professional member or associate of an unincorporated association (as defined by Title 10, Chapter 10, Code of Alabama 1975), where the total remuneration for services rendered within the City of Birmingham during the year next preceding, or a professional corporation (as defined by Title 10, Chapter 4, Article 19, Code of Alabama 1975), where the total remuneration of services rendered within the City of Birmingham during the year next preceding was Less than $5,000 ....................................................................................................................$ 30.00 $ 5,000 and less than $10,000 ...................................................................................................50.00 $10,000 and less than $15,000 .................................................................................................75.00 $15,000 and less than $20,000 ...............................................................................................100.00 $20,000 and less than $25,000 ...............................................................................................125.00 $25,000 and less than $30,000 ...............................................................................................150.00 Plus an amount equal to 4/10 of 1% of those subject remunerations in excess of $30,000, with a minimum license of $30.00 in any case. The gross remuneration of such professional member or associate, for the purpose of this section, shall be computed by dividing the gross professional fees from services rendered within the City of Birmingham of such unincorporated association by the total number of professional members or associates of such unincorporated association.
015 - AUCTION SALES Each person, firm, partnership, association or corporation conducting or holding an auction sale of inanimate tangible personal property, whether as owner of such property or as agent of owner thereof, shall pay a license in the amount of fifty dollars ($50.00) for each calendar three month period or fractional part thereof in which such auction sales are conducted. This schedule (015) shall not apply to auction sales conducted by or under the direction of any public authority or pursuant to any judicial order or decree specifically exempting licensure. Such auction sales must be conducted by a State-licensed auctioneer pursuant to Section 34-4-21, Code of Alabama 1975.
016 - AUDITORS, ACCOUNTANTS AND BOOKKEEPERS (a) Each person, or where a partnership (but not including associations as defined in subsection (b) herein), each member of partnership, where gross professional fees from services rendered within the City of Birmingham during the year next preceding are Less than $ 5,000 ...................................................................................................................$ 30.00 $ 5,000 and less than $10,000 ...................................................................................................50.00 $10,000 and less than $15,000 .................................................................................................75.00 7
$15,000 and less than $20,000 ................................................................................................100.00 $20,000 and less than $25,000 ................................................................................................125.00 $25,000 and less than $30,000 ................................................................................................150.00 Plus an amount equal to 4/10 of 1% of subject professional fees in excess of $30,000, with a minimum license of $30.00 in any case. (b) Each professional member or associate of an unincorporated association (as defined by Title 10, Chapter 10, Code of Alabama 1975), or a professional corporation (as defined by Title 10, Chapter 4, Article 19, Code of Alabama 1975), where the total remuneration for services rendered within the City of Birmingham during the year next preceding are Less than $5,000 ....................................................................................................................$ 30.00 $ 5,000 and less than $10,000 ...................................................................................................50.00 $10,000 and less than $15,000 ..................................................................................................75.00 $15,000 and less than $20,000 ................................................................................................100.00 $20,000 and less than $25,000 ................................................................................................125.00 $25,000 and less than $30,000 ................................................................................................150.00 Plus an amount equal to 4/10 of 1% of those subject remunerations in excess of $30,000, with a minimum license of $30.00 in any case. The gross remuneration of such professional member or associate, for the purpose of this section, shall be computed by dividing the gross professional fees from services rendered within the City of Birmingham of such unincorporated association by the total number of professional members or associates of such unincorporated association.
017A - AUTOMATIC SPRINKLERS - INSIDE Each person, firm, or corporation engaged in the business of selling, or installing automatic sprinkler systems inside buildings, shall pay a license of 1/10 of 1% of the gross receipts from said business from previous year with a minimum license of .....................................................................$ 60.00
017B - OUTSIDE IRRIGATION SYSTEMS Each person, firm, or corporation engaged in the business of selling, or installing outside irrigation systems shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of .............................................................................................$ 60.00 018 - AUTOMOBILE MERCHANT, MOTOR VEHICLE MERCHANT OR DEALER Each person, firm or corporation engaged in the sale or purchase for resale of new or used automobiles, trucks, or other self-propelled vehicles not specifically licensed under any other license schedule shall pay a license of 1/10 of 1% of the gross receipts, less credit for vehicles taken as trade-in, from said business from the previous year with a minimum license of ................$100.00 AGross receipts@, as used in this schedule, shall include receipts from the sale of parts, tires, accessories, and labor and/or service charges derived from the operation of a shop for the care and 8
service of automobiles, trucks, or other self-propelled vehicles in connection with said merchant=s or dealer=s operation or dealership. NO LICENSE SHALL BE ISSUED to an automobile or motor vehicle dealer unless and until applicant has obtained and presented to the Revenue Division at the time of application, a valid State of Alabama Motor Vehicle Dealer=s Regulatory License pursuant to Title 40, Chapter 12, Article 8, Code of Alabama 1975.
019 - AUTOMOBILE TIRES AND ACCESSORIES (OTHER THAN FILLING STATIONS) Each dealer, either retail or wholesale, in automobile tires, accessories, including batteries, one or all, shall pay a license as follows: Where principal business, and where gross receipts from said business from the previous year were Less than $25,000 ..................................................................................................................$ 50.00 $25,000 and not more than $50,000..........................................................................................75.00 $50,000 and not more than $100,000......................................................................................100.00 Plus an amount equal to 1/10 of 1% of gross receipts in excess of $100,000.
020 - AUTOMOBILE STORING OR PARKING Each person engaged in the business of storing and/or parking automobiles or other vehicles, whether operable or inoperable, whether attended or not, for a fee or other charge, and/or holding out space as available for such storing and/or parking, whether used or not, shall pay a license as follows: (a) Where the space available for such parking and/or storing is 7,500 square feet or less ...................................................................................................................................$100.00 Where space available exceeds 7,500 square feet, the license amount is $100.00 plus an amount calculated as follows: For each 3,000 square feet or fractional part thereof of space in excess of 7,500 square feet .....................................................................................$55.00 Where the area available for automobile parking is more than four times the ground area and where more than one-half of the parking spaces are available for transient parking (commonly known as a parking deck) ......................................................................$100.00 Where only trailers are parked (commonly known as house trailers), the license is to be one-fourth of the amount calculated using items (a) & (b) above, with a minimum license in any case for trailer parking of .....................................................................................$55.00
(b)
(c)
(d)
The term Aavailable space@ as used in this schedule means all floor or ground space, including driveways used in connection with said business, except ramps and/or elevators used in the movement of vehicles from one level to another, and which is held out as available for storing and/or parking automobiles or other vehicles, whether used or not.
Any person operating an automobile storing and/or parking area of less than 2,500 square feet and on less than ten (10) occasions during the last preceding year shall be exempt from the payment of any license under this schedule.
021 - AUTOMOBILE OR OTHER TRAILERS Each person, firm or corporation engaged in the business of buying or selling automobile, semi-, travel, utility, or other trailers, or manufactured homes, either new or second-hand, tires or accessories, and/or operating a shop for the care and service of such trailers or manufactured homes, shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of ............................................................................................................$100.00
023 - AUTOMOBILE DETAILING AND/OR WASHING Where principal business .......................................................................................................$ 75.00 Where incidental business ........................................................................................................18.00 NO LICENSE WILL BE ISSUED without written verification from the Department of Planning, Engineering and Permits indicating compliance with all Building and Zoning Codes, Ordinances, and Regulations.
024 - AUTOMOBILE RENTAL- DRIVE-IT-YOURSELF CARS, TRUCKS AND TRAILERS (a) Each person, firm or corporation engaged in the business of what is commonly known as a "Drive-it-Yourself Business," operating automobiles, trucks, and trailers, as livery or rental cars, or on any plan by which persons pay for their service or use. (Not to include jitneys, taxi-cabs, or sightseeing buses.) For long-term leasing, see Schedule 212. 1 Unit and not more than 5 Units ..........................................................................................$100.00 6 Units and not more than 10 Units ........................................................................................200.00 11 Units and not more than 25 Units ......................................................................................400.00 26 Units and not more than 50 Units ......................................................................................600.00 51 Units and not more than 100 Units ....................................................................................800.00 101 Units and not more than 250 Units ................................................................................1000.00 251 Units and over ................................................................................................................1200.00 There shall be no proration of the license amount because of said business having operated for only a portion of the calendar year. (b) Where the offering and selling of certain insurance coverages is engaged in as an adjunct to operating a business under the provisions of this schedule, a separate license shall be obtained under Schedule 138C, of this Business License Code.
026 - AVIATION SCHOOLS Each person conducting a school wherein instruction and training is given for navigating and/or 10
flying airplanes shall pay a license of 1% of the gross receipts from said business from the previous year with a minimum of ........................................................................................................$100.00
029 - BAKERYEach person conducting a bakery and in connection operates a vehicle on street shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of ...........................................................................................................................................$100.00 Where no vehicle owned by the business is operated on the streets in connection with said business and gross receipts are: Less than $50,000 ..................................................................................................................$ 60.00 $50,000 and not more than $100,000......................................................................................100.00 Plus an amount equal to 1/10 of 1% of gross receipts in excess of $100,000. The aforesaid schedule of license shall also apply to the making of donuts where the same are sold at wholesale only. NO LICENSE WILL BE ISSUED until applicant has obtained and presented to the Revenue Division at the time of application a current, valid Health Department Permit.
030 - BAKERY GOODS, INCLUDING DONUTS Each retail dealer in bakery goods and/or donuts where principal business, shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of ................................................................................................................................$ 60.00 NO LICENSE WILL BE ISSUED until applicant has obtained and presented to the Revenue Division at the time of application a current, valid Health Department Permit.
031A - BANK AND/OR SAVINGS AND LOAN ASSOCIATION Where capital, surplus, reserve and undivided profits are less than $50,000 ........................$ 10.00 $ 50,000 and less than $100,000 ...............................................................................................20.00 $100,000 and less than $150,000 ..............................................................................................30.00 $150,000 and less than $200,000 ..............................................................................................40.00 $200,000 and less than $250,000 ..............................................................................................50.00 $250,000 and less than $300,000 ..............................................................................................60.00 $300,000 and less than $350,000 ..............................................................................................70.00 $350,000 and less than $400,000 ..............................................................................................80.00 $400,000 and less than $450,000 ..............................................................................................90.00 $450,000 and less than $500,000 ............................................................................................100.00 $500,000 and less than $600,000 ............................................................................................110.00 $600,000 and over...................................................................................................................125.00 11
In addition, a license must be obtained for each branch of such association or bank of $10.00, as set forth in Section 11-51-130, Code of Alabama 1975. The term Aundivided profits@, as used in this section, shall be construed to mean the undivided profits as shown by the books of the operator.
031B - BANK HOLDING COMPANIES Each person, firm or corporation engaged in the business of a bank holding company where management or administrative services are performed shall pay a license of .....................$ 500.00
032 - BARBER SHOP For each shop operated, a license shall be paid upon the following basis or measurement: For each chair set up in such shop whether being operated or not ........................................$15.00 For each manicurist working in such shop .............................................................................$15.00 There shall be no proration of the license amount because of said business having operated for only a portion of the calendar year.
033 - BARBER AND/OR BEAUTY SUPPLY HOUSE Each person, firm or corporation shall pay a license of 1/10 of 1% of the gross receipts, less sale price of returned goods and amount of adjustment on sales, from said business from the previous year with a minimum license in any case of ........................................................................$100.00
034 - BASEBALL, BASKETBALL, FOOTBALL, HOCKEY, WRESTLING OR OTHER SPORTING EVENTS (a) Annual License Fee. Professional - Each person engaged in the business of professional baseball, basketball, football, hockey, wrestling or other sporting events where an admission is charged shall pay a license of 1/4 of 1% of the gross receipts from said business from the previous year with a minimum license of ............................................................................................$200.00 (b) Transient Event License Fee. Where any of the above enumerated events are transient in nature and such events will be for a period of less than 5 days in any calendar year, a license shall be paid in the amount of ....................................................................................................................$100.00 There shall be no proration of the license amount levied pursuant to subsections (a) and (b) above due to said business having operated for only a portion of the year. A SALES TAX DEPOSIT MAY BE REQUIRED.
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036 - BLUEPRINTS - Each person, firm or corporation dealing in or making blueprints or developing the same from tracings or drawings, where gross annual business is Less than $7,500 .....................................................................................................................$60.00 $ 7,500 and less than $10,000 ...................................................................................................90.00 $10,000 and less than $15,000 ...............................................................................................120.00 $15,000 and over.....................................................................................................................150.00
037 - BONDS - APPEARANCE AND APPEAL (a) Each person engaged in the business of becoming or procuring surety for any appearance in any court (including municipal, county, state and federal courts) of persons charged with any offense, where the gross annual business is Less than $3,000 ....................................................................................................................$ 30.00 $3,000 and not more than $5,000..............................................................................................48.00 $5,000 and not more than $7,500..............................................................................................72.00 $7,500 and over ......................................................................................................................100.00 Any person engaged in the business of becoming or procuring surety or sureties for appearances in any court, shall pay an additional license of $20.00 on each employee other than those employed full time as either bookkeepers or stenographers. (b) It shall be unlawful for any person to become surety or to offer to become surety or to procure surety or offer to procure surety for appearance in any court, as aforesaid, when such license tax is delinquent or when that statement herein required to be furnished has not been furnished. The license of any person who files a bond in any court while such person is delinquent with respect to the tax hereby levied, or with respect to furnishing the sworn statement herein required shall be subject to revocation. (c) Where a person becomes surety or procures surety for appearance in any court, as above described, on more than five (5) occasions during the calendar year shall be deemed to be engaged in the bonding business.
038 - BOOTBLACKING Each person, firm or corporation engaged in bootblacking shall pay an amount in dollars equal to nine multiplied by the number of patrons who can be accommodated at one time by the seating facilities provided for bootblacking purposes, but in no event less than .................................$9.00 There shall be no proration of the license amount because of said business having operated for only a portion of the calendar year.
039 - BOTTLERS, MANUFACTURING 13
Each person, firm or corporation engaged in the manufacturing, producing, or bottling, in bottles or other containers, soda water, carbonated drinks, fruit juices or imitations thereof, and any preparations known as soft drinks of any description, shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of .................$100.00
040 - BOTTLED WATERS AND/OR FRUIT DRINKS (a) Each retail dealer in aerated waters, carbonated waters, fruit drinks, or soft drinks of any description, where not principal business ..............................................................................$ 12.00 (b) Where principal business, each retail dealer shall pay a license of $12.00 on the first $5,000 of gross receipts, plus $12.00 on each additional $5,000 or fractional part thereof of gross receipts from said business from the previous year. (c) No person, firm, or corporation conducting restaurant, cafe or lunch stand as the principal business, shall pay the license provided by this schedule, but shall include gross receipts from such bottled waters and fruit drinks as part of gross receipts of such restaurant, cafe or lunch stand and pay under Schedule 216 of this Code.
041 - BOWLING ALLEYS AND/OR SHUFFLEBOARDS Each alley or shuffleboard .....................................................................................................$ 15.00 There shall be no proration of the license amount because of said business having operated for only a portion of the calendar year.
042 - BRICK MANUFACTURERS Each person, firm or corporation engaged in the business of brick yards, dealers in brick, slag or cement block manufacturers and/or dealers, cement or metal vault manufacturers and/or dealers, and/or cement ornament manufacturers shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license in any case of ....................$ 100.00
043 - BROKERS OR DEALERS IN STOCKS, BONDS, SECURITIES OR COMMODITIES Each person, firm, partnership, corporation or other organized group engaged in the business of acting as broker or dealer in stocks, bonds or other securities, or in commodities (other than cotton), or in the business of lending money on stocks, bonds, or other securities, or on commodities (other than cotton) shall pay a license of .........................................................................................$240.00
044 - BROOM AND/OR MOP FACTORIES Each person, firm or corporation shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of .................................................$ 75.00 14
045 - BUS LINES, BUS COMPANIES AND FREIGHT LINES (a) Each person engaged in the business of receiving passengers or freight for transportation by motor vehicles for hire either from the City of Birmingham to another point in Alabama, or from other points in Alabama to the City of Birmingham, and not engaged in the business of operating passenger buses for the carrying of passengers between locations within said City of Birmingham, On each car or truck so used in said service ..........................................................................$ 30.00 On each trailer used in said service: Additional ..................................................................$ 15.00 The maximum license tax which may be charged under authority of this subsection (a) shall not exceed the sum of $300. (Section 37-3-33, Code of Alabama 1975) When the car or truck is used in the transportation of merchandise other than baggage in passenger transportation, the applicant for license shall furnish the Director of Finance with a sworn affidavit as to whom is the owner, in whole or in part, of the car or truck for which application for license is made. (b) No person operating passenger buses for the carriage of passengers between locations within the City of Birmingham along fixed public transportation routes under franchise granted by said City shall be required to pay a license therefor under this license code for any such operating subsequent to the 30th day of June 1970. (c) Each person engaged in the business of operating buses for the carriage of school children to and from school and other school related functions within the City of Birmingham on each bus so used in said service.......................................................................................................................$ 30.00 The maximum license tax which may be charged under authority of this subsection (c) shall not exceed the sum of $300. (Section 37-3-33, Code of Alabama 1975) There shall be no proration of the license amount levied pursuant to subsections (a) and (b) above due to said business having operated for only a portion of the year.
046 - CANDY, CANNING, PRESERVING, AND/OR PEANUT BUTTER FACTORY Each person, firm or corporation engaged in the business of making candy, canning, processing, or preserving farm produce and/or making peanut butter and similar products shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of ................................................................................................................................................$ 60.00 NO LICENSE WILL BE ISSUED until applicant has obtained and presented to the Revenue Division at the time of application a current, valid Health Department Permit.
047 - CAR BUILDERS (RAILROAD) 15
Each person, firm or corporation engaged in the business of building, altering or repairing railroad cars, shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum of .......................................................................................................$ 100.00
048 - CARNIVAL AND TENT SHOWS OTHER THAN REGULAR CIRCUSES (a) For each concession set up, whether operated or not, $5.00 but in no case shall the total license be less than $50.00 per week. (b) Where such carnival and tent shows are operated at the same time in connection with the exhibition of agricultural, mineral and manufacturing exhibits, one or all, a license of $10.00 per week shall be paid, for each concession set up, whether operated or not. Where Carnival and Tent Shows other than regular Circuses are operated in connection with, and at the same time and on the same general grounds with the Annual Alabama State Fair, a license shall be required under the provisions of Schedule 741 of this Business License Code.
(c)
Permit to be obtained from Mayor's Office before issuance of license.
049 - CARPET AND/OR RUG CLEANING Each person, firm or corporation operating a carpet or rug cleaning business, shall pay a license as follows: Where gross receipts for the year next preceding were Less than $6,000 ....................................................................................................................$ 30.00 $ 6,000 and less than $12,500 ...................................................................................................50.00 $12,500 and less than $20,000 ..................................................................................................75.00 $20,000 and less than $30,000 ................................................................................................100.00 $30,000 and less than $40,000 ................................................................................................125.00 $40,000 and over.....................................................................................................................150.00
050 - CEMENT, LIME, SAND AND/OR SEWER PIPE Each person, firm or corporation engaged in selling, or delivering pursuant to an agreement of sale, cement, lime, sand and/or sewer pipe, maintaining an office in the City of Birmingham but not having a plant located therein ...............................................................................................$300.00
051 - CEMETERY COMPANIES Each person, firm or corporation where gross annual business from said business from the previous year was Less than $10,000 ..................................................................................................................$ 50.00 $10,000 and less than $20,000 ................................................................................................100.00 $20,000 and less than $40,000 ................................................................................................200.00 16
$40,000 and less than $60,000 ................................................................................................300.00 $60,000 and less than $80,000 ................................................................................................400.00 $80,000 and less than $100,000 ..............................................................................................500.00 Plus an amount equal to 1/10 of 1% of gross annual business in excess of $100,000.
053 - CHEMIST AND/OR METALLURGIST Each person, corporation, or where a partnership, each member of the partnership, where gross professional fees from services rendered within the City of Birmingham during the year next preceding are less than $5,000 ...............................................................................................$ 30.00 $ 5,000 and less than $10,000 ...................................................................................................50.00 $10,000 and less than $15,000 ..................................................................................................75.00 $15,000 and less than $20,000 ................................................................................................100.00 $20,000 and less than $25,000 ................................................................................................125.00 $25,000 and less than $30,000 ................................................................................................150.00 Plus an amount equal to 3/10 of 1% of subject professional fees in excess of $30,000.
054 B CIGARETTE VENDING MACHINES B Each person, firm, partnership, corporation, association, or other organized group engaged in selling cigarettes through vending machines operated by more than one dollar and one cent, or operating, maintaining, or providing space for same shall pay a license per machine of .....................$100.00 NO LICENSE WILL BE ISSUED until applicant has obtained and presented the following to the Revenue Division at the time of application: (1) A current, valid permit issued by the Alabama Alcoholic Beverage Control Board (ABC Board), pursuant to Title 28, Chapter 11, Code of Alabama 1975. Permits are required for all establishments selling tobacco products.
055 - CIGARETTES - RETAIL Each person, firm, partnership, corporation, association, or other organized group engaged in selling cigarettes at retail, after having met all of the requirements outlined in this section, shall pay a annual license, in any case, of...............................................................................................$150.00 ACigarette@ means a roll of finely cut tobacco or any substitutes therefor enclosed in paper prepared for smoking by individuals. NO LICENSE WILL BE ISSUED until applicant has obtained and presented the following to the Revenue Division at the time of application: (1) A current, valid permit issued by the Alabama Alcoholic Beverage Control Board (ABC Board), pursuant to Title 28, Chapter 11, Code of Alabama 1975. Permits are 17
required for all establishments selling tobacco products.
056 - CIRCUS Each person operating a circus shall pay a license fee of .....................................................$600.00 This license tax includes the tax for a menagerie accompanying the circus. No license will be issued until applicant has obtained a Mayor's Permit.
058 - COAL, COKE & CHARCOAL YARDS A "coal yard" as used herein shall mean a place of business where there is stored or kept an average stock of coal and/or coke or charcoal of not less than 250 tons on the first day of each calendar month of next preceding calendar year. Each person, firm or corporation engaging in selling or delivering, either at wholesale or retail, coal and/or coke or charcoal who regularly maintains a coal yard, which includes the privilege of weighing at such yard, in the City of Birmingham as herein defined, shall pay an amount equal to 1/10 of 1% of the gross receipts, less adjustments, on deliveries made during the next preceding calendar year, with a minimum license of ..............................................................................$72.00
059 - COAL, COKE & CHARCOAL - ANO YARD@ Each person, firm or corporation engaging in selling or delivering, distributing, hauling or soliciting orders either at wholesale or retail, coal and/or coke or charcoal, where no "coal yard" as defined in Schedule 058 is maintained in the City, but where deliveries are made by railroad cars, shall pay an amount equal to 1/10 of 1% of the gross receipts, less adjustments, on deliveries made within the City of Birmingham during the next preceding calendar year with a minimum license in any case of ...............................................................................................................................................$100.00 Each such person, firm or corporation so engaged and who maintains an office in the City of Birmingham, shall pay a license under this schedule, based on the gross receipts from all sales made and delivered within the City of Birmingham.
060 - COAL AND COKE - DELIVERY Each person, firm or corporation engaged in selling or delivering coal or coke within the City of Birmingham, not maintaining a "coal yard" as defined in Schedule 058, and selling or delivering coal or coke other than from railroad cars within the City of Birmingham, shall pay an amount equal to $45.00 upon each motor vehicle used in making such deliveries whether such motor vehicles are owned and operated by such person, firm or corporation or not.
066 - CONCERTS, SHOWS, DEBATES, AMUSEMENT AND ENTERTAINMENTS 18
Each person, firm or corporation engaged in the business of promoting, producing or presenting concerts, debates, musical shows, public lecture, amusement or entertainment other than provided in Schedule 034 of this Code, to which the public is invited and for which an admission fee is charged or a collection taken shall pay for each performance, production or presentation an amount of ...............................................................................................................................................$100.00 There shall be no proration of the license amount herein levied due to said business having operated for only a portion of the year. A SALES TAX DEPOSIT MAY BE REQUIRED. There shall be no liability for the license hereby imposed, if the concert, debate, musical show, amusement or entertainment is promoted, produced or presented at or in place of business for which the license levied by Schedule 171(a) of the License Code has been secured and is in effect. This license tax shall not be charged for any lecture course given as part of the course of instruction in any educational institution, or for exhibits held under the auspices of religious or charitable associations.
067 - CONTRACTORS, EXCAVATORS, PAVERS, VIADUCT, UNDERPASS, SEWER BUILDERS OR CONCRETE WORK (a) Each person engaged in carrying on within the City of Birmingham, where the gross annual business for the next preceding year is: Less than $40,000 .................................................................................................................$120.00 $ 40,000 and less than $60,000 ...............................................................................................240.00 $ 60,000 and less than $100,000 ............................................................................................300.00 $100,000 and less than $150,000 ...........................................................................................360.00 $150,000 and less than $200,000 ............................................................................................420.00 $200,000 and less than $250,000 ............................................................................................480.00 $250,000 and less than $300,000 ............................................................................................540.00 $300,000 and over ..................................................................................................................600.00 A minimum license of $120.00 is due in any case, and there is no proration of the license amount because of said business having operated only a portion of the calendar year. (b) Where only an office is maintained in the City of Birmingham ....................................$120.00 NO LICENSE WILL BE ISSUED unless and until applicant presents to the Revenue Division at the time of application or renewal, a current, valid General Contractor=s certification card, or a copy thereof, issued by the State of Alabama Licensing Board for General Contractors (Title 34, Chapter 8, Code of Alabama 1975). Any licensed contractor shall furnish to the Director of Finance in writing, within fifteen (15) days 19
of request therefor, the names, business addresses, telephone numbers, contract amounts, City taxpayer identification numbers, and specialty classifications (i.e. masonry, concrete finishing, plumbing, etc.) of each subcontractor performing any work or service for said contractor in the City, pursuant to Section 35 of this Business License Code.
068 - CONTRACTORS Each person engaged in the business of constructing houses or buildings on contract, or who constructs two or more houses a year, whether on contract or otherwise, or who maintains an office in Birmingham used in connection with such construction outside of Birmingham, shall pay a license of ...........................................................................................................................................$100.00 A minimum license of $100.00 is due in any case, and there is no proration of the license amount because of said business having operated only a portion of the calendar year. NO LICENSE WILL BE ISSUED unless and until applicant presents to the Revenue Division at the time of application or renewal, a current, valid General Contractor=s certification card, or a copy thereof, issued by the State of Alabama Licensing Board for General Contractors (Title 34, Chapter 8, Code of Alabama 1975). Any licensed contractor shall furnish to the Director of Finance in writing, within fifteen (15) days of request therefor, the names, business addresses, telephone numbers, contract amounts, City taxpayer identification numbers, and specialty classifications (i.e. masonry, concrete finishing, plumbing, etc.) of each subcontractor performing any work or service for said contractor in the City, pursuant to Section 35 of this Business License Code.
069 - CONTRACTORS Each person contracting for or engaged in the business of installing or repairing air conditioning, furnaces, making furnace repairs, doing sheet and tin metal work, steam heating, hot water heating, and steam fitting, any one or all, where gross receipts from the previous year are: Less than $50,000 ..................................................................................................................$ 50.00 $ 50,000 and less than $100,000 ...............................................................................................75.00 $100,000 and less than $200,000 ............................................................................................100.00 $200,000 and less than $300,000 ............................................................................................200.00 $300,000 and less than $400,000 ............................................................................................300.00 $400,000 and less than $500,000 ............................................................................................400.00 $500,000 and less than $600,000 ............................................................................................500.00 $600,000 and less than $700,000 ............................................................................................600.00 $700,000 and less than $800,000 ............................................................................................700.00 $800,000 and less than $900,000 ............................................................................................800.00 $900,000 and less than $1,000,000 .........................................................................................900.00 $1,000,000 and over.............................................................................................................1,000.00
20
A minimum license of $50.00 is due in any case, and there is no proration of the license amount because of said business having operated only a portion of the calendar year. NO LICENSE WILL BE ISSUED to any heating and air conditioning contractor until applicant has obtained, and presented to the Revenue Division at the time of application or renewal, a current, valid State of Alabama Permit issued by the Certification Board of Heating and Air Conditioning Contractors. Any licensed contractor shall furnish to the Director of Finance in writing, within fifteen (15) days of request therefor, the names, business addresses, telephone numbers, contract amounts, City taxpayer identification numbers, and specialty classifications (i.e. masonry, concrete finishing, plumbing, etc.) of each subcontractor performing any work or service for said contractor in the City, pursuant to Section 35 of this Business License Code.
070 - CONTRACTORS, HOUSE MOVERS AND/OR HOUSE WRECKERS Each person, firm or corporation contracting for or engaged in the business of moving houses or other similar structures and/or engages in demolition of houses, buildings, or other structures, whether actually doing the work or making contracts for the work to be done either by himself or by others shall pay a license of ..................................................................................................$120.00 A minimum license of $120.00 is due in any case, and there is no proration of the license amount because of said business having operated only a portion of the calendar year. Any licensed contractor shall furnish to the Director of Finance in writing, within fifteen (15) days of request therefor, the names, business addresses, telephone numbers, contract amounts, City taxpayer identification numbers, and specialty classifications (i.e. masonry, concrete finishing, plumbing, etc.) of each subcontractor performing any work or service for said contractor in the City, pursuant to Section 35 of this Business License Code.
071 - CONTRACTORS, HOUSE PAINTERS, ROOFERS, SIGN PAINTERS, CARDWRITING, DECORATIONS, PLASTERERS, PAPER HANGERS, LATHERS, CABINET OR CARPENTER SHOP, AUTOMOBILE PAINTING, BUILDING SIDING AND/OR BUILDING INSULATION Each person, firm or corporation engaged in any of the foregoing businesses whether actually doing the work or making contracts for the work to be done either by himself or by others, shall pay a license as follows: Where one worker only ..........................................................................................................$ 30.00 Where two and less than four workers .....................................................................................60.00 Where four and less than six workers .......................................................................................90.00 Where six and less than ten workers .......................................................................................120.00 Where ten and less than fifteen workers ................................................................................150.00 Where fifteen workers or over ................................................................................................180.00 21
A minimum license of $30.00 is due in any case, and there is no proration of the license amount because of said business having operated only a portion of the calendar year. Any licensed contractor shall furnish to the Director of Finance in writing, within fifteen (15) days of request therefor, the names, business addresses, telephone numbers, contract amounts, City taxpayer identification numbers, and specialty classifications (i.e. masonry, concrete finishing, plumbing, etc.) of each subcontractor performing any work or service for said contractor in the City, pursuant to Section 35 of this Business License Code.
074 - COTTON BUYER Each cotton buyer, broker, agent or branch office maintaining office and executing future contracts on any cotton exchange for the general public, which shall include the right to buy and sell spot cotton ....................................................................................................................................$300.00 Where no private or leased telegraph wires and/or tickers are maintained ............................$90.00
079 - COURT REPORTING Each person, firm or corporation engaged in the business of court reporting, where gross professional fees from services rendered within the City of Birmingham during the year next preceding are less than $5,000 ...............................................................................................$ 30.00 $ 5,000 and less than $10,000 ...................................................................................................50.00 $10,000 and less than $15,000 ..................................................................................................75.00 $15,000 and less than $20,000 ................................................................................................100.00 $20,000 and less than $25,000 ................................................................................................125.00 $25,000 and less than $30,000 ................................................................................................150.00 Plus an amount equal to 4/10 of 1% of subject professional fees in excess of $30,000.
080 - CREAMERY, BUTTER FACTORY, MILK PASTEURIZATION PLANT, OLEO MARGARINE PLANT, INCLUDING THE SALE OF CHOCOLATE MILK, OR OTHER SIMILAR PRODUCTS Each person, firm or corporation so engaged shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of................................$100.00 Where there is no pasteurization plant, and buttermilk is manufactured from powder a license of 1/10 of 1% of the gross receipts, less returned goods, from said business from the previous year with a minimum license of................................................................................................................$ 30.00 NO LICENSE WILL BE ISSUED until applicant has obtained and presented to the Revenue Division at the time of application a current, valid Health Department Permit. 082A - CURB MARKET, COVERED 22
Any person, firm, corporation or association who (or which) is in charge or control of any building, shed, tent or other structure or any group of buildings, sheds, tents or other structures situated upon a contiguous area of land the ground story or stories of which is or are designated or used for the contemporaneous conduct of four or more separate businesses of the class herein described, and who (or which) is engaged in the business of granting to others, for compensation, rights to use ground floor space in or under any such shelter or structure for the purpose of there keeping or displaying poultry, game, eggs, butter, cheese, fruits, vegetables and/or other farm or garden products, for sale, shall pay for the privilege of so engaging in the business of granting such rights, an amount equal to one and 8/10 cents per square foot of ground area sheltered by such structure or structures, but in no case less than ..........................................................................................................................$ 60.00 NO LICENSE WILL BE ISSUED until applicant has obtained and presented to the Revenue Division at the time of application, a current, valid Health Department Permit.
082B - CURB MARKET, OPEN Any person in charge or control of any open air contiguous area of land, who shall engage in the business of granting to others, for compensation, rights to occupy open air space in or upon such area for the purpose of there keeping or displaying either upon vehicles, stands, or otherwise, poultry, game, eggs, butter, cheese, fruits, vegetables, and/or farm or garden products, for sale, shall pay, for the privilege of so engaging in the business of granting such rights an amount equal to 4/10 of 1 cent per square foot of ground within the limits set aside for, or devoted to, such occupancy, but in no case less than.................................................................................................................$ 60.00 NO LICENSE WILL BE ISSUED until applicant has obtained and presented to the Revenue Division at the time of application a current, valid Health Department Permit.
084A - DIVISION I DANCING Dancing by Patrons, Customers, or Guests, in establishments approved and licensed for the sale of alcoholic beverages ...............................................................................................................$100.00 No license will be issued until applicant has been approved by City Council.
084B - DIVISION II DANCING Dance, performance, exhibition, or entertainment by a dancer other than Patrons or Customers of the General Public in an establishment with a current Beer and/or Liquor License as required under the current Business License Code .............................................................................................$100.00 The grant of a permit is hereby made a prerequisite for the issuance of a Dance Division II license and such permit shall not be deemed to authorize the conducting of entertainment or performances or any other form of business without the payment of the fee for a Dance Division II License.
23
No license will be issued until applicant has been approved by City Council. (For clarification of Division II Permit requirements see Ordinance 96-212.)
084C - DIVISION III DANCING Masked Balls..........................................................................................................................$ 25.00 No license will be issued until applicant has been approved by City Council.
084D - DIVISION IV DANCING- DANCER, ENTERTAINER, MODEL, PERFORMER OR EXHIBITIONIST Each dancer, entertainer, model, performer, or exhibitionist shall pay a license of ............$100.00 No license shall be issued for dancing, modeling, entertaining, or otherwise performing in a Division II Adult Establishment until the applicant has been approved by the Birmingham Police Department, pursuant to Ordinance 96-211. 085 - DATA PROCESSING SERVICE Each person, firm, or corporation engaged in the business of a data processing service or bureau, whether principal business or not, shall pay a license in an amount equal to 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of ..................$ 50.00
086 - DENTAL DEPOT OR LABORATORY Each person, firm or corporation operating a dental depot or dental laboratory shall pay a license of 3/20 of 1% of the gross receipts from said business from the previous year with a minimum license of ............................................................................................................................................$ 60.00
087A - DETECTIVE AGENCY Each person, firm or corporation operating a detective agency, or investigation bureau ....$100.00 NO LICENSE WILL BE ISSUED unless and until applicant can show compliance with the permit requirements outlined in Title 12, Chapter 6, General Code of the City of Birmingham 1980, as amended and as it may be amended.
087B PATROL, SECURITY OR GUARD SERVICE Each person, firm or corporation operating a private police patrol, security or guard service where only one worker ..................................................................$ 30.00 Where two and less than four workers......................................................................................60.00 Where four and less than seven workers ..................................................................................90.00 24
Where seven and less than eleven workers .............................................................................125.00 Where eleven ..........................................................................................................................150.00 Plus $10.00 for each worker in excess of eleven.
088 - DIRECTORY Each person or firm making, compiling, selling or offering for sale....................................$120.00
089 - DISINFECTANTS, INSECTICIDES AND/OR EXTERMINATOR Each person, firm or corporation shall pay a license of 1/10 of 1% of the gross receipts, less returned goods, from said business from the previous year with a minimum license of .....................$ 60.00 Where only service is rendered the license shall be paid on the basis of the number of workers as provided for in Schedule 215 of this Business License Code. NO LICENSE WILL BE ISSUED until applicant obtains and presents at the time of application and renewal a current, valid State of Alabama Permit issued by the Alabama Department of Agriculture and Industries.
090 - DRESSMAKERS Each person, firm or corporation engaged in the business of dressmaking and maintaining a regular place of business outside of their private home shall pay a license of $30.00, plus $10.00 for each additional each worker engaged in said business. Where said business is conducted inside the owner=s private residence, a license of $30.00 shall be paid; provided, such business shall be subject to the restrictions imposed for home occupations. NO LICENSE WILL BE ISSUED unless business location is approved by the City of Birmingham Department of Planning, Engineering and Permits as having met zoning requirements.
091 - DRESS SHOPS; MENSWEAR SHOPS; BOUTIQUES Each person, firm or corporation engaged in the business of selling at retail ready-to-wear clothing, millinery, men's clothing, hats, hosiery, specialty items, and shoes, any or all of said items, where gross receipts from said business from the previous year were Less than $50,000 ...................................................................................................................$60.00 $50,000 and not exceeding $100,000 .....................................................................................100.00 Plus an amount equal to 1/10 of 1% of gross receipts in excess of $100,000.
25
092- DISTRIBUTION WAREHOUSE - WHOLESALE Each person, firm, or corporation engaged in the business of offering for sale, taking or soliciting orders for sale, or selling of merchandise of any description at wholesale, including any such products stored in its own warehouse for sale, distribution or delivery, whether as owner, dealer, agent, or consignee, such business operating from a single site distribution facility located within the City of Birmingham, shall pay a license on the gross receipts from said business from the previous year as follows: On the First $50 Million .................................................................. 1/10th of 1% of gross receipts Plus, On next $50 - $100 Million ..................................................... 1/20th of 1% of gross receipts Plus, On next $100 - $250 Million ................................................... 1/50th of 1% of gross receipts Plus, On the next $250 Million and over........................................ 1/100th of 1% of gross receipts With a minimum license in any case of ............................................................................$3,000.00 EXAMPLE: Calculate the Business License amount due under Schedule 092 based on gross receipts of $500,000,000. Gross Receipts
On the first $50 million (1/10th of 1%)
License Amt = = = = = $ 50,000 $ 50,000 $ 50,000 $ 10,000 $160,000
$ 50,000,000 x .001 $100,000,000 x .0005 $250,000,000 x .0002 $500,000,000
Plus, On next $50-$100 million (1/20th of 1%) Plus, On next $100-$250 million (1/50th of 1%) EQUALS
Plus, On the next $250 million and over (1/100th of 1%) $100,000,000 x .0001
Where said business engages in retail sales of merchandise of any description, a separate license must be purchased under Schedule 165 of this Business License Code. This license schedule shall not apply to cooperative grocers associations which maintain warehouses for the purpose of distributing groceries to member retail grocery stores.
093 - DRUG STORE Each person, firm or corporation engaged in the operation of a business where drugs are carried for the purpose of retail sales and where a registered pharmacist is employed in connection therewith, and which is more commonly known as a drug store, shall pay a license as follows: Where the gross receipts from said business from the previous year are Less than $30,000 .................................................................................................................$100.00 Plus an amount equal to 1/10 of 1% of gross receipts in excess of $30,000.
094 - DRY CLEANING 26
Each person, firm or corporation engaged in the business of dry cleaning (other than rug cleaning) shall pay a basic license of $50.00, plus an additional amount to be determined as follows: For each pick-up station operated in connection with said business .....................................$20.00 Plus, for each vehicle, whether owned or not, and operated in connection with said business .................................................................................................................................................$20.00 Each vehicle used in delivering or picking up dry cleaning whether such vehicle is owned or not by the licensee, but for whom business is being done, shall carry either a placard or other designation in some conspicuous place on the outside thereof easily readable at a distance of 50 feet, showing the name of the dry cleaning plant for which they are picking up or delivering dry cleaning.
095 - ELECTRIC LIGHT AND POWER COMPANY Each person, firm or corporation engaged in the business of selling electrical current, an amount equal to three percent (3%) of the gross receipts derived during the preceding calendar year from the sale of electrical current to consumers, users and/or distributors thereof residing or having a place or places of business in the City of Birmingham when such current, after the sale thereof at any place, is consumed or used in the City of Birmingham by such consumers or users, or is distributed from any point or points in the City of Birmingham by such distributors. Each person, firm company, association or corporation engaging in or carrying on any business, vocation, occupation or profession hereinabove enumerated outside the corporate limits of the City of Birmingham, but within the police jurisdiction thereof, shall take out a license and pay therefor an amount equal to one-half (1/2) the amount of license tax to which he, she or it would be subject were such business vocation, occupation or profession engaged in or carried on within the corporate limits of the City of Birmingham.
096 - ELECTRICIANS Each person, firm or corporation doing business as, or soliciting electric work, where less than three masters or journeymen electricians are employed .................................................................$ 90.00 Where three and less than five ................................................................................................120.00 Where five and less than ten ...................................................................................................180.00 Where ten and less than fifteen ...............................................................................................240.00 Where fifteen or over ..............................................................................................................300.00 There shall be no proration of the license amount because of said business having operated for only a portion of the calendar year. The average number of master or journeymen electricians employed in the preceding year shall afford the basis for computing the tax due hereunder which average number shall be determined as outlined in Schedule 201 of this Business License Code. 27
NO LICENSE TO BE ISSUED until the following has been obtained and presented to the Revenue Division at the time of application and/or renewal: (1) (2) A current, valid City of Birmingham Master Electrician=s Certification Card. A bond in the amount of $10,000 executed on a bond form provided by the City of Birmingham Finance Department.
097 - ELEVATORS Each person, firm or corporation selling or installing hydraulic, steam, electric or hand power elevators or repairing or maintaining same, either as principal or agent, shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of ...............................................................................................................................................$100.00 098 - ENGINEERS, CIVIL, MINING, CONSTRUCTION, ELECTRICAL, ESTIMATING, CONSULTING, INDUSTRIAL RADAR, OR MECHANICAL ENGINEER OR SURVEYOR (a) Each person, or where a partnership [but not including associations as defined in subsection (b) herein], each member of partnership, where gross professional fees from services rendered within the City of Birmingham during the year next preceding are Less than $5,000 ....................................................................................................................$ 30.00 $ 5,000 and less than $10,000 ...................................................................................................50.00 $10,000 and less than $15,000 .................................................................................................75.00 $15,000 and less than $20,000 ...............................................................................................100.00 $20,000 and less than $25,000 ................................................................................................125.00 $25,000 and less than $30,000 ................................................................................................150.00 Plus an amount equal to 4/10 of 1% of gross receipts in excess of $30,000 but in no event shall the license under this schedule be for an amount in excess of $5,000. (b) Each professional member or associate of an unincorporated association (as defined by Title 10, Chapter 10, Code of Alabama 1975), or a professional corporation (as defined by Title 10, Chapter 4, Article 19, Code of Alabama 1975), where the total remuneration for services rendered within the City of Birmingham during the year next preceding are Less than $5,000 ...................................................................................................................$ 30.00 $5,000 and less than $10,000 ...................................................................................................50.00 $10,000 and less than $15,000 .................................................................................................75.00 $15,000 and less than $20,000 ...............................................................................................100.00 $20,000 and less than $25,000 ................................................................................................125.00 $25,000 and less than $30,000 ................................................................................................150.00 Plus an amount equal to 4/10 of 1% of those subject remunerations in excess of $30,000. The gross remuneration of such professional member of associate, for the purpose of this section, shall be computed by dividing the gross professional fees from services rendered within the City of 28
Birmingham of such unincorporated association by the total number of professional members or associates of such unincorporated association.
100 - FIRE, SMOKE OR WATER DAMAGE SALE, DISTRESSED MERCHANDISE SALE, BANKRUPT SALE, OR GOING-OUT-OF-BUSINESS SALE Including all sales provided for by Title 12, Chapter 15, Article A, of the General Code of the City of Birmingham 1980, as amended, and as it may be amended. (a) Where any person, firm or corporation has paid the current year's regular city license covering the sale of merchandise, and was the bona fide owner of the merchandise prior to it becoming fire, smoke or water damaged, distressed or bankrupt stock, or where said person, firm or corporation elects to go out of business, said, person, firm or corporation may conduct a special Fire, Smoke or Water Damage Sale, Distressed Merchandise Sale, Bankrupt Sale, or Going-Out-Of-Business Sale, by complying with Article A, Chapter 15 of the General Code of the City of Birmingham 1980, as amended, and as it may be amended, and upon payment of an additional license of $25.00 for the first sixty (60) days or less of said sale. Said sale may be extended for one additional period of not in excess of sixty (60) days upon filing a renewal application and payment of an additional license of ...............................................................................................................................................$250.00 The above described sales shall include only such merchandise as was originally purchased by said owner for the sole purpose of reselling it in the ordinary regular manner of merchandising, and shall not include merchandise that was at the time of purchase fire, smoke or water damaged, distressed or bankrupt stock, or stock from a going-out-of-business sale. (b) Where any person, firm or corporation has purchased merchandise that is fire, smoke or water damaged, distressed or bankrupt stock, and said person firm or corporation is advertising or offering said merchandise for sale, said person, firm or corporation shall obtain a license for each offering for sale for sixty (60) days or fractional part thereof (in addition to all other licenses that may be due) in the amount of $25.00 for each offering. If the merchandise offered is fire, smoke or water damaged, distressed or bankrupt stock that fact shall be affirmatively stated in all advertisements or offers for sale. Provided further, no inventory shall be required for sales licensed under this subsection (b) as required by Section 12-15-5 of the General Code of the City of Birmingham 1980. (c) The special sale as heretofore described in paragraph (b) above may be extended for one additional period of not in excess of sixty (60) days upon payment of twice the amount heretofore provided by paragraph (b). NO LICENSE WILL BE ISSUED until applicant complies with the requirements of Sections 12-15-1 to 12-15-20 of the General Code of the City of Birmingham 1980, as amended and as it may be amended.
102 - FISH AND OYSTER PEDDLER 29
Each person, firm or corporation who is engaged in bringing fish, oysters, or other seafood into the city without regularly maintaining a place of business in the city shall pay, for each truck or vehicle used in said business, a license of .........................................................................................$100.00 The full amount of this license is to be paid at one time, and there is to be no proration of the amount thereof because of said person having operated only a portion of the calendar year. NO LICENSE WILL BE ISSUED until applicant has obtained and presented the following to the Revenue Division at the time of application: (1) (2) A valid, current Health Department Permit; A valid, current, photo identification, issued by a state, for each applicant.
No vending is allowed on sidewalks, streets, highways, or roadways located within the AStudy Area@ designated under the Master Plan for Downtown Birmingham, namely that area bounded on the north by 12th Avenue North, on the east by Red Mountain Expressway and 26th Street North, on the south by Highland Avenue South and 12th Avenue South and on the west by I-65, and the streets and sidewalks within neighborhood retail business districts within the City without authorization. Such authorization must be obtained in addition to a business license. (Note: Anyone wishing to peddle in the AStudy Area@ should contact Operation New Birmingham (ONB). The issuance of a business license under this schedule does not permit or authorize any activity which is prohibited by Title 12, Chapter 14, Article A of the General Code of the City of Birmingham 1980, as amended and as it may be amended.
103 - FIVE, TEN, TWENTY-FIVE CENT AND ONE DOLLAR STORES Each person, firm or corporation operating a five, ten, twenty-five cent and/or one dollar store, shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of................................................................................................................$ 60.00
104 - FLOOR DRESSERS Each person, firm or corporation, operating one or more floor dressing machines and engaged in dressing, selling or installing flooring shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of .......................................$ 75.00
105 - FLORIST Each person engaged in the floral trade, where gross receipts from said business from the previous 30
year were less than $5,000 .....................................................................................................$ 30.00 $5,000 and less than $10,000 ....................................................................................................50.00 $10,000 and less than $15,000 ..................................................................................................75.00 $15,000 and less than $20,000 ................................................................................................100.00 Plus an amount equal to 1/10 of 1% of gross receipts in excess of $20,000. The license required by this schedule shall be paid in addition to any other license imposed on licensee for engaging in some business other than the sale of flowers. There is to be no proration of the amount thereof because of said person having operated only a portion of the calendar year.
106 -FOUNDRY, BRIDGE BUILDING PLANT, BOILER WORKS, MACHINE SHOP, METAL FINISHING, PLATING OR TREATING PLANT, NUT OR BOLT FACTORY, PIPE SHOP, RADIATOR PLANT, BUILDING BRIDGES OR ERECTING STEEL OR OTHER METAL FRAME FOR BUILDINGS, OR REPAIRING AND CONSTRUCTING COKE OVENS Each person engaged in carrying on in the City of Birmingham any foundry, bridge building plant, boiler works not connected with a railroad, machine shop, metal finishing, plating or treating plant, nut or bolt factory, pipe or valve shop, or radiator plant, or engaged in building bridges or in erecting steel or other metal framework for buildings or other structures, or repairing and constructing coke ovens, shall pay a license in an amount equal to 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of ..............................................................$100.00
107 - FRUITS AND VEGETABLES--WHOLESALE (a) Each person engaged as an agent, dealer, factor or commission merchant in the business of buying, selling, or delivering fruits or vegetables at wholesale, shall pay a license of 1/10 of 1% of gross receipts of said business from the year preceding with a minimum license of ...........$100.00 (b) This license shall permit the owner of said business to use one truck owned or operated by him in supplying said established place of business with said merchandise from a point without the City to his regular established place of business within the City, for which the license has been paid. The Finance Department must be advised in advance by the operator of the established place of business, giving a full description of the one truck owned and/or operated by said licensee. (c) On all trucks over and above one, whether owned or operated or not by said licensee supplying such products to the regularly established place of business above referred to, shall pay a license on each truck as is provided for in Schedule 108. (d) Wholesale dealers in fruit and/or vegetables making sales and/or deliveries from trucks or vehicles, not on orders previously taken, where said merchandise is not bought by the dealer from outside the City, shall pay a license of $75.00 on each truck or vehicle so used. This subsection (d) 31
shall apply only to sales made from vehicles on public streets or highways. There shall be no proration of the license amount because of said business having operated only a portion of the calendar year. No vending is allowed on sidewalks, streets, highways, or roadways located within the AStudy Area@ designated under the Master Plan for Downtown Birmingham, namely that area bounded on the north by 12th Avenue North, on the east by Red Mountain Expressway and 26th Street North, on the south by Highland Avenue South and 12th Avenue South and on the west by I-65, and the streets and sidewalks within neighborhood retail business districts within the City without authorization. Such authorization must be obtained in addition to a business license. (Note: Anyone wishing to peddle in the AStudy Area@ should contact Operation New Birmingham (ONB). The issuance of a business license under this schedule does not permit or authorize any activity which is prohibited by Title 12, Chapter 14, Article A of the General Code of the City of Birmingham 1980, as amended and as it may be amended.
108 - FRUITS AND VEGETABLES (UNDRIED) Each wholesale dealer in undried fruits and/or vegetables engaged in selling and/or delivering the same by truck or other vehicle from outside of the City to a point within the City shall pay a license on each vehicle or truck used in said business of .................................................................$100.00 The licensee must furnish the motor and State tag number when applying for said license. There shall be no proration of the license amount because of said business having operated only a portion of the calendar year. No vending is allowed on sidewalks, streets, highways, or roadways located within the AStudy Area@ designated under the Master Plan for Downtown Birmingham, namely that area bounded on the north by 12th Avenue North, on the east by Red Mountain Expressway and 26th Street North, on the south by Highland Avenue South and 12th Avenue South and on the west by I-65, and the streets and sidewalks within neighborhood retail business districts within the City without authorization. Such authorization must be obtained in addition to a business license. (Note: Anyone wishing to peddle in the AStudy Area@ should contact Operation New Birmingham (ONB). The issuance of a business license under this schedule does not permit or authorize any activity which is prohibited by Title 12, Chapter 14, Article A of the General Code of the City of Birmingham 1980, as amended and as it may be amended.
32
114 - GAS-BUTANE OR PROPANE Each person or agent for same, engaged in manufacturing or distributing butane or propane gas, shall pay a license of 1% of gross receipts from said business from the previous year with a minimum license of ..............................................................................................................................$ 100.00 NO LICENSE WILL BE ISSUED until applicant posts a $2,500 bond with the Director of Finance.
115 - GAS COMPANIES--TRANSPORTATION OF NATURAL GAS Each person, firm or corporation engaged in the transportation and wholesale distribution of natural gas, which maintains its principal executive or administrative office within the city, shall pay a license computed as follows: When it employs in such office not more than 250 persons .............................................$ 3,000.00 When it employs between 251 and 500 ...............................................................................5,000.00 When it employs 501 to 750 ................................................................................................7,500.00 When it employs more than 750 ........................................................................................10,000.00 This schedule shall not apply to any gas company whose principal business in the city is the retail distribution of gas. There shall be no proration of the license amount because of said business having operated for only a portion of the calendar year.
117 - GAS COMPANIES Each person, firm or corporation engaged in the business of distributing gas at retail within the city, shall pay a license in an amount equal to three percent (3%) of the gross receipts of such business for the year next preceding.
118 FILLING STATIONS - GASOLINE OR COMPRESSED NATURAL GAS (a) Each person, firm or corporation whose business is the selling of gasoline or compressed natural gas at retail, including fleet sales, for motor vehicle use, and including lubricating oil, shall pay a license as follows: Where the gross receipts from said business for the year next preceding were Less than $20,000 ...................................................................................................................$60.00 Plus an amount equal to 3/20 of 1% of gross receipts in excess of $20,000. (b) Gross receipts from the sale of automobile tires and accessories and related services such as lubricating, automatic car washing, and repairing of automobiles are to be included as a measure of tax. (c) Where automobiles or trucks are sold in connection with such business an additional license, as 33
provided by Schedule 018 of this license code, must be procured. (d) The term Agross receipts@ as used in this schedule shall mean the entire receipts of said business and shall not include federal, state and local government taxes collected by said person, firm or corporation from purchasers in connection with said business, whether said person, firm or corporation be acting as agent or otherwise in the collection of said taxes, pursuant to Section 40-23130, Code of Alabama 1975. (e) Nothing contained in the Code shall be construed to alter or repeal any provision of Ordinances 598-F and 599-F.
119 - GASOLINE STORAGE (a) Each person, firm or corporation engaged in the business of receiving and/or storing gasoline for others shall pay a license in an amount equal to one cent per gallon on all gasoline so received and/or stored during the full calendar year immediately preceding; plus $100; provided, however, that if said person, firm or corporation engaged in such storage business did not conduct said business for the full period of said preceding year $1,000 shall be paid as a deposit against this license until the end of the current calendar year at which time an adjustment shall be made on the basis of one cent per gallon for all gasoline so received and/or stored during the said current calendar year. This license of one cent per gallon shall not apply where satisfactory proof is made to the Director of Finance that the City's current license tax, as provided for in Ordinances 598-F and 599-F has been paid on the gasoline that is being stored. (b) Each person, firm or corporation engaged in the business of renting tanks or other storage space to others for the purpose of storing gasoline, shall pay a license of ..................................$2,000.00 This license shall not apply where satisfactory proof is made to the Director of Finance that the City=s gallonage license tax as provided for in Ordinances 598-F and 599-F, has been paid on the gasoline stored in such space.
120 - GOLD AND SILVER Each person, firm or corporation engaging in the business of buying gold or silver or gold or silver objects shall pay a license of................................................................................................$ 100.00 There shall be no proration of the license amount because of said business having operated for only a portion of the calendar year. NO LICENSE WILL BE ISSUED unless and until applicant has obtained the permit required pursuant to Title 12, Chapter 3.7, General Code of the City of Birmingham 1980, as amended and as it may be amended. 34
122 - GRAIN OR FLOUR DEALER, AGENT OR BROKER, GRAIN PROCESSOR, GRIST MILLS, WHOLESALE DEALER IN POWDERED MILK Each person engaged in any of the aforesaid types of businesses, shall pay a license on the first $100,000 of the gross receipts from said business from the previous year of ......................$100.00 Plus an amount equal to 1/20 of 1% of gross receipts in excess of $100,000. NO LICENSE WILL BE ISSUED until applicant has obtained and presented to the Revenue Division at the time of application a current, valid Health Department Permit. 123 - RETAIL FOOD STORE Each person, firm or corporation engaged in the business of selling at retail those products ordinarily sold in retail food stores, including, but not limited to, canned goods, vegetables, fruits, condiments, sugar, coffee, tea, dairy products, bakery goods, meats, soft drinks, tobaccos, and prepared foods for off-premises consumption, shall pay a license on the first $20,000 or less of gross receipts from said business for the year next preceding of ..................................................................................$75.00 Plus an amount equal to 1/10th of 1% of all gross receipts in excess of $20,000. NO LICENSE WILL BE ISSUED until applicant has obtained and presented to the Revenue Division at the time of application: (1) (2) A current, valid Health Department Permit. A current, valid permit issued by the Alabama Alcoholic Beverage Control Board (ABC Board), pursuant to Title 28, Chapter 11, Code of Alabama 1975. Permits are required for all establishments selling tobacco products.
124 - HAIRDRESSERS OR BEAUTY PARLORS Each person, firm, or corporation engaged in the business of operating a beauty parlor or other place where hairdressing, hairstyling, facial treatment, or manicuring is done shall pay a license based upon or determined by the number of persons working as operators therein as follows: Where only one person works therein as operator, whether such person be the proprietor or not ...........$ 15.00 Where two or more persons work therein as operators, the owner or proprietor of such beauty parlor shall pay a license of ..............................................................................................................$15.00 Plus $15.00 for each additional operator in excess of one. There shall be no proration of the license amount because of said business having operated for only a portion of the calendar year.
125 - HAT CLEANING 35
Each person, firm or corporation engaged in the business of hat cleaning: Where only one worker ..........................................................................................................$ 30.00 Where two and less than four workers......................................................................................60.00 Where four and less than six workers .......................................................................................90.00 Where six and less than ten workers .......................................................................................120.00 Where ten and less than fifteen workers .................................................................................150.00 Where fifteen workers and over ..............................................................................................180.00 The term Aworker@ as herein used, means only those who are actually engaged either in part or whole time, in the actual process of cleaning hats. There shall be no proration of the license amount because of said business having operated for only a portion of the calendar year.
126 - HIDES Each person, firm or corporation dealing with hides, tallow, ginseng, beeswax, or purchasing and receiving or collecting waste grease and animal by-products for rendering or recycling (Act 99-526) shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of ............................................................................................................$100.00
127 - HOTELS AND INNKEEPERS Each person, firm, or corporation keeping a public inn, hotel, or commercial lodging facility of five or more bedrooms where transient guests are lodged for pay is deemed to be engaged in the business of keeping a hotel. For each room used or designated as a bedroom for guests.......................$4.00 This license does not include license for restaurants and other secondary businesses operated in connection with the renting of rooms. If meals, food, or refreshments are served to the general public and charged for, the additional license required of restaurants, cafes, lunch counters and public eating houses must also be paid. In addition, sales of merchandise shall be licensed in the category in which it falls. When cottages or annexes are operated in connection with or rented by the hotel, this license shall apply to the total of the rooms in the hotel, the cottages and annex. (Section 40-12-115 Code of Alabama 1975)
128 - ICE DEALER Each ice dealer, other than where the regular ice factory license is paid, for each separate place so operated, whether operated by an ice manufacturer or other party shall pay a license for each place so operated ................................................................................................................................$6.00 The full amount of this license is to be paid at one time, and there is to be no proration of the amount thereof because of said party having operated only a portion of the year. NO LICENSE WILL BE ISSUED until applicant has obtained and presented to the Revenue 36
Division at the time of application a current, valid Health Department Permit.
129 - ICE PEDDLER Each truck ...............................................................................................................................$20.00 The full amount of this license is to be paid at one time, and there is to be no proration of the amount thereof because of said party having operated only a portion of the calendar year. NO LICENSE WILL BE ISSUED until applicant has obtained and presented to the Revenue Division at the time of application a current, valid Health Department Permit.
130 - ICE CREAM, FROZEN YOGURT, OR ICE SNOWBALLS Each dealer whose principal business is the retailing of ice cream, frozen yogurt or ice snowballs, except restaurants serving meals and/or where sold in a drug store, shall pay a license as follows: Where gross receipts are less than $20,000 ...........................................................................$ 30.00 $20,000 and not more than $30,000..........................................................................................50.00 $30,000 and not more than $40,000..........................................................................................75.00 $40,000 and over.....................................................................................................................100.00 Where not principal business ....................................................................................................12.00 The full amount of this license is to be paid at one time, and there is to be no proration of the amount thereof because of said party having operated only a part of the calendar year. NO LICENSE WILL BE ISSUED until applicant has obtained and presented to the Revenue Division at the time of application a current, valid Health Department Permit.
131 - ICE CREAM PEDDLER Each ice cream peddler, per wagon or truck used .................................................................$ 30.00 Where push cart used, each.......................................................................................................12.00 The full amount of this license is to be paid at one time, and there is to be no proration of the amount thereof because of said party having operated only a portion of the calendar year. NO LICENSE WILL BE ISSUED until applicant has obtained and presented to the Revenue Division at the time of application a current, valid Health Department Permit.
132 - ICE FACTORY Each person, firm or corporation manufacturing, selling or delivering ice within the City=s jurisdiction, shall pay a license at the rate of $4.80 per ton based on the daily machine capacity of each factory producing ice that is sold within the City, provided each operator manufacturing or 37
delivering ice within the City's jurisdiction, shall pay a rate of not less than $200.00, multiplied by the number of factories used in producing ice for sale within the City's jurisdiction. The full amount of this license is to be paid at one time, and there is to be no proration of the amount thereof because of said party having operated only a portion of the calendar year. NO LICENSE WILL BE ISSUED until applicant has obtained and presented to the Revenue Division at the time of application a current, valid Health Department Permit. 133 - INDUSTRIAL TRAFFIC MANAGER AND RATE INFORMATION BUREAU Each person, firm or corporation conducting such ..............................................................$ 100.00
134 - INFIRMARIES, SANITARIUMS AND/OR SANATORIUMS Where less than 20 rooms ......................................................................................................$ 60.00 20 rooms and less than 35 rooms ..............................................................................................90.00 35 rooms and less than 50 rooms ............................................................................................120.00 50 rooms and less than 75 rooms ............................................................................................180.00 75 rooms and less than 100 rooms ..........................................................................................240.00 100 rooms and over .................................................................................................................300.00 All rooms, whether as wards for patients or bedrooms for others, to be liable for said license. There shall be no proration of the license amount because of said business having operated for only a portion of the calendar year.
135 - INSPECTOR - ENGINEER Each person, firm or corporation engaged in the business of inspecting steel, steel products, concrete and concrete products: Where only one inspector ......................................................................................................$ 30.00 2 inspectors and less than 4.......................................................................................................60.00 4 inspectors and less than 6 ......................................................................................................90.00 6 inspectors and less than 10...................................................................................................120.00 10 inspectors and less than 15.................................................................................................150.00 15 inspectors and less than 20.................................................................................................180.00 20 inspectors and less than 25.................................................................................................210.00 25 inspectors and over ............................................................................................................240.00
136 - INSURANCE COMPANIES Each insurance company other than fire, marine and fraternal, shall pay a license of $50.00 plus $1.00 on each $100.00 and major fraction thereof, of gross premiums, less returned premiums on policies issued during the preceding year to citizens of the City of Birmingham, provided that in case such company shall not have conducted business for the full period of said preceding year, it shall 38
pay $50.00 plus 1% of that amount which bears the same relationship to the gross amount of premiums, less returned premiums on policies issued during said preceding year as 365 bears to number of days during which business was conducted in such preceding year. Companies commencing business after the first of the current license tax year shall pay $50.00, plus $1.00 on each $100.00 and major fraction thereof, of gross premiums, less returned premiums on policies issued during the said current year to citizens of the City of Birmingham. Such new companies shall pay a flat minimum license of $100.00 at the time of commencement of business upon which there shall be an adjustment at the end of the year upon the basis herein provided for new companies. Licenses issued under this schedule and the next succeeding schedule, shall be deemed delinquent the fourth day of March, following January first of each year. There is to be no proration of the $100.00 deposit required of new companies entering into business in the City during the year. Upon demand from the Director of Finance each principal agent representing an insurance company, which company has an established office in the City of Birmingham, shall furnish the Director of Finance from time to time with a complete schedule of all subagents, together with their address, soliciting or selling insurance for said company within the City of Birmingham.
137 - INSURANCE COMPANIES, FIRE OR MARINE (a) Each Fire or Marine Insurance Company shall pay a license of $2.50 on each $100.00 of gross premiums received during the preceding year on policies issued during said year on property located in the City of Birmingham, including renewals, provided that in case such company shall not have conducted business in the City of Birmingham during the entire period of the preceding year, it shall pay two and one-half percent (22%) of that amount which bears the same relationship to the gross amount of premiums, less returned premiums, received on policies issued during the said preceding year on property located in said City as 365 bears to the number of days during such preceding year during which such company conducted business in said City. Companies commencing business after the first of the current license tax year shall pay $2.50 on each $100.00 of gross premiums, less returned premiums, received on policies issued during the said current year on property located in the City of Birmingham. Such new companies shall pay a flat minimum license of $100.00 at the time of the commencement of business upon which there shall be an adjustment at the end of the year upon the basis herein provided for such new companies. There is to be no proration of the $100.00 deposit required of new companies entering into business in the City during the year. Upon demand from the Director of Finance each principal agent representing an insurance company, which company has an established office of the City of Birmingham, shall furnish the Director of Finance from time to time with a complete schedule of all subagents, together with their address, soliciting or selling insurance for said company within the City of Birmingham. 39
(b) Each Fire and Marine Insurance Company, in addition to the license required by subsection (a) hereof, shall also pay an additional license tax of $1.50 on each $100.00 of gross premiums received during the preceding year on policies issued during said year on property located in the City of Birmingham, including renewals, provided that in case such company shall not have conducted business in the City of Birmingham during the entire period of the preceding year, it shall pay under the provisions of this subsection (b) one and one-half percent (12%) of that amount which bears the same relationship to the gross amount of premiums, less returned premiums, received on policies issued during the said preceding year on property located in said City as 365 bears to the number of days during such preceding year during which such company conducted business in said City. Companies commencing business after the first of the current license tax year shall pay under the provisions of this subsection (b) $1.50 on each $100.00 of gross premiums, less returned premiums, received on policies issued during the said current year on property located in the City of Birmingham. Any provision of this subsection (b) to the contrary notwithstanding each Fire or Marine Insurance Company shall be entitled to a reduction in the amount of additional license tax due under this subsection (b) equal to the amount due and paid during the same year by such company to the Firemen's Pension and Relief Fund of the City of Birmingham under the provisions of Section 1477 Appendix, Volume 14, Code of Alabama, Recompiled 1958 (Section III of Act Number 307 of the 1943 Regular Session of the Legislature of Alabama).
138A - INSURANCE AGENTS Each person, firm or corporation engaged in the business of acting as agent for fire and marine insurance companies shall pay a license of 1/10 of 1% of the gross commissions from said business from the previous year with a minimum license in any case of ............................................$ 15.00
138B - INSURANCE ADJUSTERS Each person, corporation or where a firm, each member of the firm where gross professional fees from services rendered within the City of Birmingham during the year next preceding are: Less than $5,000 ....................................................................................................................$ 30.00 $5,000 and less than $10,000 ....................................................................................................50.00 $10,000 and less than $15,000 ..................................................................................................75.00 $15,000 and less than $20,000 ................................................................................................100.00 $20,000 and less than $25,000 ................................................................................................125.00 $25,000 and less than $30,000 ................................................................................................150.00 Plus an amount equal to 4/10 of 1% of subject professional fees in excess of $30,000, with a minimum license of $30.00 in any case.
138C - INSURANCE AGENTS (AUTOMOBILE RENTAL ONLY) Each person, firm, or corporation engaged in the business of offering or selling insurance in connection with and incidental to the rental of vehicles, as provided in Schedule 024 of this Business License Code, whether at the rental office or by preselection of coverage in a master, corporate, 40
individual, or group rental agreement, in any of the categories listed below, shall pay a license of 1/10 of 1% of the gross commissions from said business from the previous year with a minimum license in any case of .............................................................................................................$ 30.00 (1) Personal accident insurance covering the risks of travel, including, but not limited to, accident and health insurance that provides coverage, as applicable, to renters and other rental vehicle occupants for accidental death or dismemberment and reimbursement for medical expenses resulting from an accident that occurs during the rental period. Liability insurance, including uninsured and underinsured motorist coverage whether offered separately or in combination with other liability insurance, that provides coverage, as applicable, to renters and other authorized drivers of rental vehicles for liability arising from the operation of the rental vehicle. Personal effects insurance that provides coverage, as applicable, to renters and other vehicle occupants for the loss of, or damage to, personal effects that occurs during the rental period. Roadside assistance and emergency sickness protection programs. Any other travel or auto-related coverage that a rental company offers in connection with and incidental to the rental of vehicles.
(2)
(3)
(4) (5)
As provided in Section 27-7-5.1 Code of Alabama 1975, no insurance may be issued by a limited licensee except subject to the conditions outlined in said section, including but not limited to, the provision that the rental period of the rental agreement shall not exceed 90 consecutive days.
141 - JITNEYS Each jitney with a seating capacity of five (5) or less ............................................................$30.00 Each jitney with a seating capacity of more than five (5) ......................................................120.00 Plus an additional $32.00 for each seat in excess of five (5). Each suburban jitney ...............................................................................................................$30.00 NO LICENSE WILL BE ISSUED unless and until applicant has obtained a Certificate of Public Necessity and Convenience (CPNC) pursuant to the requirements of Sections 12-16-31 and 12-16-41, General Code of the City of Birmingham 1980, as amended and as it may be amended. There shall be no proration of the license amount because of said business having operated for only a portion of the calendar year.
41
License stickers issued by the department shall be prominently displayed on any jitney operating within the City of Birmingham. It shall be unlawful to operate any jitney within the City of Birmingham without having met the requirements outlined in this section.
142 - JUNK BROKERS AND/OR SCRAP METAL BROKERS Each person, firm or corporation engaged in the business of buying or selling or buying and selling, for account of another, junk or scrap metal or junk and scrap metal or otherwise engaged in the business of a broker in junk or scrap metal or junk and scrap metal shall pay a license equal to 2 of 1% of the gross brokerage fees and commissions of such business for the next preceding year with a minimum license in any case of ..........................................................................................$200.00 A broker for the purpose of this schedule is one who for a commission or fee buys or sells or buys and sells junk or scrap metal or junk and scrap metal without having possession of such junk or scrap metal or who negotiates such transactions between buyer and seller without having possession of such junk or scrap metal. NO LICENSE WILL BE ISSUED until applicant has been approved by the City Council and the City of Birmingham Department of Planning, Engineering and Permits as having met zoning requirements.
144 - ITINERANT JUNK DEALERSEach person, firm or corporation acting as an itinerant junk dealer engaged in the business of buying or selling junk or scrap metal shall, for each automobile or truck used in said business, pay a license of ..........................................................................................................................................$240.00 NO LICENSE WILL BE ISSUED until and unless applicant has met the requirements outlined in Article B, Sections 12-11-11 through 12-11-50, General Code of the City of Birmingham, 1980, and has been approved by the City Council and has also received written verification from the City of Birmingham Department of Planning, Engineering and Permits indicating that all zoning requirements have been met. License stickers issued by the department shall be prominently displayed on any automobile or truck used in connection with said business operating within the City of Birmingham. It shall be unlawful to operate any automobile or truck that is subject to the provisions of this section within the City of Birmingham without having met all of the requirements outlined in this section.
145 - JUNK YARDS, JUNK DEALERS AND/OR SCRAP METAL DEALERS Each person, firm or corporation engaged in the business of operating a junk yard and/or of buying or selling junk or scrap metal shall pay a license of .............................................................$240.00 Plus an amount equal to 1/10 of 1% of gross receipts from the previous year in excess of $100,000, 42
with a minimum license of $240.00 in any case. NO LICENSE WILL BE ISSUED until and unless applicant has met the requirements outlined in Article B, Section 12-11-11 through 12-11-50, General Code of the City of Birmingham, 1980, and has been approved by the City Council and has also received written verification from the City of Birmingham Department of Planning, Engineering and Permits indicating that all zoning requirements have been met.
146 - LABOR AGENT OR EMPLOYMENT AGENCY Each person, firm or corporation operating as a labor agent or as employment agency shall pay a license computed as follows: Where gross fees or service charges for the year next preceding were Less than $10,000 ................................................................................................................$ 200.00 $10,000 and less than $20,000 ................................................................................................250.00 $20,000 and less than $30,000 ................................................................................................300.00 $30,000 and less than $40,000 ................................................................................................350.00 $40,000 and less than $50,000 ................................................................................................400.00 $50,000 and less than $60,000 ................................................................................................450.00 $60,000 and less than $70,000 ................................................................................................500.00 $70,000 and less than $80,000 ...............................................................................................550.00 $80,000 and over.....................................................................................................................600.00 With a minimum license of $200.00 in any case. This schedule does not apply to Temporary Employment Services/ Agencies.
148 - LANDSCAPE GARDENERS Each person, or where a partnership, each member of firm where gross annual business is Less than $3,000 ....................................................................................................................$ 30.00 $3,000 and less than $5,000 ......................................................................................................48.00 $5,000 and less than $7,500 ......................................................................................................72.00 $7,500 and over.......................................................................................................................100.00 With a minimum license of $30.00 in any case. There is no proration of the license amount because of said business having operated only a portion of the calendar year. NO LICENSE WILL BE ISSUED until applicant obtains and presents to the Revenue Division at the time of application and renewal a current, valid State of Alabama Permit issued by the Alabama Department of Agriculture and Industries.
149 - LAUNDRIES Each person, firm or corporation operating a laundry shall pay a basic license of $100.00 plus an 43
additional amount to be determined as follows: For each pick-up station operated in connection with said business .....................................$20.00 Plus, for each vehicle, whether owned or not, and operated in connection with said business .................................................................................................................................................$20.00 Each vehicle used in delivering or picking up laundry, or dry cleaning, whether such vehicle is owned or not by the licensee, shall carry either a placard or other designation in some conspicuous place on the outside thereof easily readable at a distance of 50 feet, showing the name of the laundry, or dry cleaning plant for which they are picking up or delivering laundry and/or dry cleaning. This license not to include rug cleaning.
151 - LODGING HOUSES For each room rented to transients ............................................................................................$4.00 NO LICENSE WILL BE ISSUED unless and until applicant has obtained (1) a Health Department Permit and (2) a Fire Inspection Report indicating compliance with all applicable fire safety laws and ordinances.
152A - LUMBER AND/OR BUILDING MATERIAL MANUFACTURER AND/OR DEALER Each person, firm or corporation shall pay a license of 1/10 of 1% of the gross receipts less returned goods, for said business for the previous year with a minimum license of ..........................$100.00
152B - LUMBER WHOLESALER AND/OR BROKER Each person, firm or corporation engaged in the business of selling and/or soliciting wholesale orders for lumber, and/or building materials, whose sole business is selling to and/or soliciting wholesale orders from duly licensed retail lumber and/or retail building material dealers, and/or industrial and manufacturing consumers, which industrial and manufacturing consumers use said purchases only in the process of their business or for manufacturing the same into finished products, shall pay a license at the same rate provided in Schedule 152A. No person, firm or corporation shall be deemed to be an industrial and manufacturing consumer, as defined herein, who purchases and uses such lumber or building material for the purpose of fulfilling contracts made by such person, firm or corporation to build and/or repair houses, buildings or structures of any kind or character for the improvement of real property.
152C - LUMBER DEALER WITH NO LUMBER YARD OR MANUFACTORY INSIDE THE CITY Each person, firm or corporation engaged in the business of manufacturing or selling lumber or building materials, who maintains no lumber yard or manufactory within the City, but who makes or engages in the business of making sales, solicitations of sales, and/or deliveries in the City, and also every itinerant dealer, or seller of lumber or building materials, selling, trading in, and/or soliciting 44
orders for the sale of lumber or building materials to other than licensed lumber dealers in the City; and each agent, broker, solicitor, or employee of such person, firm, corporation, seller, trader, trader or seller, who sells, solicits orders and/or makes deliveries of lumber or building materials to other than licensed lumber dealer's place of business shall pay a license of 1/10 of 1% of the gross sales or deliveries from said business from the previous year with a minimum of ...............................................................................................................................................$100.00
153 - LUNCH WAGONS Each person, firm, corporation or organized group operating a lunch wagon selling prepared foods, soft drinks, fruit, snacks, or lunches, any or all of said articles, shall pay a license as follows: Each lunch wagon ...................................................................................................................$25.00 The entire amount of this license to be paid at one time. There is no proration of the license amount because of business having been operated only a portion of the calendar year. NO LICENSE WILL BE ISSUED until applicant has obtained and presented the following to the Revenue Division at the time of application: (1) (2) A current, valid Health Department Permit; and, A current, valid photo identification, issued by a state, for each applicant.
No vending is allowed on sidewalks, streets, highways, or roadways located within the AStudy Area@ designated under the Master Plan for Downtown Birmingham, namely that area bounded on the north by 12th Avenue North, on the east by Red Mountain Expressway and 26th Street North, on the south by Highland Avenue South and 12th Avenue South and on the west by I-65, and the streets and sidewalks within neighborhood retail business districts within the City without authorization. Such authorization must be obtained in addition to a business license. (Note: Anyone wishing to peddle in the AStudy Area@ should contact Operation New Birmingham (ONB)). The issuance of a business license under this schedule does not permit or authorize any activity which is prohibited by Title 12, Chapter 14, Article A of the General Code of the City of Birmingham 1980, as amended and as it may be amended.
154 - MACHINERY DEALER Each dealer in new or second-hand machinery shall pay a license computed as follows: Where gross sales from said business from the previous year were: Less than $30,000 ..................................................................................................................$ 30.00 $30,000 and less than $60,000 ..................................................................................................60.00 $60,000 and less than $90,000 ..................................................................................................90.00 $90,000 and less than $100,000 ..............................................................................................100.00 45
Plus an amount equal to 1/10 of 1% of gross sales in excess of $100,000. 156 - MANUFACTORY, FABRICATING, PROCESSING PLANT Each person, firm or corporation or association engaged in the business of manufacturing, fabricating, and/or processing by hand, machinery or otherwise, wares or material of any kind, shall pay a license equal to 1/10 of 1% of the gross receipts from sales or stock transfers thereof, less adjustments and returned goods, from said business from the previous year with a minimum license of ............................................................................................................................................$ 60.00
158 - MARBLE OR STRUCTURAL STONE DEALERS Each person, firm or corporation where gross receipts, less returned goods, for the year next preceding were less than $20,000 ..........................................................................................$ 60.00 $20,000 and less than $50,000 ..................................................................................................90.00 $50,000 and less than $75,000 ...............................................................................................120.00 $75,000 and less than $100,000 ..............................................................................................150.00 $100,000 and over...................................................................................................................180.00 Where the applicant for the license does not maintain within the City of Birmingham a marble or structural stone yard, a minimum license of $150.00 shall be paid with no proration to be made thereof because of operating less than the full license year.
162 - MERCANTILE OR COMMERCIAL AGENCIES Each person, firm or corporation or association whose principal business is inquiring into and reporting upon the credit or standing of persons, firms or corporations ..............................$180.00
164 - MERCHANDISE BROKER OR AGENT (a) Each merchandise broker, or agent for the sale thereof compensated wholly on a fee or commission basis, shall pay a license computed as follows: Where gross commissions or fees for previous year were $10,000, or less the minimum license fee shall be ................................$ 50.00 Plus an amount equal to 3/20 of 1% on gross commissions or fees in excess of $10,000. (b) A merchandise broker is one who for a commission buys or sells goods, or who negotiates such transactions between buyer and seller, without having custody of, or title, to the property.
165 - MERCHANDISE RETAIL, WHOLESALE OR OTHERWISE - GENERAL (Not to include any business for which license is specifically required by another Schedule of this Code). Each person engaged in the business of offering for sale, taking or soliciting orders for sale, or selling merchandise of any description, including any such products stored in a warehouse for sale, distribution or delivery, whether as owner, dealer, agent or consignee, shall pay a license as follows: Where gross receipts, less returned goods, for the year next preceding, were: 46
(a) $30,000 or less ...................................................................................................................$30.00 (b) Where gross receipts as above defined exceed $30,000, the annual license fee shall be 1/10 of 1% of all gross receipts, with a minimum license of $30.00 in any case.
166 - MESSENGER SERVICE Operating as messenger service in delivering messages only ...............................................$ 24.00 Where engaged in package delivery, the licensee shall pay under Schedule 170. There shall be no proration of the license amount because of said business having operated for only a portion of the calendar year.
167 - MONEY BROKER Each person, firm or corporation conducting or engaging in the money broker business shall pay an annual license equal to 3/8 of 1% of the gross interest or gross brokerage fees collected from said business during the year immediately preceding, with a minimum license in any case of ...............................................................................................................................................$300.00 This schedule shall not apply to pawn brokers, banks or trust companies, or real estate mortgage loans. A money broker is hereby defined to be any person, firm, corporation or association who either as principal or agent or broker does any of the following: (1) (2) (3) Engages in the business of lending money other than on real estate mortgages, or Buys personal property under agreement whereby the seller is granted the right or option to repurchase, or who Trades in or who takes or buys assignments of wages already earned by any other person or persons employed or to be employed by any other person, firm or corporation, or who Engages in the business of lending money on wages, salaries, personal property, (other than stocks and bonds) or on endorsements or personal security where such loan is to be repaid on the installment plan, with payments to be made periodically over a period of months or years, or who Engages in the business of buying conditional sale contracts, or purchase money notes on automobiles, or rent notes, or who Engages in the discounting of contractors notes, any one or all of the aforementioned acts.
(4)
(5) (6)
168 - MORTGAGE LOANS Each person, firm or corporation either as principal or agent, engaged in the business of lending money on notes, secured by mortgage on real estate situated within the State of Alabama, an amount 47
equal to 3/8 of 1% on the gross brokerage, commission, and fees (but not including interest participation or compensation for servicing mortgages) received during the next preceding year with a minimum license in any case of ..........................................................................................$ 60.00
169 - MOTORCYCLE DEALERS Each person, firm or corporation engaged in the selling or servicing of motorcycles, shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of...............................................................................................................$100.00
170A - MOTOR VEHICLES-CARRYING GOODS, FREIGHT OR OTHER MATERIAL FOR HIRE OR REWARD (a) Where coal, coke or charcoal is hauled from a point outside the City of Birmingham to a point within the City, a license shall be paid as provided in Schedule 060 of this Code. (b) Where lumber or building material is hauled from a point outside the City of Birmingham to a point within the City, a license shall be paid as provided in Schedule 152C of this Code. (c) Each and every person, firm or corporation operating or causing to be operated within the City of Birmingham any motor truck or other vehicle for the carriage of goods, freight, or other material of any kind or description from one location in said City to another location in said City [other than that provided for in Subdivision (a) or (b) hereof] for hire or reward shall pay, for the operation of each such motor vehicle of not more than 12,000 pounds gross vehicle weight ............................$12.00 12,001 to 42,000 pounds gross vehicle weight .........................................................................24.00 Over 42,000 pounds of gross vehicle weight ............................................................................30.00 For the purpose of this subsection, gross vehicle weight shall mean the empty weight of the truck or truck tractor plus the heaviest load to be carried. Where a trailer is used, an additional license shall be paid equal to one-half of the amount due to be paid on the vehicle to which the trailer is attached. There shall be no proration of the license amount because of said business having operated for only a portion of the calendar year.
170B - WRECKERS (a) Each and every person, firm or corporation operating or causing to be operated within the City of Birmingham any wrecker for the towing of automotive vehicles within the City of Birmingham, or coming into the City of Birmingham to take a vehicle out, for hire or reward shall pay, for each wrecker of not more than 12,000 pounds gross vehicle weight..............................................$12.00 12,001 to 42,000 pounds of gross vehicle weight.....................................................................24.00 Over 42,000 pounds of gross vehicle weight ............................................................................30.00 48
For the purpose of this schedule, gross vehicle weight shall mean the empty weight of the wrecker plus the heaviest load to be carried. (b) Where parking and/or storing is engaged in as an adjunct to operating a business under the provisions of this schedule, a separate license shall be obtained under Schedule 020, Subsections (a) and (b), of this Business License Code. There shall be no proration of the license amount because of said business having operated for only a portion of the calendar year. License stickers issued by the department shall be prominently displayed on any wrecker operating within the City of Birmingham. It shall be unlawful to operate any wrecker within the City of Birmingham without having met the requirements outlined in this section.
171 - MOVING PICTURES, THEATERS OR OPERA HOUSE (a) Each person engaged in conducting either one or more of the aforesaid types of business shall pay a license of 2 of 1% of the first $100,000 or less of gross receipts from said business in the year immediately next preceding plus 1/4 of 1% on all receipts in excess of $100,000 from said business for the year immediately next preceding, with a minimum license of $120.00 per year in any case. (b) Where moving pictures are shown by the use of a coin or coins in a slot, for each machine ...............................................................................................................................................$120.00
174 - NEWS DEALER Each person, firm or corporation whose principal business is the selling of magazines, periodicals, or other publications including books, whether at wholesale or retail, shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of ...............................................................................................................................................$100.00 Where not principal business .................................................................................................$ 12.00
175 - NEWSPAPERS - DAILY (Where not less than five issues made in any one week). Each person, firm or corporation issuing a daily newspaper, shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of .......................................................................$100.00 Provided, however, that a separate license is to be paid on a morning and afternoon paper; although owned and controlled by the same person, firm or corporation. In addition to the license required by this schedule, there shall be paid an additional license of $100.00 where newspapers are sold on the public streets, sidewalks or other public property where such sales are made by individuals. 49
176 - NEWSPAPERS AND MAGAZINES (Other than the kind described in the subsection immediately preceding). Each person, firm or corporation issuing any kind of a general newspaper or magazine shall pay a license on the following basis: Where gross receipts from said business the previous year were Less than $25,000 ..................................................................................................................$ 30.00 $25,000 and less than $60,000 ..................................................................................................60.00 $60,000 and less than $100,000 ..............................................................................................100.00 Plus an amount equal to 1/10 of 1% of all gross receipts, including advertising receipts, in excess of $100,000. In addition to the license required by this schedule, there shall be paid an additional license of $100.00 where newspapers are sold on the public streets, sidewalks or other public property where such sales are made by individuals.
177 - NEWSPAPER DISTRIBUTORS Each person, firm or corporation engaged in the business of selling newspapers in the City of Birmingham, either at retail or wholesale, except the publisher of the newspapers sold and except newsboys or others whose sales consist only of house delivery sales, shall pay a license as follows: Where gross annual receipts during the next preceding year were less than $10,000...........$ 25.00 $10,000 and less than $15,000 ..................................................................................................50.00 $15,000 and over.......................................................................................................................75.00 There shall be no liability for the license imposed under this Schedule 177 where a license has been paid under Schedule 175 or 176 of this Code. The license levied under this Schedule 117 shall not apply to those persons whose only business is the delivering of newspapers to homes.
178 - NEWSBOYS Each person selling newspapers on the public streets for which no privilege license is paid by the person, firm or corporation conducting such newspaper ........................................................$30.00
179 - NOVELTIES Each vendor of novelties shall pay a license of ...................................................................$100.00 There shall be no proration of license amount due to said business having operated for only a portion of the year. A SALES TAX DEPOSIT MAY BE REQUIRED. The license required under this Section shall be exhibited and immediately available for inspection 50
by the department=s designated agent, pursuant to Article II, Section 32, of this Business License Code. No vending is allowed on sidewalks, streets, highways, or roadways located within the AStudy Area@ designated under the Master Plan for Downtown Birmingham, namely that area bounded on the north by 12th Avenue North, on the east by Red Mountain Expressway and 26th Street North, on the south by Highland Avenue South and 12th Avenue South and on the west by I-65, and the streets and sidewalks within neighborhood retail business districts within the City without authorization. Such authorization must be obtained in addition to a business license. (Note: Anyone wishing to peddle in the AStudy Area@ should contact Operation New Birmingham (ONB). The issuance of a business license under this schedule does not permit or authorize any activity which is prohibited by Title 12, Chapter 14, Article A of the General Code of the City of Birmingham 1980, as amended and as it may be amended.
180 - OILS, WHOLESALE Each dealer in lubricating, illuminating, fuel, linseed or turpentine oils, gasoline (other than any gasoline or any substitute therefor which is consumed as aviation fuel), benzol and benzol products, and/or automobile tires and accessories, one or more, shall pay an amount equal to 3/20 of 1% of the gross receipts from any such business less returned goods, for the year next preceding the current license year with a minimum license in any case of .............................................................$120.00 Receipts above mentioned are to include along with the regular and ordinary receipts, all deliveries made from a wholesale stock to a retail stock department, regardless of the fact that the same party owns and operates, either in whole or part, both the wholesale and retail business. Receipts for such deliveries shall be deemed to be not less than the wholesale value of such oil or product in the event there is no actual receipt. Nothing contained in this Code shall be construed to alter or repeal any provision of Ordinances 598F and 599F, but, upon the contrary, said ordinances shall remain in full force and effect. The term Agross receipts@ as used in this schedule shall mean the entire receipts of said business and said term Agross receipts@ shall not include federal, state and local government taxes collected by said dealer from purchases in connection with said business, whether said dealer be acting as agent or otherwise, in the collection of said taxes.
181 - OIL, AUTOMOBILE, RETAIL Each person, firm or corporation selling automobile oils at retail other than where sold at a gasoline filling station, shall pay a license in an amount equal to 3/20 of 1% of gross receipts from the sales of such business during the year next preceding, with a minimum license for each place where such 51
oil is sold of............................................................................................................................$ 60.00
182 - OILS Each wholesale dealer, broker, or commission merchant, where not principal business and sold in connection with other wholesale business, shall pay a license in an amount equal to 3/20 of 1% of gross receipts from sales of such business during the year next preceding, with a minimum license, in addition to all other licenses, of ...........................................................................................60.00
183 - OILS Each person, firm or corporation selling as agent, lubricating, illuminating, fuel, gasoline, benzol, benzol products or other oil products, shall pay for the privilege of engaging in such business within the corporate limits a privilege tax at the rate of $50.00 per annum for each truck used in said business, whether said truck be owned by such agent or not.
184 - OPTICIAN - RETAIL Each person, firm or corporation acting as Optician or engaged in the business of retailing spectacles and related products shall pay a license on the first $30,000 of gross receipts from said business for the year next preceding of .....................................................................................................$100.00 Plus an amount equal to 1/10 of 1% of all gross receipts in excess of $30,000, with a minimum license of $100.00 in any case. For each place at which said business or occupation is carried on, a separate license fee and tax shall be paid.
185 - OPTICIAN - WHOLESALE Each person engaged in the wholesale business of manufacturing optical lenses or grinding lenses and dealings in optical goods or supplies, where principal business, shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license in any case of.............................................................................................................................$100.00
186 - OPTOMETRIST Each person, firm, corporation, association, or where a partnership, each member of partnership, where gross professional fees from services rendered within the City of Birmingham during the year next preceding are: Less than $5,000 ....................................................................................................................$ 30.00 $ 5,000 and less than $10,000 ...................................................................................................50.00 $10,000 and less than $15,000 ..................................................................................................75.00 $15,000 and less than $20,000 ................................................................................................100.00 $20,000 and less than $25,000 ................................................................................................125.00 52
$25,000 and less than $30,000 ................................................................................................150.00 Plus an amount equal to 4/10 of 1% of subject professional fees in excess of $30,000, with a minimum license of $30.00 in any case. This license is not to include the business of manufacturing and/or grinding lenses or the selling of merchandise other than manufacturing, grinding of lenses or the selling or furnishing of merchandise by an optometrist in the exercise of his practice as an optometrist.
187 - ORE, STONE, (OTHER THAN MARBLE OR STRUCTURAL STONE FOR WHICH A LICENSE IS REQUIRED BY SCHEDULE 158), SLAG, CONCRETE, SEWER, PIPE, GRAVEL AND SOIL OR IRON PIPE - INCLUDING ALL BY PRODUCTS Each person, firm or corporation or association engaged in the business of selling either at wholesale or retail or both, any or all of the aforementioned commodities shall pay an amount equal to 1/10 of 1% of the gross receipts, less adjustments, and returned goods, for the year next preceding the current license tax year, from all commodities delivered within the City of Birmingham from plants or places without the City of Birmingham and from all commodities delivered within or without the City of Birmingham from plants or places within the City of Birmingham. For the purposes of this schedule, the plural includes the singular, and a APlant@ or APlace@ shall be deemed within the City of Birmingham if a part thereof lie within and a part without the corporate limits of said City. If the amount of tax thus computed does not amount to as much as $60.00, or if an office be maintained within said City for the transaction of such business any where, a minimum license of $60.00 shall be paid.
188 - PACKING HOUSE COMPANIES, WHOLESALE MEAT DEALERS, RETAIL MEAT MARKETS, AND/OR PACKING HOUSE PRODUCTS Each person, firm or corporation operating a retail meat market and/or a packing house, or selling or delivering into the City of Birmingham packing house products to include meat, meat products, poultry, poultry products, cured meats or canned meats shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of .................$ 100.00 NO LICENSE WILL BE ISSUED until applicant has obtained and presented to the Revenue Division at the time of application a current, valid Health Department Permit.
189 - PAWN BROKERS OR PAWN BROKER'S AGENT Each person, firm or corporation doing business as pawn brokers or pawn broker's agents shall pay a license of 1/10th of 1% of gross receipts with a minimum license in any case of ..............$ 450.00
190 - PEANUTS AND POPCORN Where peanuts and popcorn are prepared and sold at retail direct to the trade, where gross receipts are less than $2,000 ................................................................................................................$ 18.00 53
$2,000 and less than $5,000 ......................................................................................................30.00 $5,000 and less than $8,000 ......................................................................................................42.00 $8,000 and over.........................................................................................................................60.00 A minimum license of $18.00 shall be paid in any case. This license is to be paid in addition to all other licenses that the operator thereof, may otherwise be paying. NO LICENSE WILL BE ISSUED until applicant has obtained and presented to the Revenue Division at the time of application a current, valid Health Department Permit.
191 - PEANUT DEALERS Where principal business, a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license in any case of...........................................................$ 60.00 NO LICENSE WILL BE ISSUED until applicant has obtained and presented to the Revenue Division at the time of application a current, valid Health Department Permit.
192 - PEDDLERS Each peddler, including any flea market vendor, whether on foot, or in vehicle, who sells or takes orders for evening dresses, gowns, underwear, hosiery, silk lingerie, battenburg face work, Mexican drawn work, furs, clothes, cloaks, or other kind of clothing, rugs, jewelry, furniture, clocks, etc., whether sale is made outright or whether title is retained by seller or only conditional sales made, each peddler or flea market vendor ........................................................................................$90.00 A SALES TAX DEPOSIT OF $300.00 MAY BE REQUIRED. There shall be no proration of license amount due to said business having operated for only a portion of the year. A current, valid photo identification, issued by a state, is required of each applicant. The license required under this Section shall be exhibited and immediately available for inspection by the department=s designated agent, pursuant to Article II, Section 32, of this Business License Code. No vending is allowed on sidewalks, streets, highways, or roadways located within the AStudy Area@ designated under the Master Plan for Downtown Birmingham, namely that area bounded on the north by 12th Avenue North, on the east by Red Mountain Expressway and 26th Street North, on the south by Highland Avenue South and 12th Avenue South and on the west by I-65, and the streets and sidewalks within neighborhood retail business districts within the City without authorization. Such authorization must be obtained in addition to a business license. (Note: Anyone wishing to peddle in the AStudy Area@ should contact Operation New Birmingham 54
(ONB). The issuance of a business license under this schedule does not permit or authorize any activity which is prohibited by Title 12, Chapter 14, Article A of the General Code of the City of Birmingham 1980, as amended and as it may be amended.
193 - PEDDLERS Each canvasser employed by installment merchant ..............................................................$ 18.00 Said license to be issued in the name of the salesman, as agent or salesman for the person by whom such salesman is employed. There shall be no proration of the license amount because of said business having operated for only a portion of the calendar year. The license required under this Section shall be exhibited and immediately available for inspection by the department=s designated agent, pursuant to Article II, Section 32, of this Business License Code.
194 - PEDDLERS ON FOOT Each person on foot who sells bottled drinks, ice cream, fruit, lunches or tobacco in any of its forms, any or all of said articles, shall pay a license on each article sold as specifically otherwise provided for in this Code; provided, however, that the minimum license in any case shall be ............$15.00 There shall be no proration of the license amount because of said business having operated for only a portion of the calendar year. The license required under this Section shall be exhibited and immediately available for inspection by the department=s designated agent, pursuant to Article II, Section 32, of this Business License Code.
195 - PEDDLERS Each fruit, produce or vegetable peddler, or any other peddler not covered by some specific schedule of this Code, whether with one or two horse wagons or vehicles of any kind, to include deliveries in the City on telephone orders received outside of the City, each wagon or vehicle ................$50.00 Where bakery goods are included and are not principal business ..........................................$60.00 There shall be no proration of the license amount because of said business having operated for only a portion of the calendar year. The license required under this Section shall be exhibited and immediately available for inspection by the department=s designated agent, pursuant to Article II, Section 32, of this Business License 55
Code.
196 - PET SHOPS Including the sale of cats, dogs, birds, etc., each person, firm or corporation operating .......$30.00 There shall be no proration of the license amount because of said business having operated for only a portion of the calendar year.
197 - PHOTOGRAPHERS Each person, firm or corporation shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license in any case of ..............................$42.00 Said license to include the developing of films, and the making of pictures on post cards. This schedule does not cover the taking of photos, other than those taken within the studio. TRANSIENT PHOTOGRAPHERS Each person, firm or corporation taking pictures from house to house or on the streets and sidewalks, shall pay at the rate of $10.00 per week for each machine used, with no license to be issued for a less period of time than five consecutive weeks. No transient photographer's license is to be issued for the purpose of operating on the streets or sidewalks, within any of the restricted fire zones of the City.
198 - PHYSICIANS, SURGEONS, DENTISTS, PSYCHOLOGISTS, PSYCHIATRISTS, OSTEOPATHS, CHIROPRACTORS OR CHIROPODISTS (a) Each person, firm or corporation, or where a partnership, [but not including associations as defined in subdivision (b) herein], each member thereof, where gross fees, charges or remuneration for professional services rendered or provided within the City of Birmingham during the year next preceding are less than$ 5,000 ...............................................................................................$ 30.00 $ 5,000 and less than $10,000 ...................................................................................................50.00 $10,000 and less than $15,000 ..................................................................................................75.00 $15,000 and less than $20,000 ................................................................................................100.00 $20,000 and less than $25,000 ................................................................................................125.00 $25,000 and less than $30,000 ................................................................................................150.00 Plus an amount equal to 4/10 of 1% of those subject professional fees, charges or remunerations in excess of $30,000, with a minimum license of $30.00 in any case. (b) Each professional member or associate of an unincorporated association (as defined by Title 10, Chapter 10, Code of Alabama 1975), or a professional corporation (as defined by Title 10, Chapter 4, Article 19, Code of Alabama 1975), where the total fees, charges or remuneration for services rendered within the City of Birmingham during the year next preceding are 56
Less than $5,000 ....................................................................................................................$ 30.00 $ 5,000 and less than $10,000 ...................................................................................................50.00 $10,000 and less than $15,000 .................................................................................................75.00 $15,000 and less than $20,000 ...............................................................................................100.00 $20,000 and less than $25,000 ................................................................................................125.00 $25,000 and less than $30,000 ................................................................................................150.00 Plus an amount equal to 4/10 of 1% of those subject professional fees, charges or remunerations in excess of $30,000, with a minimum license of $30.00 in any case. The gross remuneration of such professional member or associate, for the purpose of this section shall be computed by dividing the gross professional fees from services rendered within the City of Birmingham of such unincorporated association by the total number of professional members or associates of such unincorporated association.
199 - PIANO TUNER Each........................................................................................................................................$ 10.00 Where pipe organs are tuned and repaired: Additional ......................................................... 30.00
201 - PLUMBING, GAS FITTERS Each person, firm or corporation engaged in the business of plumbing gas fitting, and/or steam/ hot water heating, any one or all, where the number of master or journeyman workers retained or used is less than 3...............................................................................................................................$ 90.00 Where 3 and less than 5 ..........................................................................................................120.00 Where 5 and less than 10 ........................................................................................................180.00 Where 10 and less than 15 ......................................................................................................240.00 Where 15 and over ..................................................................................................................300.00 NO LICENSE WILL BE ISSUED until applicant has obtained and presented the following to the Revenue Division at the time of application: (1) (2) A current, valid Master Plumbers/Gas Fitters card issued by the State of Alabama Licensing Board for Plumbers and Gas Fitters. Surety Bond in the amount of $10,000, payable to the City of Birmingham, and executed on bond form provided by the City.
There shall be no proration of the license amount because of said business having operated for only a portion of the calendar year. Where plumbing equipment or supplies or other merchandise is sold and not installed by the plumber, a merchandise license shall be paid as provided for in Schedule 165 of this Business License Code.
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For the purpose of computing the amount of license tax due under this schedule, the average number of master or journeyman workers retained or used in the year immediately preceding the year for which the license tax is paid shall afford the basis of computation. The average number of master or journeyman workers shall be the quotient derived through dividing by four (4) the sum of the largest number of master or journeyman workers retained or used during the months of January, April, July and October of the year immediately preceding; provided, however, if the licensee were not engaged in business during the entire preceding year the average number of master or journeymen workers shall be determined on the basis of the highest number of master or journeyman workers retained or used during any one or more of the months of January, April, July and October, during which such licensee was engaged in business.
202 - POOL OR BILLIARD TABLES Each pool or billiard table either wholly or partially set up, whether operated or not ...........$60.00 Each pool or billiard table where playing area is less than 4232 square inches and said table is activated by the insertion of a coin in a slot or mechanical device ........................................$30.00 There shall be no proration of the license amount because of said business having operated for only a portion of the calendar year. NO LICENSE WILL BE ISSUED unless and until applicant has obtained a permit issued by the Chief of Police pursuant to Section 12-3-53, General Code of the City of Birmingham 1980, as amended and as it may be amended, and approval of said permit by the Mayor's Office.
204 - POULTRY AND EGGS, WHOLESALE Where principal business, $100.00 on the first $100,000 or less of gross receipts from said business for the year next preceding, plus an amount equal to 1/10 of 1% on all gross receipts from said business for the year next preceding the current license year in excess of $100,000. The above license shall apply only to those who regularly maintain within the City an established place of business from which is delivered the majority of their sales, or to those persons who maintain or store within the City a stock of poultry products or eggs, either in the shell or in dehydrated or powdered form, for delivery, sale, or distribution. Where not principal business and total gross sales of poultry and eggs for the year next preceding the current license year were more than $50,000, the license shall be based on the same percentage as above set out in this schedule. Where not principal business and total gross sales for the period above described were less than $50,000, the license for the selling of poultry and eggs shall be ...........................................$ 30.00 RETAIL - Where principal business ....................................................................................$ 50.00
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205 - POULTRY AND EGGS, WHOLESALE Each person, firm or corporation engaged in such business, but who does not regularly maintain within the City of Birmingham an established place of business from which is delivered the majority of their sales, but who commonly engages in selling and delivering by motor vehicle poultry and eggs, as a principal business, from outside said City to a point within said City shall pay a license of $75.00 on each motor vehicle used in said business. The full amount of this license is to be paid at one time and there is to be no prorating of the amount thereof because of said party having operated only a portion of the calendar year. In the event gross receipts in the City exceed $50,000 per annum, no license shall be paid on any motor vehicle used in said business but the license shall be $100.00 on the first $100,000 or less of gross receipts from said business for the year next preceding, plus an amount equal to 1/10 of 1% on all such gross receipts in excess of $100,000 and any such license computed under this sentence may be prorated.
207 - PRESSING CLUB Each person, firm or corporation operating by hand or machine a pressing shop, where not more than one machine is installed .........................................................................................................$30.00 Where two or more machines ...................................................................................................42.00 Three or more machines............................................................................................................60.00 The pressing club license will permit dry cleaning and pressing incidental thereto, when such dry cleaning business does not constitute more than 25% of the total gross business of the pressing club provided, however, that the owner or operator of said pressing club posts in the office or the place of business in a conspicuous place where it can readily be seen by the public entering therein, a placard not less than 8 inches by 15 inches in size, showing thereon the name of the cleaner for whom said pressing club is agent for the dry cleaning work done or stating on said placard that said dry cleaning work done or stating on said placard that said dry cleaning is performed by the owner or operator in his own place of business. In the absence of such placard being posted as above provided, a dry cleaning license as otherwise provided in this Code shall be collected from such pressing club, doing any dry cleaning.
208 - PRINTING, ENGRAVING, PHOTOENGRAVING, MULTIGRAPH, MIMEOGRAPH, LINOTYPE, BOOKBINDING OR RULING Each person, firm or corporation operating a job printing office or linotype machine with or without printing press or bookbinding shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of .................................................$ 48.00 This license to be paid in addition to the other licenses provided for in this Code where merchandise, stationery, and office supplies, etc., are sold. 59
210 - RAILROADS Each person, firm or corporation engaged in the City of Birmingham in the business of operating a railroad or railway trains for transportation of freight and passengers, one or both, to and from other points in the State of Alabama keeping an office or place of business in the City of Birmingham ............................................................................................................................................$2,000.00 Where only freight is transported ........................................................................................1,000.00
211 - SOLID WASTE FACILITIES, TRANSFER OR RE-CYCLING FACILITY Each person, firm or corporation approved by permit to operate and/or construct a commercial nonhazardous solid waste management facility or commercial hazardous waste management facility for the purpose of receiving, for treatment, utilization, recycling, processing, transporting, or disposal of solid waste shall pay a license where gross annual business from the previous year is Less than $ 5,000 ...................................................................................................................$ 30.00 $ 5,000 and less than $10,000 ...................................................................................................50.00 $10,000 and less than $15,000 ..................................................................................................75.00 $15,000 and less than $20,000 ................................................................................................100.00 Plus an amount equal to 1/10 of 1% of annual business in excess of $20,000. It shall be unlawful for any person to operate any commercial solid waste facility or transfer station, to change or expand the location or use of any existing facility without first having obtained approval therefor from the City Council in accordance with the provisions of Ordinance No. 93-221. No license issued under this article shall be transferred or assigned or used by any other person than the one to whom it was issued and no solid waste facility license shall be used at any location other than the one described in the application upon which it was issued.
212 - RENTING AND/OR LEASING Each person, firm or corporation engaged in the business of renting and/or leasing personal property to others, including, but not limited to office equipment, office furniture, machines, machinery, equipment, and aircraft, shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license in any case of ............................................$ 30.00 Any person, firm or corporation, when engaged in a business covered under another schedule of this code where gross receipts from rental and/or leasing are included as a measure of tax and both are operated from the same location, shall not be considered as engaging in the business of renting and/or leasing.
213A - REAL ESTATE AGENTS AND/OR BROKERS 60
(a) Each person, firm or corporation engaged in the business of a real estate broker shall pay an annual license amount of $50.00 plus $50.00 annually for each salesperson, collector, finder, broker or agent employed or engaged in such licensed business other than the one licensed real estate broker in whose name such business may be conducted, whether or not such person is called a Aqualifying or designated@ broker. The names of all such persons engaged in any such business for which a license is required under this Schedule 213, including the licensed broker under whose name such business is conducted shall be given to the City's Finance Director and shall be shown on the license receipt before it is issued. Each owner, partner or stockholder, who engages in or assists in the conduct of such business shall be counted for the purpose of determining the amount of annual license due hereunder, except the aforesaid one licensed real estate broker, but bookkeepers, secretaries, clerical personnel, maintenance workers and other employees whose services are only incidental to conducting or transacting such business shall not be so counted. Each person, firm or corporation engaged in the business of a real estate broker in respect to real property located within the City shall pay a license as herein set out even though the office or principal place of business may be outside the City. For the purpose of this Schedule 213 the term Abusiness of a real estate broker@ shall mean and include any person, firm or corporation doing or engaged in a business for which a real estate broker's license is required under Chapter 27, Title 34, Code of Alabama 1975. Qualification by any person as a real estate broker under the Alabama Real Estate License Law of 1951, or as same may be amended, shall be prima facie evidence of such person's liability under this Schedule 213. The $50.00 license hereinabove levied shall not be due for those salespersons, collectors, finders, brokers or agents for whom the tax levied under the provision of Ordinance No. 97-184 is withheld by the licensee. (b) The license provided in Schedule 213 shall not include the doing of business as a real estate appraiser for others where fees or compensation is received for such services. Such services shall be licensed as provided by Schedule 214 of this License Code. (c) A license issued under this Schedule shall not permit the holder of such license to rent or lease any area of less than 500 square feet for the purpose of storage or parking of motor vehicles. A license for such purpose shall be obtained under Schedule 020 of the Code.
213B - REAL ESTATE LEASE OR RENTAL (a) Each person, firm or corporation engaging in the business of renting or leasing real property which is located within the City of Birmingham and which is owned by such person, firm or corporation, or which is managed, pursuant to a contract with the owner of such property, by another person, firm or corporation, said property including, but not limited to, apartments and buildings for industry, storage, business or office space, shall pay a license as follows: Where the gross rental receipts from such real property during the preceding calendar year was Less than $5,000 ...................................................................................................................$ 50.00 61
$ 5,000 and less than $10,000 ...................................................................................................75.00 $10,000 and less than $15,000 ................................................................................................100.00 $15,000 and less than $20,000 ................................................................................................125.00 Plus an amount equal to 1/10 of 1% of gross annual business in excess of $20,000, with a minimum license of $50.00 in any case.
214 - REAL ESTATE APPRAISERS Each person, firm or corporation engaged in the business of appraising the value of lands and buildings, or either, and receiving compensation therefor, where gross professional fees from services rendered within the City of Birmingham during the year next preceding are Less than $5,000 ....................................................................................................................$ 30.00 $ 5,000 and less than $10,000 ...................................................................................................50.00 $10,000 and less than $15,000 ..................................................................................................75.00 $15,000 and less than $20,000 ................................................................................................100.00 $20,000 and less than $25,000 ................................................................................................125.00 $25,000 and less than $30,000 ................................................................................................150.00 Plus an amount equal to 4/10 of 1% of subject professional fees in excess of $30,000, with a minimum license of $30.00 in any case.
215A - REPAIR SHOP (OTHER THAN AUTOMOTIVE )Each person operating a repair shop (other than automotive), or engaged in the doing of repair work (other than automotive repair) shall, after having met all of the requirements of this section, pay a license as follows: Where only one worker ..........................................................................................................$ 30.00 Where 2 but less than 4 workers ...............................................................................................60.00 Where 4 but less than 6 workers ...............................................................................................90.00 Where 6 but less than 10 workers ...........................................................................................120.00 Where 10 but less than 15 workers .........................................................................................150.00 Where 15 and over ..................................................................................................................180.00 There shall be no proration of the license amount because of said business having operated only a portion of the calendar year. NO LICENSE WILL BE ISSUED without written approval or verification from the City of Birmingham Department of Planning, Engineering and Permits indicating that the business location meets all current Zoning Codes, Ordinances, and Regulations. Where parts, accessories, tools, machines, equipment, jewelry, and the like are sold in connection with said business, an additional license shall be obtained under the provisions of Schedule 165 of this Business License Code.
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215B - REPAIR SHOP (AUTOMOTIVE, PASSENGER AND NON-PASSENGER TRUCK, COMMERCIAL TRUCK, BUS, OR HEAVY DUTY EQUIPMENT - INSIDE OF BUILDING) Each person engaged in the business of repairing automobiles, passenger and non-passenger commercial trucks, buses, and heavy duty equipment, provided that the vehicle or equipment being repaired is placed completely within an enclosed building, with all work being performed within said building, shall pay a license as follows: Where only one worker ..........................................................................................................$ 30.00 Where 2 but less than 4 workers ...............................................................................................60.00 Where 4 but less than 6 workers ...............................................................................................90.00 Where 6 but less than 10 workers ...........................................................................................120.00 Where 10 but less than 15 workers .........................................................................................150.00 Where 15 and over ..................................................................................................................180.00 Said license to include the equipping, servicing, repairing (including major engine overhaul) and inside storage of automobiles, passenger and non-passenger commercial trucks, buses, and heavy duty equipment; provided, however, said license shall not permit the storage of disabled vehicles on the property for more than thirty (30) calendar days in the case of vehicles awaiting repair, nor more than thirty (30) calendar days in the case of vehicles which have been repaired, and provided that in no case shall any vehicle be kept on the property in excess of sixty (60) calendar days. There shall be no proration of the license amount because of said business having operated only a portion of the calendar year. Provided, however, where automobile parts and accessories are sold in connection with automobile repairs, an additional license shall be obtained under the provisions of Schedule 019 of this Business License Code. Where said person operates an automobile storing and/or parking area not in connection with the repair of any vehicle, an additional license shall be obtained under the provisions of Schedule 020 of this Business License Code. For the purposes of this section, the term Aenclosed building@ means any structure having walls, a roof, and a closeable door or doors, that encloses a space used for sheltering any residential or commercial occupancy. NO LICENSE WILL BE ISSUED without written approval or verification from the City of Birmingham Department of Planning, Engineering and Permits indicating that the business location meets all current Zoning Codes, Ordinances, and Regulations.
215C - REPAIR SHOP (AUTOMOTIVE, PASSENGER AND NON-PASSENGER TRUCK, COMMERCIAL TRUCK, BUS, OR HEAVY DUTY EQUIPMENT - INSIDE AND/OR OUTSIDE OF BUILDING) Each person engaged in the business of repairing automobiles, passenger and non-passenger 63
commercial trucks, buses, and heavy duty equipment outside of an enclosed building, with all work being performed inside and/or outside of an enclosed building, shall pay a license as follows: Where only one worker ..........................................................................................................$ 30.00 Where 2 but less than 4 workers ...............................................................................................60.00 Where 4 but less than 6 workers ...............................................................................................90.00 Where 6 but less than 10 workers ...........................................................................................120.00 Where 10 but less than 15 workers .........................................................................................150.00 Where 15 and over ..................................................................................................................180.00 Said license to include the equipping, servicing, repairing (including major engine overhaul) of automobiles, passenger and non-passenger commercial trucks, buses, and heavy duty equipment; provided, however, said license shall not permit the storage of disabled vehicles on the property for more than thirty (30) calendar days in any case. There shall be no proration of the license amount because of said business having operated only a portion of the calendar year. Provided, however, where automobile parts and accessories are sold in connection with automobile repairs, an additional license shall be obtained under the provisions of Schedule 019 of this Business License Code. Where said person operates an automobile storing and/or parking area not in connection with the repair of any vehicle, an additional license shall be obtained under the provisions of Schedule 020 of this Business License Code. For the purposes of this section, the term Aenclosed building@ means any structure having walls, a roof, and a closeable door or doors, that encloses a space used for sheltering any residential or commercial occupancy. NO LICENSE WILL BE ISSUED without written approval or verification from the City of Birmingham Department of Planning, Engineering and Permits indicating that the business location meets all current Zoning Codes, Ordinances, and Regulations.
216 - RESTAURANTS, CAFES, LUNCH AND SANDWICH STANDS, INCLUDING LUNCHES AT SODA FOUNTAINS Each person, firm or corporation conducting a restaurant, cafe, lunch or sandwich stand, shall pay a license on each place so conducted as follows: Where the gross annual receipts during the next preceding year were less than $5,000 ....................................................................................$ 30.00 $5,000 and less than $10,000 ....................................................................................................60.00 $10,000 and less than $15,000 ..................................................................................................90.00 $15,000 and less than $20,000 ................................................................................................120.00 $20,000 and less than $30,000 ................................................................................................150.00 $30,000 and less than $40,000 ................................................................................................180.00 64
$40,000 and less than $50,000 ................................................................................................210.00 $50,000 and less than $60,000 ................................................................................................240.00 $60,000 and less than $70,000 ................................................................................................270.00 $70,000 and less than $80,000 ................................................................................................300.00 $80,000 and less than $90,000 ................................................................................................330.00 $90,000 and less than $100,000 ..............................................................................................360.00 Where said gross receipts exceed $100,000 a license shall be paid in the amount of $360.00 plus 1/10 of 1% on all gross receipts in excess of $100,000. Where a person does not conduct such a restaurant, cafe, lunch or sandwich stand as its principal business, but on the premises where it conducts another business, such person shall pay the license tax herein levied for the privilege of conducting such a restaurant, cafe, lunch or sandwich stand; and the receipts from such a restaurant, cafe, lunch or sandwich stand shall not be included in computing the amount of tax due for engaging in any other business or businesses at such location. Provided, however, that where a person conducts a lunch or sandwich stand in connection with the operation of a soda fountain in a drug store, such person shall not be subject to the license tax herein levied where the total amount of gross receipts for the year next preceding received from such soda fountain and lunch or sandwich stand do not exceed $20,000, but such person shall include such receipts from such soda fountain and lunch or sandwich stand in computing the amount of license tax due by it for operating such drug store. Provided further, that where the amount of gross receipts from such soda fountain and lunch or sandwich stand for the year next preceding exceed $20,000, such person shall include $20,000 of such gross receipts in computing the amount of license tax for which it shall be liable for conducting such drug store, and shall pay a license tax for conducting such soda fountain and lunch stand, the amount of which shall be determined by applying the rates herein prescribed to all receipts from said soda fountain and lunch or sandwich stand in excess of $20,000. The phrase Arestaurant, cafe or lunch stand,@ as used in this schedule, shall include a restaurant, cafe or lunch stand conducted by, or upon the premises of a person, firm or corporation contemporaneously conducting a college or commercial or industrial enterprise, and whether such restaurant, cafe, lunch or sandwich stands be conducted for profit or not, and whether the service of such restaurant, cafe, lunch or sandwich stand be limited to students or employees of the person conducting such college or commercial or industrial enterprise or be not so limited. NO LICENSE WILL BE ISSUED until applicant has obtained and presented to the Revenue Division at the time of application a current, valid Health Department Permit.
217 - ROLLING MILLS Each person, firm or corporation, or who maintains their principal office in the City of Birmingham, who are engaged in the manufacturing and rolling steel rails, plates, and/or other iron and steel products, including the manufacture and sale of pig iron, shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of.........$600.00
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219 - RUBBER STAMPS OR STENCILS Each person, firm or corporation manufacturing or making, where gross receipts from said business for the year immediately next preceding were less than $5,000 ............................................$ 30.00 $ 5,000 and less than $10,000 ...................................................................................................40.00 $10,000 and less than $20,000 ..................................................................................................60.00 $20,000 and less than $30,000 ..................................................................................................80.00 $30,000 and over.....................................................................................................................100.00
220 - SAUSAGE FACTORY Each person, firm or corporation conducting, where principal business, shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of ...............................................................................................................................................$100.00 NO LICENSE WILL BE ISSUED until applicant has obtained and presented to the Revenue Division at the time of application a current, valid Health Department Permit.
221 - SCHOOL-BEAUTY Each person, firm or corporation engaged in the business of operating a beauty school, where gross annual receipts from said business from the previous year were less than $ 7,500................$30.00 $ 7,500 and less than $12,500 ...................................................................................................50.00 $12,500 and less than $20,000 ..................................................................................................75.00 Plus an amount equal to 3/8 of 1% of all gross annual receipts in excess of $20,000. Where merchandise and/or beauty supplies or products are sold in connection with said business, an additional license shall be required pursuant to Schedule 165 of this Business License Code.
222 - SCHOOL Each person, firm or corporation conducting a school as a business other than aviation school and beauty school provided for by Schedule 026 and Schedule 221, respectively of this Code, shall pay a license as follows: Where the gross receipts from said business from the previous year were Less than $10,000 ..................................................................................................................$ 25.00 $10,000 and less than $25,000 ..................................................................................................40.00 $25,000 and less than $60,000 ..................................................................................................60.00 $60,000 and less than $80,000 ..................................................................................................80.00 $80,000 and less than $100,000 ..............................................................................................100.00 Plus an amount equal to 1/10 of 1% of gross receipts in excess of $100,000.
223 - SHOE REPAIRING (a) Where machinery is used, to pay under Repair Shop Schedule 215. Where no machinery used, each worker ...................................................................................$9.00 66
(b) Each pick-up station accepting shoes for repair at another location shall pay a license of $20.00 in addition to all other licenses.
224 - SHOOTING GALLERY Each........................................................................................................................................$ 60.00 Shooting gallery, transients, per week ......................................................................................12.00
225 - SKATING RINK Each.......................................................................................................................................$120.00
227 - STEAM HEAT Each person, firm or corporation engaged in the business of supplying steam, hot or chilled water for the purpose of heating or cooling buildings or any other use shall pay a license in the amount of three percent (3%) of the gross receipts from said business for the year next preceding.
228 - SWIMMING POOLS For each place so operated not in connection with a regular amusement park ...................$180.00 There shall be no proration of the license in this case because of said business being operated for only part of the year.
229 - SYRUP, MANUFACTURER, AGENT, DEALER OR BROKER Each wholesale manufacturer, agent or dealer, or broker for Coca Cola, Celery Cola, Chero-Cola, Root Beer, or any similar compound syrup used in compounding drinks where principal business, in addition to bottlers license, shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of ..............................................................$100.00 NO LICENSE WILL BE ISSUED until applicant has obtained and presented to the Revenue Division at the time of application a current, valid Health Department Permit as needed.
230 - MANUFACTURERS OR DISTRIBUTORS OF CHEMICALS, CHEMICAL GAS, POWDER OR OTHER EXPLOSIVES, TAR OR ASPHALT PRODUCTS Each person, firm or corporation engaged in the business of manufacturing, distributing, or who maintains a sales office in the City shall pay a license of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of ................................................$100.00
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231 - TAILORING Each person, firm or corporation engaged in the business of tailoring wearing apparel or acting as agent for same or soliciting orders for same, whether the tailoring is done either within or without the City of Birmingham, shall pay a license as follows: Where gross receipts from the previous year were less than $5,000 .............................................................................................................$ 30.00 $5,000 and less than $10,000 ....................................................................................................50.00 $10,000 and less than $15,000 ..................................................................................................75.00 $15,000 and less than $20,000 ................................................................................................100.00 Plus an amount equal to 1/10 of 1% of gross receipts in excess of $20,000. The above license is to include the rental of wearing apparel.
233 - TAXICABS Each person, firm or corporation operating automobiles or motor vehicles commonly called and known as taxicabs (but not including jitneys and regularly established interurban bus lines), for each car so operated ........................................................................................................................$30.00 NO LICENSE WILL BE ISSUED until applicant has obtained a Certificate of Public Necessity and Convenience (CPNC) pursuant to the requirements of Sections 12-16-31 and 1216-41, General Code of the City of Birmingham 1980, as amended and as it may be amended. License stickers issued by the department shall be prominently displayed on any taxicab or limousine operating within the City of Birmingham. It shall be unlawful to operate any taxicab or limousine within the City of Birmingham without having met the requirements outlined in this section.
234 - TELEPHONE COMPANIES - EXCHANGE Each person, firm or corporation operating or conducting a telephone exchange or exchanges .........................................................................................................................................$ 12,000.00
235 - TELEPHONE COMPANIES - LONG DISTANCE Each person, firm or corporation operating a long distance telephone or telephones, doing an intrastate business ..............................................................................................................$3,000.00
236 - TELEGRAPH COMPANIES Each person, firm or corporation commercially engaged in business in this City and sending messages from the City to any part of the State or from any part of the State to the City (it is not the purpose hereof to tax interstate or foreign messages or any United States business) ..........$750.00
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237 - TILE MANUFACTURING - CONTRACTOR OR DEALER Each person, firm or corporation engaged in manufacturing or dealing in tile products, including the laying of tile, shall pay a license in an amount equal to 1/10 of 1% of the gross receipts from said business for the year next preceding, with a minimum license in any case of ......................$60.00
238 - TOBACCO PRODUCTS - RETAIL Each retail dealer engaged in the sale of tobacco products, whether or not principal stock in trade, and not including cigarettes, shall pay a license in an amount equal to 1/10 of 1% of gross receipts from said business from the previous year with a minimum license in any case of . . . . . . . . $150.00 ATobacco products@ means all products containing any quantity of tobacco in any form, including but not limited to cigars, cheroots, stogies, smoking tobacco, smokeless tobacco, snuff, chewing tobacco, or any substitute therefor. NO LICENSE WILL BE ISSUED until applicant has obtained and presented to the Revenue Division at the time of application: (1) A current, valid permit issued by the Alabama Alcoholic Beverage Control Board (ABC Board), pursuant to Title 28, Chapter 11, Code of Alabama 1975. Permits are required for all establishments selling tobacco products.
239 - TOBACCO PRODUCTS - WHOLESALE Each person, firm or corporation engaged in wholesaling cigarettes and other products containing tobacco in any of its various forms shall pay a license in an amount equal to 1/10 of 1% of gross receipts from said business from the previous year with a minimum license in any case of ............................................................................................................................................$1,000.00 Provided, however, that deliveries made from a wholesale stock to a retail stock or department owned or controlled in whole or in part by the same person, firm or corporation, are to be included as taxable receipts. ATobacco products@ means all products containing any quantity of tobacco in any form, including but limited to cigars, cheroots, stogies, smoking tobacco, smokeless tobacco, snuff, chewing tobacco, or any substitute therefor. NO LICENSE WILL BE ISSUED until applicant has obtained and presented to the Revenue Division at the time of application: (1) A current, valid permit issued by the Alabama Alcoholic Beverage Control Board (ABC Board), pursuant to Title 28, Chapter 11, Code of Alabama 1975. Permits are required for all establishments selling tobacco products.
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240 - TOILET OR LINEN SUPPLY COMPANY Each person, firm or corporation who is engaged in furnishing a toilet or linen supply service and who operates within the City of Birmingham shall pay a license for the operation of said business as follows: Where the gross receipts from said business from the previous year were Less than $50,000 ..................................................................................................................$ 60.00 $50,000 and not more than $100,000......................................................................................100.00 Plus an amount equal to 3/80 of 1% of gross receipts in excess of $100,000.
241 - TRADING STAMPS, COUPONS, ETC. (a) Each person engaged in the business of selling, issuing, or otherwise distributing any trading stamps, coupons, certificates or other similar devices redeemable, or purporting to be redeemable, in partial or full payment for goods, wares, merchandise, services or other thing of value shall pay a license of 3/10 of 1% of the gross receipts from said business from the previous year with a minimum license of..............................................................................................................$ 600.00 (b) In addition to the above license there shall be paid a license on each location at which trading stamps, coupons, certificates or similar devices are redeemed for goods or services in the amount of 1/10 of 1% of the gross receipts from said business from the previous year with a minimum license of ..........................................................................................................................................$ 100.00 The term Agross receipts@ in this schedule shall mean the retail market value of goods or services so redeemed.
242 - TREE PRUNING AND TREE SURGERY Each person, firm and corporation engaged in doing tree pruning or tree surgery: Where only one worker ..........................................................................................................$ 30.00 Where 2 or less than 4 workers .................................................................................................60.00 Where 4 or less than 6 workers .................................................................................................90.00 6 workers and over ..................................................................................................................120.00 NO LICENSE WILL BE ISSUED until applicant has obtained and presented to the Revenue Division at the time of application and renewal a current, valid State of Alabama Permit issued by the Alabama Department of Agriculture and Industries. There shall be no proration of the license amount because of said business having operated for only a portion of the calendar year.
243 - UNDERTAKERS (a) Each person where the gross annual business is $100,000 or less ................................$ 200.00 (b) And for each $50,000 or fractional part thereof in excess of $100,000 ...........................$ 60.00 70
A minimum license of $200.00 shall be paid in any case.
245 - VENDING MACHINES AND/OR COIN-OPERATED MACHINES - NOT TO INCLUDE TABLES ON WHICH THE GAME OF POOL OR BILLIARDS MAY BE PLAYED OR COIN OPERATED FILM MACHINES Each person operating or maintaining service or merchandise vending machines or providing space for same, which is being operated through the use of a coin or coins, or other legal tender inserted in a slot device, shall pay a license on each machine so operated as follows: (a) If the machine is operated through the use of not more than two pennies, or where the machine vends peanuts, peanut butter sandwiches and peanut products ONLY, regardless of coin value, or where the machine is used in operating public pay toilets, luggage storage lockers, and radios in hotel rooms, the license shall be ...............................................................................................$1.00 (b) If the machine is operated through the use of coin or coins of greater value than 2 cents and not more than 10 cents, except as otherwise provided; or where the machine is for the operation of television, the license shall be..................................................................................................$ 5.00 (c) If the machine is operated through the use of coin or coins of greater value than 10 cents, or where the machine plays music, the license fee shall be .......................................................$ 12.00 (d) If the person operating or maintaining for operation by others any automatic vending machine as hereinabove described, qualifies for an occupational license (ordinarily termed Industrial Location), as provided for in Section 11-51-98 Code of Alabama 1975, a license shall be paid in an amount equal to 1/10 of 1% of the first $100,000 or less of gross receipts received from the operation of each such machine in the year next preceding. In respect to machines vending aerated or carbonated waters or soft drinks, a license is hereby fixed at a percentage rate of the gross receipts, (the rate to be determined by the Director of Finance) in such an amount that will provide a license of not less than $5.00 for each machine so used. (e) There shall be no proration of any coin operated machine license. This schedule shall not apply to any coin operated gas meter or telephone, or to any machine vending postage stamps or other necessary articles on a non-profit basis for emergency use only by employees of any person. It shall be unlawful for any person to permit the use or operation, or the maintenance for use or operation, in their place of business, unless the license required by this schedule shall have been paid. Failure to have on said machine a sticker or decal furnished by the Director of Finance's office, or other tangible evidence supporting the payment of said license, shall be prima facie evidence that a license on said machine has not been paid. (f) Where sticker or decal is furnished by the License Department, the entire sticker or decal must be visible and posted in a conspicuous place.
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(g) If the machine is a video machine, pinball machine, or like machine, and is operated through the use of coin or coins, token or tokens, the license fee shall be ...............................................$ 12.00 (h) If the machine is a washer, dryer, or like machine, and is operated through the use of coin or coins, token or tokens, the license fee shall be ........................................................................$ 5.00 (i) Where dry cleaning service is provided through what is commonly known as ASelf-Service Dry Cleaning@ with the machines providing that service having constant ownership supervision, each machine so operated................................................................................................................$15.00 Where two or more compartments are combined in one machine or unit, each compartment .................................................................................................................................................$15.00
246 - VETERINARY SURGEON (a) Each person, or where a partnership but not including associations as defined in Subsection (b) herein, each member of partnership where gross professional fees from services rendered within the City of Birmingham during the year next preceding are less than $5,000 ............................$ 30.00 $5,000 and less than $10,000 ....................................................................................................50.00 $10,000 and less than $15,000 ..................................................................................................75.00 $15,000 and less than $20,000 ................................................................................................100.00 $20,000 and less than $25,000 ................................................................................................125.00 $25,000 and less than $30,000 ................................................................................................150.00 Plus an amount equal to 4/10 of 1% of subject professional fees in excess of $30,000, with a minimum license of $30.00 in any case. (b) Each professional member or associate of an unincorporated association (as defined by Title 10, Chapter 10, Code of Alabama 1975) or a professional corporation (as defined by Title 10, Chapter 4, Article 19, Code of Alabama 1975), where the total remuneration of services rendered within the City of Birmingham during the year next preceding are less than $5,000 ............................$ 30.00 $5,000 and less than $10,000 ....................................................................................................50.00 $10,000 and less than $15,000 ..................................................................................................75.00 $15,000 and less than $20,000 ................................................................................................100.00 $20,000 and less than $25,000 ................................................................................................125.00 $25,000 and less than $30,000 ................................................................................................150.00 Plus an amount equal to 4/10 of 1% of those subject remunerations in excess of $30,000, with a minimum license of $30.00 in any case. The gross remuneration of such professional member or associate, for the purpose of this section, shall be computed by dividing the gross professional fees from services rendered within the City of Birmingham of such unincorporated association by the total number of professional members or associates of such unincorporated association.
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248 - WAGON, CARRIAGE OR AUTOMOBILE BODY BUILDERS Each in addition to all other licenses: Employing less than ten workers ..........................................................................................$120.00 Employing ten workers or more .............................................................................................180.00 There shall be no proration of the license amount because of said business having operated for only a portion of the calendar year.
249 - WAREHOUSE, INCLUDING COTTON AND FURNITURE (a) Each person engaged in warehousing other than cold storage warehousing, shall pay a license as follows: Where total floor space in said warehouse is 20,000 square feet or less ..................$90.00 (b) Where square footage exceeds 20,000 square feet, the license shall be $90.00 plus an amount equal to 3/10 of one cent per square foot for any footage in excess of 20,000 square feet. (c) This Schedule 249 and Schedule 250 below shall be the sole applicable and governing provisions of the License Code of the City of Birmingham under which licenses are required and license fees are imposed for a cooperative grocers association which maintains a warehouse whether cold storage or otherwise, for the purpose of distributing groceries to member retail grocery stores. 250 - WAREHOUSE, COLD STORAGE (a) Each person engaged in cold storage warehousing shall pay a license fee as follows: Where total space in said warehouse is less than 100,000 cubic feet .........................................................$60.00 (b) Plus, for each additional 100,000 cubic feet, or fraction part thereof, an additional license of $60.00 shall be paid. (c) This Schedule 250 and Schedule 249 above shall be the sole applicable and governing provisions of the License Code of the City of Birmingham under which licenses are required and license fees are imposed for a cooperative grocers association which maintains a warehouse whether cold storage or otherwise, for the purpose of distributing groceries to member retail grocery stores.
251 - WATCHMAKER AND REPAIR Each worker ...........................................................................................................................$ 30.00 There shall be no proration of the license amount because of said business having operated for only a portion of the calendar year. Where watches, parts, accessories, tools, jewelry, and the like are sold in connection with said business, an additional license shall be obtained under the provisions of Schedule 165 of this Business License Code.
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252 - WATER WORKS COMPANIES Each person, firm or corporation engaged in the business of supplying water, for public domestic purposes, three percent (3%) of the gross receipts of such business for the preceding year.
253 - WATERMELONS Each person, firm or corporation whose principal business at any one place is the wholesaling of watermelons ...........................................................................................................................$ 50.00 Each retail peddler selling watermelons ...................................................................................15.00 The full amount of the wholesale and retail watermelon license as herein provided, is to be paid at one time without any proration because of said business not having been conducted for the entire calendar year.
255 - JANITORIAL SERVICE Each person, firm or corporation engaged publicly in the business of clearing plate glass windows, janitorial service and/or house cleaning, where only one worker .........................................$ 30.00 2 workers and less than 4 workers ............................................................................................60.00 4 workers and less than 6 workers ............................................................................................90.00 6 workers and less than 10 workers ........................................................................................120.00 10 workers and less than 15 workers ......................................................................................150.00 15 workers and over ................................................................................................................180.00 There shall be no proration of the license amount because of said business having operated for only a portion of the calendar year.
258 - CABLE TELEVISION Each person, firm or corporation engaged in the business of providing audio, video, digital or other forms of electronic or electrical signals which are transmitted to subscribing members of the public shall pay a license in an amount equal to...............................................................................$ 50.00
259 - COMMERCIAL AND INDUSTRIAL FINANCE Each person, firm or corporation conducting or engaging in secured transactions only in commercial and industrial finance shall pay an annual license equal to 3/8 of 1% of the gross interest or gross brokerage collected from said business during the year immediately preceding, with a minimum license in any case of ...........................................................................................................$300.00 and a maximum license of $5,000.00. This schedule shall not apply to pawnbrokers, banks or trust companies, or real estate mortgage loans.
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A commercial and industrial finance company is hereby defined to be any person, firm, corporation or association who either as principal or agent or broker does any of the following: Engages in the business of: (1) Financing of the purchase of income-producing equipment and inventory exclusive of motor vehicles, or (2) Lending money whereby a security interest is given in accounts receivable and/or specifically described personal property, other than consumer goods or motor vehicles, which security interest is perfected by filing with the appropriate authorities of the county or state, the payments of such loans to be made periodically over a period of months or years.
260 - OIL, GASOLINE AND DIESEL FUEL DELIVERY Each person as principal or agent engaged in distributing or making deliveries, by its own employees or by contract carrier, public or private, or otherwise, of oil, gasoline, kerosene, diesel fuel (other than aviation fuels) or lubricating products, and/or automobile tires and accessories, to one or more service stations, retailers, businesses or other consumers which are located in the city, whether or not such delivery or distribution is made from a place of business within or outside of the city=s corporate limits, shall pay an amount of license equal to 3/20 of 1% of the gross receipts from such deliveries or distribution during the next preceding license year, provided, that the tax hereby levied shall not apply to gross receipts of any delivery upon which a license tax levied pursuant to Ordinances 598F or 599F, or Schedules 180 or 182 of this Code has been paid. The term gross receipts as used in this schedule shall mean the entire receipts from all such deliveries and distribution, not including federal, state and local government taxes on the products so delivered or distributed, and if there are no actual receipts, shall be deemed to be not less than the wholesale value of the products so delivered or distributed.
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Section 2. TRANSIENT DEALERS. The following is hereby declared to be the schedule of licenses for Transient Dealers for the calendar year commencing January 1, 1998, for businesses who shall engage in the Transient Dealer business in or carried on in the City of Birmingham in said calendar year, and each and every firm, company or corporation engaged in any such business enumerated herein, in said calendar year shall pay and take out such licenses in such sums as are herein provided:
741 - TRANSIENT DEALERS All transient dealers as hereinafter defined by paragraph (a) of this Section 2 shall pay a license based on the following schedule: IF ANTICIPATED SALES ARE: $10,000 or less ...................................................................................................$100.00 More Than $10,000 but less than $ 25,000.............................................................................200.00 More Than $25,000 but less than $ 50,000.............................................................................300.00 More Than $50,000 but less than $100,000............................................................................400.00 Over $100,000 ........................................................................................................................500.00 Plus 1/10th of 1% of gross receipts, less returns, over $100,000. No proration of the amount thereof will be granted because said party does not continue in business the specified time stated in the application. It shall be unlawful for any transient dealer, itinerant merchant or promoter to engage in any business activities (as hereinafter defined) within the City unless licensed to do so as herein provided.
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(a) DEFINITIONS (1) The words Atransient dealers@ for the purpose of this section shall mean and include all persons, partnerships, associations, corporations, or any other type of business, both principals and agents, whether a resident of the City of Birmingham or not, who engage or conduct in this City either in one locality or in traveling from place to place, temporary shows (including but not limited to, trade shows, festivals, fairs, arts and crafts shows, home shows, boat shows), temporary/seasonal business (a temporary business that does not intend to establish a permanent location such as temporary kiosks in malls, Christmas, summertime vendors, etc.), temporary or transient business of selling, or soliciting orders for the sale of, goods, wares, or merchandise with the intention of continuing in said business in said City for a period of not more than 180 days, and who rent, lease, use, occupy, either in whole or in part, for the purpose of carrying on such business use, any room (including public rooms or space in hotels or motels), building, area within the BirminghamJefferson Civic Center or other public or privately-owned building, any lot or parcel of land, any motor vehicle including trucks and semi-trailers, tent, booth, stand or other approved structures within the City, for the exhibition and sale of such goods, wares and merchandise. ATemporary vending@ from a shopping mall location, or from a public building, such as a motel or civic center, constitutes transient vendor activity and, therefore, requires full compliance with the provisions of this ordinance. Any business transient in nature desiring a permanent license in said City for a period of more than 180 days must be continually operating for the full term of 180 days before a permanent license will be issued in locations described under the transient ordinance requirements. Such transient license will be converted to a permanent or regular license based on actual revenue produced during the 180 day transient license period. (3) The Apromoter@, Asponsor@ or other person, group of persons, association, partnership, firm or corporation organizing a convention, show, or sale which convention, show or sale includes ten (10) or more transient and local vendors or exhibitors, who offers to any vendor, directly or indirectly, sales areas within a multiple-vendor area location for the purpose of using such area during the term of the multiple-vendors license for the purpose of selling, bartering, exchanging, trading, or displaying goods or services, shall pay a license based on the above schedule. Sales for the purpose of this subsection shall include all sales of all vendors included in the convention, show or sale, but may exclude sales made by participants who have a current, applicable City of Birmingham business license.
(2)
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At the time of applying for a license pursuant to this ordinance, the promoter shall submit a list of vendors participating at the event for which the license is sought; such list shall include the vendor=s name, address, and business phone number, together with a general description of the goods and/or services offered by each vendor.
(b) TAX COLLECTION AND REPORTING RESPONSIBILITY It is the responsibility of the promoter/sponsor to insure that all taxes are collected from all vendors. Upon collection, the taxpayer must remit the tax to the City at which time the sales tax deposit will be returned.
(c) EXEMPTION PROVISIONS (1) The provisions of Section 2 shall not apply to sales of food or agricultural produce, peddlers, or sales of novelties otherwise licensed under this code and where stock or anticipated sales are valued or anticipated at $2,000 or less or to sales made to dealers by commercial travelers or selling agents in the usual course of business, nor to bona fide sales of goods, wares, or merchandise for future delivery in interstate commerce, where either no measurements or design specifications are made or prepared in the City, or where no payment or deposit is collected in the City as a condition for the placement of orders, or where no license may be collected in the City as a condition for the placement of orders, or where no license may be collected under the provisions of the Constitution or laws of the United States, nor to any sales or goods, wares or merchandise on the grounds of any agricultural society during the continuance of any annual fair held by such society, nor any sales by societies acting for charities, religious or public purpose. Conventions or religious, civic, charitable or benevolent groups, non-profit trade associations, concerts, and cultural events shall be exempt from this Section 2 (and vendors participating therein) if such convention, show, concert or cultural events has anticipated sales of $25,000 or less. Transient vendors participating in a convention, show or sale licensed hereunder shall not be required to have separate licenses. The Director of Finance shall have authority to set reasonable regulations and to set reasonable application and reporting requirements to aid in the collection of all license fees and other taxes.
(2)
(d) APPLICATION At least seven (7) days prior to holding of such sale or solicitation, every such transient dealer shall furnish to the Finance Director a verified license application setting forth the following:
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(1)
Name and address of the applicant and also the name of the true owner if the applicant is not such true owner of the goods, wares or merchandise to be sold; Name, location and time of the proposed sale or solicitation; General description of the type of goods, wares or merchandise, on hand and on order, which the applicant intends to offer for sale. A statement of the amount of gross receipts realized from each sale conducted in the City of Birmingham by applicant, and the date(s) thereof, if such sale was within the preceding five years. A valid driver=s license or other photo identification, issued by a state, from the owner, major sponsor or promoter of the sales event. Corporations must provide the address of any permanent place of business in the State of Alabama, or, if there is no permanent place of business in the State of Alabama, a copy of a Certificate of Existence issued by the Secretary of the State of Alabama evidencing the fact that the dealer has qualified to do business in Alabama and the name and address of its agent for the service of process in the state. Such other information as the Director of Finance may prescribe.
(2) (3)
(4)
(5)
(6)
(7)
(e) DEPOSITS AND BOND (1) Bond: Every applicant for a transient dealer's license shall execute and file with the Director of Finance a good and sufficient bond in the sum of $5,000.00 or a deposit of 10% of anticipated sales, whichever is greater, with the surety thereon a surety company authorized to do business in the State of Alabama, and shall be payable to the City of Birmingham to the extent that any taxes or fines as determined by the Director of Finance of the City to be due are not paid, and upon judicial determination, to those authorized to file suit thereunder, and shall be conditioned upon faithful observance of all the conditions of this section, and the payment of city license, sales, use, income or occupational license taxes due or to be withheld and paid by the licensee hereunder, and shall also indemnify any purchaser at such sale who suffers any loss by reason of defective merchandise or any misrepresentation in said sale. Said bond shall also provide that the City of Birmingham may file suit in their own name against the licensee and/or the surety on said bond for any taxes, fees or fines due from the licensee which are not paid within 30 days of the termination of the sale and that any purchaser at such sale may maintain an action against the licensee and/or said surety for claims arising from such sale. This bond shall also provide that it shall continue in effect for one year after the termination of the sale for which it is made and until all actions are concluded and the judgment or judgments, if any, have been paid and fully satisfied, or the amount of bond exhausted by such payments. This bond shall be in addition to all deposits 79
required under other ordinances of the City, including but not limited to the sales and use tax ordinances. The above bond and Certificate of Existence to do business in Alabama shall be public records open to examination upon request and copies thereof shall be furnished on request upon payment of a fee of $3.00 per page. (2) Sales Tax Deposit: A Sales tax deposit is required in the amount of $300.00 or 3% of anticipated sales, whichever is greater. After the first event, the sales tax deposit will be based on previous event=s actual sales. The deposit will be held until a verified sales tax deposit is filed within seven (7) days after the close of business. The deposit will be returned to the taxpayer upon receipt of the verified sales tax returns.
(3)
Occupational Tax Deposit: An occupational tax deposit of $50.00 or 1% of anticipated wages, salaries, or compensation paid to employees, temporary workers, etc. is required. (f) REPORTS OF SALES All transient dealers shall make a verified report of sales, as required by City Ordinance 97-185. Such return shall be due within seven (7) days of the close of business.
(g) ADVERTISING (1) A transient dealer shall not advertise, represent or hold forth a sale of goods, wares, or merchandise as an insurance, bankrupt, insolvent, assignee, trustee, estate, executor, administrator, receiver, manufacturer=s wholesale, canceled order, misfit sale, close-out, or a sale of any goods damaged by smoke, fire, or water otherwise, unless before so doing the applicant shall state in writing under oath to the Director of Finance of the City of Birmingham at the time of application for a license all the facts relating to the reason and character of such special sales, so advertised, held forth, or represented. A statement should be included of persons from whom said goods, wares, or merchandise were purchased, and the date of delivery of same to the person applying for license, the place where said goods, wares, or merchandise were taken last, and such details necessary to exactly locate and fully identify all goods, wares, or merchandise to be sold, and make such further disclosure to and give such information as may be required by Director of Finance of the City of Birmingham. And such transient dealer shall also include in said statement names and residences of the owners in whose interest the business is conducted and whether conducted as an individual, firm, association, or corporation. It shall be unlawful for any transient dealer to sell or exhibit for sale either at public or private sale any goods, wares, or merchandise without first complying with the provisions of this Section 2, or to make any false statements in reference to the matter required in Subsection (b) above, or to fail or refuse to comply with the requirements of any of the provisions of this Section 2. However, nothing contained in this section shall be construed as abridging or denying the right and power of the Council of the City of Birmingham to refuse or withhold the granting of any license or to revoke the same, if granted, to a transient 80
(2)
dealer upon any hearing thereof when in the discretion of said Council on the basis of the disclosures as aforesaid, or from other information deemed by them sufficient, such action may be deemed necessary or proper to protect or safeguard the public from imposition, mischief or fraud.
(h) ZONING Such activity for which application is made and any license issued shall only be lawful in a commercial zoning district in the City as determined by the official Zoning Ordinance of the City and the official Zoning Map. Failure to so locate same is a basis for denying or revoking a business or privilege license to conduct such activity. (i) GENERAL PROVISIONS (1) The Director of Finance is hereby charged with the enforcement of the provision of this ordinance and he is hereby authorized and empowered to prescribe, adopt and enforce rules and regulations relating to the administration and enforcement of the provisions of this ordinance. Nothing herein contained shall be construed to relieve any person or other legal entity from any license fee liability, tax liability, interest, penalty or forfeiture incurred as of the effective date.
(2)
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Section 3. ALCOHOLIC BEVERAGES - LIQUOR, BEER, WINE. The following is hereby declared to be the schedule of licenses for Alcoholic Beverages - Liquor, Beer, Wine for the calendar year commencing January 1, 1998, for businesses who shall engage in the alcoholic beverage, liquor, beer or wine business in or carried on in the City of Birmingham in said calendar year, and each and every firm, company or corporation engaged in any such business enumerated herein, in said calendar year shall pay and take out such licenses in such sums as are herein provided: Section 3.1 DEFINITIONS. In the construction of this subsection, the following words or phrases shall, unless the context clearly indicates otherwise, have the meanings ascribed to them as follows: (a) (b) (c) (d) (e) "Board." The Alcoholic Beverage Control Board of the State of Alabama. "City." The City of Birmingham, Alabama. "Code." The Code of Alabama, 1975. "Corporate Limits." The corporate limits of the City of Birmingham, Alabama. "Engaged in Business." A person shall be deemed engaged in business within the corporate limits if that person has a fixed place of business within said corporate limits, or if, pursuant to agreement of sale, express or implied, that person delivers any alcoholic beverage or liquor, beer, or wine within said corporate limits, or if that person within said corporate limits, shall do any act authorized to be done only by the holder of any license issued by the board. "Fixed Place of Business." Any place where any alcoholic beverage, liquor, wine, or beer is kept or stored for sale or delivery. "Person." Any legal entity, including, but not limited to, natural persons, associations and corporations, but excluding the State of Alabama and the Board.
(f)
(g)
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(h)
The terms "Alcoholic Beverage," "Beer," ABrewpub@, "Club," "Importer," "Liquor," "Manufacturer," "Restaurant," "Retailer," "Sale or Sell," "Wholesaler," "Wine," "Fortified Wine," and "Table Wine" shall have the same meaning as ascribed to them by the Alabama Alcoholic Beverage Licensing Code, Title 28, Code of Alabama 1975, and as interpreted by the regulations of the Board.
Section 3.2 ISSUANCE OF ALCOHOLIC BEVERAGE LICENSES. No alcoholic beverage licenses shall be issued for use within the City of Birmingham (a Class 1 municipality) without prior approval by the Birmingham City Council. All other provisions of law, rules or regulations to the contrary notwithstanding, the Alabama Alcoholic Beverage Control Board shall have absolutely no authority to issue any form of license in the City of Birmingham (a Class 1 municipality) including, but not limited to, off-premise consumption licenses, restaurant licenses, or club licenses, for the retail sale of any form of intoxicating beverages, including, but not limited to, malt liquor, beer, wine, liquor, or other alcoholic beverage regulated by the board, unless one of the following requirements are satisfied: a. b. The application has first been approved by the Birmingham City Council. The denial of a liquor license application by the Birmingham City Council has been set aside by order of the circuit court of the county in which the site is situated on the ground that the municipal approval was arbitrarily or capriciously denied without a showing of one of the following: 1. 2. The creation of a nuisance. Circumstances clearly detrimental to adjacent residential neighborhoods. A violation of applicable zoning restrictions or regulations.
3.
Section 3.3 SCHEDULE OF CITY LIQUOR LICENSES. Each person licensed by the Board, who shall engage in the alcoholic beverage, liquor, beer or wine business within the corporate limits, shall, prior to engaging in such business, pay to the City for the privilege of so engaging in business, an annual license fee and further license fees as established below. 150A - MANUFACTURER. Each person licensed by the Board as a manufacturer under Section 28-3A-6 of the Code, who manufactures, or otherwise distills, produces, ferments, brews, bottles, rectifies, or compounds alcoholic beverages shall pay an annual license fee of .................$500.00 Monthly One Tenth of One Percent (1/10 of 1%) Liquor Tax-Schedule 150-Z. On or before the 15th day of the calendar month next succeeding each separate 83
calendar month, each such person shall also pay to the City, for the privilege of so engaging in such business in such immediately next preceding month, an additional license tax of one-tenth of one percent (1/10%) of the gross receipts of such business received during such immediately next preceding month which said gross receipts were derived only from the sale of alcoholic beverages other than table wines and malt or brewed beverages. 150B - IMPORTER. Each person licensed by the Board as an importer under Section 28-3A-7 of the Code shall pay an annual license fee of $500.00, provided that, if such importer can only import table wine the license fee shall be ........................................................................................$250.00 Monthly One Tenth of One Percent (1/10 of 1%) Liquor Tax-Schedule 150-Z. On or before the 15th day of the calendar month next succeeding each separate calendar month, each such person shall also pay to the City, for the privilege of so engaging in such business in such immediately next preceding month, an additional license tax of one-tenth of one percent (1/10%) of the gross receipts of such business received during such immediately next preceding month which said gross receipts were derived only from the sale of alcoholic beverages other than table wine and malt or brewed beverages. 150C - LIQUOR WHOLESALER. Each person licensed by the Board as a liquor wholesaler under Section 28-3A-8 of the Code, shall pay an annual license fee of .......................................$500.00 Monthly One Tenth of One Percent (1/10 of 1%) Liquor Tax-Schedule 150-Z. On or before the 15th day of the calendar month next succeeding each separate calendar month, each such person shall also pay to the City, for the privilege of so engaging in such business in such immediately next preceding month, an additional license tax of one-tenth of one percent (1/10%) of the gross receipts of such business received during such immediately next preceding month which said gross receipts were derived only from the sale of alcoholic beverages other than table wine and malt or brewed beverages. 150D - BEER WHOLESALER. Each person licensed as a beer wholesaler under Section 28-3A9 of the Code shall pay an annual license fee of ..................................................................$275.00 150E - WINE WHOLESALER. Each person licensed as a wine wholesaler under Section 28-3A9 of the Code shall pay an annual license fee of ..................................................................$150.00 Monthly Wine Tax ($.07/liter)-Schedule 400. On or before the 15th day of the calendar month next succeeding each separate calendar month, each such person shall also pay to the City, for the privilege of so engaging in such business in such immediately preceding month, an additional license tax of $.07 per liter of table wine sold within the City during the preceding month. (Section 28-7-16, Code of Alabama 1975)
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150F - BEER AND WINE WHOLESALER. Each person licensed as a beer and wine wholesaler under Section 28-3A-9 of the Code shall pay an annual license fee of ..............................$375.00 Monthly Wine Tax ($.07/liter)-Schedule 400. On or before the 15th day of the calendar month next succeeding each separate calendar month, each such person shall also pay to the City, for the privilege of so engaging in such business in such immediately preceding month, an additional license tax of $.07 per liter of table wine sold within the City during the preceding month. (Section 28-7-16, Code of Alabama 1975) 150G - WAREHOUSE. Each person licensed by the Board to operate an alcoholic beverage warehouse under Section 28-3A-10 of the Code, shall pay an annual license fee of .........$200.00 150H - LOUNGE RETAIL LIQUOR - CLASS I (On-Premises Consumption). Each person licensed by the Board to operate a retail liquor lounge under Section 28-3A-11 of the Code, shall pay an annual license fee of .................................................................................................$500.00 Monthly Three Percent (3%) Liquor Tax-Schedule 150-Y. On or before the 15th day of the calendar month next succeeding each separate calendar month of each calendar year, each such person shall also pay to the City, for the privilege of so engaging in such business in such immediately next preceding month, an additional license tax of three percent (3%) of the gross receipts of such business received during such immediately next preceding month in which said gross receipts were derived from the sale of alcoholic beverages other than table wine and malt or brewed beverages including beer. 150I - RESTAURANT RETAIL LIQUOR. Each person licensed by the Board to sell alcoholic beverages in connection with the operation of a hotel, restaurant, civic center authority or dinner theater under Section 28-3A-13 of the Code, shall pay an annual license fee of ...............$500.00 Monthly Three Percent (3%) Liquor Tax-Schedule 150-Y. On or before the 15th day of the calendar month next succeeding each separate calendar month of each calendar year, each such person shall also pay to the City, for the privilege of so engaging in such business in such immediately next preceding month, an additional license tax of three percent (3%) of the gross receipts of such business received during such immediately next preceding month which said gross receipts were derived only from the sale of alcoholic beverages other than table wines and malt or brewed beverages including beer. 150J - CLUB LIQUOR - CLASS I. Each person licensed by the Board to operate a club under Section 28-3A-12 of the Code, shall pay an annual license fee of .....................................$500.00 Monthly Three Percent (3%) Liquor Tax-Schedule 150-Y. On or before the 15th day of the calendar month next succeeding each separate calendar month of each calendar year, each such person shall also pay to the City for the privilege of so 85
engaging in such business in such immediately next preceding month, an additional license tax of three percent (3%) of the gross receipts of such business received during such immediately next preceding month were derived from the sale of alcoholic beverages other than table wine and malt or brewed beverages including beer. 150K - RETAIL TABLE WINE (OFF-PREMISES CONSUMPTION). Each person licensed by the Board to sell table wine at retail for off premises consumption under Section 28-3A-15 of the Code, shall pay an annual license fee of ................................................................................$40.00 150L - RETAIL TABLE WINE (ON-PREMISES AND OFF-PREMISES CONSUMPTION). Each person licensed by the Board to sell table wine at retail for on-premises and off-premises consumption under Section 28-3A-14 of the Code, shall pay an annual license fee of .....$100.00 150M - RETAIL BEER (ON-PREMISES AND OFF-PREMISES CONSUMPTION). Each person licensed by the Board to sell beer for on premises and off-premises consumption under Section 28-3A-16 of the Code, shall pay an annual license fee of .......................................$40.00 150N - RETAIL BEER (OFF-PREMISES CONSUMPTION). Each person licensed by the Board to sell beer for off-premises consumption under Section 28-3A-17 of the Code, shall pay an annual license fee of ..............................................................................................................$40.00 150O - SPECIAL RETAIL - MORE THAN 30 DAYS. Each person who shall be granted a special retail license by the Board under Section 28-3A-19 Code of Alabama 1975, which is valid for more than 30 days, and renewable annually shall pay a license fee of ........................................$250.00 Monthly Three Percent (3%) Liquor Tax-Schedule 150-Y. On or before the 15th day of each calendar month of each calendar year, each such person shall pay to the City, for the privilege of so engaging in such business in the immediately preceding month, an additional license tax of three percent (3%) of the gross receipts of such business derived from the sale of alcoholic beverages other than table wine and malt or brewed beverages including beer during such immediately preceding month. 150P - SPECIAL EVENTS RETAIL - LESS THAN SEVEN (7) DAYS. Each person licensed by the Board to sell alcoholic beverages under Section 28-3A-20 of the Code, which is valid for a period not to exceed seven (7) consecutive calendar days shall pay to the City a license fee of $50.00. Such license issued by the City is non-renewable. 150Q - SPECIAL RETAIL - LESS THAN THIRTY (30) DAYS. Each person who shall be granted a special retail license by the Board under Section 28-3A-19, which is valid for a period of more than seven (7) days but not to exceed thirty (30) days shall pay to the City a license of $150.00. Such license issued by the City is non-renewable.
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Monthly Three Percent (3%) Liquor Tax-Schedule 150-Y. On or before the 15th of the calendar month next succeeding the period of the license issued each such person shall pay to the City for the privilege of so engaging in such business an additional license tax of three percent (3%) of the gross receipts of such business derived from the sale of alcoholic beverages other than table wine and malt or brewed beverages during such license period. 150R - BREWPUB. Each person licensed by the Board as a Brewpub under Chapter 4A, Title 28 Code of Alabama 1975, the AAlabama Brewpub Act@, shall pay an annual license fee of $500.00. In addition each person licensed as a Brewpub, shall also be required to be licensed under the provisions of Schedule 150-I (Restaurant Retail Liquor). 150S - LOUNGE RETAIL LIQUOR-CLASS II - OFF PREMISES (PACKAGE STORES). Each person licensed by the Board to operate an off-premise retail liquor lounge (package store) under Section 28-3A-11 of the Code, shall pay an annual license fee of ............................$500.00 Monthly Three Percent (3%) Liquor Tax-Schedule 150-Y. On or before the 15th day of the calendar month next succeeding each separate calendar month of each calendar year, each such person shall also pay to the City, for the privilege of so engaging in such business in such immediately next preceding month, an additional license tax of three percent (3%) of the gross receipts of such business received during such immediately next preceding month in which said gross receipts were derived from the sale of alcoholic beverages other than table wine and malt or brewed beverages including beer. 150T - CLUB LIQUOR - CLASS II. Each person licensed by the Board to operate a club under Section 28-3A-12 of the Code, shall pay an annual license fee of ......................................$500.00 Monthly Three Percent Liquor Tax-Schedule 150-Y. On or before the 15th day of the calendar month next succeeding each separate calendar month of each calendar year, each such person shall also pay to the City for the privilege of so engaging in such business in such immediately next preceding month, an additional license tax of three percent (3%) of the gross receipts of such business received during such immediately next preceding month were derived from the sale of alcoholic beverages other than table wine and malt or brewed beverages including beer.
Section 3.4 CITY LIQUOR LICENSE CONDITIONS AND SPECIAL PROVISIONS. (a) Deduction for Beer and Wine Tax. For the purpose of this Schedule 150, gross receipts from the sale of table wine, which are taxed under Chapter 7, Title 28 Code of Alabama 1975, the AAlabama Table Wine Act@, and gross receipts from the sale of beer on which the uniform State Tax is paid, shall be deducted from the amount considered gross receipts hereunder.
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(b) City License Amount One-Half of State License Fee. Notwithstanding any other provision of this Schedule 150, no license or privilege tax, or other charge for the privilege of doing business as a wine wholesaler, importer, or retailer, shall be collected by the City which shall exceed one-half of the amount of the state license fee collected by the Board for like privilege. (c) No Proration of Liquor License Fee. There shall be no proration of any license fee because of having operated only a part of a calendar year, except as by State law. (d) Due Date of Annual Liquor License Fee; Due Date of Monthly Liquor Taxes; Penalty for Late Payment. The stated annual license fee levied by this Schedule 150 shall be due January 1 of each year and shall be delinquent after January 15 of the year for which such license is due, and a penalty of fifteen percent (15%) shall be collected on or after January 16th of such year. All additional license fees levied by this Schedule 150, shall be due on the 15th day of the calendar month specified in each levy and shall be delinquent if not paid by such day and a penalty of 15% shall be collected after such day of each month. (e) Unlawful to Sell or Dispense Alcoholic Beverages Without a License. It shall be unlawful for any person, firm, or corporation to engage in the sale of any alcoholic beverage in the City of Birmingham without having first procured a license for such sale. It shall also be unlawful for any current licensee to continue to sell any alcoholic beverages after the expiration of a license previously issued, without obtaining a new license. Each day during which such business is so engaged shall constitute a separate offense punishable as outlined in Section 44 of this ordinance, which punishment may include fine and/or arrest and imprisonment. (f) Record Keeping Requirements for Liquor Licensees. (1) It shall be the duty of every person, firm, corporation, club, association of persons, receiving, storing, selling or handling alcoholic beverages enumerated in this schedule in any manner whatsoever to keep and preserve all invoices, books, papers, canceled checks or other memoranda touching the purchase, sale, exchange or receipt of any and all such alcoholic beverages for a period of five (5) years. All such invoices, books, papers canceled checks or other memoranda shall be subject to audit and inspection by the department at any and all times upon written notice by the department. Any person, firm, corporation, club or association of persons who fails or refuses to keep and preserve the records as required by this section or who, upon written request by the department, fails or refuses to allow an audit or inspection of records as provided in this ordinance shall be guilty of a misdemeanor and shall, upon conviction, be punished by a fine of not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00), or by imprisonment for a period not to exceed six (6) months for each offense. Each occurrence of such failure or refusal shall constitute a
(2)
(3)
88
separate offense and shall also constitute grounds for revocation of any license issued under this Schedule 150. Additional requirements are outlined in Article II, Section 9, of this Business License Code. (g) Liquor License/Tax Returns to be Filed. The person liable for any license tax imposed by this Schedule shall file with the Director of Finance on or before the final date on which the license tax may be paid without a penalty, such report or reports and in such form as the Director may prescribe evidencing the amount of business done and the amount of license due thereon. (h) Appeal from the Denial of Liquor License Application. Any person aggrieved by any decision of the Director in the enforcement of this subdivision, may appeal therefrom to the Council of the City of Birmingham by filing with the City Clerk, within five days of such decision, a letter addressed to the Council, protesting such decision, and contemporaneously delivering a copy of such protest to the Director of Finance and thereafter appearing and prosecuting such protest at the regular meeting of the Council next following the filing of such protest. Failure to thus appeal shall constitute acceptance of such decision and assent to the correctness thereof. Where a matter has been properly appealed to the Birmingham City Council and resulted in the denial of approval of a license application, the applicant may appeal to the circuit court. Proceedings in the circuit court to review the denial of approval of a license application shall be commenced within fourteen (14) days of the action by the Birmingham City Council. The circuit court shall hear the appeal according to its own rules and procedures within thirty (30) days thereafter. (i) City Liquor License Must Be Obtained for Each ABC Board License Held; License Must Be Displayed. A City license shall be obtained for each ABC Board license held. Every license issued under this ordinance shall be constantly and conspicuously displayed on the licensed premises. (j) Approval of Liquor License Applicant and Business Location Required. No license will be issued until requirements mandated by the Department of Planning, Engineering and Permits (Zoning), the Fire and Rescue Service Department, and the Health Department have been met, and the applicant and the location have been approved by the City Council. (k) Liquor Licenses May Not Be Assigned or Transferred Without Approval. As provided in Section 28-3A-23(j) Code of Alabama 1975, licenses issued under this Schedule 150 may not be assigned. The City is hereby authorized to transfer any license from one person to another or from one place to another within its governing jurisdiction or both upon submission of such application for transfer to the Finance Department and approval of same by the Council of the City of Birmingham. No transfer shall be made to a person who would not have been eligible to receive the license originally nor for the transaction of business at a place for which the license could not originally have been issued lawfully. (4)
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(l) Written Application for Transfer of Liquor License Required. Every applicant desiring a transfer of a license shall file a written application with the Director of Finance within fifteen (15) working days from the date ownership of the business was legally transferred or conferred to another legal entity. (m) License Immediately Terminated in the Event of Bankruptcy or Insolvency. Pursuant to Section 28-3A-23(m) Code of Alabama 1975, in the event that any person to whom a license shall have been issued under the terms of this ordinance shall become insolvent, make an assignment for the benefit of creditors, be adjudicated a bankrupt by either voluntary or involuntary action, the license of such person shall immediately terminate and be canceled without any action on the part of the City Council, and there shall be no refund made, or credit given, for the unused portion of the license fee for the remainder of the license year for which said license was granted. Thereafter, no license shall be issued by the Finance Department for the premises, wherein said license was conducted, to any assignee, committee, trustee, receiver, or successor of such licensee until a new application for license has been approved by the City Council. In all such cases, the City Council shall have sole and final discretion as to the propriety of the issuance of a license for such premises, and the time it shall issue, and the period for which it shall be issued, and shall have the further power to impose conditions under which said licensed premises shall be conducted.
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ARTICLE II
CITY OF BIRMINGHAM BUSINESS LICENSE CODE ENFORCEMENT PROVISIONS
TO PREVENT EVASION OF THE LICENSE TAX LAWS OF THE CITY OF BIRMINGHAM AND TO PROVIDE MEANS FOR THE ASCERTAINMENT AND COLLECTION OF THE CORRECT AMOUNT OF LICENSE TAXES DUE TO THE CITY OF BIRMINGHAM -
Section 1. DEFINITIONS. For the purposes of this Business License Code, unless the context clearly requires otherwise, the words and phrases used herein shall have the meanings ascribed to them in this section. When not inconsistent with the context, words used in the present tense include the future, words in the singular number include the plural number, words in the plural number include the singular number, words in the masculine include the feminine and the neuter, and the word Ashall@ is always mandatory and not merely directory: (a) AAmount of Business@, unless the contrary clearly appears, means the gross receipts of the business and shall not contemplate any deduction for any purpose not specifically provided for. AAnnualization@ means an estimation, extended for a twelve (12) month period, based on reported gross receipts for a prior period of less than a twelve (12) month calendar year period. AApplicant@ means any person who applies for a license or a license renewal under the provisions of this Business License Code. ABusiness@ means and includes all activities engaged in or caused to be engaged in within the city, including any commercial or industrial enterprise, trade, profession, occupation, vocation, calling, or livelihood, including lease or rental of residential or nonresidential real estate, and every other kind of activity whether or not carried on for gain or profit, and whether or not engaged in as a principal or as an independent contractor, but shall not include the services rendered by an employee to his employer. ABusiness License@ means the certificate required to be posted or displayed as evidence of a business= payment of the tax required by the provisions of this Business License Code, and shall herein be referred to as Alicense@ except as otherwise specified.
(b)
(c)
(d)
(e)
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(f) (g)
ACity@ means the City of Birmingham, Alabama. ACommercial Solid Waste Facility@ means a site or facility receiving solid waste, as defined herein, not generated on site, for treatment, utilization, recycling, processing, transportation or disposal of solid waste, including transfer stations, transfer facilities, incinerators, sanitary or other landfill facilities, facilities for separating and preparing solid waste for reuse, facilities for converting solid waste to energy or other facilities necessary or desirable in connection therewith, and to which a fee is paid or other consideration given for such treatment, utilization, recycling, processing, transportation or disposal. AContractor@ means any person who accepts orders or contracts from the owner of real property to assume authority or control, or to supervise, manage, or direct the work of others, or who is delegated authority by the owner to do so, whether at a fixed price or on a cost-plus basis, for doing any work in any building or structure, or for doing any paving or curbing, or for excavating or grading earth, rock or other material, or for constructing any sewer, street, road, bridge, dam or railroad, or for any other type of construction or installation work, or for demolishing any building or other structure, or for moving any building or other structure from one location to another. ADepartment@ means the Department of Finance of the City of Birmingham, and includes the Director of Finance. ADirector of Finance@ means the Director of Finance of the City of Birmingham, Alabama, or his or her duly authorized agent. AEngaged in Business@ means the transacting and carrying on, or managing, or operating of a business whether as owner, or by means of an officer, manager, employee, or lessee. AFinal Assessment@ means the final notice of value, underpayment, or nonpayment of any tax administered by the department. AGross Annual Business@, unless the contrary clearly appears, shall mean the gross receipts of the business, and shall not contemplate any deductions for any purpose not specifically provided for. AGross Receipts@, unless the contrary clearly appears, shall mean the total revenue, without limitation to the amount of the sale price of all sales, the total amount charged for the performance of any act or service of whatever nature it may be, for which a charge is made or credit allowed, whether or not such act or service is done as a part of or in connection with the sale of materials, goods, wares, or merchandise and shall include the entire receipts, rents, royalties, cash, credit, and property of any kind or nature, without any deduction therefrom on account of the cost of goods sold or expenses incurred, the cost of materials used, labor or service cost, interest paid or payable, or loss or other expenses whatsoever of the business, vocation, occupation, or profession engaged in, including all receipts from sales 93
(h)
(i)
(j)
(k)
(l)
(m)
(n)
regardless of the place where the sale was solicited, or place where the contract of sale was consummated or the place of delivery, and shall include the amount of any federal excise tax, or any other tax imposed on sales by retailers or wholesalers, except the Alabama Sales Tax levied pursuant to Title 40, Chapter 23, Article 1, Code of Alabama 1975, and Jefferson County Sales Tax, levied pursuant to Act 387, 1965 Regular Legislative Session, and except Birmingham Sales Tax levied pursuant to Ordinance No. 97-185 as now or hereafter amended, and shall not contemplate any deductions for any purpose not specifically or expressly provided for herein. (o) AGross Sales@, unless the contrary clearly appears, shall mean the gross receipts of the business, and shall not contemplate any deductions for any purpose not specifically provided for. ALicense Year@ means and includes the twelve (12) month period beginning on January 1st of each year and ending on December 31st of the same year. ANotice of Appeal@ means any written notice sufficient to identify the name of the taxpayer or other party appealing, the specific matter appealed from, the basis for that appeal, and the relief sought. APerson@ means and includes any individual, firm, foreign or domestic corporation, partnership, association, joint-stock company or joint-stock corporation, trust, business trust, cooperative non-profit membership, joint venture, estate, receiver, syndicate, holding company, society, limited liability company, limited liability partnership, unincorporated organization, and any other group or entity, or combination acting as a unit, in the singular or plural, and shall also include the agent or employee having charge or control of a business in the absence of the principals. APermit@ means a written authorization, or permission to engage in or participate in some regulated or otherwise controlled activity. Under the provisions of this Code section, a Apermit@ is not equivalent to a Alicense@, and vice-versa. APetition for Refund@ means a written request for a refund of tax previously paid, including in the form of an amended return. Unless otherwise provided by law, such request shall include sufficient information to identify the amount of tax overpaid, the taxpayer, the period included, the reasons for the refund and sufficient documentation as required by the Director of Finance. APetition for Review@ means a written document filed with the department in response to a preliminary assessment in which the taxpayer sets forth reasonably specific objections for the preliminary assessment. APreliminary Assessment@ shall mean the preliminary notice of value or underpayment of any tax administered by the department. 94
(p)
(q)
(r)
(s)
(t)
(u)
(v)
(w)
APrivate Auditing or Collecting Firm@ means any person in the business of collecting, through contract or otherwise, local license fees or for the City of Birmingham, or auditing any taxpayer, through the examination of books and records, for the City of Birmingham. AReturn@ shall mean any report, document, or other statement required to be filed with the department for the purpose of paying, reporting, or determining the proper amount of value or tax due. ASolid Waste@ means any garbage, rubbish, putrescible waste, offal, dead animals, demolition materials, refuse or sludge from a water treatment plant, water supply treatment plant or air pollution control facility, discarded materials, including solid, liquid, semi-solid or contained gaseous material resulting from industrial, commercial, mining, medical, and agricultural operations, including hazardous, infectious and toxic materials or waste, discarded materials from community and household activities and other like matter or materials. ASolid Waste Facility@ or AFacility@ means any land, building, plant, system, facility, trucks, and other motor vehicles, equipment or other property, whether real, personal, or mixed, or any combination of either thereof, used or useful or capable of future use in connection with the treatment, utilization, recycling, processing, transporting, or disposal of solid waste, including a transfer facility, or station, incinerators, sanitary or other landfill facilities, facilities for separating and preparing solid waste for reuse, facilities for converting solid waste to energy or other facilities necessary or desirable in connection therewith. ASubcontractor@ means and includes a contractor who is generally licensed to perform one type of work for which a contractor's license is required, and who performs such work under subcontract to a general contractor. A subcontractor, nonetheless, may be a person who performs such work as is authorized by his license under direct contract with the owner of property, in which capacity the subcontractor will perform in the role of a contractor, or, he may perform only the types of work for which a contractor's license is required or award subcontracts to other subcontractors. ASworn Statement@ means an affidavit sworn to before a person authorized to take oaths, or a declaration, certification, or verified affidavit made under penalty of perjury. ATax@ means any amount, including applicable penalty levied or assessed against a taxpayer and which the department is required or authorized to administer under the provisions of this ordinance. ATaxpayer@ means any person subject to or liable for taxes herein levied; any person required to file a return with respect to, or to pay or remit the tax herein levied or to report any information or value to the department, or its designee; or any person required to obtain, or holding any interest in any license issued by the department, or its designee, or any person
(x)
(y)
(z)
(aa)
(bb)
(cc)
(dd)
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that may be affected by any act or refusal to act by the department, or its designee, or to keep any records required by this Code. (ee) ATaxpayer=s Authorized Representative@ means any individual with written authority or power of attorney to represent a taxpayer before the department; provided, however, that nothing herein shall be construed as entitling any such individual who is not a licensed attorney to engage in the practice of law. ATaxpayers= Bill of Rights Pamphlet@ means a written pamphlet to be distributed by the department to all taxpayers whose books and records are being examined by the department, at or before the commencement of an examination, explaining in simple and nontechnical terms, the role of the department and the rights of the taxpayer whose books and records are being examined by the department during the examination and which shall be promptly revised from time to time to reflect any changes in the applicable law or rules. ATransfer Facility@ means a facility which receives and temporarily stores solid waste at a location other than the generation site, and which facilitates the bulk transfer of accumulated solid waste to a facility for further processing or disposal. The term includes land affected during the lifetime of the operations, including, but not limited to, areas where storage or transfer actually occurs, support facilities, borrowed areas, offices, equipment sheds, air and water pollution control and treatment systems, access roads, associated on-site or contiguous collection and transportation facilities, closure and postclosure care and maintenance activities, and other activities in which the natural surface has been disturbed as a result of or incidental to operation of a transfer station. A facility is a transfer facility regardless of whether it reduces the bulk or volume of waste. The term does not include portable storage containers used for the collection of municipal waste other than special handling waste. References to the ACode of Alabama 1975@ shall mean such sections as are currently in effect and as it or they may be amended. Where the phrase Areasonable cause@ is used in this Code, it shall include, but not be limited to, those instances in which the taxpayer has acted in good faith. The burden of proving reasonable cause shall be on the taxpayer. Where the words Acode@ or Aordinance@ are used in this Code, they shall be used interchangeably. Where the words Anotice@ or Areturn@ are used in this Code, they shall be used interchangeably.
(ff)
(gg)
(hh)
(ii)
(jj)
(kk)
Section 2. APPLICATION FOR AND ISSUANCE OF BUSINESS LICENSE. 96
2.1 APPLICATION--WHERE TO APPLY AND CONTENTS OF APPLICATION. (a) Applications for all licenses required by this Business License Code shall be made in writing to the Finance Department of the City of Birmingham upon a form prescribed by the department in the absence of any provision to the contrary. (b) Applications must include, but shall not be limited to the following information and/or documents: 1. The full, legal name of the applicant. (If the applicant is a corporation, provide the names and addresses of all corporate officers. If the applicant is a partnership, provide the names and addresses of all the partners.) The trade name or names under which the company will conduct business, also known as the ADBA@ (doing business as) name. The mailing address to which notices and correspondence will be sent. The complete address of the physical business location. A Post Office Box cannot be used as a physical business location address. A complete description of the business activity and resulting product or service, as well as the type of business operation (whether manufacturer, wholesaler, contractor, etc.) and the form of business organization (whether corporation, partnership, proprietorship, LLC, LLP, etc). The date business operations began or will begin. The date the application is made. The number of employees involved in the business. A complete listing of the full legal names and titles of all partners, corporate officers, etc. Signature of applicant, whether owner, partner, corporate officer, or legal designated agent, certifying to the accuracy of the information contained therein. Federal tax identification number, and applicable State of Alabama Tax identification numbers for Sales Tax, Use Tax, etc. Photo identification, issued by a state, of each applicant, owner, partner, or corporate officer. A copy of articles of incorporation, if applicable. Such further information as the department may deem necessary to correctly identify business owners, to properly classify the business operation, and/or to enable the department to issue the business license for which application is being made.
2. 3. 4. 5.
6. 7. 8. 9. 10. 11. 12. 13. 14.
2.2 APPLICATION--MISREPRESENTATION. Any willful misrepresentation of a material fact in any application required by this Business License Code, or to any City law enforcement officer, or to the Director of Finance in the performance of his duties pursuant hereto, is a violation of this Code, and shall be deemed a misdemeanor, and in addition to the punishment provided herein, such willful misrepresentation shall be grounds for denial of a license or revocation if one has been issued, as provided in Section 24 of this Business License Code.
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2.3 ISSUANCE OF LICENSE--SWORN STATEMENTS; ISSUANCE OF LICENSE CONDITIONAL. (a) Sworn Statements Required. In all cases where the amount of license tax is dependent upon the amount of business done, amount of sales, receipts, value of furniture and other equipment, stock, capital invested, number of helpers or employees, amount of space occupied, or any factor or factors whatsoever either of the same kind as the foregoing enumerations or of a different kind therefrom, it shall be the duty of the person subject to such tax to render to the Director of Finance, on or prior to the date when such tax becomes due, a sworn statement showing the total business done, amount of sales, receipts, stock, value of furniture and other equipment, capital invested, number of helpers or employees, amount of space occupied, or other factor or factors herein above mentioned, one or several, as the case may require for the ascertainment of the classification of such person for license taxation purposes and the correct amount of license tax to which he is subject. (b) Issuance of License Conditional. Upon receipt of any license tax based upon the classifications of such person as shown by such sworn statement as required by Section 2.3(a) above, the Director of Finance shall issue the appropriate license, but the issuance and grant thereof is expressly conditional upon the truth and accuracy of such sworn statement and the same shall be revocable by the Council of the City of Birmingham as inadvertently and mistakenly granted and issued whenever it shall be made to satisfactorily appear to said Council that the said sworn statement is false or incorrect or that the holder of such license has not paid to the City of Birmingham the correct amount of license tax.
2.4 ISSUANCE OF LICENSE--PAYMENT OF OTHER LICENSES NOT EXCUSED. Any person required to pay a license tax for conducting a business under the provisions of this Business License Code shall not be relieved from the payment of any license tax for the privilege of conducting such business required under any other provision of this Code or any other ordinance or regulation of the City, and such person shall remain subject to all regulatory provisions. 2.5 ISSUANCE OF LICENSE--UNLAWFUL MANNER OF OPERATION PROHIBITED. The granting of a license for a business shall not be deemed a permit to conduct the same in an unlawful manner or on premises where such business is prohibited by law. 2.6 ISSUANCE OF LICENSE--LICENSE DOES NOT PERMIT BUSINESS OTHERWISE PROHIBITED. The business license issued pursuant to the provisions of this Code constitutes a receipt for the license tax paid and shall have no other legal effect. A business license is a requirement, not a permit, to transact and carry on any business activity within this City. The business license issued is evidence only of the fact that such tax has been paid. Neither the payment of the tax nor the possession of the business license issued authorizes, permits, or allows the doing of any act which the person holding the same would not otherwise be entitled to do; and any permit, license, variance, or other instrument of approval or evidence that any conditions exist as required by any other section of this ordinance or by any statute or code provision of the City must first be obtained or complied with before the doing of any act or thing for which it is required.
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2.7 ISSUANCE OF LICENSE--NO REQUIRED PERMITS WAIVED. Persons required to pay a license tax for transacting and carrying on any business under this ordinance shall not be relieved from the payment of any additional permit fees for the privilege of carrying on any similar or related activity under any other ordinance of the City, and shall remain subject to the regulatory provisions of other ordinances and laws. 2.8 ISSUANCE OF LICENSE--UNPAID TAXES. No business license for any succeeding, current or unexpired tax period shall knowingly be issued to any person, who at the time of application, is indebted to the City for any unpaid tax. The total indebtedness shall include the total tax due plus penalties for failure to pay the tax when due. 2.9 FALSE OATH TO PROCURE LICENSE. It shall be unlawful for any person to give, submit, exhibit or present to the City of Birmingham, the Director of Finance, or to his designated agent, any false, deceptive or misleading statement, affidavit, certificate, book or record entry, or other document, relating to the amount of capital invested, the value of goods, stocks, or merchandise, the amounts or volume of sales, receipts or commissions, the number of employees, the number of vehicles used, or any other data, record of information required by the License Code of the City of Birmingham to determine the amount of license due. 2.10 USE OF LICENSE BY UNLICENSED PERSON. No person holding a license required by this Business License Code shall permit any unlicensed independent contractor, transient dealer, or other person to use the license, the licensed premises or the licensee's name for the purpose of evading payment of any license fee or of evading any other provision of this Business License Code. Section 3. EXEMPTIONS.
3.1 PHYSICIANS, DENTISTS, ETC. No license shall be required of any dentist, physician, surgeon, optometrist or veterinarian for the first two years succeeding his first instance of licensure or admission to the practice of his profession. The two-year period of exemption herein provided shall begin from the first licensure, authorization or admission to practice regardless of in what state, territory or district the said first licensure, authorization or admission occurred. 3.2 NON-PROFIT ORGANIZATIONS. Non-profit organizations which have been granted exemptions from business license taxation by Acts of the Alabama Legislature are exempt from City license taxes. The legislative act, or a copy thereof, must be submitted to the department in order to be eligible for the grant of such exemption. Non-profit organizations are NOT automatically exempt from the provisions of this Business License Code by virtue of having qualified for non-profit status on the federal income tax level. 3.3 FARMERS. No license shall be required of any farmer, or other individual engaged in the production of farm products for the sale or other disposition exclusively of goods or commodities produced by them.
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(a)
AGrowers Permit@ Required. When any farmer or other individual shall claim to be exempt from the payment of license, he shall file with the Director of Finance annually, a valid AGrower=s Permit@ issued by the County Agent through the authority of the State of Alabama Department of Agriculture. Such AGrower=s Permit@ shall be valid only for such person(s) named in said permit and for such items as listed in said permit. False Statements-Penalties. Any person who shall make any false statement as to the ownership, entitlement, authorization, or authenticity of any such AGrowers Permit@ provided for in Section 3.3(a) hereof; and upon the basis of which a City business license exemption was granted shall be guilty of a misdemeanor and upon conviction shall be fined not less than fifty dollars ($50.00), nor more than five hundred dollars ($500.00) for each offense, and in addition may be imprisoned for a period not to exceed six (6) months, or by both such fine and imprisonment.
(b)
3.4 UNLAWFUL TO SELL WITHOUT AGROWER=S PERMIT@. It shall be unlawful for any farmer or other individual engaged in the production of farm products to sell within the corporate limits of the City of Birmingham any goods or commodities produced by them without first having procured the AGrower=s Permit@ provided for by Section 3.3(a) of this License Code.
Section 4. LICENSE REQUIRED TO ENGAGE IN BUSINESS. (a) Unlawful to Commence, Engage in, or Continue in Business Without License. It shall be unlawful for any person to commence, or engage in any business, vocation, occupation or profession, who is not otherwise exempt therefrom under the provisions of this License Code, without first having procured a license therefor, or to continue in any business, vocation, occupation, or profession after the expiration of a license previously issued, without obtaining a new license. Each Day in Violation Constitutes Separate Offense. Each day during which said business, vocation, occupation or profession is so engaged in shall constitute a separate offense. The engaging in a business, vocation, occupation or profession shall include any offer to sell, any soliciting of orders for sale, or any offering of services, whether or not the same shall result in a sale or the furnishing of any service. Maintenance of Place of Business Prima Facie Evidence. Maintenance of a place for the carrying on of a business, vocation, occupation or profession shall be prima facie evidence that the person, firm or corporation is carrying on or conducting business.
(b)
(c)
Section 5. FILING OF LICENSE RETURNS; PENALTIES.. 5.1 BUSINESS LICENSE DUE DATE, IN GENERAL. Except as otherwise provided herein, all licenses under this Code shall be due and payable on the first day of the calendar year for the whole calendar year, or from the day on which business is commenced for the remainder of the calendar 100
year. The payment for the calendar year license renewal shall be delinquent on February 16 of that year. 5.2 (a) BUSINESS LICENSE DUE DATES--SPECIFIC. Annual Alcoholic Beverage Licenses. All alcoholic beverage licenses shall be due and payable on the first day of each calendar year, or from the day on which business is commenced for the remainder of the calendar year. The payment for the calendar year alcoholic beverage license renewal shall be delinquent on January 16 of each year. Monthly Liquor Tax. All monthly liquor taxes imposed by this ordinance shall be due and payable on the fifteenth (15th) day of the month next succeeding the month in which the license tax accrues. Insurance. All business licenses issued pursuant to Schedules 136 and 137 of this license Code shall be due and payable on the first day of each calendar year, or from the day on which business is commenced for the remainder of the calendar year. The payment for the license renewal shall be delinquent on March 4th of each year. 598-F and 599-F. All monthly taxes levied pursuant to Schedules 598-F and 599-F shall be due and payable on the twenty-fifth (25th) day of each month following the monthly period for which the tax is due.
(b)
(c)
(d)
5.3 PENALTIES FOR LATE PAYMENT, IN GENERAL. If said licenses are not paid before becoming delinquent, a penalty shall be assessed and collected in addition to the license tax due. Said penalty shall be an amount equal to five percent (5%) of the amount of the license tax which is delinquent during the period beginning February 16 and ending March 15, a penalty of fifteen percent (15%) during the period beginning March 16 and ending April 15, and a penalty of twentyfive percent (25%) thereafter. The Director of Finance, if reasonable cause is shown for failure to pay the license within the prescribed time, may waive or remit the penalty in whole or part. 5.4 (a) PENALTIES FOR LATE PAYMENT--SPECIFIC. Liquor Licenses. Any annual liquor license return/notice and payment not received by the due date thereof shall be deemed untimely filed and shall be assessed a penalty for late payment in the amount of fifteen percent (15%) of the amount due, such penalty to be assessed and collected as part of the license tax.
(b)
Monthly Liquor Tax. Any monthly liquor tax return/notice and payment not received by the due date thereof shall be deemed untimely filed and shall be assessed a penalty for late payment in the amount of fifteen percent (15%) of the amount due, such penalty to be assessed and collected as part of the license tax.
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(c)
Insurance. Any insurance license return/notice and payment not received by the due date thereof shall be deemed untimely filed and shall be assessed a penalty for late payment as follows: five percent (5%) of the amount of the license tax which is delinquent during the period beginning March 4 and ending April 3, a penalty of fifteen percent (15%) during the period beginning April 4 and ending May 3, and a penalty of twenty-five percent (25%) thereafter. 598-F and 599-F. Any tax return and payment to be filed and remitted, pursuant to Ordinances 598-F or 599-F, and which is not received by the due date thereof shall be deemed untimely filed and shall be assessed a penalty for late payment in the amount of twenty percent (20%) of the amount due, such penalty to be assessed and collected as part of the license tax.
(d)
5.5 PENALTIES--OTHER. The foregoing part of Section 5 is to apply as to penalties except where in the judgment of the Director of Finance, it is necessary to check the accounts of the licensee in order to properly determine the amount of license tax due, and after having done so, it is found that the licensee has not paid the full amount due, a penalty not exceeding twenty-five percent (25%) of the amount originally due shall, in the judgment of the Director of Finance, be assessed as penalty. 5.6 DURATION OF LICENSE. Except as otherwise provided herein, any business license referred to in this Code shall automatically expire on December 31st of the year of its issuance. 5.7 TIMELY MAILING TREATED AS TIMELY FILING AND PAYING. The provisions outlined in this section for timely filing of any returns, payments, claims, statements, or other documents shall be administered as provided herein. (a) Date of Delivery. If any return, claim, statement, or other document required to be filed, or any payment required to be made, within a prescribed period or on or before a prescribed date under the authority of any provision of this Business License Code is, after such period or such date, delivered by United States mail to the Finance Department or to the department=s designated depository where such return, claim, statement, or other document is required to be filed, or to which such payment is required to be made, the date of the United States postmark stamped on the cover in which such return, claim, statement, or other document, or payment is mailed shall be deemed to be the date of delivery, or the date of payment, as the case may be; provided, however: (1) Weekends and Holidays. When the due date falls on a Saturday, Sunday, or City of Birmingham holiday, payment of the tax may be made without penalty on the first working day following the due date. Mailing Requirements. The return, claim, statement, or other document, or payment was, within the time prescribed in subsection (a) above, deposited in the mail in the United States in an envelope or other appropriate wrapper, postage prepaid, properly addressed to the Finance Department or the department=s 102
(2)
designated depository where such return, claim, statement, or other document is required to be filed, or to which the payment is required to be made. (b) Taxpayer=s Responsibility When No Form Received. The department is authorized, but not required, to mail license application forms, business license renewal notices, monthly liquor tax notices, and any other applicable forms to taxpayers; but, failure of the taxpayer to receive such notices or forms does not relieve the taxpayer of the responsibility of properly making application for any license, the timely renewal of licenses, the timely reporting of the information required on any return required to be filed, and/or the timely payment of any applicable license taxes or fees required under any provision of this ordinance. Delivery By Method Other Than United States Mail. Returns, claims, statements, or other documents, or payments which are required under any provision of this Code which are delivered by any method other than by mailing shall be considered timely filed when such items are received in the Finance Department or the department=s designated depository on the due date prescribed. Untimely Filing. Any return, payment, claim, statement, or other document not received in accordance with the provisions of this section shall be deemed untimely filed and shall be assessed applicable penalties as prescribed by the relevant sections of this Code.
(c)
(d)
Section 6.
[Reserved]
Section 7.
[Reserved]
Section 8. OATHS. 8.1 OATHS; SWORN STATEMENTS. The reports herein required to be made are not required to be made under oath, but wherever in this Code any report is required to be sworn to, such sworn statements to include but not be limited to those bearing on the character of the business engaged in, the amount of capital invested therein, and the dollar amount of the business transacted, the same shall be sworn to by the taxpayer or his agent before some officer authorized to administer oaths, and any false statement to a material fact made with the intent to defraud shall constitute perjury, and upon conviction thereof, the person so convicted shall be punished as provided in Section 1-1-6, General Code of the City of Birmingham 1980, as amended and as it may be amended. 8.2 STATEMENTS NOT CONCLUSIVE. All information and statements provided by any such person, are subject to audit, inspection, and verification by the department.
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Section 9. MAINTENANCE OF RECORDS; INVESTIGATIVE POWERS; AUDIT AND SUBPOENA AUTHORITY. The provisions of this section shall be administered in accordance with the procedures set forth herein. 9.1 RECORDS TO BE KEPT. In addition to all other requirements otherwise set out in this Code, taxpayers shall keep and maintain an accurate and complete set of records, books, and other information sufficient to allow the department to determine the correct amount of value or correct amount of any license tax due, or other records or information as may be necessary for the proper administration of any matter under the provisions of this Code in such form as the department may require. Such records, books, and other information shall be open for examination by the department upon request at a reasonable time and location. It shall also be the duty of every person to keep and preserve such records, books, and other pertinent records or other information for a period of not less than five (5) years from the due date of the return on which the underlying license tax is required to be reported, or within five (5) years of the date the return is filed, whichever is later. (a) Reasonable Time and Reasonable Location. AReasonable time@ shall be considered to be during normal business hours of the department. AReasonable location@ shall be considered to be the taxpayer=s place of business or the offices of the taxpayer=s authorized representative, provided such business or representative is located within a fifty (50) mile radius of the City of Birmingham. Taxpayers maintaining records outside of this radius must make records available at City Hall or at such other location as agreed upon by the department. The department, when conducting an audit, review, or examination for verification, may, at its election, require any taxpayer conducting business within the City to provide the records, accounts, books, papers and other documents at a reasonable time and reasonable place agreed upon by the department, as provided herein. Taxpayer May Be Assessed Reasonable Costs. The department may assess and collect from the taxpayer the reasonable costs, based on the then current state government employee per diem rates incurred by, or charged to, the City in connection with performing an examination of the taxpayer=s books and records if the taxpayer received notice by certified U.S. mail, return receipt requested, at least thirty (30) days prior to the date on which the examination was to commence, and 1. The taxpayer either failed or refused to respond or did not propose a reasonable alternative date on which the examination was to commence within 15 days of receipt of notice of the pending examination, or if The taxpayer and the department agreed in writing as to an alternative date on which the examination was to commence but the taxpayer then failed or refused to permit reasonable access to its books and records on the alternative date.
(b)
2.
(c)
Separate Records to be Maintained Where Liquor Sold. It shall be the duty of each licensee selling beer and/or spirituous and vinous liquors, and intermingling the receipts from such sales with receipts of his other business to keep a separate intelligible record of 104
each the beer and/or spirituous and vinous liquor sales. Where no such records are maintained, the department may immediately enter a final assessment for the amount of such license tax due plus applicable penalties; provided, the department may at any time enter a final jeopardy assessment, pursuant to Section 40-29-91 Code of Alabama 1975. 9.2 INVESTIGATIVE POWERS. Each taxpayer shall give to the Director of Finance the means, facilities and opportunity for the making of such audit, examination, and investigation of the records, books, or other relevant information maintained by any taxpayer or other person for the purpose of computing and determining the correct amount of value or the correct amount of license tax to which such person is subject, and determining the proper classification of such license holder for license taxation purposes, as provided for in Section 9.1. The Director of Finance is hereby authorized to examine any person under oath concerning any gross receipts which were or should have been shown in a return, and to this end, he may compel the production of books, papers, records and the attendance of all persons before him, whether as parties or as witnesses, whom he believes to have knowledge of such gross receipts. (a) Any taxpayer, or officer of a corporation or association, or partner of a partnership, or fiduciary of a trust, or responsible individual of any entity under a duty to maintain books and records pursuant to this Code, who fails or refuses to maintain or provide such records and books, or permit inspection, as required herein, shall be subject to the provisions of Section 11 of this Code, and shall be subject to contempt proceedings in the Circuit Court. Where the amount of license required to be paid for engaging in any business is graduated according to the amount of business, or the amount of gross receipts, gross purchases, gross sales, or according to the amount or value of stock on hand, and where a maximum flat sum which shall be paid as a license is provided for engaging in such business, any person engaging in such business shall be liable for the maximum license provided for engaging in such business, unless he has in his possession the records, books, papers, and reports necessary to determine the classification to which he belongs, and unless he exhibits the same for inspection as required by this section, and unless the same discloses that the person belongs in a classification lower than the classification required to pay the maximum license. In the absence of such records, it shall be the duty of the Director of Finance to ascertain the license tax classification of such person from the best information and data obtainable and to assess against such person the correct license tax according to the classification thus ascertained.
(b)
9.3 AUDIT AND SUBPOENA AUTHORITY; ADDITIONAL REQUIREMENTS. The department is authorized to audit, to subpoena records, and to enter into contracts with private examining or collecting firms as provided herein. (a) The Director of Finance or any agent or employee authorized by him is hereby authorized to examine and audit the books, papers, records, or other information of any taxpayer or of any licensee, in order to determine the accuracy of any return made, or if no return was made, to
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ascertain the amount of license fees due under the terms of this ordinance by such audit or examination. (b) The department may summon any witness to appear and give testimony, and summon by subpoena duces tecum any records, books, or other information of any kind relating to any matter which the department has authority to administer. The witness may be summoned by subpoena issued by any circuit judge, any magistrate, or any district judge, in the name of the department, directed to any sheriff of Alabama and returnable to the department. The subpoena may be served in like manner as subpoenas issued out of any circuit court, or the subpoena may be served by an authorized employee of the department or by certified mail, return receipt requested. If any witness has been subpoenaed to appear and testify or appear and produce records, books, or other information, and fails or refuses to appear or testify or to produce the books, records, or other information, that witness shall be subject to contempt proceedings in the circuit court. (c) The department is authorized to enter into contracts with private examining or collecting firms; provided: (1) said private examining or collecting firm is certified and licensed under the auspices of the Alabama Local Tax Institute of Standards and Training (ALTIST), established under Section 40-2A-15 Code of Alabama 1975; (2) no contract between the City of Birmingham and the private examining or collecting firm entered into for the purpose of examining or collecting City taxes shall have a term in excess of three years, including any renewal or extension options; (3) the limitation on the term of a contract between the City of Birmingham and a private examining or collecting firm does not prohibit the negotiation of a new contract between the parties following expiration of a properly executed contract; and (4) any contract between the City of Birmingham and any private examining or collecting firm shall terminate automatically, whether or not it is stated in the contract, if the private examining or collecting firm loses or forgoes its license under Section 40-2A-13 or 402A-14 Code of Alabama 1975.
Section 10. REFUNDS. 10.1 PETITIONS FOR REFUND. Any taxpayer may file a petition for refund with the department for any overpayment of tax erroneously paid to the department. Unless otherwise provided by law, all petitions for refund shall include sufficient information to identify the type and amount of tax overpaid, the taxpayer, the period included, and the reasons for the refund. Such petition shall be accompanied with sufficient supporting documentation as the department may deem necessary and proper. If a final assessment for any tax has been entered by the department, a petition for refund of all or a portion of the tax may be filed only if the final assessment plus applicable penalty has been paid in full prior to or with the filing of the petition for refund. 10.2 TIME LIMITATIONS. (a) A petition for refund must be filed in writing with the department within (i) two (2) years from the date the return was filed or (ii) two (2) years from the date of payment of the tax, whichever is later.
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(b) The department shall either grant or deny a petition for refund within six (6) months from the date the petition is filed, unless the period is extended by written agreement of the taxpayer and the department. The taxpayer shall be notified of the department=s decision concerning the petition for refund by first class United States mail or by certified mail with return receipt requested, sent to the taxpayer=s last known address. If the department is unable to grant a refund within the time provided herein due to the taxpayer=s failure to provide adequate documentation, the petition for refund shall be deemed to be denied. (c) The department and the taxpayer may, prior to the expiration of the period for the filing of a petition for refund, agree in writing to extend the time provided for filing the petition. The petition for refund may be filed at any time prior to the expiration of the period agreed upon. The period agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon.
Section 11. JEOPARDY, PRELIMINARY, FINAL ASSESSMENTS AND TIME LIMITATIONS. 11.1 JEOPARDY ASSESSMENTS. All jeopardy assessments issued by the department shall be executed pursuant to Section 40-29-91(a), (b), and (c) Code of Alabama 1975. (a) If the Director of Finance finds that a taxpayer designs quickly to depart from the City of Birmingham or to remove his property therein, or to do any other act tending to prejudice or to render wholly or partly ineffectual proceedings to collect any license tax imposed by this Code, the Director of Finance may issue notice of such finding to the taxpayer by personal service or mailing to his/her last known address, together with a demand for immediate payment of the license tax declared to be in jeopardy, including penalties and additions thereto and such license tax, penalty, and additions thereto shall be immediately due and payable. A final assessment of such license tax may be entered immediately and if the assessment is not paid upon such demand of the Director of Finance, the Director of Finance may forthwith issue a warrant for levy and distraint of any personal property of the taxpayer which shall be collected in the same manner and with like effect as provided under Section 38 of this Code. (b) In the case of a tax for a current period, the Director may declare the taxable period of the taxpayer immediately terminated and may at his discretion estimate the tax liability based upon the best information obtainable. Notice of such finding and declaration shall be issued to the taxpayer in the same manner as in subsection (a). (c) When a jeopardy assessment has been made as provided in subsection (a), the collection of all or any part of such assessment may be stayed by filing with the Director of Finance or his delegate an approved bond conditioned upon the payment of the assessment together with applicable penalties and costs of collection. The Director shall have sole discretion to approve or disapprove the bond, but such approval shall not be unreasonably withheld.
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11.2 PRELIMINARY AND FINAL ASSESSMENTS. All preliminary and final assessments issued by the department shall be executed as provided herein. The terms Apreliminary assessment@ and Afinal assessment@ shall have the respective meanings ascribed by Article II, Section 1, ADefinitions@ of this Business License Code. (1) Entry of Preliminary Assessment. If the department determines that the amount of any license tax as reported on a return is incorrect, or if no return is filed, or if the department is required to determine value, the department may calculate the correct license tax or value based on the most accurate and complete information reasonably obtainable by the department. The department may thereafter enter a preliminary assessment for the correct license tax or value, including any applicable penalty. (2) Service of Preliminary Assessment Upon Taxpayer. The preliminary assessment entered by the department, or a copy thereof, shall be promptly mailed by the department to the taxpayer=s last known address by either first class U.S. mail or certified mail with return receipt requested, but at the option of the department, the preliminary assessment may be delivered to the taxpayer by personal delivery. (a) Disputed Preliminary Assessments. If a taxpayer disagrees with a preliminary assessment as entered by the department, the taxpayer may file a written petition for review with the Director of Finance within thirty (30) calendar days from the date of entry of the preliminary assessment, setting out the specific objections to the preliminary assessment, and show such cause why any assessment should not be made final. If a petition for review is timely filed, or if the department otherwise deems it necessary, the department shall schedule a conference with the taxpayer for the purpose of allowing the taxpayer and the department to present their respective positions, discuss any omissions or errors, and to attempt to agree upon any changes or modifications to their respective positions. If a written petition for appeal/review: 1. Is not timely filed, or 2. Is properly filed, and upon further review the department determines the preliminary assessment is due to be upheld in whole or in part, the department may make the assessment final in the amount of the license tax due as computed by the department, with applicable penalty computed to the date of entry of the final assessment.
(b)
(3) Service of Final Assessment Upon Taxpayer. The final assessment entered by the department, or a copy thereof, shall be mailed by the department to the taxpayer=s known address (i) by either first class U.S. mail or certified mail with return receipt requested in the case of assessments of tax of five hundred dollars ($500) or less or (ii) by certified mail with return receipt requested in the case of assessments of tax of more than ($500). In either case and at the option of the department, the final assessment, or a copy thereof, may be delivered to the taxpayer by personal delivery.
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(4) Undisputed Preliminary Assessments. Where the amount of license tax or value reported on a return is undisputed by the department, or the taxpayer consents in writing to the department=s determination of the amount of any deficiency, determination of value, or preliminary assessment as provided by this ordinance, the department may immediately enter a final assessment for the amount of the license tax or value, plus applicable penalty; provided, the department may at any time enter a final jeopardy assessment, pursuant to Section 40-29-91 Code of Alabama 1975. 11.3 TIME LIMITATION FOR ENTERING ASSESSMENTS. (a) Any preliminary assessment must be entered within five (5) years from the due date of the return, or five (5) years from the date the return is filed with the department, whichever is later, or if no return is required to be filed, within five (5) years of the due date of the license tax, except as follows: 1. A preliminary assessment may be entered at any time if no return is filed as required, or if a false or fraudulent return is filed with the intent to evade the license tax; A preliminary assessment may be entered within six (6) years from the due date of the return or six (6) years from the date the return is filed with the department, whichever is later, if the taxpayer omits from the taxable base an amount properly includable therein which is in excess of twenty-five percent (25%) of the amount of the taxable base stated in the return.
2.
For purposes of the paragraph: (a) The term Ataxable base@ means the gross proceeds from the sales, gross receipts, or other amounts on which the tax paid with the return is computed; and In determining the amount omitted from the taxable base, there shall not be taken into account any amount which is omitted from the taxable base stated in the return if the amount is disclosed in the return, or in a statement attached to the return, in a manner adequate to apprise the department of the nature and amount of the item.
(b)
(b) The department and the taxpayer may, prior to the expiration of the period for entering a preliminary assessment, agree in writing to extend the time provided for entering the assessment. The tax may be assessed at any time prior to the expiration of the period agreed upon. The period agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon.
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(c) Additional tax may be assessed by the department within any applicable period allowed above, even though a preliminary or final assessment has been previously entered by the department against the same taxpayer for the same or a portion of the same tax period.
Section 12. APPEALS. Appeals from denial of refunds, jeopardy assessments, and final assessments shall be executed as provided in Section 6-3-11, Code of Alabama 1975. A written notice of appeal shall be filed with department and shall contain information sufficient to: (1) identify the name of the taxpayer or other party filing such notice of appeal, (2) identify the specific matter appealed from, (3) outline the basis for such appeal, and (4) specify the relief sought. 12.1 APPEAL FROM REFUND DENIAL. (a) A taxpayer may appeal from the denial in whole or in part of a petition for refund by filing a written notice of appeal with the Circuit Court within two (2) years from the date the petition is denied. The Circuit Court shall hear the appeal according to its own rules and procedures and shall determine the correct amount of refund due, if any. (b) If an appeal is not filed with the Circuit Court within two (2) years of the date the petition is denied, then the appeal shall be dismissed for lack of jurisdiction. 12.2 APPEAL FROM JEOPARDY ASSESSMENT. (a) In any court proceeding to contest the jeopardy assessment or to enforce payment of the license taxes made due and payable by virtue of the provisions of Section 11 of this Code, the finding of the Director of Finance, made as herein provided, shall be for all purposes presumptive evidence of jeopardy. (b) A final jeopardy assessment entered hereunder may be appealed to either the Director of Finance or the Circuit Court in the same manner as provided in subsection 12.4 of this section for the appeal of final assessments. On appeal to the Circuit Court or to the Director of Finance, the final jeopardy assessment shall be prima facie correct, and the burden of proof shall be on the taxpayer to prove such assessment is incorrect. (c) If an appeal is not filed with the Director of Finance or in the Circuit Court within the time provided herein for appeals of final assessments, the appeal shall be dismissed for lack of jurisdiction. 12.3 APPEAL FROM PRELIMINARY ASSESSMENT. (Refer to Section 11.2(a)and(b).) 12.4 APPEAL FROM FINAL ASSESSMENT. (a) A taxpayer may appeal from any final assessment entered by the department by filing a written notice of appeal with the Director of Finance within thirty (30) days from the date of entry of the final assessment, and the appeal, if timely filed, shall proceed as herein provided.
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(b) In lieu of the appeal under paragraph (a) of this subsection, at the option of the taxpayer, the taxpayer may appeal from any final assessment to the Circuit Court by filing written notice of appeal within thirty (30) days, from the date of entry of the final assessment with both the Director of Finance and the Circuit Court. If the appeal is to Circuit Court, the taxpayer shall, also within the thirty (30) day period allowed for appeal, either (i) pay the tax and penalty shown on the final assessment, or (ii) file a supersedeas bond with the court in double the amount of the tax and any penalty shown on the final assessment. The supersedeas bond shall be executed by a surety company licensed and authorized to do business in the State of Alabama and shall be conditioned to pay the assessment plus applicable penalty and any court costs relating to the appeal. A taxpayer may appeal a final assessment to Circuit Court as provided herein, even though the taxpayer has paid the tax in issue prior to taking the appeal. (c) The filing of the written notice of appeal with the Director of Finance or in the case of appeals to the Circuit Court, the filing of the written notice of appeal with both the Director of Finance and the Circuit Court, and also the payment of the assessment in full and applicable penalty or the filing of a bond as provided herein, are jurisdictional. If such prerequisites are not satisfied within the time provided for appeal, the appeal shall be dismissed for lack of jurisdiction. On appeal to the Circuit Court or to the Director of Finance, the final assessment shall be prima facie correct, and the burden of proof shall be on the taxpayer to prove such assessment is incorrect.
Section 13. PENALTIES. 13.1 FAILURE TO TIMELY FILE RETURN. (Refer to Section 5) 13.2 FAILURE TO TIMELY PAY LICENSE TAXES. (Refer to Section 5) If a taxpayer fails, neglects, or refuses to pay to the department the amount of license tax shown as due on a return required to be filed on or before the date prescribed for payment of the license tax there shall be added: (1) (2) In addition to the license tax due or the amount of tax herein required to be remitted; or, For any license tax for which a monthly or quarterly return is required,
a penalty not exceeding twenty-five percent (25%) of the unpaid amount shown as license tax due on the return or the amount stated in the notice and demand, assessed from the date at which the license tax herein levied became due and payable. 13.3 UNDERPAYMENT OF LICENSE TAXES. Any taxpayer failing to pay the license taxes herein levied to the City or any amount of license tax herein required to paid to the city, within the time required by this Code, shall pay, in addition to the license tax or the amount of tax herein required to be remitted, a penalty not exceeding twenty-five percent (25%) of the amount of license tax due, assessed from the date at which the license tax herein levied or required to be paid became delinquent, that is, due and payable to the City. 111
13.4 UNDERPAYMENT DUE TO NEGLIGENCE. If any part of any underpayment of license tax is due to negligence or disregard of rules or regulations, there shall be added to the license tax a penalty not exceeding twenty-five percent (25%) of that part of the tax attributable to negligence or disregard of rules and regulations. For the purpose of this section, the term Anegligence@ includes any failure to make a reasonable attempt to comply with this Code, and the term Adisregard@ includes any careless, reckless or intentional disregard. 13.5 UNDERPAYMENT DUE TO FRAUD. If any part of any underpayment of license tax required to be shown on a return is due to fraud, there shall be added to the tax an amount equal to fifty percent (50%) of that portion of the underpayment which is attributable to fraud. For purposes of this section, the term Afraud@ shall have the same meaning as ascribed to the term under Section 40-2A-11(d) Code of Alabama 1975. 13.6 FRIVOLOUS APPEAL PENALTY. If any appeal to the Director of Finance or to Circuit Court is determined to be frivolous or primarily for the purpose of delay or to impede collection of the license tax imposed by this ordinance, a penalty of two hundred fifty dollars ($250.00) or twenty-five percent (25%) of the license tax in question, whichever is greater, shall be assessed in addition to any license tax due. 13.7 PENALTIES NOT EXCLUSIVE. The penalties provided in this section for failure to timely file a return, failure to timely pay tax, underpayment of tax, underpayment due to negligence and fraud, or filing a frivolous appeal may be asserted against the same taxpayer for the same tax period. 13.8 WAIVER OF PENALTIES. Penalties may be waived, in whole or in part, by the Director of Finance upon a determination of reasonable cause. Reasonable cause shall include, but not be limited to, those instances in which the taxpayer has acted in good faith. The burden of proving reasonable cause shall be on the taxpayer. 13.9 PENALTIES ASSESSED AS LICENSE TAX. All penalties levied or assessed against a taxpayer and which are administered by the department shall be assessed and collected in the same manner as license taxes. 13.10 [Reserved] 13.11 ABATEMENT OF PENALTY. The department shall abate any penalty attributable to erroneous written advice furnished to a taxpayer by an employee of the department. However, this subsection shall apply only if the department employee provided the written advice in good faith while acting in his official capacity, the written advice was reasonable relied on by the taxpayer and was in response to a specific written request of the taxpayer, and the penalty did not result from the taxpayer=s failure to provide adequate or accurate information. 13.12 PENALTY FOR FAILURE TO PERFORM DUTIES. Any person required to collect, truthfully account for, and/or pay over any tax imposed by this ordinance who willfully fails to 112
collect such tax, or truthfully account for, and/or pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable for a penalty up to the total amount of the tax evaded, or not collected, or not accounted for and paid over.
Section 14. CONFIDENTIALITY OF TAX RETURNS. The confidentiality provisions imposed by this Code shall be executed as provided herein. (a) It shall be unlawful for any person to print, publish, or divulge, without the written permission or approval of the taxpayer, the license tax return of any taxpayer or any part thereof or any information secured in arriving at the amount of license tax or value reported for any purpose other than the proper administration of any matter administered by the department, or upon order of any court, or as otherwise allowed in this section. Statistical information pertaining to license taxes may be disclosed at the discretion of the Director of Finance. The Director of Finance may make written or verbal disclosure upon request as to the status of compliance of the taxpayer relative to this Code. (b) A good standing certificate shall be issued to a requesting person with respect to a taxpayer, if the taxpayer has filed all license tax returns due, and paid the license taxes shown as payable in accordance with those returns. (c) The Director of Finance shall promulgate reasonable regulations permitting and governing the exchange of license tax returns, information, records, and other documents secured by the department, with tax officers of other agencies of the state, municipal, and county government agencies within the State of Alabama, federal government agencies, any association of state government tax agencies of Alabama or other states, and any foreign government tax agencies. However, (i) any license tax returns, information, records, or other documents remain subject to the confidentiality provisions set forth in subsection (a); (ii) the department may charge a reasonable fee for providing information or documents for the benefit of the requesting agencies, and (iii) any exchange shall be for one or more of the following purposes: (1) (2) (3) Collecting license taxes due. Ascertaining the amount of license taxes due from any person. Determining whether a person is liable for, or whether there is probable cause for believing a person might be liable for the payment of any license tax.
(d) Nothing herein shall prohibit the use of license tax returns or license tax information by the department in the enforcement, collection, and assessment of any license tax levied or imposed by this ordinance, or any other matters administered by the department. The department may also divulge to a purchaser or successor of a business or stock of goods the outstanding license tax liability of the seller for which the purchaser or successor may be liable pursuant to Section 16 of this ordinance. This section shall not preclude the inspection of returns by federal or foreign state agents pursuant to Section 40-18-53 Code of Alabama 1975.
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(e) Nothing herein shall prohibit the exchange of information between and among county or municipal governments subject to the restrictions of this section. (f) In no event shall any damages, attorney fees, or court costs be assessed against the City or against its elected officials, officers, or employees under this section.
Section 15. REGULATIONS MAY BE PROMULGATED; PAYMENTS DUE TAXPAYERS MAY BE WITHHELD. 15.1 REGULATIONS MAY BE PROMULGATED. (a) The Director of Finance shall from time to time promulgate rules and regulations for making returns and for ascertainment, assessment, and collection of the license tax imposed hereunder as he/she may deem necessary to enforce its provisions; and upon request shall furnish any taxpayer with a copy of such rules and regulations. (b) The Director of Finance may prescribe, adopt, promulgate and enforce reasonable rules and regulations not in conflict with this Code relating to any matter or thing pertaining to the administration and enforcement of the provisions of this Code, including but not limited to provisions for the re-examination and correction of license tax returns as to which overpayment or underpayment is claimed or found to have been made, and the rules and regulations so promulgated shall be binding upon all taxpayers. (c) The Director of Finance shall prescribe printed forms for use by persons subject to the provisions of this Code and shall make such forms available at his/her office for use by such persons. 15.2 PAYMENTS DUE TAXPAYERS MAY BE WITHHELD. Pursuant to the Mayor-Council Act, Article VI, Section 6.04(o), Act No. 452-55, Acts of Alabama, the Director of Finance, in order to protect the interests of the City, is authorized to withhold the payment of any claim or demand for payment of monies due from the City to any vendor, contractor, consultant or other person having unpaid or delinquent tax or license liabilities until such unpaid license tax, including applicable penalties, shall first have been settled and adjusted. The Director of Finance shall notify the taxpayer by certified mail with return receipt requested, sent to the taxpayer=s last known address, of his/her intention to make such levy, the effect of which shall be continuous from the date such levy is first made until the liability out of which such levy arose is satisfied.
Section 16. PURCHASER TO WITHHOLD TAXES DUE FROM PURCHASE MONEY OR BE LIABLE. If any person liable for an amount of license tax herein levied or required to be paid to the City shall sell out his business or stock of goods or shall quit the business, he shall make a final license return reflecting any taxes due, as provided under Section 5 of this ordinance, and shall make payment of any license taxes due within thirty (30) days after the date of selling or quitting business. His successor, successors or assigns, if any, shall be required to withhold sufficient of the purchase money to cover the amount of such license taxes herein required to be paid to the City or 114
penalties due and unpaid until such time as the former owner shall produce a receipt from the department showing that they have been paid, or a certificate stating that no amount is due. If the purchaser of a business or stock of goods shall fail to withhold purchase money as provided herein, and the license taxes remain due and unpaid after said thirty-day period, he shall be personally liable for the payment of the amount of license taxes herein levied, and required to be paid to the City by the former owner, and penalties accrued and unpaid by any former owner, owners or assignors. If in such cases the department deems it necessary in order to collect the license taxes due the City, it may make a jeopardy assessment as provided in Title 40, Chapter 29 of the Code of Alabama 1975.
Section 17. DISPOSITION OF FUNDS DERIVED FROM LICENSE TAXES. All monies derived from license taxes levied under the provisions of this Code shall be paid to the City and placed to the credit of the General Fund of the City of Birmingham, and shall be used and expended as authorized by law and ordinance.
Section 18.
[Reserved]
Section 19.
[Reserved]
Section 20. INSPECTION OF PUBLIC WAREHOUSE AUTHORIZED. 20.1 INSPECTION OF PUBLIC WAREHOUSE AUTHORIZED. It shall be the right and duty of the Director of Finance to inspect from time to time, during reasonable business hours, all records, books and other papers or documents, as well as the merchandise itself that is placed or stored in public warehouses in the City of Birmingham as well as all other places where merchandise is stored for or by some person, firm or corporation other than the owner or operator of the place where said merchandise is stored. The information obtained from such inspection and investigation shall be used as an aid in determining the proper classification of the owner of said merchandise for license taxation and for fixing the amount of such license tax. 20.2 UNLAWFUL TO OBSTRUCT DIRECTOR OF FINANCE IN THE PERFORMANCE OF HIS DUTY. It shall be unlawful for any person, firm or corporation to impede, hinder or obstruct the Director of Finance in the reasonable performance of his duty. Section 21. ANNUALIZATION OF BUSINESS LICENSE; COMPUTING LICENSE BASED ON NUMBER OF WORKERS. 21.1 ANNUALIZATION OF BUSINESS LICENSE. Where the amount of license is based upon the volume of receipts, sales, inventory, fixtures, rolling stock, etc., in the absence of any other specific provision therefor, the sales and receipts referred to are those of such business for the year next preceding the current license year; provided, however, that if said business did not operate the entire next preceding year, then the license tax shall be based upon that amount which bears the 115
same relationship to the actual amount of sales or receipts during such preceding year as the entire year bears to such time which said business was operated during such preceding year; and provided further, that if the operation of such business did not commence until after the 1st day of the calendar year, the operator therefor shall pay at the end of ninety (90) days after operation started, or December 31 of the current year an amount computed on a basis similar to that set out above. Said gross receipts shall be sworn or attested to by the taxpayer in an affidavit form to be provided by the department. Discontinuance of the business during any year subject to annualization of the gross receipts does not excuse the payment of any license fees or taxes determined to be due pursuant to the execution of the affidavit; provided, the department may initiate a civil action to recover any license taxes, applicable penalties, and administrative costs incurred in connection therewith, including filing fees, in any court of competent jurisdiction, which remedy shall be in addition to any and all other remedies which may be provided. 21.2 COMPUTING LICENSE BASED ON NUMBER OF WORKERS. Where the amount of license is based upon the number of employees working in the business during the year next preceding the current license year and the operation of such business did not commence until the 1st day of such current year or thereafter, then the license tax for such business for such current year shall be due and payable at the end of ninety (90) days after operation started or on December 31st of the current year, whichever date occurs first, in an amount computed upon the number of employees employed during such period as if such number of employees were to be employed throughout such year and at the end of such year the amount of license tax due therefor shall be adjusted in accordance with the number of employees actually employed during such year; provided however, there shall be excluded from said number of employees employed in such business all part time student employees who are regularly enrolled in a formal school or general educational institution devoted primarily to the education of its enrollees. Section 22. SIMPLIFICATION PROVISION. 22.1 GROSS RECEIPTS SIMPLIFICATION PROVISION. If a license due under this Code is payable in whole or in part on the basis of gross receipts or gross sales, and seventy-five percent (75%) or more of such receipts or sales are derived from a source for which there is a single schedule in this Code, the licensee may compute its license by applying to all gross receipts or gross sales the rate established in the schedule applicable to the seventy-five percent (75%) or more of said receipts or sales, except that this subsection shall not be applied in connection with the below named schedules for which a separate license must be purchased. 22.2 SIMPLIFICATION PROVISION DOES NOT APPLY TO THE FOLLOWING SCHEDULES. Schedule No. 004 Description Advertising Vehicle
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007B 020 024 026 032 038 041 067
Agents, Dealers, Holding Companies - Maintaining an Office Automobile Storing or Parking Automobile--Drive-It-Yourself Cars, Trucks and Trailers Aviation Schools Barber Shop Bootblacking Bowling Alleys and/or Shuffleboards Contractors, Excavators, Pavers, Viaduct, Underpass, Sewer Builders or Concrete Work Contractors Contractors Contractors, House Movers and/or House Wreckers Contractors, House Painters, Roofers, Sign Painters, Cardwriting, Decorations, Plasterers, Paper Hangers, Lathers, Cabinet or Carpenter Shop, Automobile Painting, Building Siding and/or Building Insulation Division I Dancing Division II Dancing Division III Dancing Division IV Dancing-Dancer, Entertainer, Model Performer or Exhibitionist Detective Agency Distribution Warehouse-Wholesale Electricians Fire, Smoke or Water Damage Sale, Distressed Merchandise Sale, Bankrupt Sale, or Going Out of Business Sale 117
068 069 070 071
084A 084B 084C 084D
087A 092 096 100
115 120 124 125 134 136 137 138A 138B 138C 141 142 145 150 166 170A
Gas Companies-Transportation of Natural Gas Gold and Silver Hairdressers or Beauty Parlors Hat Cleaning Infirmaries, Sanitariums and/or Sanatoriums Insurance Companies Insurance Companies, Fire or Marine Insurance Agents Insurance Adjusters Insurance Agents (Automobile Rental Only) Jitneys Junk Brokers and/or Scrap Metal Brokers Junk Yards, Junk Dealers and/or Scrap Metal Dealers Alcoholic Beverages - Liquor, Beer and Wine Messenger Service Motor Vehicles-Carrying Goods, Freight or Other Material for Hire or Reward Wreckers Novelties Oils, Wholesale Oils Peddlers
170B 179 180 182 192
118
193 194 195 196 197 201 202 215 238 239 242 245
Peddlers Peddlers on Foot Peddlers Pet Shops Photographers Plumbing, Gas Fitters Pool or Billiard Tables Repair Shop Tobacco and Snuff Tobacco and Snuff-Wholesale Tree Pruning and Tree Surgery Vending Machines and/or Coin-Operated Machines--Not to Include Tables on Which the Game of Pool or Billiards May Be Played or Coin-Operated Film Machines Wagon, Carriage or Automobile Body Builders Watchmaker and Repair Janitorial Service Commercial and Industrial Finance
248 251 255 259
Section 23. LEVY OF LICENSE FEE IN POLICE JURISDICTION AUTHORIZED. Each person, firm company, association or corporation engaging in or carrying on any business, vocation, occupation or profession hereinabove enumerated outside the corporate limits of the City of Birmingham but within the police jurisdiction thereof, shall take out a license and pay therefor an amount equal to one-half the amount of license tax to which he, she or it would be subject were such business, vocation, occupation or profession engaged in or carried on within the corporate limits of the City of Birmingham. All such persons, firms, companies, associations and corporations shall be subject to all the license tax laws of the City of Birmingham applicable within the corporate limits thereof except as in this section otherwise provided. 119
Section 24. POWER TO CHANGE, ALTER, INCREASE, OR REVOKE LICENSE. 24.1 LICENSE MAY BE CHANGED, ALTERED, INCREASED, OR REVOKED BY THE CITY COUNCIL. The adoption of this schedule of licenses shall not abridge the right of the Council of the City of Birmingham to change, alter, increase, decrease or revoke any of the above licenses contained in Article I of this Business License Code at any time. And when any increase is made, unless the same is paid within thirty (30) days, the license shall be revoked and no further business carried on thereunder; nor shall it abridge the right of the Council of the City of Birmingham to require a license for any business, occupation, or profession not included in the above Schedule of Business Licenses (Article I). 24.2 DIRECTOR OF FINANCE MAY PETITION FOR REVOCATION OF LICENSE. When the classification of such person and the amount of license tax due from him shall have been ascertained and fixed by the Director of Finance, he shall mail to such person a notice of his determination, and shall demand of such person immediate payment of the amount of tax ascertained to be due from him, less any amount such person may have theretofore paid upon the tax due from him. If the amount of tax demanded is not paid within ten (10) days of the mailing of such demand, the Director of Finance shall notify such person by certified mail, with return receipt requested, to the taxpayer=s last known address, that at a time and place specified in said notice, he will apply to the Council of the City of Birmingham for revocation of such person's business license. At the time and place so specified, such person may appear before the City Council in person and by counsel, one or both, and show cause, if any, why said business license should not be revoked. Upon any such hearing, and for all other purposes, the decision and determination of the department as to classification and amount of license tax due shall be deemed correct and final, unless and until it shall be satisfactorily shown that such decision and determination is incorrect. 24.3 REVOCATION OF LICENSE FOR VIOLATIONS OF THE LAW. Any lawful license issued to any person, firm or corporation to conduct any business shall be subject to revocation by the Council of the City of Birmingham for the violation by the licensee, his agent, servant, or employee, of any provision of this Code or of any ordinance of the City of Birmingham, or any statute of the State of Alabama, relating to the business for which such license is issued; and shall also be subject to revocation by the City Council if the licensee, his agent, servant, or employee under color of such license violates or aids or abets in violating or knowingly permits or suffers to be violated any penal ordinance of the City of Birmingham or any criminal law of the State of Alabama; and shall also be subject to revocation by the Council of the City of Birmingham if, in connection with the issuance or renewal of any license, the licensee or his agent filed or caused to be filed any application, affidavit, statement or other misleading statement or omission of a material fact. 24.4 CONDITIONS AND GROUNDS FOR REVOCATION. The conditions hereinabove set forth as grounds for the revocation of a license shall also constitute grounds for the Council of the City of Birmingham to refuse the renewal of a license. 120
24.5 HEARING ON REVOCATION OF LICENSE. The Council shall set a time for hearing on the matter of revoking or refusing to renew a license; and a notice of such hearing shall be given to the licensee, or the applicant for renewal, as the case may be, at least one (1) day before the day set for said hearing. At the hearing, the Council of the City of Birmingham shall hear all evidence offered by any party and all evidence that may be presented bearing upon the question of revocation or the refusal of renewal, as the case may be.
Section 25. LEASED DEPARTMENTS. Each person, firm or corporation operating what is commonly known as leased departments in department stores, shall pay a license on each department so leased, according to a proper classification of the business so conducted, applying the provisions, schedules, conditions, and terms outlined in this Business License Code.
Section 26. PROVISION FOR PRORATION OF LICENSE TAX-NEW BUSINESSES. (a) Proration of License Tax Authorized; Commencement of Business in the First Quarter of the Calendar Year. Unless specifically prohibited, and except in those cases where weekly, monthly, quarterly or semi-annual licenses are specifically provided in the foregoing schedule, any one who commences business before the 1st of April shall be subject to and shall pay the annual license for such business in full. Proration of License--Commencement of Business in the Second Quarter of the Calendar Year. Any one who commences business after April 1st and prior to July 1st, shall be subject to and shall pay three-fourths (3/4) of the annual license for such business for that calendar year. Proration of License--Commencement of Business in the Third Quarter of the Calendar Year. Any one who commences business after July 1st, and prior to October 1st, shall be subject to and shall pay one-half (1/2) of the annual license for such business for that calendar year. Proration of License--Commencement of Business in the Fourth Quarter of the Calendar Year. Any one who commences business after October 1st, shall be subject to and shall pay one-fourth (1/4) of the annual license for such business for that calendar year. No Proration of License Tax Resulting from Abandonment or Discontinuance of Business. The amount of proration of the license due hereunder by anyone upon commencing business, shall not be affected or decreased by the subsequent abandonment or discontinuance of such business. No Proration of License Where Herein Otherwise Provided. There shall be no proration of any license due except as otherwise provided in this Business License Code. 121
(b)
(c)
(d)
(e)
(f)
Section 27. TRANSFER OF LICENSE. 27.1 NO TRANSFER OF LICENSE ALLOWED EXCEPT BY CONSENT OF DIRECTOR OF FINANCE; ONLY ONE TRANSFER PERMITTED IN ANY EVENT. When the ownership of a business or privilege for which a license is issued is, under actual sale, transferred in its entirety to a new owner, or owners, a transfer of license may be effected by and through the application process outlined in Section 2 of this article, subject to the provisions of this section as well as those of Article I, Section 3.4(k) of this ordinance in the case of alcoholic beverage licenses. No license issued under the above Schedule of Business Licenses (Article I) shall be transferred except by the consent of the Director of Finance of the City of Birmingham, or the City Council in the case of alcoholic beverage licenses, and no transfer shall be valid until same has been endorsed across the face of the license receipt by the Director of Finance, and no license shall be transferred in any event more than once in a calendar year. 27.2 APPLICATION FOR TRANSFER OF LICENSE--LOCATION TO LOCATION. Any person to whom a business license has been issued to transact or carry on some business, calling, trade, or profession at a definite location in the City may make application for the transfer of his/her business license for the same business, calling, trade, or profession, as is therein mentioned, at some other definite location in the City by himself or herself, by filing said application with the Director of Finance for review. No transfer of license from one location in the City to another location in the City will be granted without the consent of the Director of Finance or the City Council, in the case of liquor establishments. (a) New Location Must Have Zoning Approval. Before authorization can be granted to transfer a business license from one definite location in the City to another definite location in the City, the application must be submitted to and approved by the City of Birmingham Department of Planning, Engineering and Permits, pursuant to the requirements of Ordinance 90-130 as amended.
27.3 TRANSFER OF LICENSE--PERSON TO PERSON, SAME PHYSICAL LOCATION. No license granted or issued under any of the provisions of this Code shall be in any manner assignable, transferrable or authorize any person other than the person named therein as the licensee to operate the business, where specifically prohibited by this Code. Where the ownership of a business changes, and a transfer of the business license is permitted hereunder, an application shall be filed with the department by the new owner or owners as provided in Section 2 of this Code. A written Atransfer agreement@ shall be executed by both parties in such form as the department may require. 27.4 TRANSFER LICENSE--CHANGE OF OWNERSHIP--RESPONSIBILITIES FOR UNPAID TAXES. No license granted or issued under any provision of this Code may be transferred in any manner until any and all license tax returns have been filed and any license taxes due and payable by the former owner have been paid as provided in Section 16 of this Code. 122
Section 28. SALARIED PROFESSIONAL EMPLOYEES. When any person claims any concession on any kind of professional license provided for in this Code because of such person being either the employer or the employee, such person shall not be exempt from payment of the license provided in this Code, until both the employer and the employee have furnished to the Director of Finance, sworn affidavits or other evidence satisfactory to the Director, setting out all the facts and conditions in regard to the employment with such facts and conditions being as would ordinarily substantiate the employment claim.
Section 29. PLACE OF BUSINESS TO BE DESIGNATED; ZONING APPROVAL REQUIRED FOR BUSINESS LOCATION; HOME OCCUPATION / HOME OFFICE RESTRICTIONS. 29.1 PLACE OF BUSINESS TO BE DESIGNATED; SEPARATE LICENSE REQUIRED FOR EACH LOCATION. Pursuant to Section 11-51-94 Code of Alabama 1975, any person desiring to engage in any trade, business, or occupation, for which a license is required and for which a fixed place of business is required shall designate the place at which said trade or business or occupation is to be carried on, and the license to be issued thereunder, shall designate such place and such license shall authorize the carrying on of such trade, business or occupation only at such place. For each place at which said trade, business or occupation is carried on, a separate license fee and tax shall be paid. 29.2 BUSINESS LOCATION ADDRESS MUST HAVE ZONING APPROVAL. Each designated business location must be approved by the City of Birmingham Department of Planning, Engineering and Permits, pursuant to the requirements of Ordinance 90-130 as amended. 29.3 HOME OCCUPATION / HOME OFFICE - RESTRICTIONS. Each applicant for a business license for a home occupation/home office location must obtain zoning approval and execute a AHome Occupation Certificate of Agreement@ through the City of Birmingham Department of Planning, Engineering, and Permits. A copy of the properly executed agreement must be presented to the Revenue Division at the time of making application for licensing. For purposes of this section, a home occupation/home office is defined as an occupation or activity which is clearly incidental to the use of the premises for dwelling purposes and which is carried on by a member of a family residing on the premises. This use must be located within a main building or in a properly located accessory building. No equipment that is not normally used in connection with a residence may be used in conjunction with this use (provided, equipment such as home computers, filing cabinets, desk and desk chair are allowed).
123
No person, other than a family member residing on the premises, may be employed or perform any duties associated with the home occupation/home office. Customers, clients, or employees, are not permitted to come to the location of the home occupation/home office, and no display or storage of any materials, other than necessary office supplies limited to the use of the home occupation/home office, may be kept, placed, housed, or stored, at any time, at this location. There shall be no advertising other than an identification sign of not more than one (1) square foot in area which is neither illuminated or animated. There shall be no exterior identification of the home occupation/home office, nor shall the use of the property for a home occupation/home office cause the property to distract from the residential character of the premises. A home occupation/home office shall not include beauty parlors, barbershops, or doctors= or dentists= offices for the treatment of patients, or any other business activity otherwise prohibited in a residential zoning area.
Section 30. EACH BUSINESS, VOCATION, CALLING, OR PROFESSION DEMANDS SEPARATE LICENSE. Any person, firm or corporation dealing or engaging in two or more of the businesses, vocations, callings or professions enumerated in Article I of this Code, and for which a license is required of each, such person shall pay for and take out a license for: (1) (2) Each line of business, vocation, calling or profession, and for Each separate place or location of business.
Section 31. PAYMENTS OF LICENSE BY CHECK. 31.1 LEGAL TENDER. All business license taxes or deposits due hereunder shall be paid in advance, in lawful money of the United States, or by check, draft or other instrument in the discretion of the department. 31.2 PAYMENT BY CHECK. Wherever a license or license receipt shall be issued in return for any check, the same shall not be valid or of any force or effect unless such check shall be duly paid upon first presentation to the drawee. 31.3 DISHONORED INSTRUMENT. Payment of license taxes following a dishonor of such instrument upon presentation for payment shall, thereafter, be made only by cashier's check, money order, or cash, which fee shall include any applicable penalty, as well as a service charge as set forth within the City's current fee resolution. The remedy of such dishonored instrument shall be in a manner prescribed by the Director of Finance.
Section 32. LICENSE TO BE EXHIBITED; AFFIXING DECALS; TAMPERING, ALTERING, OR CHANGING LICENSE UNLAWFUL. 124
32.1 LICENSE TO BE EXHIBITED. Each license shall be posted in a conspicuous place, where such business or occupation is carried on, and the holder of such license shall immediately show such license to the department=s designated agent, or to any police officer of the City upon being so requested by such agent or officer . 32.2 UNLAWFUL TO FAIL TO EXHIBIT, DISPLAY OR POST LICENSE. It shall be unlawful for any person operating a business to fail to exhibit, display, or post such license in a conspicuous place, or to fail to immediately show such license to the department=s designated agent, or to any police officer of the City upon being so requested by such agent or officer. Each refusal of such a request to show such license shall constitute an offense, and each subsequent refusal of such request to show such license on any day thereafter shall constitute a separate offense. 32.3 AFFIXING LICENSE DECALS/STICKERS. Whenever a license is issued for the use or operation of any vehicle there shall be delivered to the licensee, free of charge, a decal, or sticker showing the business, the license year, the words Birmingham, Alabama, and a serial number to be attached to such vehicle or machine, and it shall be the duty of such licensee to attach and to keep securely attached such decal or sticker to such vehicle or machine in a conspicuous place. It shall be unlawful for any person to use or operate such vehicle or machine not having such decal or sticker attached thereto. 32.4 ALTERING, TAMPERING WITH, OR CHANGING LICENSE. Whenever a license, an identifying decal or sticker has been issued for a business location, vehicle, device, machine, or other piece of equipment pursuant to this Code, it shall be unlawful for any person to tamper with, to change, or to alter any such decal, sticker, or license.
Section 33. NO UNDUE BURDEN IMPOSED UPON INTERSTATE COMMERCE. No provision of this Code shall be applied: (a) So as to impose any unlawful tax or unlawful burden on interstate commerce or on activity of the State or Federal governments; or In any manner which contradicts or is inconsistent with or violates any provision of the United States or Alabama constitutions.
(b)
Section 34.
[ Reserved ]
Section 35. GENERAL CONTRACTOR=S STATEMENT. 35.1 SWORN STATEMENT TO BE FURNISHED. Any person acting as a licensed general contractor, whether building for his own occupancy or not, shall furnish to the Director of Finance 125
in writing, within fifteen (15) days of request therefor, a full, true, and complete written statement, signed by such person, under penalty of perjury, listing any and all subcontractors who have performed or shall perform any work or service, whatsoever for said general contractor in the City. 35.2 CONTRACTORS AFFECTED. Any builder-owner, general engineering contractor, specialty contractor, or subcontractor, subcontracting any work shall be deemed a general contractor for the purpose of this section. 35.3 CONTENTS OF GENERAL CONTRACTOR=S STATEMENT. Said statement shall include the name, address, telephone number, contract amount, City Taxpayer Identification Number, and specialty classification of each contractor, sub-contractor, or other person required to be licensed. 35.4 UNLAWFUL TO FAIL TO PROVIDE CONTRACTOR=S STATEMENT. It shall be unlawful for any contractor to fail to provide the General Contractor=s Statement as required by this section. Violations of the provisions of this section are punishable pursuant to Section 1-1-6 of the General Code of the City of Birmingham 1980, as amended and as it may be amended.
Section 36. LICENSE TAX A DEBT; RECOVERY, CIVIL ACTION. 36.1 LICENSE TAX A DEBT. Every license fee, tax, or assessment, levied by the provisions of this Business License Code and all penalties levied or assessed thereon by this Business License Code for failure to pay the same within the time required constitute a debt to the City. 36.2 RECOVERY; CIVIL ACTION. The department may initiate and/or maintain a civil action to recover delinquent license taxes, penalties, and administrative costs incurred in connection therewith, including filing fees, in any court of competent jurisdiction, which remedy shall be in addition to any and all other remedies which may be provided.
Section 37. CIVIL ACTION TO ENJOIN BUSINESS OPERATION. 37.1 BUSINESS OPERATION MAY BE ENJOINED. Pursuant to Section 11-51-150 Code of Alabama 1975, the department may file in the Circuit Court of Jefferson County, Alabama , a petition to enjoin the operation and conduct of any business, occupation, trade or profession subject to a privilege license or excise tax imposed by the City of Birmingham and which is delinquent in whole or in part. Said petition shall be verified by the Director of Finance. 37.2 METHOD OF PROCEDURE FOR INJUNCTION PROCEEDING. Section 11-51-151 through Section 11-51-160 Code of Alabama 1975, prescribe the method of procedure in any injunction proceeding provided for in Section 11-51-150 Code of Alabama 1975.
Section 38. LIEN FOR LICENSE. 126
38.1 PROVISION FOR LIEN. Pursuant to Section 11-51-96, Code of Alabama 1975, the provisions of this section shall apply to privilege or license taxes and/or any penalty payable thereon, levied under this Code, and such license taxes and penalties shall be a lien in favor of the City of Birmingham as follows: On all property, both real and personal, used in any exhibition, trade, business, vocation, occupation, or profession, for which a license is or may be required, the City of Birmingham shall have a lien for such a license, which lien shall attach as of the date the license is due and shall be superior to all other liens, except the lien of the State, County and municipal corporations for taxes, and the lien of the state and county for license. Such lien may be enforced by attachment. 38.2 NOTICE OF LIEN. The department shall give a thirty (30) day ANotice of Intent to File Lien@ to the taxpayer by any one of the following methods: (1) (2) (3) Given to the person; Left at the dwelling or usual place of business of such person; or Sent by certified mail with return receipt requested to the taxpayer=s last known address.
38.3 RELEASE OF LIEN. With respect to a lien described in this section, the Director of Finance, shall within ten (10) days, release the lien when the liability out of which such lien arose is satisfied, and shall promptly notify the person upon whom such lien was made that such lien has been released.
Section 39. COLLECTION AFTER ASSESSMENT. The tax herein levied may be collected by levy as provided in Section 40-29-51 Code of Alabama 1975, as follows: (a) Length of Period. Where the assessment of any license tax imposed by this Code has been begun or made within the period of limitation properly applicable thereto, such license tax may be collected by levy or by a proceeding in court, but only if the levy is made or the proceeding begun: (1) (2) Within the period allowed by law after the final assessment of the tax; or Prior to the expiration of any period for collection agreed upon in writing by the Director of Finance and the taxpayer before the expiration of the period allowed by law (or, if there is a release of levy under Section 40-29-34 Code of Alabama 1975, after such period allowed by law, then before such release).
The period so agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon. The period allowed by law as provided in this 127
subsection during which a license tax may be collected by levy shall not be extended or curtailed by reason of a judgment against the taxpayer. (b) Date When Levy is Considered Made. The date on which a levy on property or rights to property is made shall be the date on which the notice of seizure provided in Section 40-29-26 Code of Alabama 1975, is given.
Section 40. BUSINESSES LOCATED IN ANNEXED AREAS; AFFIDAVITS OF CAPITAL EMPLOYED. Pursuant to Section 11-42-57 Code of Alabama 1975, all territory brought within the corporate limits of the City and having a situs within such territory shall be exempt from such City taxation as fixed by a resolution. The department shall, in such cases, require sworn statements as to the amount of capital invested or value of goods or stocks or amounts of sales or receipts where the amount of the license is made to depend upon the amount of capital invested or value of goods or stocks or amount of sales or receipts, as provided in Section 11-51-90(a)(3) Code of Alabama 1975. It shall be unlawful for any person, firm, or corporation to fail or refuse to furnish sworn statements required by this section or to give false statements in relation thereto. Each occurrence of such failure or refusal shall constitute a separate offense.
Section 41. REMEDIES CUMULATIVE. The conviction and fine or imprisonment of any person for engaging in any business without first obtaining a license to conduct such business shall not relieve such person from paying the business license tax to conduct such business, nor shall the payment of any business license tax prevent a civil action or criminal prosecution for the violation of any of the provisions of this Business License Code. All remedies prescribed hereunder shall be cumulative and the use of one or more remedies by the department shall not bar the use of any other remedy for the purpose of enforcing the provisions hereof.(See Section 44.6 APenalty for Violation-Fine and/or Imprisonment@)
Section 42. EFFECT OF THIS BUSINESS LICENSE CODE ON PAST ACTIONS AND OBLIGATIONS. Unless otherwise specifically or by necessary implication provided herein, neither the adoption of this Business License Code nor its superseding of any portion of any other ordinance of the City shall in any manner be construed to affect prosecution for a violation committed on any other ordinance prior to the adoption hereof, nor be construed to affect the validity of any bond or cash deposit required by any ordinance to be posted, filed, or deposited, and all rights and obligations thereunto appertaining shall continue in full force and effect for the term prescribed therein.
Section 43. VIOLATOR MAY BE RESTRAINED FROM CONTINUING IN BUSINESS. Any taxpayer who shall violate any of the provisions of this ordinance may be restrained from continuing in business, and proper prosecution shall be instituted in the name of the City of Birmingham until such person shall have complied with the provisions of this Code. 128
Section 44. VIOLATIONS. 44.1 FAILURE TO PAY THE LICENSE TAX, MAKE REPORTS, KEEP OR PROVIDE RECORDS. Any person subject to the provisions of this ordinance, who shall fail to pay the license tax, make the reports or any of them as herein required, or who shall fail to keep or provide records, or supply any information, as herein required, shall, as provided in Section 40-29-112 Code of Alabama 1975, be guilty of a misdemeanor and upon conviction shall be fined not less than fifty dollars ($50), nor more than five hundred dollars ($500) for each offense, and, in addition, may be imprisoned for a period not to exceed six (6) months, or by both such fine and imprisonment. Each occurrence of such failure shall constitute a separate offense. 44.2 WILLFUL REFUSAL TO MAKE REPORTS, OR PERMIT EXAMINATION OF RECORDS. Any person subject to the provisions of this ordinance willfully failing or refusing to make the reports, furnish any supplemental returns or other data herein required, or who shall refuse to permit the examination of his records by the department, shall be guilty of a misdemeanor, and upon conviction shall be fined not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00) for each offense, and in addition may be imprisoned for a period not to exceed to six (6) months or by both such fine and imprisonment. Each occurrence of a failure to make such reports shall constitute a separate offense, and each refusal of a written demand by the department to examine, inspect or audit such records shall constitute a separate offense. 44.3 VIOLATION OF ORDINANCE. Any person who shall fail, neglect, or refuse to perform any duty imposed by this Code, or other City ordinances, or any rule, regulation, or law thereof, or who shall fail or neglect to do or perform any act or series of acts as required by this Code or other city ordinances shall, upon conviction, be punished by a fine not exceeding five hundred dollars ($500.00) for each offense, or by imprisonment for a period not exceeding six (6) months, or by both such fine and imprisonment, pursuant to Section 1-1-6 General Code of the City of Birmingham 1980, as amended and as it may be amended. 44.4 ENFORCEMENT. The payment of any and all licenses due may be enforced immediately after the due date thereof. A violation of the provisions of this Business License Code constitutes a misdemeanor punishable as provided in Section 11-51-93, Code of Alabama 1975, and Section 1-1-6 of the General Code of the City of Birmingham 1980. Payment of a fine imposed in criminal proceedings pursuant to this section does not relieve a person of his liability for taxes imposed under this Code, and the department may seek appropriate equitable relief from a court of competent jurisdiction to prevent or redress violations of this Code. 44.5 UNLAWFUL FOR TAXPAYERS TO FAIL OR REFUSE TO PERFORM DUTIES REQUIRED BY THIS LICENSE CODE. (a) It shall be unlawful for any license holder, to fail or refuse to perform any duty, herein imposed upon such license holder, or to obstruct or interfere with the Director of Finance, in obtaining
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information necessary or convenient for determination of the proper license classification of such license holder. (b) It shall also be unlawful for any such person, or for any agent, servant or employee of such person, to fail or refuse to perform any duty herein imposed upon such person or obstruct or interfere with the Director of Finance, in carrying out the purpose of this Code. Each occurrence of a failure or refusal to perform any duty herein imposed shall constitute a separate offense. 44.6 PENALTY FOR VIOLATION--FINE AND/OR IMPRISONMENT. (a) Any person, firm or corporation or agent of a firm or corporation engaging in any business or vocation for which a license is required, without first having procured a license therefor may upon conviction, be punished by a fine not to exceed One Hundred dollars ($100.00) for each offense or by imprisonment not to exceed six (6) months, or by both such fine and imprisonment, at the discretion of the court trying the same, and each occurrence shall constitute a separate offense (Section 11-51-93, Code of Alabama 1975.) (b) Except as provided by paragraph (a) of this section, any person, firm or corporation violating any provision of this Code shall, upon conviction, be punished within the limits of and as provided by Section 1-1-6 of the General City Code of Birmingham, 1980.
Section 45. STATUTE OF LIMITATIONS. The statute of limitations for action by the City of Birmingham for the recovery of all amounts due under this Code is five (5) years, pursuant to Section 6-2-35 Code of Alabama 1975, except as provided in Section 11.3(a) of this Code.
Section 46. REQUEST FOR RULING ON DETERMINATION OF TAXATION. Any taxpayer may request a ruling on the determination of whether amounts of gross sales, or gross receipts of his/her business are subject to the license tax, or are not to be used as a measure of the license taxes due and payable as levied by this Code. Such requests shall be made in writing to the Finance Department, and shall contain all pertinent facts relating to the item(s) in question.
Section 47. SEVERABILITY. The provisions of this ordinance are severable. If any provision, section, paragraph, sentence, or part thereof, or the application thereof to any person, shall be declared unconstitutional or invalid by a court of competent jurisdiction, such declaration shall not affect or impair the remainder of the ordinance, it being the legislative intent to ordain and enact each provision, section, paragraph, sentence, and part thereof, separately and independently of each other.
Section 48. REPEAL OF ORDINANCE NO. 91-295, AS AMENDED. The Business License Law adopted by Ordinance No. 91-295, as amended and as it has been amended, is hereby repealed as of the date upon which this Business License Tax ordinance becomes effective in the City of 130
Birmingham; provided, however, that neither any cause of action nor fine, forfeiture, judgement, penalty, right, remedy or defense accrued at said date, nor any prosecution or complaint pending at said date shall be in any manner released, affected, abated, or impaired by this ordinance.
Section 49. EFFECTIVE DATE OF ORDINANCE. This ordinance shall become effective and operative as such commencing on and after January 1, 1998, and on and after said date shall be binding in the City of Birmingham.
Adopted by the Council of the City of Birmingham December 23, 1997
RICHARD ARRINGTON, JR. Mayor
A true copy. PAULA R. SMITH, City Clerk
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132
ORDINANCE NO. 97-183
AN ORDINANCE TO ADOPT THE LICENSE CODE OF THE CITY OF BIRMINGHAM, ALABAMA FOR THE CALENDAR YEAR 1998 AND CONTINUING IN EFFECT UNTIL AMENDED OR REPEALED AND TO PROVIDE FOR THE PUBLICATION THEREOF. BE IT ORDAINED by the Council of the City of Birmingham as follows: Section 1. That the codification of the License Code of the City of Birmingham for the calendar year of 1998 and continuing in effect until it is amended or repealed, consisting of 109 pages all inclusive, be and the same is hereby adopted as the ALicense Code of the City of Birmingham, 1998@, and shall be effective and operative as such on and after the 1st day of January, 1998 and on and after said date shall be binding within the corporate limits of the City of Birmingham. Section 2. That immediately after the adoption of this ordinance and in the presence of this Council at this meeting, the City Clerk shall further identify the said ALicense Code of the City of Birmingham, 1998" referred to in Section 1 hereof which is before this Council by appending thereto and signing a certificate in form substantially as follows: AI, Paula R. Smith, City Clerk, hereby certify that the ALicense Code of the City of Birmingham, 1998@ numbered pages 1 through 109 all inclusive to which this certificate is appended is the document referred to in Section 1 of Ordinance No. 97-183 adopted by the Council of the City of Birmingham at a regular meeting thereof held on this the 23rd day of December, 1997 and that I have signed this certificate in the presence of said Council at said regular meeting on said date. Paula R. Smith, City Clerk@. The City Clerk shall carefully preserve this ordinance and said document adopted by Section 1 hereof as the ALicense Tax Code of the City of Birmingham, 1998@, as a part of the permanent records of her office. Section 3. That the License Tax Code of the City of Birmingham 1992 through 1997 adopted by Ordinance 91-295 of the City of Birmingham on the 10th day of December, 1991 be and the same hereby is repealed as of the date upon which the ALicense Tax Code of the City of Birmingham, 1998", adopted by Section 1 of this ordinance, becomes effective in the City of Birmingham as provided by Section 1; provided however, that neither any cause of action nor fine, forfeiture, judgement, penalty, right, remedy or defense accrued at said date, nor any prosecution or complaint pending at said date shall be in any manner released, affected, abated, or impaired by this ordinance or by the Code adopted by this ordinance. Section 4. That it be, and hereby is, proclaimed that the Code adopted by Section 1 hereof is on file with the City Clerk of the City of Birmingham, where the same may be inspected by the public, and that this proclamation and said Code shall be made public by publication of this proclamation as part of the publication of this ordinance as ordered by Section 5 hereof.
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Section 5. That prior to the date specified in Section 1 hereof at least fifteen (15) copies of this ordinance and of the Code adopted by Section 1 of this ordinance shall be prepared and bound within the appropriate covers and made available to the general public at the office of the Director of Finance of the City of Birmingham, provided that said Director may charge therefore at a rate not exceeding the cost per volume to the City. Each bound volume purporting in print to contain Ordinance No. 97-183 and the ALicense Code of the City of Birmingham, 1998", and to have been published by authority of this Council, shall be received as prime facie evidence as provided by Section 12-21-95, Code of Alabama 1975, and may be used by courts as an aid to judicial knowledge under Act No. 193 of the 1943 Session of the Legislature of Alabama. Section 6. That the City Clerk shall cause a true copy of this ordinance to be promptly published in a newspaper published and of general circulation in the City of Birmingham and shall carefully preserve in her office a thus published copy of said ordinance as part of the permanent records of her office.
Approved by the Mayor December 29, 1997
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STATE OF ALABAMA ) ) JEFFERSON COUNTY ) CERTIFICATE OF CITY CLERK I, Paula R. Smith, City Clerk, do hereby certify that the foregoing Ordinance adopting the ALicense Code of the City of Birmingham, 1998@ for the calendar year 1998, and continuing in effect until it is amended or repealed was duly and legally adopted by the Council of the City of Birmingham at a regular meeting held in the City of Birmingham, Alabama, on the 23rd day of December, 1997, and I further certify that the foregoing manuscript contains the full, complete and true manuscript of said Code, as adopted by said Council. GIVEN UNDER MY HAND AND CORPORATE SEAL of the City of Birmingham, this 29th day of December, 1997.
Paula R. Smith City Clerk
SEAL
CERTIFICATE OF DIRECTOR OF FINANCE I, Mac Underwood, Director of Finance of the City of Birmingham, do hereby report to the Council of the City of Birmingham the annexed copy as the ALicense Code of the City of Birmingham, 1998@ for the
135
calendar year 1998, and continuing in force until it is amended or repealed, and prepared in accordance with the direction of the Council of the City of Birmingham, this the 23rd day of December, 1997. GIVEN UNDER MY HAND this 29th day of December, 1997
MAC UNDERWOOD Director of Finance

STATE OF ALABAMA ) ) JEFFERSON COUNTY ) CERTIFICATE OF COMPARISON To The President of the City Council I, Paula R. Smith, City Clerk, hereby certify the printed ALicense Code of the City of Birmingham, 1998@ for the calendar year 1998, and continuing in effect until it is amended or repealed corresponds accurately and is in full accord with the original manuscript as adopted by the Council of the City of Birmingham on the 23rd day of December, 1997. GIVEN UNDER MY HAND AND CORPORATE SEAL of the City of Birmingham, this 29th day of December, 1997.
Paula R. Smith City Clerk SEAL
CERTIFICATE OF COMPARISON
I, Mac Underwood, Director of Finance, the person charged with the duty of causing to be printed and bound 15 copies of the ALicense Code of the City of Birmingham, 1998@ for the calendar year 1998, and continuing in effect until it is amended or repealed, which was adopted by the Council of the City of Birmingham on the 23rd day of December, 1997, do hereby certify that I have caused to be read all the proofs and have caused to be corrected all manifest errors therein, and the Code, as printed, corresponds accurately with the original manuscript.
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GIVEN UNDER MY HAND this 29th day of December, 1997.
PROCLAMATION BY THE MAYOR OF THE CITY OF BIRMINGHAM, ALABAMA
WHEREAS, by Ordinance No. 97-183 adopted by the Council of the City of Birmingham on the 23rd day of December, 1997 provide for the adoption of the ALicense Code of the City of Birmingham, 1998@ for the calendar year 1998 and continuing in effect until it is amended or repealed it was made the duty of the Mayor upon delivery of 15 copies of said Code to issue his proclamation announcing that fact and designating the first day of January, 1998, as the day on which said Code shall go into effect, and whereas, 15 copies of said Code have this day been delivered to me. Now, therefore, in pursuance of the authority conferred upon me by said Ordinance, I, Richard Arrington, Jr., Mayor of the City of Birmingham, hereby proclaim ALicense Code of the City of Birmingham, 1998@ for the calendar year 1998 and continuing in effect until it is amended or repealed as reported to the Council of the City of Birmingham by the Director of Finance on the 23rd day of December, 1997 in full force and effect as of January the 1st, 1998. Dated this the 29th day of December, 1997.
RICHARD ARRINGTON, JR. Mayor of the City of Birmingham, Alabama
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208
THE OCCUPATIONAL TAX CODE
Amended by Ordinance No. 98-107 adopted 06/30/98 Amended by Ordinance No. 98-173 adopted 11/10/98 Amended by Ordinance No. 99-209 adopted 12/21/99 Amended by Ordinance No. 00-208 adopted 12/12/00 Amended by Ordinance No. 02-174 adopted 12/10/02 Amended by Ordinance No. 02-185 adopted 12/17/02
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CITY OF BIRMINGHAM, ALABAMA ORDINANCE NUMBER 97-184 210
AN ORDINANCE TO PROVIDE FOR AN OCCUPATIONAL LICENSE FEE FOR PERSONS ENGAGED IN TRADES, OCCUPATIONS AND PROFESSIONS, AND THE METHOD OF REPORTING AND COLLECTING THE SAME. BE IT ORDAINED By the Council of the City of Birmingham, Alabama, as follows:
ARTICLE I
Section 1. DEFINITIONS. The following words, terms and phrases when used in this ordinance shall have the following meanings, except when the context clearly indicates a different meaning:
(a) ACity@ shall mean the City of Birmingham, Alabama. (b) ADepartment@ means the Department of Finance of the City of Birmingham, and includes the Director of Finance. (c) ADirector of Finance@ or ADirector@ shall mean the Director of Finance of the City of Birmingham, Alabama, or his or her duly authorized agent. (d) AEmployee@ shall mean and include any person engaging in or following any trade, occupation or profession within the meaning of subsection (t) of this section. Determination of Status as Employee. Any person who does any kind of work or renders any kind of personal services subject to control by an employer both as to what work or services shall be performed and as to how they shall be performed, where the relationship between the person performing the services and the person for whom such services are rendered is, as to those services, the legal relationship of employer and employee, shall be classified as an employee under this Ordinance. In determining whether a person is an Aemployee@ or Aan independent contractor@, the Director of Finance may utilize the definitions of Aemployee@ and Aemployer@ as found in Sections 3121(d)(1) and (2) and 3401(d) of the Internal Revenue Code of 1986, as amended from time to time and Treasury Regulation Section 31.3401(c)-1 and shall consider the following factors, along with other relevant factors: (1) Whether the person receiving the benefit of the service has the right to control the manner and method of performance; Whether the person rendering the service has a substantial investment in his own tools or/and equipment; Whether the person rendering the service undertook substantial costs to perform the services; 211
(2)
(3)
(4)
Whether the person performing the service had an opportunity for profit dependent on his managerial skill; Whether the service rendered required special training and skill; The duration of the relationship between the parties; Whether the service performed is an integral part of the recipient's business rather than an ancillary portion; Whether the person rendering the service had a risk of loss; The relationship which the parties believed they created; Whether or not the person who performed the services offered these services publicly and practiced an independent trade; Whether the custom in the trade or industry was for the service to be performed on an independent contractor or employee basis; Whether the person who received the benefit of the service had the right to discharge without cause the person who performed the services; Whether the person who performed the services had the right to delegate his duty to others. Whether the person who performed the services had a current City of Birmingham business license to conduct business in the City.
(5) (6) (7)
(8) (9) (10)
(11)
(12)
(13)
(14)
Determination of Status as Independent Contractor. A person who is subject to the control and direction of another as to the result of his work, and not as to means or methods, is an independent contractor. (e) AEmployer@ shall mean and include any person, business, firm, corporation, partnership, association, or any other kind of organization or profession, who or that employs any person in any trade, occupation or profession in the City of Birmingham within the meaning of subsection (t) of this section. (f) AFinal Assessment@ means the final notice of value, underpayment, or nonpayment of any tax administered by the department. (g) AGross Receipts@ and ACompensation@ shall have the same meaning, and both words shall mean any payment granted or given an employee unless specifically excluded, and shall include, but not be limited to, the total of the following items which a person receives from or is entitled to 212
receive from or be given credit for by his employer for any work done or personal services rendered in any trade, occupation or profession, including any kind of deductions before ATake Home@ pay is received: Reimbursements for expenses over amount Cash Compensation actually incurred Salary Value of Personal Use of Company-Owned Wages Vehicle Bonuses Value of Personal Use of Clubs Incentive Pay Cost of more than $50,000 group life Overtime Pay Commissions insurance Non-De Minimis Awards in excess of Severance Pay $100.00 Non-Cash Compensation AGross Receipts@ and ACompensation@ shall also include the amount which an employee elects to defer pursuant to a salary reduction agreement under a retirement plan or deferral arrangement (including but not limited to Title 26 United States Code Sections 401(k) or 403(b) plans, but not Section 125 Cafeteria Plans). The words AGross Receipts@ and ACompensation@ shall not include the items as outlined in Section 3.1. (h) ALicensee@ shall mean and include any person required to file a return or to pay a license fee under this ordinance. (i) ANotice of Appeal@ means any written notice sufficient to identify the name of the taxpayer or other party appealing, the specific matter appealed from, the basis for that appeal, and the relief sought. (j)APerson@ shall mean any natural person. Whenever the word Aperson@ is used in any clause prescribing and imposing a penalty in the nature of a fine or imprisonment, the word as applied to a partnership or other form of unincorporated enterprise shall mean the partners or members thereof, and as applied to corporations shall mean the officers and directors thereof. (k)APetition for Refund@ means a written request for a refund of tax previously paid, including in the form of an amended return. Unless otherwise provided by law, such request shall include sufficient information to identify the amount of tax overpaid, the taxpayer, the period included, the reasons for the refund and sufficient documentation as required by the Director of Finance. (l)APetition for Review@ means a written document filed with the department in response to a preliminary assessment in which the taxpayer sets forth reasonably specific objections for the preliminary assessment. (m)APreliminary Assessment@ shall mean the preliminary notice of value or underpayment of any tax administered by the department. 213
(n) APrivate Auditing or Collecting Firm@ means any person in the business of collecting, through contract or otherwise, local occupational license fees for the City of Birmingham, or auditing any taxpayer, through the examination of books and records, for the City of Birmingham. (o)AReturn@ shall mean any report, document, or other statement required to be filed with the department for the purpose of paying, reporting, or determining the proper amount of value or tax due. (p)ATax@ shall mean any amount, including applicable penalty and interest, levied or assessed against a taxpayer and which the department is required or authorized to administer under the provisions of Alabama law. (q)ATaxpayer@ means any person subject to or liable for taxes herein levied; any person required to file a return with respect to, or to pay, or withhold and remit the tax herein levied or to report any information or value to the department; or its designee; or any person required to obtain or holding any interest in any license issued by the department, or its designee, or any person that may be affected by any act or refusal to act by the department, or its designee, or to keep any records required by this ordinance. (r)ATaxpayer's Authorized Representative@ means any individual with written authority or power of attorney to represent a taxpayer before the department; provided however, that nothing herein shall be construed as entitling any such individual who is not a licensed attorney to engage in the practice of law. (s) ATaxpayers= Bill of Rights Pamphlet@ means a written pamphlet to be distributed by the department to all taxpayers whose books and records are being examined by the department, at or before the commencement of an examination, explaining in simple and nontechnical terms, the role of the department and the rights of the taxpayer whose books and records are being examined by the department during the examination and which shall be promptly revised from time to time to reflect any changes in the applicable law or rules. (t)ATrade, Occupation, and Profession@ shall mean and include the doing of any kind of work, the rendering of any kind of personal services, or the holding of any kind of position or job within the City of Birmingham, Alabama, by any clerk, laborer, tradesman, manager, official, professional or other employee, including any non-resident of the City of Birmingham who is employed by any employer as defined in this section, where the relationship between the individual performing the services and the person for whom such services are rendered is, as to those services, the legal relationship of employer and employee, including also a partner of a firm or an officer of a firm or corporation, if such partner or officer receives a salary for his personal services rendered in the business of such firm or corporation, but they shall not mean or include domestic servants employed in private homes or businesses, professions or occupations for which a business license fee is required to be paid under the City of Birmingham General License Code.
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ATrade, Occupation, and Profession@ shall also mean and include the holding of any kind of office or position, either by election or appointment, by any federal, state, county or city officer or employee where the services of such official or employee are rendered within the City of Birmingham. (u) The singular shall include the plural and vice versa, and the masculine shall include the feminine and the neuter. (v) References to the "Code of Alabama 1975" shall mean such sections as are currently in effect and as it or they may be amended. (w) Where the phrase Areasonable cause@ is used in this ordinance, it shall include, but not be limited to, those instances in which the taxpayer has acted in good faith. The burden of proving reasonable cause shall be on the taxpayer.
Section 2. PERSONS TAXED; PERSON LIABLE; APPLICABILITY. (a) A license fee is imposed upon any person who engages in or follows any trade, occupation or profession within the City of Birmingham when the relationship between the individual performing the services and the person for whom such services are rendered is the legal relationship of employer and employee. This includes both residents and nonresidents, an officer or partner of a corporation or firm if such officer or partner receives a salary for his personal services rendered in the business of such corporation, and governmental employees performing services within the City of Birmingham. (b) It shall be unlawful for any person to engage in or follow any trade, occupation or profession as defined in Article I, Section 1 of this ordinance within the City on and after the 1st day of December, 1970, without paying occupational license fees for the privilege of engaging in or following such trade, occupation, or profession, which occupational license fees shall be measured by one percent (1%) of the gross receipts of each such person.
Section 3. EXEMPTIONS. 3.1 ITEMS EXEMPT FROM TAX. The words "Gross Receipts" and ACompensation@ shall not include the following items: Employer Paid Insurance Educational Assistance Employee Discounts Stock Options Stock Grants Subject to a Substantial Risk of Forfeiture under Title 26 United States Code Section 83 215
Distributions from Qualified Pension, Profit Sharing, Thrift, Stock Bonus, and Other Deferred Compensation Plans Qualified under Title 26 United States Code Section 401(a) Distributions from Non-Qualified Deferred Compensation Plans Section 125 Cafeteria Plans Dependent Child Care Assistance Payment of Parking by Employer Students Grant/Scholarships Death Benefits Unemployment Compensation Expenses Incurred In Moving Employer Contributions to Non-Qualified Deferred Compensation Plans Employer Contributions to Qualified Pension, Profit Sharing, Thrift, Stock Bonus, and Other Deferred Compensation Plans Qualified under Title 26 United States Code Section 401(a) Strike Benefits Workmen's Compensation Actual Expenses Incurred in the Employer's Behalf
3.2 PERSONS EXEMPT FROM OCCUPATIONAL LICENSE FEE. (a) Domestic Servants. Gross Receipts and Compensation earned by domestic servants.
3.3 SPECIAL. Special exemptions from the taxes imposed by this ordinance are allowed in all other instances where the Occupation Taxes levied under this ordinance are exempted under any other provision of the Code of Alabama 1975.
Section 4. LICENSE REQUIRED TO ENGAGE IN BUSINESS. If any person shall engage in or continue in any business for which a privilege tax is imposed by Article I, Section 2 of this ordinance as a condition precedent to engaging or continuing in such business, he shall apply for and obtain from the department a license to engage in and to conduct such business for the current tax year upon the condition that he shall pay the taxes accruing to the City under the provisions of this ordinance; provided, that no license shall be issued under the provisions of this ordinance to any person who has not complied with the provisions of this ordinance, and no provision of this ordinance shall be construed as relieving any person from the payment of any license or privilege tax now or hereafter imposed by law.
Section 5. FILING OF RETURNS: EMPLOYERS; EMPLOYEES; ANNUAL FILING OF RECONCILIATION OF RETURNS; PAYMENT OF THE TAX; BULK SUBMISSIONS.
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5.1 EMPLOYERS TO WITHHOLD OCCUPATIONAL LICENSE FEES AND FILE RETURNS; DUE DATE OF TAX. Each employer shall deduct from each payment of gross receipts and compensation due each employee the amount of the occupational license fees measured by one percent (1%) of the compensation due each employee beginning on the 1st day of December, 1970. The payments required to be made on account of such deductions by employers shall be made monthly to the City on or before the twentieth (20th) day of the month next following the end of each such monthly period, and each employer shall at the same time make a return in connection therewith on a form made available to such employer in the department. Provided that, if the total amount deducted from payments made to or due all employees of an employer averages less than fifty ($50.00) dollars per month during the preceding calendar year, a quarterly return and remittance in lieu of monthly returns may be made, by election of the taxpayer to the department, for the current calendar year, and the remittance of such deductions to the City for the quarterly periods shall be due on or before the twentieth (20th) day of the month next following the end of each such quarterly period, and each such employer shall at the same time make a return in connection therewith on a form made available to such employer by the department. (a) Contents of Returns. Each monthly or quarterly return shall show: (1) (2) (3) (4) The number of employees, both taxable and nontaxable, of the employer; The amount of gross compensation of all employees; Nontaxable compensation; The amount of occupational license fees deducted and paid by such employer for all or any part of the period being reported; The correct reporting period; and In addition to the gross compensation earned by the employees, such return shall show such other pertinent information as may be required by the department.
(5) (6)
(b) Remittance to Accompany Return. At the time of making such monthly or quarterly report, such persons shall compute the occupational license fees due and shall pay to the City of Birmingham the amount of occupational license fees shown to be due. (c) Taxpayer=s Responsibility When No Form Received. The department is authorized to provide prescribed forms necessary for compliance with the filing requirement outlined in this section. The failure of the taxpayer to receive forms from the department does not relieve the taxpayer r of the responsibility of the timely reporting of the information required on the return, nor the timely payment of the tax.
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(d) Failure or Omission by Employer--Employee=s Responsibility. Provided, however, that the failure or omission by any employer to deduct such occupational license fees shall not relieve an employee from (i) the payment of such occupational license fees, or (ii) compliance with the requirements for making returns as provided in Article I, Section 5.2 of this ordinance, or (iii) compliance with any regulations promulgated under this ordinance. 5.2 RETURNS TO BE FILED BY EMPLOYEES; DUE DATE OF TAX. When a monthly or quarterly return, as required by Section 5.1 hereof, is not filed by an employer and the occupational license fees are not paid to the City by such employer monthly as herein provided, the employee for whom no return has been filed and no payment has been made shall file a return with the Director of Finance on or before the twentieth (20th) day of the month next following the end of each such monthly or quarterly period, showing in said return his gross receipts subject to occupational license fees for such month or quarter. If for any reason all occupational license fees of a person subject to the provisions of this ordinance were not withheld by his employer from his gross receipts, such person shall file each return required by this Section on a form obtainable from the Director of Finance. In addition to the gross receipts earned by him, such return shall show such other pertinent information as may be required by the Director of Finance. Each person making a return required by this Section shall, at the time of filing thereof, pay to the City the amount of occupational license fees due under this ordinance; provided, however, that any portion of the occupational license fees deducted by the employer shall be deducted on the return and only the balance, if any, shall be due and payable at the time of filing said return. 5.3 ANNUAL FILING OF RECONCILIATION RETURNS. (a) Each employer shall file with the department on or before January 31st of each year, a return on a form made available in the department. This return shall show the gross amount of compensation of each employee, the amount of occupational license fees deducted and paid by such employer for all or any part of the period, and including the last known address of each such employee. (b) Each employee for which no return was filed by the employer, shall file a return with the department on or before January 31st of each year thereafter in which his employer has failed to file any monthly or quarterly return required in the preceding calendar year, showing on said return the gross receipts subject to occupational license fees during the preceding calendar year. If for any reason all occupational license fees of a person subject to the provisions of this ordinance were not withheld by his employer from his gross receipts, such person shall file each return required by this Section on a form obtainable in the Department of Finance. (c) Each employer shall file with the department on or before January 31st of each year, a copy of all 1099's or a report showing the amount of compensation earned by any person not considered an employee, as defined in this ordinance, who has rendered personal services for which the occupational tax was not withheld by the taxpayer receiving the personal services. 5.4 TIMELY MAILING TREATED AS TIMELY FILING AND PAYING. The provisions outlined in this section for the timely filing of any returns, payments, claims, statements, or other documents shall be administered as provided herein. 218
(a) Date of Delivery. If any return, claim, statement, or other document required to be filed, or any payment required to be made, within a prescribed period or on or before a prescribed date under the authority of any provision of this ordinance is, after such period or such date, delivered by United States mail to the Finance Department or to the department=s designated depository where such return, claim, statement, or other document is required to be filed, or to which such payment is required to be made, the date of the United States postmark stamped on the cover in which such return, claim, statement, or other document, or payment, is mailed shall be deemed to be the date of delivery, or the date of payment, as the case may be; provided, however: (1) Weekends and Holidays. When the due date falls on a Saturday, Sunday, or City of Birmingham holiday, payment of the tax may be made without penalty on the first working day following the due date. Mailing Requirements. The return, claim, statement, or other document, or payment was, within the time prescribed in subsection (a) above, deposited in the mail in the United States in an envelope or other appropriate wrapper, postage prepaid, properly addressed to the Finance Department or to the department=s designated depository where such return, claim, statement, or other document is required to be filed, or to where such payment is required to be made.
(2)
(b) Delivery By Method Other Than United States Mail. Returns, claims, statements, or other documents, or payments which are required under any provision of this ordinance which are delivered by any method other than by United States mail shall be considered timely filed when such items are received in the Finance Department or the department=s designated depository on the due date prescribed. (c) Untimely Filing. Any return, payment, claim, statement, or other document not received in accordance with the provisions of this section shall be deemed untimely filed and shall be assessed applicable penalties and interest as prescribed by the relevant sections of this ordinance. 5.5 BULK SUBMISSIONS. The department may accept, for reporting and payment of taxes due the City, bulk submissions of reports, and under regulations promulgated by the department, payments owed to the City made on behalf of the taxpayer by its properly authorized representative where such submissions are made using the appropriate form prescribed by the department. Any such bulk submissions of reports and payments shall include: 1. The City=s assigned taxpayer identification number for each such taxpayer for each tax paid; and, Sufficiently detailed information by which each taxpayer can be identified such that a determination can be made as to the amount and method of assessment of tax against such taxpayer for the City.
2.
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The acceptance by the City of such bulk submissions shall not relieve the taxpayer on whose behalf such submissions were made from liability for any occupational tax arising from an error or omission made by the taxpayer=s representative. Such bulk submission shall be signed by the taxpayer or its properly authorized representative.
Section 6. EXTENSION OF TIME FOR MAKING RETURN. The Director of Finance, at his discretion, for reasonable cause, may extend the time for making any return required under the provisions of this ordinance, however, the time for filing any such return shall not be extended for a period greater than thirty (30) days from the date such return is due to be made and shall not prevent penalty and interest from accruing during the period of such extension.
Section 7. WHERE WORK DONE OR SERVICES PERFORMED BOTH WITHIN AND/WITHOUT THE CITY. In cases where compensation is earned as a result of work done or services performed both within and without the City, the occupational license fees required under this ordinance shall be computed by determining upon the oath of the employer, or if required by the Director of Finance upon the oath of the employee, that percentage of the compensation earned from the proportion of the work which was done or performed within the City.
Section 8. OATHS. The monthly reports herein required to be made are not required to be made under oath, but wherever in this ordinance any report is required to be sworn to, the same shall be sworn to by the taxpayer or his agent before some officer authorized to administer oaths, and any false statement to a material fact made with the intent to defraud shall constitute perjury, and upon conviction thereof, the person so convicted shall be punished as provided in Section 1-1-6, General Code of the City of Birmingham 1980, as amended and as it may be amended.
Section 9. MAINTENANCE OF RECORDS; INVESTIGATIVE POWERS; AUDIT AND SUBPOENA AUTHORITY. The provisions of this section shall be administered in accordance with the procedures set forth herein. 9.1 RECORDS TO BE KEPT. It shall be the duty of every person engaging, or continuing, in this City in any business for which a privilege tax is imposed by this ordinance to keep and preserve suitable records of the gross compensation or gross receipts earned of such employees and such other books or accounts as may be necessary to allow the department to determine the correct amount of tax for which he is liable, or other records or information as may be necessary for the proper administration of any matters, under the provisions of this ordinance. It shall also be the duty of every person to keep and preserve, for a period of not less than five (5) years from the due date of the return on which the underlying tax is required to be reported, or five (5) years of the date the return is filed, whichever is later, all such payroll journals or registers, canceled checks, expense reports or otherwise, and all such payroll journals or registers, canceled checks, expense reports and
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other records shall be open for examination by the department, upon request, at a reasonable time and location. (a) Reasonable Time and Reasonable Location. AReasonable time@ shall be considered to be during normal business hours of the department. AReasonable location@ shall be considered to be the taxpayer=s place of business or the offices of the taxpayer=s authorized representative, provided such business or representative is located within a fifty (50) mile radius of the City of Birmingham. Taxpayers maintaining records outside of this radius must make records available at City Hall or at such other location as agreed upon by the department. The department, when conducting an audit, review, or examination for verification, may, at its election, require any taxpayer conducting business within the City to provide records, accounts, books, papers and other documents at a reasonable time and reasonable place agreed upon by the department, as provided herein. Taxpayer May Be Assessed Reasonable Costs. The department may assess and collect from the taxpayer the reasonable costs, based on the then current state government employee per diem rates incurred by, or charged to, the City in connection with performing an examination of the taxpayer=s books and records if the taxpayer received notice by certified U.S. mail, return receipt requested, at least thirty (30) days prior to the date on which the examination was to commence, and 1. The taxpayer either failed or refused to respond or did not propose a reasonable alternative date on which the examination was to commence within 15 days of receipt of notice of the pending examination, or if 2. The taxpayer and the department agreed in writing as to an alternative date on which the examination was to commence but the taxpayer then failed or refused to permit reasonable access to its books and records on the alternative date.
(b)
9.2 INVESTIGATIVE POWERS. Each taxpayer shall give to the Director of Finance the means, facilities and opportunity for the making of such audit, examination and investigation of the records, books, or other relevant information maintained by any taxpayer or other person for the purpose of computing and determining the correct amount of value or correct amount of tax as provided for in Article I, Section 9.1. The Director of Finance is hereby authorized to examine any person under oath concerning any gross receipts and compensation which were or should have been shown in a return, and to this end, he may compel the production of books, papers, records and the attendance of all persons before him, whether as parties or as witnesses, whom he believes to have knowledge of such gross receipts and compensation. (a) Any taxpayer, or any officer of a corporation or association, or partner of a partnership, or fiduciary of a trust, or responsible individual of any entity under a duty to maintain books and records pursuant to this ordinance, who fails or refuses to maintain, or refuses to provide such records and books, or permit inspection, as
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required herein, shall be subject to the provisions of Section 11 of this ordinance, and shall be subject to contempt proceedings in the Circuit Court. 9.3 AUDIT AND SUBPOENA AUTHORITY; ADDITIONAL REQUIREMENTS. The department is authorized to audit, to subpoena records, and to enter into contracts with private examining or collecting firms as provided herein. (a) The Director of Finance or any agent or employee authorized by him is hereby authorized to examine and audit the books, papers, records, or other information of any taxpayer or of any licensee, in order to determine the accuracy of any return made, or if no return was made, to ascertain the amount of occupational license fees due under the terms of this ordinance by such audit or examination. (b) The department may summon any witness to appear and give testimony, and summon by subpoena duces tecum any records, books, or other information of any kind relating to any matter which the department has authority to administer. The witness may be summoned by subpoena issued by any circuit judge, any magistrate, or any district judge, in the name of the department, directed to any sheriff of Alabama and returnable to the department. The subpoena may be served in like manner as subpoenas issued out of any circuit court, or the subpoena may be served by an authorized employee of the department or by certified mail, return receipt requested. If any witness has been subpoenaed to appear and testify or appear and produce records, books, or other information, and fails or refuses to appear or testify or to produce the books, records, or other information, that witness shall be subject to contempt proceedings in the circuit court. (c) The department is authorized to enter into contracts with private examining or collecting firms; provided: (1) said private examining or collecting firm is certified and licensed under the auspices of the Alabama Local Tax Institute of Standards and Training (ALTIST), established under Section 40-2A-15 Code of Alabama 1975; (2) no contract between the City of Birmingham and the private examining or collecting firm entered into for the purpose of examining or collecting City taxes shall have a term in excess of three years, including any renewal or extension options; (3) the limitation on the term of a contract between the City of Birmingham and a private examining or collecting firm does not prohibit the negotiation of a new contract between the parties following expiration of a properly executed contract; and (4) any contract between the City of Birmingham and any private examining or collecting firm shall terminate automatically, whether or not it is stated in the contract, if the private examining or collecting firm loses or forgoes its license under Section 40-2A-13 or 402A-14 Code of Alabama 1975.
Section 10. REFUNDS. 10.1 PETITIONS FOR REFUND. (a) Any taxpayer may file a petition for refund with the department for any overpayment of tax erroneously paid to the department. If a final assessment for the tax has been entered by the department, a petition for refund of all or a portion of the tax may be filed only if the final 222
assessment plus applicable interest has been paid in full prior to or with the filing of the petition for refund. (b) The petition for refund must be filed in writing by the employer who collected and remitted the tax to the department. However, a direct petition may be filed in writing by an employee of a federal or a state agency. (c) Unless otherwise provided by law, all petitions for refund shall include sufficient information to identify the type and amount of tax overpaid, the taxpayer, the period included, and the reasons for the refund. Such petition shall be accompanied with sufficient supporting documentation as the department may deem necessary and proper. 10.2 AUTOMATIC REFUND. Where the department determines that an employer is entitled to a refund on the annual reconciliation properly submitted, the department shall automatically refund to that taxpayer the amount of any excess tax so paid to the City; provided, however, that the time limitation provisions of this ordinance shall apply. 10.3 TIME LIMITATIONS. (a) A petition for refund must be filed in writing with the department within (i) two (2) years from the date the return was filed or (ii) two (2) years from the date of payment of the tax, whichever is later. (b) The department shall either grant or deny a petition for refund within six (6) months from the date the petition is filed, unless the period is extended by written agreement of the taxpayer and the department. The taxpayer shall be notified of the department=s decision concerning the petition for refund by first class United States mail, or by certified mail, with return receipt requested, sent to the taxpayer's last known address. If the department is unable to grant a refund within the time provided herein due to the taxpayer=s failure to provide adequate information, the petition for refund shall be deemed to be denied. (c) The department and the taxpayer may, prior to the expiration of the period for the filing of a petition for refund, agree in writing to extend the time provided for filing the petition. The petition for refund may be filed at any time prior to the expiration of the period agreed upon. The period agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon.
Section 11. JEOPARDY, PRELIMINARY, FINAL ASSESSMENTS AND TIME LIMITATIONS. 11.1 JEOPARDY ASSESSMENT. All jeopardy assessments issued by the department shall be executed pursuant to Section 40-29-91 (a), (b), and (c) Code of Alabama 1975.
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(a) If the Director of Finance finds that a taxpayer designs quickly to depart from the City of Birmingham or to remove his property therein or to do any other act tending to prejudice or to render wholly or partly ineffectual proceedings to collect any tax imposed by this ordinance, the Director of Finance may issue notice of such finding to the taxpayer by personal service or mailing to his/her last known address, together with a demand for immediate payment of the tax declared to be in jeopardy, including penalties and additions thereto and such taxes, penalty, interest, and additions thereto shall be immediately due and payable. A final assessment of such tax may be entered immediately and if the assessment is not paid upon such demand of the Director, the Director may forthwith issue a warrant for levy and distraint of any personal property of the taxpayer which shall be collected in the same manner and with the like effect as provided under Section 24 of this ordinance. (b) In the case of a tax for a current period, the Director may declare the taxable period of the taxpayer immediately terminated and may at his discretion estimate the tax liability based upon the best information obtainable. Notice of such finding and declaration shall be issued to the taxpayer in the same manner as in subsection (a). (c) When a jeopardy assessment has been made as provided in subsection (a), the collection of all or any part of such assessment may be stayed by filing with the Director an approved bond conditioned upon the payment of the assessment together with applicable interest and cost of collection. The Director shall have sole discretion to approve or disapprove the bond, but such approval shall not be unreasonably withheld. 11.2 PRELIMINARY AND FINAL ASSESSMENTS. All preliminary and final assessments issued by the department shall be executed as provided herein. The terms Apreliminary assessment@ and Afinal assessment@ shall have the respective meanings as ascribed by Article I, Section 1, ADefinitions@, of this Occupational Tax Code. (1) Entry of Preliminary Assessment. If the department determines that the amount of any tax as reported on a return is incorrect, or if no return is filed, or if the department is required to determine value, the department may calculate the correct tax or value based on the most accurate and complete information reasonably obtainable by the department. The department may thereafter enter a preliminary assessment for the correct tax or value, including any applicable penalty and interest. (2) Service of Preliminary Assessment Upon Taxpayer. The preliminary assessment entered by the department, or a copy thereof, shall be promptly mailed by the department to the taxpayer=s last known address by either first class U.S. mail or certified mail with return receipt requested, but at the option of the department, the preliminary assessment may be delivered to the taxpayer by personal delivery. (a) Disputed Preliminary Assessments. If a taxpayer disagrees with a preliminary assessment as entered by the department, the taxpayer may file a written petition for review with the Director of Finance within thirty (30) calendar days from the date of entry of the preliminary assessment, setting out the specific objections to the 224
preliminary assessment and showing cause why such assessment should not be made final. If a petition for review is timely filed, or if the department otherwise deems it necessary, the department shall schedule a conference with the taxpayer for the purpose of allowing the taxpayer and the department to present their respective positions, discuss any omissions or errors, and to attempt to agree upon any changes or modifications to their respective positions. (b) If a written petition for appeal/review: 1. Is not timely filed, or 2. Is properly filed, and upon further review the department determines the preliminary assessment is due to be upheld in whole or in part, the department may make the assessment final in the amount of tax due as computed by the department, with applicable interest and penalty computed to the date of entry of the final assessment.
(3) Service of Final Assessment Upon Taxpayer. The final assessment entered by the department, or a copy thereof, shall be mailed by the department to the taxpayer=s last known address (i) by either first class U.S. mail or certified mail with return receipt requested in the case of assessments of tax of five hundred dollars ($500) or less or (ii) by certified mail with return receipt requested in the case of assessments of tax of more than five hundred dollars ($500). In either case and at the option of the department, the final assessment, or a copy thereof, may be delivered to the taxpayer by personal delivery. (4) Undisputed Preliminary Assessments. Where the amount of tax or value reported on a return is undisputed by the department, or the taxpayer consents in writing to the department's determination of the amount of any deficiency, determination of value, or preliminary assessment as provided by this ordinance, the department may immediately enter a final assessment for the amount of the tax or value, plus applicable penalty and interest; provided, the department may at any time enter a final jeopardy assessment pursuant to Section 40-29-91 Code of Alabama 1975. 11.3 TIME LIMITATION FOR ENTERING ASSESSMENTS. (a) Any preliminary assessment must be entered within five (5) years from the due date of the return, or five (5) years from the date the return is filed with the department, whichever is later, or if no return is required to be filed, within five (5) years of the due date of the tax, except as follows: 1. A preliminary assessment may be entered at any time if no return is filed as required, or if a false or fraudulent return is filed with the intent to evade tax; A preliminary assessment may be entered within six (6) years from the due date of the return or six (6) years from the date the return is filed with the department, whichever is later, if the taxpayer omits from the taxable base an amount properly includable therein which is in excess of twenty five percent (25%) of the amount of the taxable base stated in the return.
2.
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For purposes of this paragraph: (a) The term Ataxable base@ means the gross receipts and compensation or other amounts on which the tax paid with the return is computed; and In determining the amount omitted from the taxable base, there shall not be taken into account any amount which is omitted from the taxable base stated in the return if the amount is disclosed in the return, or in a statement attached to the return, in a manner adequate to apprise the department of the nature and amount of the item.
(b)
(b) The department and the taxpayer may, prior to the expiration of the period for entering a preliminary assessment, agree in writing to extend the time provided for entering the assessment. The tax may be assessed at any time prior to the expiration of the period agreed upon. The period agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon. (c) Additional tax may be assessed by the department within any applicable period allowed above, even though a preliminary or final assessment has been previously entered by the department against the same taxpayer for the same or a portion of the same tax period.
Section 12. APPEALS. Appeals from denial of refunds, jeopardy assessments, and final assessments shall be executed as provided in Section 6-3-11, Code of Alabama 1975. A written notice of appeal shall be filed with the department and shall contain information sufficient to: (1) identify the name of the taxpayer or other party filing such notice of appeal, (2) identify the specific matter appealed from, (3) outline the basis for such appeal, and (4) specify the relief sought. 12.1 APPEAL FROM REFUND DENIAL. (a) A taxpayer may appeal from the denial in whole or in part of a petition for refund by filing a written notice of appeal with the Circuit Court, within two (2) years from the date the petition is denied. The Circuit Court shall hear the appeal according to its own rules and procedures and shall determine the correct amount of refund due, if any. (b) If an appeal is not filed with the Circuit Court within two (2) years of the date the petition is denied, then the appeal shall be dismissed for lack of jurisdiction. 12.2 APPEAL FROM JEOPARDY ASSESSMENT. (a) In any court proceeding to contest the jeopardy assessment or to enforce payment of the taxes made due and payable by virtue of the provisions of Section 11 of this ordinance, the finding of the Director of Finance made as herein provided, shall be for all purposes presumptive evidence of jeopardy.
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(b) A final jeopardy assessment entered hereunder may be appealed to either the Director of Finance or in the Circuit Court in the same manner as provided in subsection 12.4 of this section for the appeal of final assessments. On appeal to the Director of Finance or to the Circuit Court, the final jeopardy assessment shall be prima facie correct, and the burden of proof shall be on the taxpayer to prove such assessment is incorrect. (c) If an appeal is not filed with the Director of Finance or in the Circuit Court within the time provided herein for appeals of final assessments, the appeal shall be dismissed for lack of jurisdiction. 12.3 APPEAL FROM PRELIMINARY ASSESSMENT. (Refer to subsection 11.2 (2) (a) and (b).) 12.4 APPEAL FROM FINAL ASSESSMENT. (a) A taxpayer may appeal from any final assessment entered by the department by filing a written notice of appeal with the Director of Finance within thirty (30) days from the date of entry of the final assessment, and the appeal, if timely filed, shall proceed as herein provided. (b) In lieu of the appeal under paragraph (a) of this subsection, at the option of the taxpayer, the taxpayer may appeal from any final assessment to the Circuit Court by filing written notice of appeal within thirty (30) days from the date of entry of the final assessment with both the Director of Finance and the Circuit Court. If the appeal is to the Circuit Court, the taxpayer shall, also within the thirty (30) day period allowed for appeal, either (i) pay the tax, interest, and any penalty shown on the final assessment, or (ii) file a supersedeas bond with the court in double the amount of the tax, interest, and any penalty shown on the final assessment. The supersedeas bond shall be executed by a surety company licensed and authorized to do business in the State of Alabama and shall be conditioned to pay the assessment plus applicable interest, penalty, and any court costs relating to the appeal. A taxpayer may appeal a final assessment to Circuit Court as provided herein, even though the taxpayer has paid the tax in issue prior to taking the appeal. (c) The filing of the written notice of appeal with the Director of Finance or in the case of appeals to the Circuit Court, the filing of such notice of appeal with both the Director of Finance and the Circuit Court, and also the payment of the assessment in full and applicable interest and penalty or the filing of a bond as provided herein, are jurisdictional. If such prerequisites are not satisfied within the time provided for appeal, the appeal shall be dismissed for lack of jurisdiction. On appeal to the Circuit Court or to the Director of Finance, the final assessment shall be prima facie correct, and the burden of proof shall be on the taxpayer to prove such assessment is incorrect.
Section 13. PENALTIES AND INTEREST. 13.1 FAILURE TO TIMELY FILE RETURN. If a taxpayer fails, neglects, or refuses to file any return required to be filed with the department on or before the date prescribed therefor, determined with regard to any extension of time for filing granted by the Director of Finance, there shall be assessed, in addition to the tax due or the amount of tax herein required to be withheld/remitted, a 227
penalty of ten percent (10%) of the amount due, or fifty dollars ($50.00), whichever is greater, together with interest thereon at the rate of one percent (1%) per month or fraction thereof, from the date at which the tax herein levied became due and payable, such penalty and interest to be assessed and collected as part of the tax. 13.2 FAILURE TO TIMELY PAY TAX. If a taxpayer fails, neglects, or refuses to pay to the department the amount of tax shown as due on a return required to be filed on or before the date prescribed for payment of the tax, determined with regard to any extension of time for payment granted by the Director of Finance, there shall be added: (1) (2) (3) In addition to the tax due or the amount of tax herein required to be remitted; or For any tax for which a monthly or quarterly return is required or, For which no return is required,
a penalty of ten percent (10%) of the unpaid amount shown as tax due on the return or the amount stated in the notice and demand, provided, however, that the minimum penalty imposed against such person or employer shall be Three Dollars ($3.00), together with interest thereon at the rate of one percent (1%) per month or fraction thereof, from the date at which the tax herein levied became due and payable. 13.3 UNDERPAYMENT OF TAX. Any taxpayer failing to pay the tax herein levied to the City or any amount of tax herein required to be withheld and remitted to the City, within the time required by this ordinance shall pay, in addition to the tax or the amount of tax herein required to be withheld and remitted, a penalty of ten percent (10%) of the amount due plus interest at the rate of one percent (1%) per month, or fraction thereof, from the date at which the tax or the amount of tax herein levied or required to be withheld and remitted became delinquent, that is, due and payable to the City. Provided, however, that the minimum penalty imposed against such taxpayer shall be three dollars ($3.00). 13.4 UNDERPAYMENT DUE TO NEGLIGENCE. If any part of any underpayment of tax is due to negligence or disregard of rules or regulations, there shall be added to the tax an amount equal to ten percent (10%) of that part of the tax attributable to negligence or disregard of rules or regulations. For the purpose of this section, the term Anegligence@ includes any failure to make a reasonable attempt to comply with this ordinance, and the term Adisregard@ includes any careless, reckless or intentional disregard. Provided, however, that the minimum penalty imposed against such person or employer shall be three dollars ($3.00). 13.5 UNDERPAYMENT DUE TO FRAUD. If any part of any underpayment of tax required to be shown on a return is due to fraud, there shall be added to the tax an amount equal to fifty percent (50%) of that portion of the underpayment which is attributable to fraud. For purposes of this section, the term Afraud@ shall have the same meaning as ascribed to the term under Section 40-2A11(d) Code of Alabama 1975.
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13.6 FRIVOLOUS APPEAL PENALTY. If any appeal to the Director of Finance or Circuit Court is determined to be frivolous or primarily for the purpose of delay or to impede collection of the tax imposed by this ordinance, a penalty of two hundred fifty dollars ($250.00) or twenty-five percent (25%) of the tax in question, whichever is greater, shall be assessed in addition to any tax due. 13.7 PENALTIES NOT EXCLUSIVE. The penalties provided in this section for failure to timely file a return, failure to timely pay tax, underpayment of tax, underpayment due to negligence and fraud, or filing a frivolous appeal, may be asserted against the same taxpayer for the same tax period. 13.8 WAIVER OF PENALTIES. Penalties may be waived, in whole or in part, by the Director of Finance upon a determination of reasonable. Reasonable cause shall include, but not be limited to, those instances in which the taxpayer has acted in good faith. The burden of proving reasonable cause shall be on the taxpayer. 13.9 PENALTY AND INTEREST ASSESSED AS TAX. All penalties and interest levied or assessed against a taxpayer and which are administered by the department shall be assessed and collected in the same manner as taxes. 13.10 INTEREST. Interest shall be computed at a rate of one percent (1%) per month or fraction thereof, and shall be added as provided herein to any tax or other amount due the department which is not paid by the due date. Interest on any delinquency or underpayment shall be charged from the due date of the tax. 13.11 ABATEMENT OF PENALTY. The department shall abate any penalty attributable to erroneous written advice furnished to a taxpayer by an employee of the department. However, this subsection shall apply only if the department employee provided the written advice in good faith while acting in his official capacity, the written advice was reasonably relied on by the taxpayer and was in response to a specific written request of the taxpayer, and the penalty did not result from the taxpayer=s failure to provide adequate or accurate information. 13.12 PENALTY FOR FAILURE TO PERFORM DUTIES. Any person required to collect, withhold, truthfully account for, and/or pay over any tax imposed by this ordinance who willfully fails to collect or withhold such tax, or truthfully account for, and/or pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall in addition to the tax due and other penalties provided by law, be liable for a penalty up to the total amount of the tax evaded, or not collected, or not account for and paid over.
Section 14. CONFIDENTIALITY OF TAX RETURNS. The confidentiality provisions imposed by this Code shall be executed as provided herein. (a) It shall be unlawful for any person to print, publish, or divulge, without the written permission or approval of the taxpayer, the tax return of any taxpayer or any part thereof or any information 229
secured in arriving at the amount of tax or value reported for any purpose other than the proper administration of any matter administered by the department, or upon order of any court, or as otherwise allowed in this section. Statistical information pertaining to taxes may be disclosed at the discretion of the Director of Finance. The Director of Finance may make written or verbal disclosure upon request as to the status of compliance of the taxpayer relative to this ordinance. (b) A good standing certificate shall be issued to a requesting person with respect to a taxpayer if the taxpayer has filed all tax returns due and paid the taxes shown as payable in accordance with those returns. (c) The Director of Finance shall promulgate reasonable regulations permitting and governing the exchange of tax returns, information, records, and other documents secured by the department, with tax officers of other agencies of the state, municipal, and county government agencies within the State of Alabama, federal government agencies, any association of state government tax agencies of Alabama or other states, and any foreign government tax agencies. However, (i) any tax returns, information, records, or other documents remain subject to the confidentiality provisions set forth in subsection (a); (ii) the department may charge a reasonable fee for providing information or documents for the benefit of the requesting agencies, and (iii) any exchange shall be for one or more of the following purposes: (1) (2) (3) Collecting taxes due. Ascertaining the amount of taxes due from any person. Determining whether a person is liable for, or whether there is probable cause for believing a person might be liable for the payment of any tax.
(d) Nothing herein shall prohibit the use of tax returns or tax information by the department in the enforcement, collection, and assessment of any tax levied or imposed by this ordinance, or any other matters administered by the department. The department may also divulge to a purchaser or successor of a business or stock of goods the outstanding tax liability of the seller for which the purchaser or successor may be liable pursuant to Section 16 of this ordinance. This section shall not preclude the inspection of returns by federal or foreign state agents pursuant to Section 40-18-53 Code of Alabama 1975. (e) Nothing herein shall prohibit the exchange of information between and among county or municipal governments subject to the restrictions of this section. (f) In no event shall any damages, attorney fees, or court costs be assessed against the City or against its elected officials, officers, or employees under this section.
Section 15. REGULATIONS MAY BE PROMULGATED; PAYMENTS DUE TAXPAYERS MAY BE WITHHELD. 15.1 REGULATIONS MAY BE PROMULGATED. 230
(a) The Director of Finance shall from time to time promulgate rules and regulations for making returns and for ascertainment, assessment and remittance of the tax imposed hereunder as he/she may deem necessary to enforce its provisions; and upon request shall furnish any taxpayer with a copy of such rules and regulations. (b) The Director of Finance may prescribe, adopt, promulgate and enforce reasonable rules and regulations not in conflict with this ordinance relating to any matter or thing pertaining to the administration and enforcement of the provisions of this ordinance, including but not limited to provisions for the re-examination and correction of returns as to which overpayment or underpayment is claimed or found to have been made, and the rules and regulations so promulgated shall be binding upon all licensees and employers. (c) The Director of Finance shall prescribe printed forms for use by persons subject to the provisions of this ordinance and shall make such forms available at his/her office for use by such persons. 15.2 PAYMENTS DUE TAXPAYERS MAY BE WITHHELD. Pursuant to the Mayor-Council Act, Article VI, Section 6.04(o), Act No. 452-55, Acts of Alabama, the Director of Finance, in order to protect the interests of the City, is authorized to withhold the payment of any claim or demand for payment of monies due from the City to any vendor, contractor, consultant or other person having unpaid or delinquent tax or license liabilities until such unpaid tax, including applicable interest and penalties, shall first have been settled and adjusted. The Director of Finance shall notify the taxpayer by certified mail with return receipt requested, sent to the taxpayer=s last known address, of his/her intention to make such levy, the effect of which shall be continuous from the date such levy is first made until the liability out of which such levy arose is satisfied.
Section 16. PURCHASER TO WITHHOLD TAXES DUE FROM PURCHASE MONEY OR BE LIABLE. Any person liable for an amount of tax herein required to be remitted who shall sell out his business or stock of goods, or shall quit business, shall be required to make out a final return, as provided for under Article I, Section 5 of this ordinance, and shall make payment of the taxes due within thirty (30) days after the date he sold out his business, or stock of goods, or quit business, and his successor in business shall be required to withhold sufficient of the purchase money to cover the amount of said taxes due and unpaid until such time as the former owner shall produce a receipt from the department showing that the taxes have been paid, or a certificate stating that no taxes are due. If the purchaser of a business or stock of goods shall fail to withhold purchase money as provided herein, and the taxes remain due and unpaid after said thirty-day period, he shall be personally liable for the payment of the taxes accrued and unpaid on account of the operation of the business by the former owner. If in such cases the department deems it necessary in order to collect the taxes due the City, it may make a jeopardy assessment as provided in Title 40 Chapter 29 of the Code of Alabama 1975.
Section 17. DISPOSITION OF FUNDS DERIVED FROM OCCUPATIONAL LICENSE FEES. All monies derived from the occupational license fees levied under the provisions of this 231
ordinance shall be paid to the City and placed to the credit of the General Fund of the City of Birmingham, and shall be used and expended as authorized by law and ordinance.
Section 18 thru Section 20. [Reserved].
Section 21. CREDIT FOR OCCUPATIONAL TAX ERRONEOUSLY PAID. 21.1 TAXES DUE THE CITY WHICH WERE ERRONEOUSLY PAID TO ANOTHER MUNICIPALITY. (a) Requirement to Request Refund of Erroneous Tax Payment Within 60 Days of Notice to Avoid Interest, Penalties (Taxpayer). In order to avoid the accrual of interest and any otherwise applicable penalties on the tax due the City of Birmingham, when an occupational tax owed to the City of Birmingham is erroneously paid to a different municipality or county in good faith, based on a reasonable interpretation of the enabling ordinance, resolution, or act levying or authorizing the tax, but not under a requirement of law, the taxpayer making the erroneous payment must comply with the applicable refund procedures of such municipality or county within 60 days of receiving notice from the City, a county, or other municipality or its agent of the erroneous payment. (b) Compliance With Refund Procedure; Interest, Penalties. If the taxpayer complies with the refund procedure within the requisite 60-day period, the City shall not assess or attempt to assess the tax, or any related interest or otherwise applicable penalty thereon until the date of receipt of the overpayment from the refunding municipality or county by the taxpayer or the taxpayer=s agent, and no interest or penalty thereon shall accrue until such date of receipt. The taxpayer shall remit the disputed tax to the City within 15 days after receipt. Failure to Comply With Refund Procedure; Interest, Penalties. If the taxpayer fails to comply with the refund procedures within the requisite 60-day period, interest and any applicable penalties shall accrue on the tax to which the City is entitled from the sixty-first (61st) day and until such time as the tax is paid.
(c)
21.2 TAXES DUE TO ANOTHER MUNICIPALITY WHICH WERE ERRONEOUSLY PAID TO THE CITY OF BIRMINGHAM. (a) Requirement to Refund Overpayment of Erroneous Tax Payment Within 60 Days of Compliance With Refund Procedures (City of Birmingham). If an occupational tax owed to another municipality or county is erroneously paid to the City of Birmingham in good faith, based on a reasonable interpretation of the enabling ordinance, resolution, or act levying or authorizing the occupational tax, but not under a requirement of law, the City shall refund the overpaid tax, without interest, to the taxpayer within 60 days of the
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taxpayer=s compliance with applicable refund procedures provided in Section 10 of this Ordinance. (b) Refund of Excess Tax; Requirements. Provided, however, that if the applicable rate of occupational tax imposed by the City exceeds the rate of occupational tax imposed by the proper locality under a requirement of law, the City shall not be obligated to refund the difference unless the taxpayer properly files the applicable petition for refund, as in the case of direct petitions for refund as required by Section 10.1 of this Ordinance.
Section 22. [Reserved] Section 23. COLLECTION AFTER ASSESSMENT. The tax herein levied may be collected by levy as provided in Section 40-29-51 Code of Alabama 1975, as follows: (a) Length of Period. Where the assessment of any tax imposed by this ordinance has been begun or made within the period of limitation properly applicable thereto, such tax may be collected by levy or by a proceeding in court, but only if the levy is made or the proceeding begun: (1) (2) Within the period allowed by law after the final assessment of the tax; or Prior to the expiration of any period for collection agreed upon in writing by the Director of Finance and the taxpayer before the expiration of such period allowed by law (or, if there is a release of levy under Section 40-29-34 Code of Alabama 1975, after such period allowed by law, then before such release).
The period so agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon. The period allowed by law as provided in this subsection during which a tax may be collected by levy shall not be extended or curtailed by reason of a judgment against the taxpayer. (b) Date when levy is considered made. The date on which a levy on property or rights to property is made shall be the date on which the notice of seizure provided in Section 40-29-26 Code of Alabama 1975, is given.
Section 24. LIEN FOR TAXES. Pursuant to Sections 40-29-20, 40-29-21, and 11-51-96 Code of Alabama 1975, the provisions of this section shall apply to the taxes and/or any penalty or interest payable thereon, levied under this ordinance. (a) Notice of Lien. If any person liable to pay the privilege or license tax herein levied, neglects or refuses to pay the same within thirty (30) days of the final assessment, the amount (including any interest, additional amount, addition to tax, or assessable penalty together with filing fees and any other costs that may accrue in addition thereto) shall be a lien in favor of the City of Birmingham 233
upon all property and rights to property, whether real or personal, tangible or intangible, used in any exhibition, trade, business, vocation, occupation or profession for which a privilege or license tax is or may be required. The department shall give a thirty (30) day ANotice of Intent to File Lien@ to the taxpayer by any one of the following methods: Given in person; Left at the dwelling or usual place of business of such person; or Sent by certified mail with return receipt requested to the taxpayer=s last known address. (b) Term. Unless another date is specifically fixed by law, the lien imposed by subsection (a) shall arise at the time of the final assessment, return therefor or the payment thereof, whichever is prior, was due to have been filed with or made to the department, and shall continue until the liability for the amount so assessed (or a judgment against the taxpayer arising out of such liability) is satisfied or becomes unenforceable by reason of lapse of time. (c) Right to Enforce Lien by Attachment. The department may enforce such lien in any court of competent jurisdiction, by attachment issued by any officer authorized to issue such writs, upon executing bond as in other cases of attachment, and upon making affidavit that the attachment is not sued out for the purpose of vexing or harassing the defendant, and describing the property on which the lien is claimed and setting forth all the facts necessary to the creation of the lien and the amount due and unpaid (including any interest, additional amount, addition to tax, or assessable penalty together with filing fees and any other costs that may accrue in addition thereto). (d) Release of Lien. With respect to a lien described in this section, the Director of Finance shall within ten (10) days release the lien when the liability out of which such lien arose is satisfied, and shall promptly notify the person upon whom such lien was made that such lien has been released. (1) (2) (3)
Section 25. COLLECTION BY CIVIL SUIT. The department may initiate and/or maintain a civil action to recover delinquent taxes herein levied, interest, penalties, and administrative costs incurred in connection therewith, in any court of competent jurisdiction, which remedy shall be in addition to any and all other remedies which may be provided.
Section 26. VIOLATOR MAY BE RESTRAINED FROM CONTINUING IN BUSINESS. Any taxpayer who shall violate any of the provisions of this ordinance may be restrained from continuing in business, and proper prosecution shall be instituted in the name of the City of Birmingham until such person shall have complied with the provisions of this ordinance.
Section 27. VIOLATIONS.
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27.1 FAILURE TO PAY THE TAX, MAKE REPORTS, KEEP OR PROVIDE RECORDS. Any person subject to the provisions of this ordinance, who shall fail to pay the tax, make the reports or any of them as herein required, or who shall fail to keep or provide records, or supply any information, as herein required, shall, as provided in Section 40-29-112 Code of Alabama 1975, be guilty of a misdemeanor, and upon conviction, shall be fined not less than fifty dollars ($50.00), nor more than five hundred dollars ($500.00) for each offense and, in addition, may be imprisoned for a period not to exceed six (6) months. Each occurrence of such failure shall constitute a separate offense. 27.2 WILLFUL REFUSAL TO MAKE REPORTS, OR PERMIT EXAMINATION OF RECORDS. Any person subject to the provisions of this ordinance willfully failing or refusing to make the reports, furnish any supplemental returns or other data herein required, or who shall refuse to permit the examination of his records by the department, as provided in 40-29-112 Code of Alabama 1975, shall be guilty of a misdemeanor and, upon conviction shall be fined not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00) for each offense, and in addition, may be imprisoned for a period not to exceed six (6) months. Each occurrence of a failure to make such reports shall constitute a separate offense, and each refusal of a written demand by the department to examine, inspect, or audit such records shall constitute a separate offense. 27.3 VIOLATION OF ORDINANCE. Any person who shall fail or neglect or refuse to perform any duty imposed by this ordinance or any rule, regulation, or law thereof or who shall fail or neglect to do or perform any act or series of acts as required by this ordinance or other City ordinances shall, upon conviction, be punished by a fine not exceeding five hundred dollars ($500.00) for each offense, and in addition may be imprisoned for a period not to exceed six (6) months, or by both such fine and imprisonment, pursuant to Section 1-1-6 of the General Code of the City of Birmingham 1980, as amended and as it may be amended. 27.4 FRAUDULENT STATEMENT OR FAILURE TO FURNISH STATEMENT TO THE DEPARTMENT. In addition to the criminal penalty provided by Section 40-29-113 and Section 40-29-114 Code of Alabama 1975, any person required under this ordinance to furnish a statement to the department who willfully furnishes a false statement or fraudulent statement, or who willfully fails to furnish a statement in the manner, at the time, and showing the information required shall for each such failure be subject to a penalty under this ordinance of not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00) for each offense, and in addition may be imprisoned for a period not to exceed six (6) months, or by both such fine and imprisonment.
Section 28. REQUEST FOR RULING ON ITEMS OF COMPENSATION. Any taxpayer may request a ruling on the determination of whether items of compensation are included in gross receipts and compensation or are not to be included in gross receipts and compensation as a measure of the taxes due and payable as levied by this ordinance. Such requests shall be made in writing to the Finance Department, and shall contain all pertinent facts relating to the item(s) in question.
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Section 29. SEVERABILITY. The provisions of this ordinance are severable. If any provision, section, paragraph, sentence or part thereof, or the application thereof to any employer or licensee or class or persons, shall be declared unconstitutional or invalid by a court of competent jurisdiction, such declaration shall not affect or impair the remainder of the ordinance, it being the legislative intent to ordain and enact each provision, section, paragraph, sentence and part thereof, separately and independently of each other.
Section 30. REPEAL OF ORDINANCE NO.70-75, AS AMENDED. The occupational tax law adopted by Ordinance No. 70-75 as amended and as it has been amended is hereby repealed as of the date upon which this occupational tax becomes effective in the City of Birmingham; provided, however, that neither any cause of action nor fine, forfeiture judgment, penalty, writ, remedy or defense, accrued at said date, nor any prosecution, or complaint pending at said date shall be in any manner released, affected, abated, or impaired, by this ordinance.
Section 31. EFFECTIVE DATE OF ORDINANCE. This ordinance shall become effective and operative as such, commencing on and after January 1, 1998, and on and after said date shall be binding in the City of Birmingham.
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OCCUPATIONAL TAX CODE
RULES AND REGULATIONS
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RULES AND REGULATIONS FOR THE CITY OF BIRMINGHAM OCCUPATIONAL TAX CODE ARTICLE II
Section 1. PROMULGATION OF RULES AND REGULATIONS. The following Rules and Regulations are hereby promulgated by the Director of Finance of the City of Birmingham under the authority granted to him in Section 15 of the Occupational Tax Ordinance. The Rules and Regulations are effective JANUARY 1, 1993 and are to be applied prospectively.
Section 2. DEFINITIONS. The following words, terms and phrases when used in this Article shall have the following meanings except 1) when the context clearly indicates a different meaning or 2) when the definition of such word or phrase conflicts with the same definition as contained in Article I, Section 1 (ADefinitions@) of the Occupational Tax Ordinance, in which case the Occupational Tax Ordinance definition will govern: 2.1 APerson@ shall mean any natural person. Whenever the word APerson@ is used in any clause prescribing and imposing a penalty in the nature of a fine or imprisonment, the word as applied to a partnership or other form of unincorporated enterprise shall mean the partners or members thereof, and as applied to corporations shall mean the officers and directors thereof. 2.2 ATrade, Occupation, and Profession@ shall mean and include the doing of any kind of work, the rendering of any kind of personal services, or the holding of any kind of position or job within the City of Birmingham, Alabama by any clerk, laborer, tradesman, manager, official, or other employee, including any nonresident of the City of Birmingham who is employed by any employer as defined in this section, where the relationship between the individual performing the services and the person for whom such services are rendered is, as to those services, the legal relationship of employer and employee, including also a partner of a firm or an officer of a firm or corporation, if such partner or officer receives a salary for his personal services rendered in the business of such firm or corporation, but they shall not mean or include domestic servants employed in private homes or businesses, professions or occupations for which occupational license fees are required to be paid under any General License Code of the City. 240
The words "Trade, Occupations and Professions" shall also mean and include the holding of any kind of office or position, either by election or appointment, by any federal, state, county or city officer or employee where the services of such official or employee are rendered within the City of Birmingham. 2.3 AEmployee@ shall mean and include any person engaging in or following any trade, occupation or profession within the meaning of subsection 2.2 of this section. (See Article I, Section 1(d) of the Occupational Tax Ordinance.) 2.4 AEmployer@ shall mean and include any person, business, firm, corporation, partnership, association or any other kind of organization or profession in the City of Birmingham within the meaning of subsection 2.2 of this section. (See Article I, Section 1(e) of the Occupational Tax Ordinance.) 2.5 ALicensee@ shall mean and include any person required to file a return or to pay a license fee under the Occupational Tax Ordinance. 2.6 ACity@ shall mean the City of Birmingham, Alabama. 2.7 ADirector of Finance@. The words ADirector of Finance@ shall mean the Director of Finance of the City of Birmingham or his duly authorized agent. 2.8 AGross Receipts and Compensation@. See Article II, Section 6 (AItems of Gross Receipts and Compensation@) hereunder for the definition of, and items included in gross receipts and compensation; and see Article II, Section 7 (AItems Not Constituting Gross Receipts and Compensation@) hereunder for items excluded from gross receipts and compensation.
Section 3. IMPOSITION OF OCCUPATIONAL LICENSE FEE; RATE OF TAX. 3.1 License Fee Required. It shall be unlawful for any person to engage in or follow any trade, occupation or profession as defined in Section 1 of the Occupational Tax Ordinance within the City on and after the 1st of December, 1970, without paying occupational license fees for the privilege of engaging in any Trade, Occupation, or Profession, which occupational license fees shall be measured by one percent (1%) of the gross receipts and compensation of each such person. 3.2 When Gross Receipts and Compensation Deemed to Have Been Earned in the City. Gross receipts and compensation are deemed to have been received from, entitled to be received from or given credit for by the employer when the work done or personal services are rendered by the employee inside the City and results in actual receipt by the employee or entitlement to a receipt by or credit to the Employee, regardless of where or when the payment is to be made or received.
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Section 4. APPORTIONMENT OF GROSS RECEIPTS AND COMPENSATION WHEN TRADE, OCCUPATION OR PROFESSION ENGAGED IN BOTH INSIDE AND OUTSIDE THE CITY; COMPUTATION OF LICENSE FEE. 4.1 Apportionment of Gross Receipts and Compensation. When Gross Receipts and Compensation are earned by an Employee and work is done or personal services rendered by such Employee both within and without the City, the license fee shall be measured by the Gross Receipts and Compensation earned as a result of work done or personal services rendered within the City. Employers shall multiply the total Gross Receipts and Compensation of each said Employee=s earnings both within and without the City by a fraction whose numerator is the days spent working or rendering personal services in the City and whose denominator is the total days working or rendering personal services by the employee within and without the City and shall treat the result as the gross receipts and compensation subject to the license fee imposed by the Occupational Tax Ordinance. 4.2 Requirement to Keep Records. Each employer with one or more employees working both within or without the City shall keep accurate records of days working or rendering personal services within and without the City, and with respect to each such employee, the employer shall remit the occupational license fees withheld, as required in Article I, Section 5 of the Occupational Tax Ordinance. For purposes of the required withholding of occupational license fees and of the required monthly remittances of occupational license fees withheld, employers are permitted to estimate, using a fair and reasonable method consistently applied, the portion of the employee's days spent within the City on the basis of the employee's prior year's experience; provided, however, that the employer shall annually reconcile and pay over the license fee due on each said employee's gross receipts and compensation based upon such employee's days spent working or rendering personal services within and without the City. Such records shall be kept and maintained by each such employer for not less than five (5) years subsequent to the date such compensation was earned.
Section 5. RESPONSIBILITY OF EMPLOYERS TO WITHHOLD, ACCOUNT FOR, REPORT, AND REMIT OCCUPATIONAL LICENSE FEES. 5.1 Employer Obligated to Withhold License Fee From Payments of Gross Receipts and Compensation. Each employer shall withhold at the time of payment of gross receipts and compensation (as hereinafter defined) to any employee from such payment of gross receipts and compensation the license fee then due from each such employee. Each employer who is notified of or discovers an underpayment by the employer of the license fee shall (i) correct the previously submitted returns which had shown the amount which was under withheld, and (ii) remit payment of the license fee not previously paid over, together with any applicable penalty and interest as outlined in Article I, Section 13 of the Occupational Tax Ordinance. 5.2 Payment/Remittance of Withheld Occupational License Fees. Every employer is obligated to withhold occupational license fees for gross receipts and compensation from payments of wages, 242
salaries, commissions or fees, make the return required by Section 5 of the Occupational Tax Ordinance and at the time of the filing thereof, pay to the City the amount of the occupational license fees shown as due thereon.
Section 6. ITEMS OF GROSS RECEIPTS AND COMPENSATION. Article I, Section 1(f) of the Occupational Tax Ordinance defines the terms AGross Receipts@ and ACompensation@, as having the same meaning, which terms include, but are not limited to, the Atotal of the following items which a person receives from or is entitled to receive from or be given credit for by his Employer for any work done or personal services rendered in any trade, occupation, or profession...@ The determination of whether an item constitutes gross receipts and compensation is to be made without consideration of where or when the payment, entitlement or credit is to be made or received and without consideration of who is the payor or obligor. Pursuant to Article I, Section 1 (f) of the Occupational Tax Ordinance, the following items of gross receipts and compensation earned by an employee are subject to the license fee: 6.1 Salaries. Salaries, bonuses, overtime pay or incentive payments earned by a Person, whether received directly or through an agent: (a) (b) as an official or employee, or both, of a corporation; as an official or employee (as distinguished from a partner or member) of a partnership or other association; as an employee (as distinguished from the proprietor) of a business conducted by an individual owner; as an official or employee (whether elected or appointed, enlisted or commissioned) of a governmental agency; or an official or employee of any other entity.
(c)
(d)
(e)
6.2 Wages. Wages, bonuses, overtime pay or incentive payments earned by a Person, whether received directly or through an agent: (a) whether based upon hourly, daily, weekly, semimonthly, monthly, annual, unit of production or piecemeal rates; and whether paid by an individual, nonprofit association, corporation, partnership, fiduciary, governmental agency or any business or other entity.
(b)
6.3 Commissions. Commissions earned by an Employee from his Employer whether received directly or through an agent, for personal services rendered regardless of how such commissions are
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computed, including any amounts paid by the Employer and received by the Employee as a drawing account exceeding the commissions earned. 6.4 Fees. Fees earned by an Employee, whether received directly or through an agent, for personal services rendered regardless of how computed. 6.5 Vacation Pay, Sick Pay, Holiday Payments, Etc. Vacation pay, sick pay, and holiday payments received by an Employee during periods of absence from work; payments for accrued, unused vacation, sick or holiday days received by an Employee regardless whether such payments are received during periods of absence from work or not. 6.6 Employee Elective Contributions to Qualified and Non-Qualified Deferred Compensation Plans. Amounts earned by an Employee and which said Employee has elected to defer receipt of from his Employer pursuant to a cash or deferred arrangement election by the Employee or a salary reduction agreement between the Employer and the Employee. This would include elective deferrals under plans such as Section 401(k) plans, Section 403(b) plans and similar plans which allow for a salary reduction. 6.7 Non-Cash Fringe Benefits. Non-cash fringe benefits received by an Employee from his Employer not excluded under Section 7 (Items Not Constituting Gross Receipts and Compensation) and having a value of $100.00 or more including the fair market value of property or services received as Compensation by an Employee and paid by the Employer where such compensation is not in the ordinary course of business. Non-cash fringe benefits may be valued for purposes of the imposition of the license fee using any reasonable method or any reasonable basis consistently applied by the Employer including the use of valuation methods for federal income tax reporting purposes. 6.8 Severance and Separation Payments. Payments made by an Employer to an Employee, whether at the time of separation or following separation from service with the Employer, to the extent that said payments represent vacation pay, sick pay, severance pay, early retirement buy-outs and other benefits accrued pursuant to any Employer and Employee relationship if such benefits would be subject to the occupational license fee if they were paid to the active Employee. Included are payments which are made in lieu of any payment which the Employer is obligated to make to or on behalf of the Employee arising from the employment of the Employee, to the extent that such payments would be subject to the occupational license fee if they were made to an active Employee. 6.9 Expense Accounts. Allowances and reimbursements paid by an Employer to an Employee for expenses incurred by the Employee in the trade or business of the Employer, which sums are not accounted for by the Employee to the Employer as ordinary and necessary trade or business expenses of the Employer. 6.10 Non-De Minimis Awards in Excess of $100.00. Non-De Minimis awards in excess of one hundred dollars ($100.00) received by an Employee from his Employer whether received directly or through an agent of the Employer. 244
6.11 Insurance Premiums Paid by the Employer for Group Term Life Insurance Coverage In Excess of $50,000. The value of group term life insurance the Employer provides to an Employee for coverage over $50,000. The Employer may use a valuation method used for federal income tax reporting purposes. 6.12 Imputed Income on Personal Use of Automobile. The value of the personal use by an Employee of an Employer-provided automobile. The value of personal use of automobiles may be determined by using any reasonable method consistently applied by the Employer including the use of valuation methods used for federal income tax reporting purposes. 6.13 Country Club Dues/Memberships. The value of the personal use by an Employee of Country club dues/memberships paid for by the Employer or reimbursed by the Employer. The personal use of country club and similar memberships may be valued for purposes of the imposition of the license fee using any reasonable method or any reasonable base consistently applied by the Employer including the use of valuation methods for federal income tax reporting purposes. 6.14 Other Items of Gross Receipts and Compensation. All other forms of consideration having monetary value, earned by an employee, due from an employer for the performance of any activity subject to the license fee and not expressly exempt under Article I, Section 3.1 of the Occupational Tax Ordinance or herein (See Article II, Section 7 and Section 10.)
Section 7. ITEMS NOT CONSTITUTING GROSS RECEIPTS AND COMPENSATION. The following items of payment and benefits from or on behalf of an employer to or for the credit of an employee are not considered gross receipts and compensation under the Occupational Tax Ordinance: 7.1 Unemployment Compensation. Unemployment compensation payments made by any governmental agency. 7.2 Death Benefits. Death benefits payable to the beneficiary of an Employee or to his estate, whether payable in a single sum or otherwise. 7.3 Workmen's Compensation. Amounts received under the Workmen's Compensation Act as compensation for a disability sustained during the course of employment, together with any amount of damages received by suit or agreement on account of such disability. 7.4 Allowances and Reimbursements for Expenses. Allowances and reimbursements paid by an Employer to an Employee for expenses actually incurred by the Employee in the trade or business of the Employer, which sums are accounted for by the Employee to the Employer as ordinary and necessary trade or business expenses of the Employer.
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7.5 Strike Benefits. Strike pay benefits paid from a fund which is established and/or replenished, in whole or in part, from the Employee's wages. 7.6 Employer Contributions To Employee Welfare Benefit Plans. Employer's Contributions for life, health and accident, disability and similar welfare benefit plans whether the plans are insured, self-insured or otherwise. 7.7 Amounts Paid Under Qualified and Non-Qualified Deferred Compensation Plans. Amounts paid under qualified and non-qualified deferred compensation plans at withdrawal. 7.8 Student Grants. Stipends, honorariums, grants and other payments made to students to the extent such payments are conditioned only upon the recipient's pursuit of studies and/or participation in athletic or other intercollegiate competition, and scholarships and other non-cash fringe benefits received by duly registered students from the school, college or university in which they are enrolled. To the extent that such payments are made for services rendered by the student and an Employer-Employee relationship exists between the payor and the student, the payments are included in Gross Receipts and Compensation. 7.9 Exemptions Afforded by Treaty. Any wages, salaries or other compensation paid to a foreign national to the extent that such payments are exempt from state and local taxation by a treaty of the United States. 7.10 Employer Contributions to Qualified and Non-qualified Deferred Compensation Plans Not Arising from Employee Election. Contributions to qualified and non-qualified deferred compensation plans by employers, other than contributions as provided in Section 6.6 herein. 7.11 Flexible Benefit Plan Payments. Payments by Employers to cafeteria plans, flexible benefit plans, flex plans or plans of similar import, which provide the opportunity for Employees to elect to reduce their wages for federal income tax purposes and contribute such amount to such plans to pay for welfare benefits such as medical insurance or expenses, dependent care expenses, group disability insurance, etc., not otherwise paid for by the Employer. 7.12 Stock Options, Stock Grants and Bargain Stock Purchases from Employer. Employer granted stock options, stock grants and bargain stock purchases shall not be included in the Gross Receipts of said Employee at the time of grant nor at the time of exercise or at any other time including stock grants subject to a substantial risk of forfeiture under Title 26 United States Code Section 83. 7.13 Moving Expenses. Allowances and reimbursements paid by an Employer to an Employee for expenses incurred in moving to the location of the Employer. 7.14 Payment of Parking by Employer. Parking (i) paid or provided by the employer for the benefit of the employee or (ii) reimbursement by the employer for the benefit of the employee or (iii) reimbursement by the employer of parking expenses actually incurred by the employee.
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7.15 Dependent Child Care Assistance. Dependent child care expenses paid by the Employer for the benefit of the Employee, reimbursed by the Employer or Employer-provided dependent child care services. 7.16 Employee Discounts. Discounts provided by an Employer to employees on the selling price of property or services offered for sale to customers in the normal business of the Employer. 7.17 Educational Assistance Payments. Educational assistance provided by the Employer to an Employee under an Employer-provided educational assistance program. 7.18 Distributions from Qualified Pension and Unqualified Compensation Plans. Amounts paid from retirement plans or similar arrangements including amounts from pension plans, profit sharing plans, stock bonus plans, or employee stock ownership plans whether or not such plans are qualified deferred compensation plans pursuant to Title 26 United States Code, Section 401(a) or non-qualified deferred compensation plans or arrangements. 7.19 Employee Achievement Awards in Excess of $100.00. Employee achievement awards in excess of one hundred dollars ($100.00) received by an employee from his employer whether received directly or through an agent of the employer that are not taxable under Title 26 United States Code Section 74 shall not be taxable.
Section 8. PERSONS EXEMPT FROM OCCUPATIONAL LICENSE FEE. 8.1 Domestic Servants. Gross Receipts and Compensation earned by domestic servants.
Section 9. RETURNS REQUIRED OF LICENSEES. The failure of or omission by an Employer to withhold or pay over occupational license fees due under the Occupational Tax Ordinance shall not relieve an employee, with respect to which such failure or omission occurred, from the payment of such occupational license fees due and compliance with the requirements for making returns as provided in the Occupational Tax Ordinance. See Section 5 of the Occupational Tax Ordinance.
Section 10. REQUEST FOR RULING ON ITEMS OF COMPENSATION. Any taxpayer may request a ruling on the determination of whether items of compensation are included in gross receipts and compensation or are not to be included in gross receipts and compensation as a measure of the taxes due and payable as levied by this ordinance. Such requests shall be made in writing to the Finance Department, and shall contain all pertinent facts relating to the item(s) in question.
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AN ORDINANCE TO ADOPT THE OCCUPATIONAL TAX CODE OF THE CITY OF BIRMINGHAM, ALABAMA FOR THE CALENDAR YEAR 1998 AND CONTINUING IN EFFECT UNTIL AMENDED OR REPEALED AND TO PROVIDE FOR THE PUBLICATION THEREOF. BE IT ORDAINED by the Council of the City of Birmingham as follows:
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Section 1. That the codification of the Occupational Tax Code of the City of Birmingham for the calendar year of 1998 and continuing in effect until it is amended or repealed, consisting of 27 pages all inclusive, be and the same is hereby adopted as the AOccupational Tax Code of the City of Birmingham, 1998@, and shall be effective and operative as such on and after the 1st day of January, 1998 and on and after said date shall be binding within the corporate limits of the City of Birmingham. Section 2. That immediately after the adoption of this ordinance and in the presence of this Council at this meeting, the City Clerk shall further identify the said AOccupational Tax Code of the City of Birmingham, 1998" referred to in Section 1 hereof which is before this Council by appending thereto and signing a certificate in form substantially as follows: AI, Paula R. Smith, City Clerk, hereby certify that the AOccupational Tax Code of the City of Birmingham, 1998@ numbered pages 1 through 27 all inclusive to which this certificate is appended is the document referred to in Section 1 of Ordinance No. 97-184 adopted by the Council of the City of Birmingham at a regular meeting thereof held on this the 23rd day of December, 1997 and that I have signed this certificate in the presence of said Council at said regular meeting on said date. Paula R. Smith, City Clerk@. The City Clerk shall carefully preserve this ordinance and said document adopted by Section 1 hereof as the AOccupational Tax Code of the City of Birmingham, 1998@, as a part of the permanent records of her office. Section 3. That the Occupational Tax Code of the City of Birmingham adopted by Ordinance 70-75 of the City of Birmingham on the 29th day of September, 1970 as amended by Ordinance 92-280 on the 3rd day of November, 1992 be and the same hereby is repealed as of the date upon which the AOccupational Tax Code of the City of Birmingham, 1998", adopted by Section 1 of this ordinance, becomes effective in the City of Birmingham as provided by Section 1; provided however, that neither any cause of action nor fine, forfeiture, judgement, penalty, right, remedy or defense accrued at said date, nor any prosecution or complaint pending at said date shall be in any manner released, affected, abated, or impaired by this ordinance or by the Code adopted by this ordinance. Section 4. That it be, and hereby is, proclaimed that the Code adopted by Section 1 hereof is on file with the City Clerk of the City of Birmingham, where the same may be inspected by the public, and that this proclamation and said Code shall be made public by publication of this proclamation as part of the publication of this ordinance as ordered by Section 5 hereof. Section 5. That prior to the date specified in Section 1 hereof at least fifteen (15) copies of this ordinance and of the Code adopted by Section 1 of this ordinance shall be prepared and bound within the appropriate covers and made available to the general public at the office of the Director of Finance of the City of Birmingham, provided that said Director may charge therefore at a rate not exceeding the cost per volume to the City. Each bound volume purporting in print to contain Ordinance No. 97-184 and the AOccupational Tax Code of the City of Birmingham, 1998", and to have been published by authority of this Council, shall be received as prime facie evidence as provided by Section 12-21-95, Code of Alabama 1975, and may be used by courts as an aid to judicial knowledge under Act No. 193 of the 1943 Session of the Legislature of Alabama. Section 6. That the City Clerk shall cause a true copy of this ordinance to be promptly published in a newspaper published and of general circulation in the City of Birmingham and shall carefully preserve in her office a thus published copy of said ordinance as part of the permanent records of her office.
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STATE OF ALABAMA ) ) JEFFERSON COUNTY ) CERTIFICATE OF CITY CLERK I, Paula R. Smith, City Clerk, do hereby certify that the foregoing Ordinance adopting the AOccupational Tax Code of the City of Birmingham, 1998@ for the calendar year 1998, and continuing in effect until it is amended or repealed was duly and legally adopted by the Council of the City of Birmingham at a regular
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meeting held in the City of Birmingham, Alabama, on the 23rd day of December, 1997, and I further certify that the foregoing manuscript contains the full, complete and true manuscript of said Code, as adopted by said Council. GIVEN UNDER MY HAND AND CORPORATE SEAL of the City of Birmingham, this 29th day of December, 1997.
SEAL
CERTIFICATE OF DIRECTOR OF FINANCE I, Mac Underwood, Director of Finance of the City of Birmingham, do hereby report to the Council of the City of Birmingham the annexed copy as the AOccupational Tax Code of the City of Birmingham, 1998@ for the calendar year 1998, and continuing in force until it is amended or repealed, and prepared in accordance with the direction of the Council of the City of Birmingham, this the 23rd day of December, 1997. GIVEN UNDER MY HAND this 29th day of December, 1997
MAC UNDERWOOD Director of Finance STATE OF ALABAMA ) ) JEFFERSON COUNTY ) CERTIFICATE OF COMPARISON To The President of the City Council I, Paula R. Smith, City Clerk, hereby certify the printed AOccupational Tax Code of the City of Birmingham, 1998@ for the calendar year 1998, and continuing in effect until it is amended or repealed corresponds
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accurately and is in full accord with the original manuscript as adopted by the Council of the City of Birmingham on the 23rd day of December, 1997. GIVEN UNDER MY HAND AND CORPORATE SEAL of the City of Birmingham, this 29th day of December, 1997.
I, Mac Underwood, Director of Finance, the person charged with the duty of causing to be printed and bound 15 copies of the AOccupational Tax Code of the City of Birmingham, 1998@ for the calendar year 1998, and continuing in effect until it is amended or repealed, which was adopted by the Council of the City of Birmingham on the 23rd day of December, 1997, do hereby certify that I have caused to be read all the proofs and have caused to be corrected all manifest errors therein, and the Code, as printed, corresponds accurately with the original manuscript. GIVEN UNDER MY HAND this 29th day of December, 1997.
MAC UNDERWOOD Director of Finance PROCLAMATION BY THE MAYOR OF THE CITY OF BIRMINGHAM, ALABAMA WHEREAS, by Ordinance No. 97-184 adopted by the Council of the City of Birmingham on the 23rd day of December, 1997 provide for the adoption of the AOccupational Tax Code of the City of Birmingham, 1998@ for the calendar year 1998 and continuing in effect until it is amended or repealed it was made the duty of the Mayor upon delivery of 15 copies of said Code to issue his proclamation announcing that fact and designating the first day of January, 1998, as the day on which said Code shall go into effect, and whereas, 15 copies of said Code have this day been delivered to me. Now, therefore, in pursuance of the authority conferred upon me by said Ordinance, I, Richard Arrington, Jr., Mayor of the City of Birmingham, hereby proclaim
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AOccupational Tax Code of the City of Birmingham, 1998@ for the calendar year 1998 and continuing in effect until it is amended or repealed as reported to the Council of the City of Birmingham by the Director of Finance on the 23rd day of December, 1997 in full force and effect as of January the 1st, 1998. Dated this the 29th day of December, 1997.
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THE SALES TAX CODE

Amended by Ordinance No. 98-108 adopted 06/30/98 Amended by Ordinance No. 98-181 adopted 11/17/98 Amended by Ordnance No. 99-210 adopted 12/21/99 Amended by Ordinance No. 00-209 adopted 12/12/00 Amended by Ordinance No. 02-175 adopted 12/10/02
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CITY OF BIRMINGHAM, ALABAMA ORDINANCE NO. 97-185
AN ORDINANCE FOR THE LEVY AND ASSESSMENT OF SALES TAXES.
BE IT ORDAINED by the Council of the City of Birmingham, Alabama pursuant to Section 1151-200 through 11-51-207 Code of Alabama 1975, as follows:
Section 1. DEFINITIONS. The following words, terms and phrases when used in this ordinance shall have the following meanings except 1) when the context clearly indicates a different meaning or 2) when the definition of such word or phrase conflicts with the same definition as contained in 257
Section 40-23-1 or Section 40-2A-3 Code of Alabama 1975, in which case the State law definition will govern: (a) AAutomotive vehicle@ shall include a power shovel, drag line, crawler, crawler crane, ditcher, or any similar machine which is self-propelled, in addition to self-propelled machines which are used primarily as instruments of conveyance. (b) ABusiness@ as used in this ordinance, shall include all activities engaged in, or caused to be engaged in, with the object of gain, profit, benefit or advantage, either direct or indirect, and not excepting sub-activities producing marketable commodities used or consumed in the main business activity, each of which sub-activities shall be considered business engaged in, taxable in the class in which it falls. (c) ACity@ means the City of Birmingham, Alabama. (d) ADepartment@ means the Department of Finance of the City of Birmingham, and includes the Director of Finance. (e) ADirector@ or ADirector of Finance@ means the Director of Finance of the City of Birmingham, Alabama, or his or her duly authorized agent. (f) AFinal Assessment@ means the final notice of value, underpayment, or nonpayment of any tax administered by the department. (g) AGross Proceeds of Sales@ means the value proceeding or accruing from the sale of tangible personal property (and including the proceeds from the sale of any property handled on consignment by the taxpayer), including merchandise of any kind and character without any deduction on account of the cost of the property sold, the cost of the materials used, labor or service cost, interest paid, any consumer excise taxes that may be included within the sales price of the property sold, or any other expenses whatsoever, and without any deductions on account of losses; provided that cash discounts allowed and taken on sales shall not be included, and Agross proceeds of sales@ shall not include the sale price of property returned by customers when the full sales price thereof is refunded either in cash or by credit. Said term Agross proceeds of sales@ shall also mean and include the reasonable and fair market value of any tangible personal property previously purchased at wholesale which is withdrawn or used from the business or stock and used or consumed in connection with a business, and shall also mean and include the reasonable and fair market value of any tangible personal property previously purchased at wholesale which is withdrawn from the business or stock and used or consumed by any person so withdrawing the same, except property which has been previously withdrawn from such business or stock and so used and consumed with respect to which property the tax has been paid because of such previous withdrawal, use or consumption, except property which enters into and becomes an ingredient or component part of tangible personal property or products manufactured or compounded for sale as provided in subsection (x) and not for the personal and private use or consumption of any person so withdrawing, using, or consuming the same, and except refinery, residue, or fuel gas, whether in a liquid or gaseous state, that has been generated by, 258
or is otherwise a by-product of, a petroleum-refining process, which gas is then utilized in the process to generate heat or is otherwise utilized in the distillation of refining of petroleum products. In the case of the retail sale of equipment, accessories, fixtures, and other similar tangible personal property used in connection with the sale of commercial mobile services as defined herein, or in connection with satellite television services, at a price below cost, Agross proceeds of sale@ shall only include the stated sales price thereof and shall not include any sales commission or rebate received by the seller as a result of the sale. As used herein, the term Acommercial mobile services@ shall have the same meaning as that term has in Title 47 U.S.C. Sections 153(n) and 332(d), as in effect from time to time. (h) AGross Receipts@ means the value proceeding or accruing from the sale of tangible personal property, including merchandise and commodities of any kind and character, all receipts actual and accrued, by reason of any business engaged in (not including, however, interest, discounts, rentals of real estate or royalties) and without any deduction on account of the cost of the property sold, cost of the materials used, labor or service cost, interest paid, any consumer excise taxes that may be included in the sales price of the property sold or any other expenses whatsoever and without any deductions on account of losses. The term Agross receipts@ shall also mean and include the reasonable and fair market value of any tangible personal property previously purchased at wholesale which is withdrawn or used from the business or stock and used or consumed in connection with said business, and shall also mean and include the reasonable and fair market value of any tangible personal property previously purchased at wholesale which is withdrawn from the business or stock and used or consumed by any person so withdrawing the same, except property which has been previously withdrawn from such business or stock and so used or consumed and with respect to which property the tax has been paid because of such previous withdrawal, use or consumption, except property which enters into and becomes an ingredient or component part of tangible personal property or products manufactured or compounded for sale as provided in subsection (x) and not for the personal and private use or consumption of any person so withdrawing, using or consuming the same, and except refinery, residue, or fuel gas, whether in a liquid or gaseous state, that has been generated by, or is otherwise a by-product of, a petroleumrefining process, which gas is then utilized in the process to generate heat or is otherwise utilized in the distillation of refining of petroleum products. (i ) ANotice of Appeal of Final Assessment@ means any written notice sufficient to identify the name of the taxpayer or other party appealing, the specific matter appealed from, the basis for that appeal, and the relief sought. (j) APerson@ or ACompany@ herein used interchangeably includes any individual, firm, partnership, copartnership, association, corporation, receiver, trustee or any other group or combination acting as a unit and the plural as well as the singular number, unless the intention to give a more limited meaning is disclosed by the context. (k)APetition for Refund@ means a written request for a refund of tax previously paid, including in the form of an amended return. Unless otherwise provided by law, such request shall include
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sufficient information to identify the amount of tax overpaid, the taxpayer, the period included, the reasons for the refund and sufficient documentation as required by the Director of Finance. (l) APetition for Review@ means a written document filed with the department in response to a preliminary assessment in which the taxpayer sets forth reasonably specific objections for the preliminary assessment. (m) APreliminary Assessment@ shall mean the preliminary notice of value or underpayment of any tax administered by the department. (n)APrepaid Telephone Calling Card@. A sale of a prepaid telephone calling card or a prepaid authorization number, or both, shall be deemed the sale of tangible personal property subject to the tax imposed on the sale of tangible personal property pursuant to this ordinance. (o ) APrivate Auditing or Collecting Firm@ means any person in the business of collecting, through contract or otherwise, local sales taxes for the City of Birmingham, or auditing any taxpayer, through the examination of books and records, for the City of Birmingham. (p) AReturn@ shall mean any report, document, or other statement required to be filed with the department for the purpose of paying, reporting, or determining the proper amount of value or tax due. (q)ASale@ or ASales@ includes installment and credit sales and the exchanges of properties as well as the sale thereof for money, every closed transaction constituting a sale. Provided, however, a transaction shall not be closed or a sale completed until the time and place when and where title is transferred by the seller or seller=s agent to the purchaser or purchaser=s agent, and for the purpose of determining transfer of title, a common carrier or the U.S. Postal Service shall be deemed to be the agent of the seller, regardless of any F.O.B. point and regardless of who selects the method of transportation, and regardless of by whom or the method by which freight, postage, other transportation charge is paid. Provided further that, where billed as a separate item to and paid by the purchaser, the freight, postage, or other transportation charge paid to a common carrier or the U.S. Postal Service is not part of the selling price. (r) ASale at retail@ or Aretail sale@ shall mean all sales of tangible personal property except those defined below as wholesale sales. The quantities of goods sold, or prices at which sold, are immaterial in determining whether or not a sale is at retail. Sales of building materials to contractors, builders, or landowners for resale or use in the form of real estate are retail sales in whatever quantity sold. Sales of building materials, fixtures, or other equipment to a manufacturer or builder of modular buildings for use in manufacturing, building or equipping a modular building ultimately becoming a part of real estate situated in the City are retail sales, and the use, sale or resale of such building shall not be subject to the tax. Sales of tangible personal property to undertakers and morticians are retail sales and subject to the tax at the time of purchase, but are not subject to the tax on resale to the consumer. Sales of tangible personal property or products to manufacturers, quarry operators, mine operators, or compounders, which are used or consumed by them in manufacturing, 260
mining, quarrying or compounding and do not become an ingredient or component part of the tangible personal property manufactured or compounded as provided in subsection (x) are retail sales. The term Asale at retail@ or Aretail sale@ shall also mean and include the withdrawal, use, or consumption of any tangible personal property by anyone who purchases same at wholesale, except property which has been previously withdrawn from the business or stock and so used or consumed and with respect to which property the tax has been paid because of such previous withdrawal, use or consumption, except property which enters into and becomes an ingredient or component part of tangible personal property or products manufactured or compounded for sale as provided in subsection (x) and not for the personal and private use or consumption of any person so withdrawing, using or consuming the same; and such wholesale purchaser shall report and pay the taxes thereon; and except refinery, residue, or fuel gas, whether in a liquid or gaseous state, that has been generated by, or is otherwise a by-product of, a petroleum-refining process, which gas is then utilized in the process to generate heat or is otherwise utilized in the distillation of refining of petroleum products. In the case of the sale of equipment, accessories, fixtures, and other similar tangible personal property used in connection with the sale of commercial mobile services as above defined in Agross proceeds of sales@, or in connection with satellite television services, at a price below cost, the term Asale at retail@ and Aretail sale@ shall include those sales, and those sales shall not be taxable as a withdrawal, use or consumption of such tangible personal property. (s) ATax@ shall mean any amount, including applicable penalty and interest, levied or assessed against a taxpayer and which the department is required or authorized to administer under the provisions of Alabama law. (t) ATax year@ or Ataxable year@ means the calendar year. (u) ATaxpayer@ means any person subject to or liable for taxes herein levied; any person required to file a return with respect to, or to remit the tax herein levied, or to report any information or value to the department, or its designee; or any person required to obtain or holding any interest in any license issued by the department, or its designee, or any person that may be affected by any act or refusal to act by the department, or its designee, or to keep any records required by this ordinance. (v)ATaxpayer=s Authorized Representative@ means any individual with written authority or power of attorney to represent a taxpayer before the department; provided however, that nothing herein shall be construed as entitling any such individual who is not a licensed attorney to engage in the practice of law. (w) ATaxpayers= Bill of Rights Pamphlet@ means a written pamphlet to be distributed by the department to all taxpayers whose books and records are being examined by the department, at or before the commencement of an audit, explaining in simple and nontechnical terms, the role of the department and the rights of the taxpayer whose books and records are being examined by the department during the examination and which shall be promptly revised from time to time to reflect any changes in the applicable law or rules.
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(x) AWholesale sale@ or Asale at wholesale@ means any one of the following: 1. A sale of tangible personal property by wholesalers to licensed retail merchants, jobbers, dealers, or other wholesalers for resale and does not include a sale by wholesalers to users or consumers, not for resale. A sale of tangible personal property or products including iron ore, and including the furnished container and label of such property or products, to a manufacturer or compounder which enter into and become an ingredient or component part of the tangible personal property or products which such manufacturer or compounder manufactures or compounds for sale, whether or not such tangible personal property or product used in manufacturing or compounding a finished product is used with the intent that it becomes a component of the finished product; provided, however, that it is the intent of this ordinance that no capital equipment, machinery, tools or product shall be included in the term Awholesale sale@. The term Acapital equipment, machinery, tools, or product@ shall mean property that is subject to depreciation allowances for Alabama income tax purposes. A sale of containers intended for one-time use only, and the labels thereof, when such containers are sold without contents to persons who sell or furnish such containers along with the contents placed therein for sale by such persons. A sale of pallets intended for one-time use only when such pallets are sold without contents to persons who sell or furnish such pallets along with the contents placed thereon for sale by such persons. A sale to a manufacturer or compounder, of crowns, caps, and tops intended for one-time use employed and used upon the containers in which such manufacturer or compounder markets his products. A sale of containers to persons engaged in selling or otherwise supplying or furnishing baby chicks to growers thereof where such containers are used for the delivery of such chicks or a sale of containers for use in the delivery of eggs by the producer thereof to the distributor or packer of such eggs even though such containers used for delivery of baby chicks or eggs may be recovered for reuse. A sale of bagging and ties used in preparing cotton for market. A sale to meat packers, manufacturers, compounders, or processors of meat products of all casings used in molding or forming wieners and Vienna sausages even though such casings may be recovered for reuse. A sale of commercial fish feed including concentrates, supplements, and other feed ingredients when such substances are used as ingredients in mixing and preparing feed for fish raised to be sold on a commercial basis. 262
2.
3.
4.
5.
6.
7. 8.
9.
10.
A sale of tangible personal property to any person engaging in the business of leasing or renting such tangible personal property to others, if such tangible personal property is purchased for the purpose of leasing or renting it to others under a transaction subject to the privilege or license tax levied in Article 4, Chapter 12, Title 40 of the Code of Alabama, 1975, against any person engaging in the business of leasing or renting tangible personal property to others. A purchase or withdrawal of parts or materials from stock by any person licensed under this ordinance where such parts or materials are used in repairing or reconditioning the tangible personal property of a licensed person, which tangible personal property is a part of the stock of goods of such licensed person, offered for sale by him, and not for use or consumption of such licensed person.
11.
(y) The use within this City of tangible personal property by the manufacturer thereof, as building materials in the performance of a Aconstruction contract@, shall, for the purposes of this ordinance be considered as a retail sale thereof by such manufacturer, who shall also be construed as the ultimate consumer of such materials or property, and who shall be required to report such transaction and pay the sales tax thereon, based upon the reasonable and fair market price thereof at the time and place where same are used or consumed by him or it. Where the contractor is the manufacturer or compounder of ready-mix concrete or asphalt plant mix used in the performance of a contract, whether the ready-mix concrete or asphalt plant mix is manufactured or compounded at the job site or at a fixed or permanent plant location, the tax applies only to the cost of the ingredients that become a component part of the ready-mix concrete or the asphalt plant mix. The provisions of this subsection shall not apply to any tangible personal property which is specifically exempted from the tax levied in this ordinance. (z) The sale of Alumber@ by a lumber manufacturer to a trucker for resale is a sale at wholesale as sales are defined herein where the trucker is either a licensed dealer in lumber or, if a resident of Alabama, has registered with the Alabama Department of Revenue, and has received therefrom a certificate of registration or, if a nonresident of this State purchasing lumber for resale outside the State of Alabama, has furnished to the lumber manufacturer his name, address and vehicle license number of the truck in which the lumber is to be transported, which name, address, and vehicle license number shall be shown on the sales invoices rendered by the lumber manufacturer. Taxpayer must present such current certificate of registration to the Director of Finance upon request. (Section 40-23-1(c), Code of Alabama, 1975) (aa) The dispensing or transferring of Aophthalmic materials@, including lenses, frames, eyeglasses, contact lenses, and other therapeutic optic devices to a patient by a licensed ophthalmologist, as a part of his or her professional service, shall not, for purposes of this ordinance be deemed or considered to constitute a sale, subject to the City sales tax. The licensed ophthalmologist shall be considered the ultimate consumer of the ophthalmic materials and shall have no responsibility or duty pursuant to this ordinance for the collection of the City sales tax. The sale of the ophthalmic materials to a licensed ophthalmologist by a supplier thereof shall be considered a retail sale subject 263
to the City sales tax, and the supplier shall be responsible for collecting sales tax from the licensed ophthalmologist. In no event shall the providing of professional services in connection with the dispensing or transferring of ophthalmic materials by a licensed ophthalmologist or optometrist be considered a sale subject to the municipal sales tax. All transfers of ophthalmic materials by opticians or optometrists shall be considered retail sales subject to municipal sales tax. The term Asupplier@ shall include but not be limited to optical laboratories, ophthalmic material wholesalers, or anyone selling ophthalmic materials to ophthalmologists. (Section 40-23-1(d) Code of Alabama, 1975) (bb) Notwithstanding the above, the withdrawal, use, or consumption of a manufactured product by the manufacturer thereof in Aquality control testing@ performed by employees or independent contractors of the taxpayer, for purposes of this ordinance, shall not be deemed or considered to constitute a transaction subject to sales tax, nor shall a gift by the manufacturer of a manufactured product, withdrawn from the manufacturer=s inventory, to an entity listed in Title 26 U.S.C. Sections 170(b) or (c), be considered a transaction subject to sales tax. (Section 40-23-1(e), Code of Alabama, 1975) (cc) References to ACode of Alabama 1975@ shall mean such sections as are currently in effect and as it or they may be amended. (dd) Where the phrase Areasonable cause@ is used in this ordinance it shall include, but not be limited to, those instances in which the taxpayer has acted in good faith. The burden of proving reasonable cause shall be on the taxpayer. Section 2. PROPERTY TAXED; PERSON LIABLE; APPLICABILITY; TAX IMPOSEDAGRICULTURAL MACHINERY AND EQUIPMENT. 2.1 PROPERTY TAXED; PERSON LIABLE; APPLICABILITY. Pursuant to Section 40-23-2 Code of Alabama 1975, there is hereby levied, in addition to all other taxes of every kind now imposed by law, and shall be collected as herein provided, a privilege or license tax against the person on account of the business activities and in the amount to be determined by the application of rates against gross sales, or gross receipts, as the case may be, as follows and which shall be collected as herein provided: (a) General Rate. Upon every person, firm or corporation, including the State of Alabama, and its Alcoholic Beverage Control Board in the sale of alcoholic beverages of all kinds, the University of Alabama, Auburn University and all other institutions of higher learning in the state, whether such institutions be denominational, state, county or municipal institutions, any association or other agency or instrumentality of such institutions engaged or continuing within this City in the business of selling at retail any tangible personal property whatsoever, including merchandise and commodities of every kind and character, (not including, however, bonds or other evidences of debts or stocks, nor sales of material and supplies to any person for use in fulfilling a contract for the painting, repair, or reconditioning of vessels, barges, ships and other water craft and commercial fishing vessels of over five (5) tons load displacement as registered with the U.S. Coast Guard and licensed by the State of Alabama Department of Conservation and Natural Resources), an amount 264
equal to three percent (3%) of the gross proceeds of sales of the business except where a different amount is expressly provided herein. Any person engaging or continuing in business as a retailer and wholesaler or jobber shall pay the tax required on the gross proceeds of retail sales of such business at the rates specified, when his books are kept so as to show separately the gross proceeds of sales of each business, and when his books are not so kept he or she shall pay the tax as a retailer, on the gross sales of the business. Where any used part, including tires, of an automotive vehicle or truck, trailer, semitrailer or house trailer is taken in trade, or in a series of trades, as a credit or part payment on the sale of a new or rebuilt part or tire, the tax levied herein shall be paid on the net difference, that is, the price of the new or used part or tire sold less the credit for the used part or tire taken in trade; provided, however, this provision shall not be construed to include batteries. (b) Amusement/Entertainment Rate. Upon every person, firm or corporation engaged, or continuing within this City, in the business of conducting, or operating places of amusement or entertainment, billiard and pool rooms, bowling alleys, amusement devices, musical devices, theaters, opera houses, moving picture shows, vaudevilles, amusement parks, athletic contests, including wrestling matches, prize fights, boxing and wrestling exhibitions, football and baseball games, (including athletic contests conducted by or under the auspices of any educational institution within this State, or any athletic association thereof, or other association whether such institution or association be a denominational, a state, or county, or a municipal institution or association or a state, county, or city school, or other institution, association or school), skating rinks, race tracks, golf courses, or any other place at which any exhibition, display, amusement or entertainment is offered to the public or place or places where an admission fee is charged, including public bathing places, public dance halls of every kind and description within the City, an amount equal to three percent (3%) of the gross receipts of any such business. Provided, however, notwithstanding any language to the contrary in the prior portion of this ordinance, the tax provisions so specified shall not apply to any athletic event conducted by a public primary or secondary school or any football playoff conducted by or under the auspices of the Alabama High School Athletic Association. The tax amount which would have been collected pursuant to this subsection shall continue to be collected by the public primary or secondary school but shall be retained by the school which collected it and shall be used by the school for school purposes. (c) Machine Rate. Upon every person, firm or corporation engaged or continuing within this City in the business of selling at retail machines used in mining, quarrying, compounding, processing and manufacturing of tangible personal property, an amount equal to one percent (1%) of the gross proceeds of the sale of such machines. The term "machine", as herein used, shall include machinery which is used for mining, quarrying, compounding, processing or manufacturing tangible personal property, and the parts of such machines, attachments and replacements therefor, which are made or manufactured for use on or in the operations of such machines and which are necessary to the operation of such machines and are customarily so used. (d) Automotive Rate. Upon every person, firm or corporation engaged or continuing within this City in the business of selling at retail any automotive vehicle or truck trailer, semitrailer or house 265
trailer, or mobile home set-up materials and supplies including but not limited to steps, blocks, anchoring, cable pipes, and any other materials pertaining thereto, an amount equal to one percent (1%) of the gross proceeds of sale of said automotive vehicle or truck trailer, semitrailer or house trailer, or mobile home set-up materials and supplies, provided, however, where a person subject to the tax provided for in this subsection withdraws from his or her stock in trade any automotive vehicle or truck trailer, semitrailer or house trailer for use by him or her or by his or her employee or agent in the operation of such business, there shall be paid, in lieu of the tax levied herein, a fee of five dollars ($5) per year or part thereof during which such automotive vehicle, truck trailer, semitrailer or house trailer shall remain the property of the person. Each such year or part thereof shall begin with the day or anniversary date, as the case may be of such withdrawal and shall run for the twelve succeeding months or parts thereof during which such automotive vehicle, truck trailer, semitrailer or house trailer shall remain the property of such person. Where any used automobile vehicle or truck trailer, semi-trailer or house trailer is taken in trade or in a series of trades, as a credit or part payment on the sale of a new or used vehicle, the tax levied herein shall be paid on the net difference, that is, the price of the new or used vehicle sold less the credit for the used vehicle taken in trade. Sales of automobiles, motorcycles, trucks, truck trailers, or semitrailers that will be registered or titled outside Alabama, that are exported or removed from Alabama within seventy-two (72) hours by the purchaser or his or her agent for first use outside Alabama are not subject to municipal sales tax. Sales of other vehicles such as mobile homes, motor bikes, all terrain vehicles, and boats do not qualify for the export exemption provision and are taxable unless the dealer can provide factual evidence that the vehicle was delivered outside of Alabama or to a common carrier for transportation outside Alabama. In order for the sale to be exempt from municipal sales tax, the information relative to the exempt sale shall be documented on forms approved by the Director of Finance. (e) Vending Machine Rate. Upon every person, firm or corporation engaged or continuing within this City in the business of selling through coin operated dispensing machines, food and food products for human consumption, not including beverages other than coffee, milk, milk products and substitutes therefor, there is hereby levied a tax equal to three percent (3%) of the cost of such food, food products and beverages sold through such machines, which cost for the purpose of this subsection shall be the gross proceeds of sales of such business. 2.2 Agricultural Machinery and Equipment - Tax Imposed; Rate. There is hereby levied, pursuant to Section 40-23-37 Code of Alabama 1975, a sales tax, upon every person, firm, or corporation engaged or continuing within this City in the business of selling at retail any machine, machinery, or equipment which is used in planting, cultivating, and harvesting farm products, or used in connection with the production of agricultural produce or products, livestock, or poultry on farms, and the parts of such machines, machinery, or equipment, attachments and replacements therefor which are made or manufactured for use on or in the operation of such machine, machinery, or equipment, and which are necessary to and customarily used in the operation of such machine, machinery, or equipment, an amount equal to one percent (1%) of the gross proceeds of the sale 266
thereof. Provided, however, the one percent (1%) rate herein prescribed with respect to parts, attachments, and replacements shall not apply to any automotive vehicle or trailer designed primarily for public highway use, except farm trailers used primarily in the production and harvesting of agricultural commodities. Where any used machine, machinery, or equipment which is used in planting, cultivating, and harvesting farm products, or used in connection with the production of agricultural produce or products, livestock, and poultry on farms is taken in trade or in a series of trades as a credit or part payment on a sale of a new or used machine, machinery, or equipment, the tax levied herein shall be paid on the net difference, that is, the price of the new or used machine, machinery or equipment sold, less the credit for the used machine, machinery, or equipment taken in trade.
Section 3. EXEMPTIONS. 3.1 GENERAL. There are exempted from the provisions of this ordinance and from the computation of the amount of the tax levied, assessed or payable under this ordinance the gross proceeds of sales of tangible personal property or the gross receipts of any business which the City is prohibited from taxing under the constitution or laws of the United States or under the constitution or laws of the State of Alabama, as now or hereafter amended, with particular reference to Article 1, Chapter 23, Title 40, Code of Alabama 1975, entitled "Sales Tax", as the same is now or hereafter amended and all acts supplemental thereto except where inapplicable or where herein otherwise provided, is adopted and made a part hereof by reference. 3.2 SPECIAL. Special exemptions from the taxes imposed by this ordinance are allowed in all other instances where the Sales Taxes levied under Article 1, Chapter 23, Title 40, Code of Alabama 1975 are exempted under any other provision of the Code of Alabama 1975.
Section 4. LICENSE REQUIRED TO ENGAGE IN BUSINESS. If any person, on or after October 1, 1974, shall engage in or continue in any business for which a privilege tax is imposed by Section 2 of this ordinance, pursuant to Section 40-23-6 Code of Alabama 1975, as a condition precedent to engaging or continuing in such business, he shall apply for and obtain from the department a license to engage in and to conduct such business for the current tax year upon the condition that he shall pay the taxes accruing to the City of Birmingham, under the provisions of this ordinance, provided, that no license shall be issued to any person who has not complied with the provisions of this ordinance, and no provision of this ordinance shall be construed as relieving any person from the payment of any license or privilege tax now or hereafter imposed by law.
Section 5. FILING OF RETURNS AND PAYMENT OF TAX. The taxes levied under the provisions of this ordinance, except as otherwise provided in subsection (c) of this section, shall be administered pursuant to Section 40-23-7 Code of Alabama 1975, and shall be due and payable in
267
monthly installments on or before the 20th day of the month next succeeding the month in which the tax accrues. (a) Due Date and Contents of Return; Payment of the Tax. On or before the 20th day of each month, every person on whom the taxes levied by this ordinance are imposed shall report to the department, on a form prescribed by the department, a true and correct statement showing: (1) The gross sales, the gross proceeds of sales, or gross receipts of his business, as the case may be, for the next preceding month; The amount of gross proceeds of sales or gross receipts which are not subject to the tax, or are not to be used as a measure of the taxes due by such person, and the nature thereof; and, Such other information as the department may deem necessary.
(2)
(3)
At the time of making such monthly report, such persons shall compute the taxes due and shall pay to the City of Birmingham the amount of taxes shown to be due. (b) Taxpayer=s Responsibility When No Form Received. The department is authorized to provide prescribed printed forms necessary for compliance with the filing requirements outlined in this section. Failure of the taxpayer to receive forms from the department does not relieve the taxpayer of the responsibility of the timely reporting of the information required on the return, nor the timely payment of the tax. (c) Tax Return Filing Elections. (1) Election to File Quarterly; Requirements. a. If the total amount of taxable sales for which any person is liable under this ordinance does not exceed five thousand dollars ($5,000) per month during the preceding calendar year, or, if the total tax liability due to the State of Alabama for such sales during such period averages less than two hundred dollars ($200) per month during the preceding calendar year, a quarterly return and remittance in lieu of the monthly returns may be made, by election of the taxpayer to the department, on or before the twentieth (20th) day of the month next succeeding the end of the quarter for which the tax is due, and under such rules and regulations as may be prescribed in Section 40-23-7, Code of Alabama 1975. In order to file quarterly, the election shall be made in writing no later than February 20th of each year and shall be filed with the department. If such election is not timely made and in accordance with the provisions of this subsection, returns shall be due monthly as provided for in this section. 268
b.
(2)
Election to File Yearly. Notwithstanding the above, if the total amount of taxable sales for which any person is liable under this ordinance does not exceed two hundred fifty dollars ($250) during the preceding calendar year, or, if the total tax liability due to the State of Alabama for such sales during such period is less than ten dollars ($10) during the preceding calendar year, a yearly return and remittance shall be made to the department, on or before the 20th day of January of each year. In order to file yearly, the election shall be made in writing and shall be filed with the department. If such election is not timely made and in accordance with the provisions of this subsection, returns shall be due monthly as provided for in this section.
(d) Timely Mailing Treated As Timely Filing and Paying. The provisions outlined in this section for the timely filing of any returns, payments, claims, statements or other documents shall be administered as herein provided. (1) Date of Delivery. If any return, claim, statement, or other document required to be filed, or any payment required to be made, within a prescribed period or on or before a prescribed date under the authority of any provision of this ordinance is, after such period or such date, delivered by United States mail to the Finance Department or to the department=s designated depository where such return, claim, statement, or other document is required to be filed, or to which such payment is required to be made, the date of the United States postmark stamped on the cover in which such return, claim, statement, or other document, or payment, is mailed shall be deemed to be the date of delivery or the date of payment, as the case may be; provided, however: (a) Weekends and Holidays. When the due date falls on a Saturday, Sunday, or City of Birmingham holiday, payment of the tax may be made without penalty on the first working day following the due date. Mailing Requirements. The return, claim, statement, or other document, or payment was, within the time prescribed in subsection (1) above, deposited in the mail in the United States in an envelope or other appropriate wrapper, postage prepaid, properly addressed to the Finance Department or to the department=s designated depository where such return, claim, statement, or other document is required to be filed, or to where such payment is required to be made.
(b)
(2)
Delivery By Method Other Than United States Mail. Returns, claims, statements, or other documents, or payments which are required under any provision of this ordinance which are delivered by any method other than by United States mail shall be considered timely filed when such items are received in the Finance Department or the department=s designated depository on the due date prescribed.
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(3)
Untimely Filing. Any return, claim, statement, or other document, or payment not received in accordance with the provisions of this section shall be deemed untimely filed and shall be assessed applicable penalties and interest as prescribed by the relevant sections of this ordinance.
(e) Bulk Submissions. The department may accept, for reporting and payment of taxes due the City, bulk submissions of reports, and under regulations promulgated by the department, payments owed to the City made on behalf of the taxpayer by its properly authorized representative where such submissions are made using the appropriate form prescribed by the department, as provided in Section 11-51-210(d) Code of Alabama 1975. Any such bulk submissions of reports and payments shall include: 1. The City=s assigned taxpayer identification number for each such taxpayer for each tax paid; and, Sufficiently detailed information by which each taxpayer can be identified such that a determination can be made as to the amount and method of assessment of tax against such taxpayer for the City.
2.
The acceptance by the City of such bulk submissions shall not relieve the taxpayer on whose behalf such submissions were made from liability for any sales tax arising from an error or omission made by the taxpayer=s representative. Such bulk submission shall be signed by the taxpayer or its properly authorized representative.
Section 6. EXTENSION OF TIME FOR MAKING RETURN. In accordance with Section 4023-7 Code of Alabama 1975, the Director of Finance, at his discretion, for reasonable cause, may extend the time for making any return required under the provisions of this ordinance, however, the time for filing any such return shall not be extended for a period greater than thirty (30) days from the date such return is due to be made and shall not prevent penalty and interest from accruing during the period of such extension.
Section 7. CREDIT SALES. Pursuant to Section 40-23-8 Code of Alabama 1975, any person taxable under this ordinance having cash and credit sales may report such cash sales, and the taxpayer shall thereafter include in each monthly report all credit collections made during the month preceding, and shall pay the taxes due thereon at the time of filing such report, but in no event shall the gross proceeds of credit sales be included in the measure of the tax to be paid until collections of such credit sales shall have been made.
Section 8. OATHS. As provided in Section 40-23-10 Code of Alabama 1975, the monthly reports herein required to be made are not required to be made under oath, but wherever in this ordinance any report is required to be sworn to, the same shall be sworn to by the taxpayer or his agent before 270
some officer authorized to administer oaths, and any false statement to a material fact made with intent to defraud shall constitute perjury, and upon conviction thereof, the person so convicted shall be punished as provided in Section 1-1-6 of the General Code of the City of Birmingham, 1980, as amended and as it may be amended.
Section 9. MAINTENANCE OF RECORDS; INVESTIGATIVE POWERS; AUDIT AND SUBPOENA AUTHORITY. The provisions of this section shall be administered in accordance with the procedures set forth in Sections 40-23-9 and 40-2A-7(a) Code of Alabama 1975. 9.1 RECORDS TO BE KEPT. It shall be the duty of every person engaging, or continuing, in this City in any business for which a privilege tax is imposed by this ordinance to keep and preserve an accurate and complete set of records of the gross sales, gross proceeds of sales and gross receipts or gross receipts of sales of such business and such other books or accounts as may be necessary to allow the department to determine the correct amount of tax for which he is liable, or other records or information as may be necessary for the proper administration of any matters, under the provisions of this ordinance. It shall also be the duty of every person to keep and preserve, for a period of not less than five (5) years from the due date of the return on which the underlying tax is required to be reported, or five (5) years of the date the return is filed, whichever is later, all invoices of goods, wares and merchandise purchased, for resale or otherwise, and all such receipts, books, invoices and other records shall be open for examination by the department, upon request, at a reasonable time and location. (a) Reasonable Time and Reasonable Location. AReasonable time@ shall be considered to be during normal business hours of the department. AReasonable location@ shall be considered to be the taxpayer=s place of business or the offices of the taxpayer=s authorized representative, provided such business or representative is located within a fifty (50) mile radius of the City of Birmingham. Taxpayers maintaining records outside of this radius must make records available at City Hall or at such other location as agreed upon by the department. The department, when conducting an audit, review or examination for verification, may, at its election, require any taxpayer conducting business within the City to provide records, accounts, books, papers and other documents at a reasonable time and reasonable place agreed upon by the department, as provided herein. Taxpayer May Be Assessed Reasonable Costs. As provided in Section 40-2A6(d) Code of Alabama 1975, the department may assess and collect from the taxpayer, the reasonable costs, based on the then current state government employee per diem rates incurred by, or charged to, the City in connection with performing an examination of the taxpayer=s books and records if the taxpayer received notice by certified U.S. mail, return receipt requested, at least thirty (30) days prior to the date on which the examination was to commence, and
(b)
271
1.
The taxpayer either failed or refused to respond or did not propose a reasonable alternative date on which the examination was to commence within 15 days of receipt of notice of the pending examination, or if The taxpayer and the department agreed in writing as to an alternative date on which the examination was to commence but the taxpayer then failed or refused to permit reasonable access to its books and records on the alternative date.
2.
(c)
Selling at Wholesale and Retail. Any person selling both at wholesale and retail shall keep his books so as to show separately the gross proceeds of wholesale sales and the gross proceeds of retail sales. All sales shall be subject to tax in the absence of such separate records.
9.2 INVESTIGATIVE POWERS. Each taxpayer shall give to the Director of Finance the means, facilities and opportunity for the making of such audit, examination, and investigation of the records, books, or other relevant information maintained by any taxpayer or other person for the purpose of computing and determining the correct amount of value or the correct amount of tax as provided for in Section 9.1. The Director of Finance is hereby authorized to examine any person under oath concerning any gross receipts which were or should have been shown in a return, and to this end, he may compel the production of books, papers, records and the attendance of all persons before him, whether as parties or as witnesses, whom he believes to have knowledge of such gross receipts. (a) Any taxpayer, or officer of a corporation or association, or partner of a partnership, or fiduciary of a trust, or responsible individual of any entity under a duty to maintain books and records pursuant to this ordinance, who fails or refuses to maintain or provide such records and books, or permit inspection, as required herein, shall be subject to the provisions of Section 11 of this ordinance, and shall be subject to contempt proceedings in the Circuit Court.
9.3 AUDIT AND SUBPOENA AUTHORITY; ADDITIONAL REQUIREMENTS. Section 402A-7(a), Code of Alabama 1975 outlines further requirements for the maintenance of records, in addition to the record keeping requirements set out in Section 9.1 of this ordinance. The department=s authority to audit, to subpoena records, and to enter into contracts with private examining or collecting firms is granted pursuant to Act No. 98-191, the ALocal Tax Procedures Act of 1998@, Act No. 98-192, the ALocal Tax Simplification Act of 1998@, as well as Section 402A-7(a), Code of Alabama 1975, except where inapplicable or where herein otherwise provided.
Section 10. REFUNDS. 10.1 PETITIONS FOR REFUND. (a) Any taxpayer may file a petition for refund with the department for any overpayment of tax erroneously paid to the department as provided in Section 40-2A-7(c)(1) Code of Alabama 1975. If 272
a final assessment for the tax has been entered by the department, a petition for refund of all or a portion of the tax may be filed only if the final assessment plus applicable interest has been paid in full prior to or with the filing of the petition for refund. (b) The petition for refund must be filed in writing jointly by the taxpayer who collected and paid over the tax to the department and the purchaser who paid the tax to the taxpayer. However, a direct petition may be filed in writing by the taxpayer if the taxpayer never collected the tax from the consumer/purchaser, or if the tax has been credited or repaid to the consumer/purchaser by the taxpayer. (c) Unless otherwise provided by law, all petitions for refund shall include sufficient information to identify the type and amount of tax overpaid, the taxpayer, the period included, and the reasons for the refund. Such petition shall be accompanied with sufficient supporting documentation as the department may deem necessary and proper. 10.2 REFUND OVERPAYMENTS APPLIED TO OTHER TAXES. Refund overpayments may be applied to other taxes as provided in Section 40-2A-7(c)(4) Code of Alabama 1975. If a petition is granted by the department, or a court determines that a refund is due, the overpayment shall be refunded to the taxpayer by the department. If the department determines that a refund is due, the amount of overpayment may first be credited by the department against any outstanding final tax liabilities due and owing by the taxpayer to the department, and the balance of any overpayment shall be refunded to the taxpayer. If any refund or part thereof is credited to any other tax by the department, the department shall provide a written detailed statement to the taxpayer showing the amount of overpayment, the amount credited for payment to other taxes, and the amount refunded. 10.3 TIME LIMITATIONS. (a) A petition for refund must be filed in writing with the department within (i) three (3) years from the date the return was filed or (ii) two (2) years from the date of payment of the tax, whichever is later, or (iii) if no return was timely filed, two (2) years from the date of the payment of the tax. (b) The department shall either grant or deny a petition for refund within six (6) months from the date the petition is filed, unless the period is extended by written agreement of the taxpayer and the department. The taxpayer shall be notified of the department=s decision concerning the petition for refund by first class United States mail, or by certified mail with return receipt requested, sent to the taxpayer=s last known address. If the department is unable to grant a refund within the time provided herein due to the taxpayer=s failure to provide adequate documentation, the petition for refund shall be deemed to be denied. (c) The department and the taxpayer may, prior to the expiration of the period for the filing of a petition for refund, agree in writing to extend the time provided for filing the petition. The petition for refund may be filed at any time prior to the expiration of the period agreed upon. The period agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon. 273
10.4 INTEREST ON REFUNDS. On any overpayment of any sales tax levied under any provisions of this ordinance, the City, in addition to the amount of the overpayment, shall refund interest thereon at the rate of one percent (1%) per month, or fraction thereof, from the date of such overpayment on any refund of tax erroneously paid. As provided in Section 11-51-208(f) Code of Alabama 1975, references in this subsection to Aerroneously paid@ taxes on which interest shall be due to the taxpayer shall only mean and refer to taxes erroneously paid to the City as a result of any error, omission, or inaccurate written advice by or on behalf of the City, including in connection with a prior examination of its books and records by the City.
Section 11. JEOPARDY, PRELIMINARY, FINAL ASSESSMENTS AND TIME LIMITATIONS. 11.1 JEOPARDY ASSESSMENTS. All jeopardy assessments issued by the department shall be executed pursuant to Section 40-29-91(a),(b), and (c) Code of Alabama 1975. (a) If the Director of Finance finds a person liable for tax under any provisions of this ordinance designs quickly to depart from the City of Birmingham or to remove his property therein, or to conceal himself or his property therein, or to do any other act tending to prejudice or to render wholly or partly ineffectual proceedings to collect any tax imposed by this ordinance, the Director of Finance may issue notice of such finding to the taxpayer by personal service or mailing to his/her last known address, together with a demand for immediate payment of the tax declared to be in jeopardy, including penalties and additions thereto and such tax, penalty, interest, and additions thereto shall be immediately due and payable. A final assessment of such tax may be entered immediately and if the assessment is not paid upon such demand of the Director, the Director may forthwith issue a warrant for levy and distraint of any personal property of the taxpayer which shall be collected in the same manner and with like effect as provided under Section 24 of this ordinance. (b) In the case of a tax for a current period, the Director may declare the taxable period of the taxpayer immediately terminated and may at his discretion estimate the tax liability based upon the best information obtainable. Notice of such finding and declaration shall be issued to the taxpayer in the same manner as in subsection (a). (c) When a jeopardy assessment has been made as provided in subsection (a), the collection of all or any part of such assessment may be stayed by filing with the Director an approved bond conditioned upon the payment of the assessment together with applicable interest and costs of collection. The Director shall have sole discretion to approve or disapprove the bond, but such approval shall not be unreasonably withheld. 11.2 PRELIMINARY AND FINAL ASSESSMENTS. All preliminary and final assessments issued by the department shall be executed as provided in Sections 40-2A-7(b)(1)a, 40-2A-7(b)(3), 40-2A-7(b)(4), 40-2A-7(b)(1)b and Section 40-29-91 Code of Alabama 1975. The terms Apreliminary assessment@ and Afinal assessment@ shall have the respective meanings ascribed by Section 40-2A-3 Code of Alabama 1975. 274
(1) Entry of Preliminary Assessment. If the department determines that the amount of any tax as reported on a return is incorrect, or if no return is filed, or if the department is required to determine value, the department may calculate the correct tax or value based on the most accurate and complete information reasonably obtainable by the department. The department may thereafter enter a preliminary assessment for the correct tax or value, including any applicable penalty and interest. (2) Service of Preliminary Assessment Upon Taxpayer. The preliminary assessment entered by the department, or a copy thereof, shall be promptly mailed by the department to the taxpayer=s last known address by either first class U.S. mail or certified mail with return receipt requested, but at the option of the department, the preliminary assessment may be delivered to the taxpayer by personal delivery. (a) Appeal - Review of Assessments by City Council. In the case of any preliminary assessment or jeopardy assessment entered under the provisions of this ordinance, the department shall notify the taxpayer by certified mail with return receipt requested to the taxpayer=s last known address, or written notice delivered by the department=s authorized agent, of the amount of such assessment, and shall notify the taxpayer to appear before the City Council on a day named not less than thirty (30) days from the date of such notice and show cause why such assessment should not be made final. Such appearance may be made by the taxpayer or his duly authorized agent. If no showing is made on or before the date fixed in such notice, or if such showing is not sufficient in the judgment of the City Council, such assessment shall be made final in the amount originally fixed or in such other amount as is determined by the City Council to be correct. If upon such hearing the City Council finds the amount due to be different from that originally assessed, it shall make the assessment final in the correct amount and in all cases shall notify the taxpayer of the assessment as finally fixed, by certified mail with return receipt requested addressed to the taxpayer's last known address. On appeal to the City Council, the final assessment shall be prima facie correct, and the burden of proof shall be on the taxpayer to prove such assessment is incorrect.
(3) Service of Final Assessment upon Taxpayer. The final assessment entered by the department, or a copy thereof, shall be mailed by the department to the taxpayer=s last known address (i) by either first class U.S. mail or certified mail with return receipt requested in the case of assessments of tax of five hundred dollars ($500) or less or (ii) by certified mail with return receipt requested in the case of assessments of tax of more than five hundred dollars ($500). In either case and at the option of the department, the final assessment, or a copy thereof, may be delivered to the taxpayer by personal delivery. (4) Undisputed Preliminary Assessments. Where the amount of tax or value reported on a return is undisputed by the department, or the taxpayer consents in writing to the department=s determination of the amount of any deficiency, determination of value, or preliminary assessment as provided by this ordinance, the department may immediately enter a final assessment for the amount
275
of the tax or value, plus applicable penalty and interest; provided, the department may at any time enter a final jeopardy assessment, pursuant to Section 40-29-91 Code of Alabama 1975. 11.3 TIME LIMITATION FOR ENTERING ASSESSMENTS. (a) Pursuant to Section 40-2A-7(b)(2) Code of Alabama 1975, any preliminary assessment must be entered within three (3) years from the due date of the return, or three (3) years from the date the return is filed with the department, whichever is later, or if no return is required to be filed, within three (3) years of the due date of the tax, except as follows: 1. A preliminary assessment may be entered at any time if no return is filed as required, or if a false or fraudulent return is filed with the intent to evade tax; A preliminary assessment may be entered within six (6) years from the due date of the return or six (6) years from the date the return is filed with the department, whichever is later, if the taxpayer omits from the taxable base an amount properly includable therein which is in excess of twenty-five percent (25%) of the amount of the taxable base stated in the return. For purposes of this paragraph: (a) The term Ataxable base@ means the gross proceeds from sales, gross receipts, or other amounts on which the tax paid with the return is computed; and In determining the amount omitted from the taxable base, there shall not be taken into account any amount which is omitted from the taxable base stated in the return if the amount is disclosed in the return, or in a statement attached to the return, in a manner adequate to apprise the department of the nature and amount of the item.
2.
(b)
3.
A preliminary assessment entered pursuant to Sections 40-29-72 and 40-29-73, Code of Alabama 1975, may be entered within five (5) years from the due date of the return on which the underlying tax is required to be reported or within five (5) years of the date the return is filed, whichever is later.
(b) The department and the taxpayer may, prior to the expiration of the period for entering a preliminary assessment, agree in writing to extend the time provided for entering the assessment. The tax may be assessed at any time prior to the expiration of the period agreed upon. The period agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon. (c) Additional tax may be assessed by the department within any applicable period allowed above, even though a preliminary or final assessment has been previously entered by the department against the same taxpayer for the same or a portion of the same tax period. 276
Section 12. APPEALS. Appeals from denial of refunds, jeopardy assessments, and final assessments shall be executed as provided in Section 6-3-11, Code of Alabama 1975. A written notice of appeal shall be filed with the department and shall contain information sufficient to: (1) identify the name of the taxpayer or other party filing such notice of appeal, (2) identify the specific matter appealed from, (3) outline the basis for such appeal, and (4) specify the relief sought. 12.1 APPEAL FROM REFUND DENIAL. (a) A taxpayer may appeal from the denial in whole or in part of a petition for refund by filing a written notice of appeal with the Circuit Court within two (2) years from the date the petition is denied. The Circuit Court shall hear the appeal according to its own rules and procedures and shall determine the correct amount of refund due, if any. (b) If an appeal is not filed with the Circuit Court within two (2) years of the date the petition is denied, then the appeal shall be dismissed for lack of jurisdiction. 12.2 APPEAL FROM JEOPARDY ASSESSMENT. (a) In any court proceeding to contest the jeopardy assessment or to enforce payment of the taxes made due and payable by virtue of the provisions of Section 11 of this ordinance, the finding of the Director of Finance, made as herein provided, shall be for all purposes presumptive evidence of jeopardy. (b) A final jeopardy assessment entered hereunder may be appealed to the Circuit Court in the same manner as provided in subsection 12.4 of this section for the appeal of final assessments. On appeal to the Circuit Court, the final jeopardy assessment shall be prima facie correct, and the burden of proof shall be on the taxpayer to prove such assessment is incorrect. (c) If an appeal is not filed with the Circuit Court within the time provided herein for appeal of final assessments, the appeal shall be dismissed for lack of jurisdiction. 12.3 APPEAL FROM PRELIMINARY ASSESSMENT. [Refer to Section 11.2(2)(a)] 12.4 APPEAL FROM FINAL ASSESSMENT. (a) A taxpayer may appeal from any final assessment entered by the department by filing a written notice of appeal with the Director of Finance within thirty (30) days from the date of entry of the final assessment, and the appeal, if timely filed, shall proceed as herein provided. (b) The taxpayer may appeal from any final assessment to the Circuit Court by filing written notice of appeal within thirty (30) days from the date of entry of the final assessment with the Circuit Court. If the appeal is to the Circuit Court, the taxpayer shall, also within the thirty (30) day period allowed for appeal, either (i) pay the tax, interest, and any penalty shown on the final assessment, or (ii) file a supersedeas bond with the court in double the amount of the tax, interest, and any penalty shown on the final assessment. The supersedeas bond shall be executed by a surety company licensed and authorized to do business in the State of Alabama and shall be conditioned to pay the 277
assessment plus applicable interest, penalty, and any court costs relating to the appeal. A taxpayer may appeal a final assessment to Circuit Court as provided herein, even though the taxpayer has paid the tax in issue prior to taking the appeal. (c) The filing of the notice of appeal to the Circuit Court and also the payment of the assessment in full and applicable interest and penalty or the filing of a bond as provided herein, are jurisdictional. If such prerequisites are not satisfied within the time provided for appeal, the appeal shall be dismissed for lack of jurisdiction. On appeal to the Circuit Court the final assessment shall be prima facie correct, and the burden of proof shall be on the taxpayer to prove such assessment is incorrect.
Section 13. PENALTIES AND INTEREST. The provisions for penalties are pursuant to Section 40-2A-11 Code of Alabama 1975; provided, however, the rates and amounts of penalties are as provided herein. 13.1 FAILURE TO TIMELY FILE RETURN. If a taxpayer fails, neglects, or refuses to file any return required to be filed with the department on or before the date prescribed therefor, determined with regard to any extension of time for filing granted by the Director of Finance, there shall be assessed, in addition to the tax due or the amount of tax herein required to be collected, a penalty of ten percent (10%) of the amount due or fifty dollars ($50.00), whichever is greater, together with interest thereon at the rate of one percent (1%) per month, or fraction thereof, from the date at which the tax herein levied became due and payable, such penalty and interest to be assessed and collected as part of the tax as provided in Section 40-2A-11(a) Code of Alabama 1975. 13.2 FAILURE TO TIMELY PAY TAX. If a taxpayer fails, neglects, or refuses to pay to the department the amount of tax shown as due on a return required to be filed on or before the date prescribed for payment of the tax, determined with regard to any extension of time for payment granted by the Director of Finance, there shall be added: (1) (2) (3) In addition to the tax due or the amount of tax herein required to be collected; or, For any tax which a monthly or quarterly return is required; or, For which no return is required,
a penalty of ten percent (10%) of the unpaid amount shown as tax due on the return or the amount stated in the notice and demand, together with interest thereon at the rate of one percent (1%) per month, or fraction thereof, from the date at which the tax herein levied became due and payable as provided in Section 40-2A-11(b) Code of Alabama 1975. 13.3 UNDERPAYMENT OF TAX. Any taxpayer failing to pay the tax herein levied to the City or any amount of tax herein required to be collected and paid to the City, within the time required by this ordinance, shall pay, in addition to the tax or the amount of tax herein required to be collected, a penalty of ten percent (10%) of the amount of tax due, plus interest at the rate of one percent (1%) per month, or fraction thereof, from the date at which the tax or the amount of tax herein levied became due and payable, such penalty and interest to be assessed and collected as part of the tax. 278
13.4 UNDERPAYMENT DUE TO NEGLIGENCE. If any part of any underpayment of tax is due to negligence or disregard of rules or regulations, there shall be added to the tax an amount equal to ten percent (10%) of that part of the tax attributable to negligence or disregard of rules or regulations. For the purpose of this section, the term Anegligence@ includes any failure to make a reasonable attempt to comply with this ordinance, and the term Adisregard@ includes any careless, reckless or intentional disregard, as provided in Section 40-2A-11(c) Code of Alabama 1975. 13.5 UNDERPAYMENT DUE TO FRAUD. If any part of any underpayment of tax required to be shown on a return is due to fraud, there shall be added to the tax an amount equal to fifty percent (50%) of that portion of the underpayment which is attributable to fraud. For purposes of this section, the term Afraud@ shall have the same meaning as ascribed to the term under Section 40-2A11(d) Code of Alabama 1975. 13.6 FRIVOLOUS APPEAL PENALTY. If any appeal to the City Council or Circuit Court is determined to be frivolous or primarily for the purpose of delay or to impede collection of the tax imposed by this ordinance, a penalty of two hundred fifty dollars ($250.00) or twenty-five percent (25%) of the tax in question, whichever is greater, shall be assessed in addition to any tax due, as provided in Section 40-2A-11(f) Code of Alabama 1975. 13.7 PENALTIES NOT EXCLUSIVE. The penalties provided in this section for failure to timely file a return, failure to timely pay tax, underpayment of taxes, underpayment due to negligence and fraud, or filing a frivolous appeal may be asserted against the same taxpayer for the same tax period, as provided in Section 40-2A-11(g) Code of Alabama 1975. 13.8 WAIVER OF PENALTIES. Penalties may be waived, in whole or in part, by the Director of Finance upon a determination of reasonable cause, pursuant to Section 40-2A-11(h) Code of Alabama 1975. Reasonable cause shall include, but not be limited to, those instances in which the taxpayer has acted in good faith. The burden of proving reasonable cause shall be on the taxpayer. 13.9 PENALTY AND INTEREST ASSESSED AS TAX. All penalties and interest, levied or assessed against a taxpayer and which are administered by the department shall be assessed and collected in the same manner as taxes. 13.10 INTEREST. Interest shall be computed at rate of one percent (1%) per month or fraction thereof, and shall be added as provided herein to any tax or other amount due the department which is not paid by the due date. Interest on any delinquency or underpayment shall be charged from the due date of the tax, as provided in Section 40-1-44 Code of Alabama 1975. 13.11 ABATEMENT OF PENALTY. The department shall abate any penalty attributable to erroneous written advice furnished to a taxpayer by an employee of the department. However, this subsection shall apply only if the department employee provided the written advice in good faith while acting in his official capacity, the written advice was reasonably relied on by the taxpayer and
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was in response to a specific written request of the taxpayer, and the penalty did not result from the taxpayer=s failure to provide adequate or accurate information. 13.12 PENALTY FOR FAILURE TO PERFORM DUTIES. Any person required to collect, truthfully account for, and/or pay over any tax imposed by this ordinance who willfully fails to collect such tax, or truthfully account for, and/or pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable for a penalty up to the total amount of the tax evaded, or not collected, or not accounted for and paid over.
Section 14. CONFIDENTIALITY OF TAX RETURNS. The confidentiality provisions imposed by this ordinance shall be executed as provided in Section 40-2A-10(a), (d), (e), (f) and (g) Code of Alabama 1975. (a) It shall be unlawful for any person to print, publish, or divulge, without the written permission or approval of the taxpayer, the tax return of any taxpayer or any part thereof or any information secured in arriving at the amount of tax or value reported for any purpose other than the proper administration of any matter administered by the department, or upon order of any court, or as otherwise allowed in this section. Statistical information pertaining to taxes may be disclosed at the discretion of the Director of Finance. The Director of Finance may make written or verbal disclosure upon request as to the status of compliance of the taxpayer relative to this ordinance. (b) A good standing certificate shall be issued to a requesting person with respect to a taxpayer, if the taxpayer has filed all tax returns due, and paid the taxes shown as payable in accordance with those returns. (c) The Director of Finance shall promulgate reasonable regulations permitting and governing the exchange of tax returns, information, records, and other documents secured by the department, with tax officers of other agencies of the state, municipal, and county government agencies within the State of Alabama, federal government agencies, any association of state government tax agencies of Alabama or other states, and any foreign government tax agencies. However, (i) any tax returns, information, records, or other documents remain subject to the confidentiality provisions set forth in subsection (a); (ii) the department may charge a reasonable fee for providing information or documents for the benefit of the requesting agencies, and (iii) any exchange shall be for one or more of the following purposes: (1) (2) (3) Collecting taxes due. Ascertaining the amount of taxes due from any person. Determining whether a person is liable for, or whether there is probable cause for believing a person might be liable for the payment of any tax.
(d) Nothing herein shall prohibit the use of tax returns or tax information by the department in the enforcement, collection, and assessment of any tax levied or imposed by this ordinance, or any other 280
matters administered by the department. The department may also divulge to a purchaser or successor of a business or stock of goods the outstanding tax liability of the seller for which the purchaser or successor may be liable pursuant to Section 40-23-25 Code of Alabama 1975. This section shall not preclude the inspection of returns by federal or foreign state agents pursuant to Section 40-18-53 Code of Alabama 1975. (e) Nothing herein shall prohibit the exchange of information between and among county or municipal governments subject to the restrictions of this section. (f) In no event shall any damages, attorney fees, or court costs be assessed against the City or against its elected officials, officers, or employees under this section.
Section 15. REGULATIONS MAY BE PROMULGATED; PAYMENTS DUE TAXPAYERS MAY BE WITHHELD. Regulations may be promulgated as provided in Section 40-23-31 Code of Alabama 1975. 15.1 REGULATIONS MAY BE PROMULGATED. (a) The Director of Finance shall from time to time promulgate rules and regulations for making returns and for ascertainment, assessment and collection of the tax imposed hereunder as he/she may deem necessary to enforce its provisions; and upon request shall furnish any taxpayer with a copy of such rules and regulations. (b) The Director of Finance may adopt, prescribe, promulgate and enforce reasonable rules and regulations not in conflict with this ordinance relating to any matter or thing pertaining to the administration and enforcement of the provisions of this ordinance, including but not limited to provisions for the re-examination and correction of returns as to which overpayment or underpayment is claimed or found to have been made, and the rules and regulations so promulgated shall be binding upon all taxpayers. (c) The Director of Finance shall prescribe printed forms for use by persons subject to the provisions of this ordinance and shall make such forms available at his/her office for use by such persons. 15.2 PAYMENTS DUE TAXPAYERS MAY BE WITHHELD. Pursuant to the Mayor-Council Act, Article VI, Section 6.04(o), Act No. 452-55 Acts of Alabama, the Director of Finance, in order to protect the interests of the City, is authorized to withhold the payment of any claim or demand for payment of monies due from the City to any vendor, contractor, consultant or other person having unpaid or delinquent tax or license liabilities until such unpaid tax, including applicable interest and penalties, shall first have been settled and adjusted. The Director of Finance shall notify the taxpayer by certified mail with return requested, sent to the taxpayer=s last known address, of his/her intention to make such levy, the effect of which shall be continuous from the date such levy is first made until the liability out of which such levy arose is satisfied.
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Section 16. PURCHASER TO WITHHOLD TAXES DUE FROM PURCHASE MONEY OR BE LIABLE. Any person subject to the provisions of Section 40-23-25 Code of Alabama 1975, who shall sell out his business or stock of goods, or shall quit business, shall be required to make out a final return, as provided for under Section 5 of this ordinance, and shall make payment of the taxes due within thirty (30) days after the date he sold out his business, or stock of goods, or quit business, and his successor in business shall be required to withhold sufficient of the purchase money to cover the amount of said taxes due and unpaid until such time as the former owner shall produce a receipt from the department showing that the taxes have been paid, or a certificate stating that no taxes are due. If the purchaser of a business or stock of goods shall fail to withhold purchase money as provided herein, and the taxes remain due and unpaid after said thirty-day (30) period, he shall be personally liable for the payment of the taxes accrued and unpaid on account of the operation of the business by the former owner. If in such cases the department deems it necessary in order to collect the taxes due the City, it may make a jeopardy assessment as provided in Title 40, Chapter 29 of the Code of Alabama 1975.
Section 17. DISPOSITION OF FUNDS DERIVED FROM TAXES. All money derived from sales tax levied under the provisions of this ordinance shall be paid to the City and placed to the credit of the General Fund of the City of Birmingham, and shall be used and expended as authorized by law and ordinance.
Section 18. BOND REQUIREMENTS. For the purpose of securing the payment of any tax, penalties, or interest due or which may become due under the provisions of this ordinance, every itinerant vendor engaged in the business of selling tangible personal property at retail in the City of Birmingham shall be required to file a bond to be approved by the Director of Finance, conditioned upon the payment of any tax, penalty, or interest due or to become due under this ordinance and upon faithful observance of the provisions of this ordinance, as provided in Section 40-23-24 Code of Alabama 1975. (a) Such bond shall: 1. 2. Be effective for a period of one year from date of issuance; Be in an amount equal to the tax estimated due or to become due under the provisions of this ordinance, but in no event shall said bond be less than one thousand dollars ($1,000) nor more than three percent (3%) of anticipated sales, whichever is greater, as fixed by the Director of Finance; and, Have a surety or sureties satisfactory to the Director of Finance ; or,
3. (b)
Said itinerant vendor may deposit in cash said sum, which shall be estimated by the Director of Finance to be due or to become due under the provisions of this ordinance.
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If such itinerant vendor fails to make any return due under this ordinance or to pay any taxes or penalties due hereunder, or to keep books and records as required by this ordinance, or fails to perform any other duty or obligation imposed on him under this ordinance, such bond, or cash deposited in lieu thereof, shall thereupon be forfeited, and the department shall institute an action upon such bond in the name of the City of Birmingham for the entire amount of said bond and costs.
Section 19. DISCOUNT. A discount of three-fourths of one percent (.0075) of the taxes levied by this ordinance due and payable to the City shall be allowed to the seller or vendor provided the taxes due by such seller are paid before the same becomes delinquent, as provided in this ordinance. If the returns are not filed within the time herein provided and the taxes not paid on the dates herein provided for, no such person shall be entitled to such a discount, but shall pay to the City the amount of tax due, together with applicable penalty and interest at the rate of one percent (1%) per month from the date the payment of said tax became delinquent.
Section 20. SELLER TO COLLECT AND REMIT TAXES. Tax to be added to purchase price pursuant to Section 40-23-26 Code of Alabama 1975. (a) Every person, firm, corporation, association or co-partnership engaged in or continuing within the City in any business for which a license or privilege tax is required by this ordinance shall add to the sales price and collect from the purchaser on all sales upon the gross receipts or gross proceeds of which there is levied by this ordinance a sales tax at the rate of three percent (3%) of the sales price. Upon all sales the gross receipts or gross proceeds of which are taxed by this ordinance at a rate of less than three percent (3%), there shall be added to the sales price and collected from the purchaser by such person, firm, corporation, association, or copartnership described in this section an amount equal to the prescribed percentage of such sales price. (b) It shall be unlawful for any person, firm, corporation, association, or copartnership described in this section to fail or refuse to add to the sales price and collect from the purchaser the amount required by this section to be so added to the sales price and collected from the purchaser; and it shall likewise be unlawful to refund or offer to refund all or any part of the amount collected, or to absorb or advertise directly or indirectly the absorption or refund of the amount required to be added to the sales price and collected from the purchaser, or any portion of such amount. Any person, firm, corporation, association, or copartnership violating any of the provisions of this section shall upon conviction be fined in a sum of not less than fifty dollars ($50.00) or more than five hundred dollars ($500.00), or may be imprisoned for not more than six (6) months, or may be punished by both such fine and imprisonment, and each act in violation of the provisions of this ordinance shall constitute a separate offense. The requirement herein that there shall be added to the sales price and collected from the purchaser the amounts provided herein shall in no way relieve the person, firm, corporation, association, or copartnership described in this section of the tax levied by this ordinance, nor shall the inability, impracticability, refusal, or failure to add to the sales price and collect from the purchaser the amounts provided herein relieve such person, firm, corporation, association or copartnership from the tax levied by this ordinance. 283
(c) All taxes paid in pursuance to this ordinance shall conclusively be presumed to be a direct tax on the retail consumer pre-collected for the purpose of convenience and facility only. (d) In the event that any sum is collected from a consumer that purports to be collected because of this section, whether or not the amount is actually provided for hereunder, then any such sum, except such as is collected solely because of rounding the correct amount of tax upward to the nearest cent, shall be paid to the department.
Section 21. CREDIT FOR SALES TAX ERRONEOUSLY PAID. Pursuant to Section 40-23-2.1 Code of Alabama 1975, if a sales tax equal to or greater than the amount of the Birmingham sales tax is paid to another city under a requirement of law, the property which is the subject of such tax, when imported for use or consumption in Birmingham, is not subject to the sales tax, which is required to be paid by Section 2 of this ordinance. The Director of Finance shall require such proof of payment of tax to another city as he deems to be necessary and proper. 21.1 TAXES DUE THE CITY WHICH WERE ERRONEOUSLY PAID TO ANOTHER MUNICIPALITY. (a) Requirement to Request Refund of Erroneous Tax Payment Within 60 Days of Notice to Avoid Interest, Penalties (Taxpayer). In order to avoid the accrual of interest and any otherwise applicable penalties on the tax due the City of Birmingham, when a sales tax owed to the City of Birmingham is erroneously paid to a different municipality or county in good faith, based on a reasonable interpretation of the enabling ordinance, resolution, or act levying or authorizing the tax, but not under a requirement of law, the taxpayer making the erroneous payment must comply with the applicable refund procedures of such municipality or county within 60 days of receiving notice from the City, a county, or other municipality or its agent of the erroneous payment. Compliance With Refund Procedure; Interest, Penalties. If the taxpayer complies with the refund procedure within the requisite 60-day period, the City shall not assess or attempt to assess the tax, or any related interest or otherwise applicable penalty thereon until the date of receipt of the overpayment from the refunding municipality or county by the taxpayer or the taxpayer=s agent, and no interest or penalty thereon shall accrue until such date of receipt. The taxpayer shall remit the disputed tax to the City within 15 days after receipt. Failure to Comply With Refund Procedure; Interest, Penalties. If the taxpayer fails to comply with the refund procedures within the requisite 60-day period, interest and any applicable penalties shall accrue on the tax to which the City is entitled from the sixty-first (61st) day and until such time as the tax is paid.
(b)
(c)
21.2 TAXES DUE TO ANOTHER MUNICIPALITY WHICH WERE ERRONEOUSLY PAID TO THE CITY OF BIRMINGHAM. 284
(a)
Requirement to Refund Overpayment of Erroneous Tax Payment Within 60 Days of Compliance With Refund Procedures (City of Birmingham). If a sales tax owed to another municipality or county is erroneously paid to the City of Birmingham in good faith, based on a reasonable interpretation of the enabling ordinance, resolution, or act levying or authorizing the sales tax, but not under a requirement of law, the City shall refund the overpaid tax, without interest, to the taxpayer within 60 days of the taxpayer=s compliance with applicable refund procedures provided in Section 10 of this Ordinance. Refund of Excess Tax; Requirements. Provided, however, that if the applicable rate of sales tax imposed by the City exceeds the rate of sales tax imposed by the proper locality under a requirement of law, the City shall not be obligated to refund the difference unless the taxpayer properly files the applicable petition for refund, as in the case of joint petitions for refund as required by Section 10.1 of this Ordinance.
(b)
Section 22. SALES TAX IN ADDITION TO OTHER TAXES. The tax imposed by this ordinance pursuant to Section 40-23-28 Code of Alabama 1975, shall be in addition to all other licenses and taxes levied by law as a condition precedent to engaging in any business taxable hereunder, except as in this ordinance otherwise specifically provided.
Section 23. COLLECTION AFTER ASSESSMENT. The tax herein levied may be collected by levy as provided in Section 40-29-51 Code of Alabama 1975, as follows: (a) Length of Period. Where the assessment of any tax imposed by this ordinance has been begun or made within the period of limitation properly applicable thereto, such tax may be collected by levy or by a proceeding in court, but only if the levy is made or the proceeding begun: (1) (2) Within the period allowed by law after the final assessment of the tax; or Prior to the expiration of any period for collection agreed upon in writing by the Director of Finance and the taxpayer before the expiration of such period allowed by law, (or, if there is a release of levy under Section 40-29-34 Code of Alabama 1975, after such period allowed by law, then before such release).
The period so agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon. The period allowed by law as provided in this subsection during which a tax may be collected by levy shall not be extended or curtailed by reason of a judgment against the taxpayer. (b) Date When Levy Is Considered Made. The date on which a levy on property or rights to property is made shall be the date on which the notice of seizure provided in Section 40-29-26 Code of Alabama 1975, is given.
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Section 24. LIEN FOR TAXES. Pursuant to Sections 40-29-20 and 40-29-21 Code of Alabama 1975, the provisions of this section shall apply to the taxes, and/or any penalty or interest payable thereon, levied under this ordinance. (a) Notice of Lien. If any person liable to pay the tax herein levied, neglects or refuses to pay the same, within thirty (30) days of the final assessment, the amount (including any interest, additional amount, addition to tax, or assessable penalty together with filing fees and any other costs that may accrue in addition thereto) shall be a lien in favor of the City of Birmingham upon all property and rights to property, whether real or personal, tangible or intangible, belonging to such person. The department shall give a thirty (30) day ANotice of Intent to File Lien@ to the taxpayer by any one of the following methods: (1) (2) (3) Given in person; Left at the dwelling or usual place of business of such person; or Sent by certified mail with return receipt requested to the taxpayer=s last known address.
(b) Term. Unless another date is specifically fixed by law, the lien imposed by subsection (a) shall arise at the time the final assessment, return therefor or the payment thereof, whichever is prior, was due to have been filed with or made to the department, and shall continue until the liability for the amount so assessed (or a judgment against the taxpayer arising out of such liability) is satisfied or becomes unenforceable by reason of lapse of time. (c) Right to Enforce Lien by Attachment. The department may enforce such lien in any court of competent jurisdiction, by attachment issued by any officer authorized to issue such writs, upon executing bond as in other cases of attachment, and upon making affidavit that the attachment is not sued out for the purpose of vexing or harassing the defendant, and describing the property on which the lien is claimed and setting forth all the facts necessary to the creation of the lien, and the amount due and unpaid (including any interest, additional amount, addition to tax, or assessable penalty together with filing fees and any other costs that may accrue in addition thereto). (d) Release of Lien. With respect to a lien described in this section, the Director of Finance shall, within ten (10) days, release the lien when the liability out of which such lien arose is satisfied, and shall promptly notify the person upon whom such lien was made that such lien has been released.
Section 25. COLLECTION BY CIVIL SUIT. The department may initiate and/or maintain a civil action to recover delinquent taxes herein levied, interest, penalties and administrative costs incurred in connection therewith, in any court of competent jurisdiction, which remedy shall be in addition to any and all other remedies which may be provided. Section 26. VIOLATOR MAY BE RESTRAINED FROM CONTINUING IN BUSINESS. Any taxpayer who shall violate any of the provisions of this ordinance, as provided in Section 40-23-27 286
Code of Alabama 1975, may be restrained from continuing in business, and proper prosecution shall be instituted in the name of the City of Birmingham until such person shall have complied with the provisions of this ordinance.
Section 27. VIOLATIONS. 27.1 FAILURE TO PAY THE TAX, MAKE REPORTS, KEEP OR PROVIDE RECORDS. Any person subject to the provisions of this ordinance, who shall fail to pay the tax, make the reports or any of them as herein required, or who shall fail to keep or provide records, or supply any information, as herein required, shall, as provided in Section 40-23-11 and Section 40-29-112 Code of Alabama 1975, be guilty of a misdemeanor and upon conviction shall be fined not less than fifty dollars ($50.00), nor more than five hundred dollars ($500.00) for each offense and, in addition, may be imprisoned for a period not to exceed six (6) months. Each occurrence of such failure shall constitute a separate offense. 27.2 WILLFUL REFUSAL TO MAKE REPORTS, OR PERMIT EXAMINATION OF RECORDS. Any person subject to the provisions of this ordinance willfully failing or refusing to make the reports, furnish any supplemental returns or other data herein required or who shall refuse to permit the examination of his records by the department, pursuant to Section 40-23-12 Code of Alabama 1975, shall be guilty of a misdemeanor and upon conviction shall be fined not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00) for each offense, and in addition may be imprisoned for a period not to exceed six (6) months. Each occurrence of a failure to make such reports shall constitute a separate offense, and each refusal of a written demand by the department to examine, inspect, or audit such records shall constitute a separate offense. 27.3 VIOLATION OF ORDINANCE. Any person who shall fail or neglect or refuse to perform any duty imposed by this ordinance, or other City ordinances, or any rule, regulation, or law thereof, or who shall fail or neglect to do or perform any act or series of acts as required by this ordinance shall upon conviction be punished by a fine not exceeding five hundred dollars ($500.00) for each offense, and in addition may be imprisoned for a period not to exceed six (6) months or by both such fine and imprisonment, pursuant to Section 1-1-6 General Code of the City of Birmingham 1980, as amended and as it may be amended.
Section 28. REQUEST FOR RULING ON DETERMINATION OF TAXATION. Any taxpayer may request a ruling on the determination of whether amounts of gross proceeds of sales or gross receipts of his/her business are subject to the tax, or are not to be used as a measure of the taxes due and payable as levied by this ordinance. Such requests shall be made in writing to the Finance Department, and shall contain all pertinent facts, and shall include a copy of any written determinations or revenue rulings issued by the State of Alabama Department of Revenue relating to the item(s) in question.
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Section 29. SEVERABILITY. The provisions of this ordinance are severable. If any provision, section, paragraph, sentence or part thereof, or the application thereof of to any person, shall be declared unconstitutional or invalid by a court of competent jurisdiction, such declaration shall not affect or impair the remainder of the ordinance, it being the legislative intent to ordain and enact each provision, section, paragraph, sentence and part thereof, separately and independently of each other.
Section 30. REPEAL OF ORDINANCE No.74-115, AS AMENDED. The Sales Tax Law adopted by Ordinance No. 74-115, as amended and as it has been amended is hereby repealed as of the date upon which this sales tax ordinance becomes effective in the City of Birmingham; provided, however, that neither any cause of action nor fine, forfeiture, judgement, penalty, right, remedy or defense accrued at said date, nor any prosecution or complaint pending at said date shall be in any manner released, affected, abated, or impaired by this ordinance.

AN ORDINANCE TO ADOPT THE SALES TAX CODE OF THE CITY OF BIRMINGHAM, ALABAMA FOR THE CALENDAR YEAR 1998 AND CONTINUING IN EFFECT UNTIL AMENDED OR REPEALED AND TO PROVIDE FOR THE PUBLICATION THEREOF.
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BE IT ORDAINED by the Council of the City of Birmingham as follows: Section 1. That the codification of the Sales Tax Code of the City of Birmingham for the calendar year of 1998 and continuing in effect until it is amended or repealed, consisting of 29 pages all inclusive, be and the same is hereby adopted as the ASales Tax Code of the City of Birmingham, 1998@, and shall be effective and operative as such on and after the 1st day of January, 1998 and on and after said date shall be binding within the corporate limits of the City of Birmingham. Section 2. That immediately after the adoption of this ordinance and in the presence of this Council at this meeting, the City Clerk shall further identify the said ASales Tax Code of the City of Birmingham, 1998" referred to in Section 1 hereof which is before this Council by appending thereto and signing a certificate in form substantially as follows: AI, Paula R. Smith, City Clerk, hereby certify that the ASales Tax Code of the City of Birmingham, 1998@ numbered pages 1 through 29 all inclusive to which this certificate is appended is the document referred to in Section 1 of Ordinance No. 97-185 adopted by the Council of the City of Birmingham at a regular meeting thereof held on this the 23rd day of December, 1997 and that I have signed this certificate in the presence of said Council at said regular meeting on said date. Paula R. Smith, City Clerk@. The City Clerk shall carefully preserve this ordinance and said document adopted by Section 1 hereof as the ASales Tax Code of the City of Birmingham, 1998@, as a part of the permanent records of her office. Section 3. That the Sales Tax Code of the City of Birmingham adopted by Ordinance 74-115 of the City of Birmingham on the 6th day of August, 1974 be and the same hereby is repealed as of the date upon which the ASales Tax Code of the City of Birmingham, 1998", adopted by Section 1 of this ordinance, becomes effective in the City of Birmingham as provided by Section 1; provided however, that neither any cause of action nor fine, forfeiture, judgement, penalty, right, remedy or defense accrued at said date, nor any prosecution or complaint pending at said date shall be in any manner released, affected, abated, or impaired by this ordinance or by the Code adopted by this ordinance. Section 4. That it be, and hereby is, proclaimed that the Code adopted by Section 1 hereof is on file with the City Clerk of the City of Birmingham, where the same may be inspected by the public, and that this proclamation and said Code shall be made public by publication of this proclamation as part of the publication of this ordinance as ordered by Section 5 hereof. Section 5. That prior to the date specified in Section 1 hereof at least fifteen (15) copies of this ordinance and of the Code adopted by Section 1 of this ordinance shall be prepared and bound within the appropriate covers and made available to the general public at the office of the Director of Finance of the City of Birmingham, provided that said Director may charge therefore at a rate not exceeding the cost per volume to the City. Each bound volume purporting in print to contain Ordinance No. 97-185 and the ASales Tax Code of the City of Birmingham, 1998", and to have been published by authority of this Council, shall be received as prime facie evidence as provided by Section 12-21-95, Code of Alabama 1975, and may be used by courts as an aid to judicial knowledge under Act No. 193 of the 1943 Session of the Legislature of Alabama. Section 6. That the City Clerk shall cause a true copy of this ordinance to be promptly published in a newspaper published and of general circulation in the City of Birmingham and shall carefully preserve in her office a thus published copy of said ordinance as part of the permanent records of her office.
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STATE OF ALABAMA ) ) JEFFERSON COUNTY ) CERTIFICATE OF CITY CLERK
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I, Paula R. Smith, City Clerk, do hereby certify that the foregoing Ordinance adopting the ASales Tax Code of the City of Birmingham, 1998@ for the calendar year 1998, and continuing in effect until it is amended or repealed was duly and legally adopted by the Council of the City of Birmingham at a regular meeting held in the City of Birmingham, Alabama, on the 23rd day of December, 1997, and I further certify that the foregoing manuscript contains the full, complete and true manuscript of said Code, as adopted by said Council. GIVEN UNDER MY HAND AND CORPORATE SEAL of the City of Birmingham, this 29th day of December, 1997.
SEAL
CERTIFICATE OF DIRECTOR OF FINANCE I, Mac Underwood, Director of Finance of the City of Birmingham, do hereby report to the Council of the City of Birmingham the annexed copy as the ASales Tax Code of the City of Birmingham, 1998@ for the calendar year 1998, and continuing in force until it is amended or repealed, and prepared in accordance with the direction of the Council of the City of Birmingham, this the 23rd day of December, 1997. GIVEN UNDER MY HAND this 29th day of December, 1997
STATE OF ALABAMA ) ) JEFFERSON COUNTY ) CERTIFICATE OF COMPARISON To The President of the City Council
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I, Paula R. Smith, City Clerk, hereby certify the printed ASales Tax Code of the City of Birmingham, 1998@ for the calendar year 1998, and continuing in effect until it is amended or repealed corresponds accurately and is in full accord with the original manuscript as adopted by the Council of the City of Birmingham on the 23rd day of December, 1997. GIVEN UNDER MY HAND AND CORPORATE SEAL of the City of Birmingham, this 29th day of December, 1997.
I, Mac Underwood, Director of Finance, the person charged with the duty of causing to be printed and bound 15 copies of the ASales Tax Code of the City of Birmingham, 1998@ for the calendar year 1998, and continuing in effect until it is amended or repealed, which was adopted by the Council of the City of Birmingham on the 23rd day of December, 1997, do hereby certify that I have caused to be read all the proofs and have caused to be corrected all manifest errors therein, and the Code, as printed, corresponds accurately with the original manuscript. GIVEN UNDER MY HAND this 29th day of December, 1997.
MAC UNDERWOOD Director of Finance PROCLAMATION BY THE MAYOR OF THE CITY OF BIRMINGHAM, ALABAMA
WHEREAS, by Ordinance No. 97-185 adopted by the Council of the City of Birmingham on the 23rd day of December, 1997 provide for the adoption of the ASales Tax Code of the City of Birmingham, 1998@ for the calendar year 1998 and continuing in effect until it is amended or repealed it was made the duty of the Mayor upon delivery of 15 copies of said Code to issue his proclamation announcing that fact and designating the
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first day of January, 1998, as the day on which said Code shall go into effect, and whereas, 15 copies of said Code have this day been delivered to me. Now, therefore, in pursuance of the authority conferred upon me by said Ordinance, I, Richard Arrington, Jr., Mayor of the City of Birmingham, hereby proclaim ASales Tax Code of the City of Birmingham, 1998@ for the calendar year 1998 and continuing in effect until it is amended or repealed as reported to the Council of the City of Birmingham by the Director of Finance on the 23rd day of December, 1997 in full force and effect as of January the 1st, 1998. Dated this the 29th day of December, 1997.
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THE USE TAX CODE
Amended by Ordinance No. 98-109 adopted 06/30/98 Amended by Ordinance No. 98-174 adopted 11/10/98 Amended by Ordinance No. 99-211 adopted 12/21/99 Amended by Ordinance No. 00-210 adopted 12/12/00 Amended by Ordinance No. 01-166 adopted 12/18/01 Amended by Ordinance No. 02-176 adopted 12/10/02
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CITY OF BIRMINGHAM, ALABAMA ORDINANCE NO. 97-186 AN ORDINANCE FOR THE LEVY AND ASSESSMENT OF A USE TAX.
BE IT ORDAINED by the Council of the City of Birmingham, Alabama, pursuant to Sections 1151-200 through 11-51-207, Code of Alabama 1975, as follows: Section 1. DEFINITIONS. The following words, terms, and phrases, when used in this ordinance, shall have the following meanings except 1) when the context clearly indicates a different meaning, 296
or 2) when the definition of such word or phrase conflicts with the same definition as contained in Section 40-23-60 or Section 40-2A-3 Code of Alabama 1975, in which case the State law definition will govern: (a) "Automotive vehicle" shall include a power shovel, dragline, crawler, crawler crane, ditcher, or any similar machine which is self-propelled, in addition to self-propelled machines which are used primarily as instruments of conveyance. (b) "Business" as used in this ordinance, shall include all activities engaged in, or caused to be engaged in, with the object of gain, profit, benefit or advantage, either direct or indirect, and not excepting subactivities producing marketable commodities used or consumed in the main business activity, each of which subactivities shall be considered business engaged in, taxable in the class in which it falls. (c) ACity@ means the City of Birmingham, Alabama. (d) ADepartment@ means the Department of Finance of the City of Birmingham, and includes the Director of Finance. (e) ADirector@ or "Director of Finance" means the Director of Finance of the City of Birmingham, Alabama, or his or her duly authorized agent. (f ) AFinal Assessment@ means the final notice of value, underpayment, or nonpayment of any tax administered by the department. (g) AIn this City@ or Ain the City@ means within the exterior limits of the City of Birmingham. (h) ANotice of Appeal@ means any written notice sufficient to identify the name of the taxpayer or other party appealing, the specific matter appealed from, the basis for that appeal, and the relief sought. (i) APerson@ or Acompany@ means any individual, firm, company, partnership, association, corporation, receiver, or trustee, or any other group or combination acting as a unit, and the plural as well as the singular number, unless the intention to give a more limited meaning is disclosed by the context. (j)APetition for Refund@ means a written request for a refund of tax previously paid, including in the form of an amended return. Unless otherwise provided by law, such request shall include sufficient information to identify the amount of tax overpaid, the taxpayer, the period included, the reasons for the refund and sufficient documentation as required by the Director of Finance. (k) APetition for Review@ shall mean a written document filed with the department in response to a preliminary assessment in which the taxpayer sets forth reasonably specific objections to the preliminary assessment. 297
(l ) APreliminary Assessment@ shall mean the preliminary notice of value or underpayment of any tax administered by the department. (m) "Prepaid Telephone Calling Card" A sale of a prepaid telephone calling card or a prepaid authorization number, or both, shall be deemed the sale of tangible personal property subject to the tax imposed pursuant to this ordinance. (n) APrivate Auditing or Collecting Firm@ means any person in the business of collecting, through contract or otherwise, use taxes for the City of Birmingham, or auditing any taxpayer, through the examination of books and records, for the City of Birmingham. (o) APurchase@ means acquired for a consideration, whether such acquisition was effected by a transfer of title, or of possession or of both, or a license to use or consume; whether such transfer shall have been absolute or conditional, and by whatsoever means the same shall have been effected; and whether such consideration be a price or rental in money, or by way of exchange or barter. (p) AReturn@ shall mean any report, document, or other statement required to be filed with the department for the purpose of paying, reporting, or determining the proper amount of value or tax due. (q) ASale at retail@ or Aretail sale@ shall mean all sales of tangible personal property except those herein defined as wholesale sales. The quantities of goods sold or prices at which sold are immaterial in determining whether or not a sale is at retail. Sales of building materials to contractors, builders, or landowners for resale or use in the form of real estate are retail sales in whatever quantity sold. Sales of building materials, fixtures or other equipment to a manufacturer or builder of modular buildings for use in manufacturing, building or equipping a modular building ultimately becoming a part of real estate situated in the City of Birmingham are retail sales, and the use, sale or resale of such building shall not be subject to the tax. Sales of tangible personal property to undertakers and morticians are retail sales and subject to the tax at the time of purchase, but are not subject to the tax on resale to the consumer. Sales of tangible personal property or products to manufacturers, quarry operators, mine operators, or compounders, which are used or consumed by them in manufacturing, mining, quarrying, or compounding and do not become an ingredient or component part of the tangible personal property manufactured or compounded are retail sales. ASale at retail@ or Aretail sale@ shall also mean and include the withdrawal, use or consumption of any tangible personal property by anyone who purchases same at wholesale, except property which has been previously withdrawn from the business or stock and so used or consumed and with respect to which property the tax has been paid because of such previous withdrawal, use or consumption, except property which enters into and becomes an ingredient or component part of tangible personal property or products manufactured or compounded for sale; and not for the personal and private use or consumption of any person so withdrawing, using or consuming the 298
same, and such wholesale purchaser shall report and pay the taxes thereon; and except refinery, residue, or fuel gas, whether in a liquid or gaseous state, that has been generated by, or is otherwise a by-product of, a petroleum-refining process, which gas is then utilized in the process to generate heat or is otherwise utilized in the distillation of refining of petroleum products. ARetail sale@ or Asale at retail@ shall also mean and include the sale of tangible personal property previously purchased at wholesale for the purpose of leasing or renting under a transaction subject to the privilege or license tax levied under Ordinance No. 97-187, The Lease Tax Code of the City of Birmingham, 1998, as amended and as it may be amended, regardless of whether such sale is to the person who theretofore leased or rented the said tangible personal property or to some other person. (r) ASales price@ means the total amount for which tangible personal property is sold, including any services, including transportation, that are a part of the sale, valued in money, whether paid in money or otherwise, and includes any amount for which credit is given to the purchaser by the seller, without any deduction therefrom on account of the cost of the property sold, the cost of the materials used, labor or service cost, interest charged, losses or any other expenses whatsoever; provided, that cash discounts allowed and taken on sales shall not be included and sales price shall not include the amount charged for property returned by customers when the entire amount charged therefor is refunded either in cash or by credit. (s) AStorage@ means and includes any keeping or retention in this City for any purpose except sale in the regular course of business or subsequent use solely outside this City of tangible personal property purchased at retail. (t) ATax@ shall mean any amount, including applicable penalty and interest, levied or assessed against a taxpayer and which the department is required or authorized to administer under the provisions of Alabama law. (u) ATaxpayer@ means any person subject to or liable for the tax herein levied; any person required to file a return with respect to, or to pay the tax herein levied, or to report any information or value to the department or its designee; or any person required to obtain or holding any interest in any license issued by the department or its designee, or any person that may be affected by any act or refusal to act by the department or its designee, or to keep any records required by this ordinance. (v) ATaxpayer=s Authorized Representative@ means any individual with written authority or power of attorney to represent a taxpayer before the department; provided however, that nothing herein shall be construed as entitling any such individual who is not a licensed attorney to engage in the practice of law. (w) ATaxpayers= Bill of Rights Pamphlet@ means a written pamphlet to be distributed by the department to all taxpayers whose books and records are being examined by the department, at or before the commencement of an examination, explaining in simple and nontechnical terms, the role of the department and the rights of the taxpayer whose books and records are being examined by the 299
department during the examination and which shall be promptly revised from time to time to reflect any changes in the applicable law or rules. (x) AUse@ means and includes the exercise of any right or power over tangible personal property incident to the ownership of that property, or by any transaction where possession is given, except that it shall not include the sale of that property in the regular course of business. (y) AWholesale sale@ or Asale at wholesale@ means any one of the following: 1. A sale of tangible personal property by wholesaler to licensed retail merchants, jobbers, dealers, or other wholesalers for resale and does not include a sale by wholesalers to users or consumers, not for resale. A sale of tangible personal property or products, including iron ore, and including the furnished container and label of such property or products, to a manufacturer or compounder which enter into and become an ingredient or component part of the tangible personal property or products which the manufacturer or compounder manufactures or compounds for sale, whether or not such tangible personal property or product used in manufacturing or compounding a finished product is used with the intent that it become a component of the finished product; provided, however, that it is the intent of this section that no sale of capital equipment, machinery, tools, or product shall be included in the term Awholesale sale@. The term Acapital equipment, machinery, tools, or product@ shall mean property that is subject to depreciation allowances for Alabama income tax purposes. A sale of containers intended for one-time use only, and the labels thereof, when such containers are sold without contents to persons who sell or furnish such containers along with the contents placed therein for sale by such persons. A sale of pallets intended for one-time use only when such pallets are sold without contents to persons who sell or furnish such pallets along with the contents placed thereon for sale by such persons. A sale to a manufacturer or compounder, of crowns, caps, and tops intended for one-time use employed and used upon the containers in which such manufacturer or compounder markets his products. A sale of containers to persons engaged in selling or otherwise supplying or furnishing baby chicks to growers thereof where such containers are used for the delivery of such chicks or a sale of containers for use in the delivery of eggs by the producer thereof to the distributor or packer of such eggs even though such containers used for delivery of baby chicks or eggs may be recovered for reuse. A sale of bagging and ties used in preparing cotton for market.
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7.
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8.
A sale of commercial fish feed including concentrates, supplements, and other feed ingredients when such substances are used as ingredients in mixing and preparing feed for fish raised to be sold on a commercial basis. A sale of tangible personal property to any person engaging in the business of leasing or renting such tangible personal property to others, if such tangible personal property is purchased for the purpose of leasing or renting it to others under a transaction subject to the privilege or license tax levied in Article 4, Chapter 12, Title 40, Code of Alabama 1975, against any person engaging in the business of leasing or renting tangible personal property to others. A purchase or withdrawal of parts or materials from stock by any person licensed under this ordinance where such parts or materials are used in repairing or reconditioning the tangible personal property of such licensed person which tangible personal property is a part of the stock of goods of such licensed person, offered for sale by him and not for use or consumption of such licensed person. A sale to meat packers, manufacturers, compounders of processors of meat products of all casings used in moulding or forming wieners and Vienna sausages, even though such casings may be recovered for reuse.
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10.
11.
(z) References to the ACode of Alabama 1975" shall mean such sections as are currently in effect and as it or they may be amended. (aa) Where the phrase Areasonable cause@ is used in this ordinance, it shall include, but not be limited to, those instances in which the taxpayer has acted in good faith. The burden of proving reasonable cause shall be on the taxpayer. Section 2. PROPERTY TAXED; PERSONS LIABLE; APPLICABILITY; TAX IMPOSED ON AGRICULTURAL MACHINERY OR EQUIPMENT; RATE; WHO LIABLE. 2.1 PROPERTY TAXED; PERSONS LIABLE; APPLICABILITY. Pursuant to Section 40-2361 Code of Alabama 1975, there is hereby levied, in addition to all other taxes of every kind now imposed by law, an excise tax upon the storage, use or other consumption in this City of tangible personal property, in amounts to be determined by the application of rates against gross sales or gross purchases as follows, and which shall be collected as herein provided: (a) General Tax Rate. An excise tax is hereby imposed on the storage, use or other consumption in this City of tangible personal property not including, however, materials and supplies bought for use in fulfilling a contract for the painting, repairing or reconditioning of vessels, barges, ships and other watercraft and commercial fishing vessels of over five tons load displacement as registered with the U.S. Coast Guard and licensed by the State of Alabama Department of Conservation and Natural Resources, purchased at retail on or after the first day of October, 1974, for storage, use or other consumption in this City at the rate of three percent (3%) of the sales price of such property or the amount of tax collected by the seller, whichever is greater; provided, however, when the seller 301
follows the Alabama Department of Revenue=s suggested use tax brackets and his records prove that his following said brackets resulted in a net under collection of tax for the month, he may report the tax due or tax collected, whichever is less, except as provided in subsections (b) and (c) of this section. (b) Machine Tax Rate. An excise tax is hereby imposed on the storage, use or other consumption in this City of any machines used in mining, quarrying, compounding, processing and manufacturing of tangible personal property, purchased at retail on or after October 1, 1974, at the rate of one percent (1%) of the sales price of any such machine or the amount of tax collected by the seller, whichever is greater; provided, however, when the seller follows the Alabama Department of Revenue=s suggested use tax brackets and his records prove that his following said brackets resulted in a net under collection of tax for the month, he may report the tax due or tax collected, whichever is less; provided, that the term "machine", as herein used, shall include machinery which is used for mining, quarrying, compounding, processing, or manufacturing tangible personal property, and the parts of such machines, attachments and replacements therefor, which are made or manufactured for use on or in the operation of such machines and which are necessary to the operation of such machines and are customarily so used. (c) Automotive Tax Rate. An excise tax is hereby imposed on the storage, use or other consumption in this City of any automotive vehicle or truck trailer, semitrailer or house trailer and mobile home set-up materials and supplies including, but not limited to, steps, blocks, anchoring, cable pipes and any other materials pertaining thereto, purchased at retail on or after October 1, 1974, for storage, use or other consumption in this City at the rate of one percent (1%) of the sales price of such automotive vehicle, truck trailer, semitrailer or house trailer, and mobile home set-up materials and supplies as specified above, or the amount of tax collected by the seller, whichever is greater; provided, however, when the seller follows the Alabama Department of Revenue=s suggested use tax brackets and his records prove that his following said brackets resulted in a net under collection of tax for the month, he may report the tax due or tax collected, whichever is less. Where any used automotive vehicle or truck trailer, semitrailer or house trailer is taken in trade, or in a series of trades, as a credit or part payment on the sale of a new or used vehicle, the tax levied herein shall be paid on the net difference, that is, the price of the new or used vehicle sold less the credit for the used vehicle taken in trade. (d) Liability for Tax Not Extinguished. Every person storing, using or otherwise consuming in this City tangible personal property purchased at retail shall be liable for the tax imposed by this ordinance, and the liability shall not be extinguished until the tax has been paid to this City; provided, however, that a receipt from a retailer maintaining a place of business in this City or a retailer authorized by the department, under such rules and regulations as it may prescribe, to collect the tax imposed hereby and who shall for the purpose of this ordinance be regarded as the retailer maintaining a place of business in this City, given to the purchaser in accordance with the provisions of Section 20 of this ordinance, shall be sufficient to relieve the purchaser from further liability for tax to which such receipt may refer.
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(e) Tax Measured by Sales Price of Fair and Reasonable Market Value. An excise tax is hereby imposed on the classes of tangible personal property, and at the rates imposed on such classes, specified in subsections (a), (b), and (c) of this section, on the storage, use or other consumption in the performance of a contract in this City of any such tangible personal property, new or used, the tax to be measured by the sales price of the fair and reasonable market value of such tangible personal property when put into use in this City, whichever is less; provided, that the tax imposed by this subsection shall not apply where the taxes imposed by subsections (a), (b), or (c) of this section apply. 2.2 TAX IMPOSED ON AGRICULTURAL MACHINERY OR EQUIPMENT; RATE; WHO LIABLE. Pursuant to Section 40-23-63 Code of Alabama 1975, there is hereby levied and imposed an excise tax on the storage, use or other consumption in this City of any machine, machinery, or equipment, which is used in planting, cultivating, and harvesting farm products, or used in connection with the production of agricultural produce or products, livestock, or poultry, or farms, and the parts of such machines, machinery, or equipment, attachments and replacements therefor which are made or manufactured for use on or in the operation of such machine, machinery, or equipment, and which are necessary to and customarily used in the operation of such machine, machinery, or equipment, which is purchased at retail on or after October 1, 1974, for storage, use or other consumption in this City, at the rate of one percent (1%) of the sales price of such property or the amount of tax collected by the seller, whichever is greater, provided, however, when the seller follows the Alabama Department of Revenue=s suggested use tax brackets and his records prove that his following said brackets resulted in a net under collection of tax for the month, he may report the tax due or tax collected, whichever is less, regardless of whether the retailer is or is not engaged in business in the City. Provided, however, the one percent (1%) rate, herein prescribed with respect to parts, attachments, and replacements shall not apply to any automotive vehicle or trailer designed primarily for public highway use except farm trailers used primarily in the production and harvesting of agricultural commodities. Every person storing, using or otherwise consuming in this City such tangible personal property purchased at retail shall be liable for the tax imposed by this ordinance, and the liability shall not be extinguished until the tax has been paid to this City; provided, however, that a receipt from a retailer maintaining a place of business in this City or a retailer authorized by the department under such rules and regulations as the City may prescribe, to collect the tax imposed hereby and who shall for the purpose of this ordinance be regarded as a retailer maintaining a place of business in this City, given to the purchaser in accordance with the provisions of Section 40-23-67 Code of Alabama 1975, shall be sufficient to relieve the purchaser from further liability for a tax to which such receipt may refer.
Section 3. EXEMPTIONS. 3.1 GENERAL. Taxes imposed by this ordinance shall be subject to all exemptions as are provided in Article 2, Chapter 23, Title 40, Code of Alabama 1975, the State Use Tax Law, as now or hereafter amended, all acts supplementary thereto except where inapplicable or where herein 303
otherwise provided, all of which are adopted and made a part hereof by reference. (Section 40-2362) 3.2 SPECIAL. Special exemptions from the taxes imposed by this ordinance are allowed in all other instances where the Use Taxes levied under Article 2, Chapter 23, Title 40, Code of Alabama 1975 are exempted under any other provision of the Code of Alabama 1975.
Section 4. RETAIL SELLERS TO REGISTER AND GIVE INFORMATION; EXCEPTIONS. Pursuant to Section 40-23-66 Code of Alabama 1975, every seller engaged in making retail sales of tangible personal property for storage, use or other consumption in this City, who: (a) (b) (c) (d) Maintains a place of business; Qualifies to do business; Solicits and receives purchases or orders by agent or salesman; or Distributes catalogs or other advertising matter and by reason thereof receives and accepts orders from residents, within the City of Birmingham,
shall register with the department and give the name and address of each agent operating in this City, the location of any and all distribution or sales houses or offices or other places of business in this City, the number of persons in the City of Birmingham to whom catalogs are delivered, by mail or otherwise, the number of persons in the City from whom orders are received, by mail or otherwise, together with the amount of the purchase price charged and received, and such other information as the department may require with respect to matters pertinent to the enforcement of this ordinance; provided, however, that this section shall not apply to a seller holding a license obtained pursuant to the provisions of Ordinance No. 97-185, known as the Sales Tax Code of the City of Birmingham, 1998.
Section 5. FILING OF RETURNS AND PAYMENT OF TAX. The provisions of this section, except where inapplicable or where herein otherwise provided, shall be administered pursuant to Section 40-23-68 Code of Alabama 1975, as amended, and as it may be amended, and for such purposes are hereby incorporated into this ordinance by reference. 5.1 SELLER TO FILE RETURNS AND PAY TAX. (a) Due Date of Tax-Seller. The tax imposed by this ordinance shall, except as otherwise provided in subsection 5.5, be due and payable to the City quarterly on or before the twentieth (20th) day of the month next succeeding each quarterly period during which the storage, use, or other consumption of tangible personal property becomes taxable hereunder, the first of such periods
304
being the period commencing with the first day of October, 1974, and ending the 31st day of December, 1974. Thereafter said returns shall be due for each calendar quarter. (b) Qualifications-Seller; Due Date of Returns; Contents of Returns. Every seller engaged in making retail sales of tangible personal property for storage, use or other consumption in this City, who alternatively: (1) Maintains, occupies, or uses, permanently or temporarily, directly or indirectly, or through a subsidiary, or agent by whatever name called, an office, place of distribution, sales or sample room or place, warehouse or storage place, or other place of business; Qualifies to do business or registers with the City to collect the tax levied by this ordinance; Employs or retains under contract any representative, agent, salesman, canvasser, solicitor or installer operating in this City under the authority of the person or its subsidiary for the purpose of selling, delivering, or the taking of orders for the sale of tangible personal property or any services taxable under this ordinance or otherwise solicits and receives purchases or orders by any agent or salesman; Solicits, pursuant to a contract with a broadcaster or publisher located in this City, orders for tangible personal property by means of advertising which is disseminated primarily to consumers located in this City and only secondarily to bordering jurisdiction; Solicits orders for tangible personal property by mail in this City if the solicitations are substantial and recurring and if the retailer benefits from any banking, financing, debt collection, telecommunication, or marketing activities occurring in the State of Alabama or benefits from the location in the State of Alabama of authorized installation, servicing, or repair facilities; Has, under a franchise or licensing arrangement or contract, a franchisee or licensee operating under its trade name; Solicits, pursuant to a contract with a cable television operator located in the State of Alabama, orders for tangible personal property by means of advertising which is transmitted or distributed over a cable television system in this City; Solicits orders for tangible personal property by means of a telecommunication or television shopping system which is intended by the person to be broadcast by cable television or other means of broadcasting, to consumers located in this City;
(2)
(3)
(4)
(5)
(6)
(7)
(8)
305
(9)
Maintains any other contact with this City that would allow this City to require the seller to collect and remit the tax due under the provisions of the constitution and laws of the United States; or Distributes catalogs or other advertising matter and by reason thereof receives and accepts orders from residents within the City of Birmingham,
(10)
shall be subject to all the provisions of this ordinance and shall, except as otherwise provided in subsection 5.5, on or before the twentieth (20th) day of the month following the close of the first quarterly period of three months, as above defined, and on or before the twentieth (20th) day of the month following each subsequent quarterly period of three (3) months, file with the department a return for the preceding quarterly period in such form as may be prescribed by the department, showing: (1) The total sales price of the tangible personal property sold by such seller, the storage, use or consumption of which became subject to the tax imposed by this ordinance, during the preceding quarterly period; The amount of gross proceeds of sales or gross receipts of tangible personal property for storage, use, or other consumption, which are not subject to the tax, or are not to be used as a measure of the taxes due by such person, and the nature thereof; and, Such other information as the department may deem necessary for the proper administration of this ordinance.
(2)
(3)
(c) Remittance to Accompany Return-Seller. The return shall be accompanied by a remittance of the amount of tax herein required to be collected by the seller during the period covered by the return. The Director of Finance for the City, if he deems it necessary in order to insure payment to the City of the amount of tax herein required to be collected by sellers, may require returns and payment of such amount of tax for other than quarterly periods. Returns shall be signed by the seller or his duly authorized agent but need not be verified by oath. (d) Presumption of Tax Liability-Seller; Certificate of Resale. For the purpose of the proper administration of this ordinance, and to prevent evasion of the tax and the duty to collect the same herein imposed, it shall be presumed that tangible personal property sold by any person for delivery in this City is sold for storage, use or other consumption in this City unless the person selling such property shall have taken from the purchaser a certificate signed by and bearing the name and address of the purchaser to the effect that the property was purchased for resale and it shall be further presumed that tangible personal property shipped to this City by the purchaser thereof was purchased from a retailer on and after October 1, 1974, for storage, use or other consumption in this City. 5.2 PURCHASER TO FILE RETURNS AND PAY TAX. 306
(a) Due Date of Tax-Purchaser. The tax imposed by this ordinance shall, except as otherwise provided in subsection 5.5, be due and payable to the City quarterly on or before the twentieth (20th) day of the month next succeeding each quarterly period during which the storage, use or other consumption of tangible personal property becomes taxable hereunder, the first of such periods being the period commencing with the first day of October, 1974, and ending the 31st day of December, 1974. Thereafter said returns shall be due for each calendar quarter. (b) Qualifications-Purchaser; Due Date of Returns; Contents of Returns. Every person purchasing tangible personal property, the storage, use or other consumption of which is subject to the tax imposed by this ordinance, and who has not paid the tax due with respect thereto to a seller required or authorized hereunder to collect the tax, shall, except as otherwise provided in subsection 5.5, on or before the twentieth (20th) day of the month following the close of the each quarterly period of three (3) months, file with the department a return for the preceding quarterly period in such form as may be prescribed by the Director of Finance showing: (1) The total sales price of the tangible personal property purchased by such person, the storage, use or other consumption of which became subject to the tax imposed by this ordinance during the preceding quarterly period, and with respect to which the tax was not paid to a seller required or authorized hereunder to collect the tax; The amount of gross purchases of tangible personal property for storage, use, or other consumption, which are not subject to the tax, or are not to be used as a measure of the taxes due by such person, and the nature thereof; and,
(2)
Such other information as the department may deem necessary for the proper administration of this ordinance. (c) Remittance to Accompany Return-Purchaser. The return shall be accompanied by a remittance of the amount of tax herein imposed and not paid to a seller required or authorized hereunder to collect the tax during the period covered by the return. The Director of Finance, if he deems it necessary in order to insure payment to the City of the amount of such tax may require returns and payment for other than quarterly periods. Returns shall be signed by the person liable for the tax or his duly authorized agent, but need not be verified by oath. (d) Presumption of Tax Liability-Purchaser; Temporary Storage. For the purpose of the proper administration of this ordinance, and to prevent evasion of the tax and the duty to collect and/or remit the same herein imposed, it shall be presumed that tangible personal property purchased by any person and delivered in this City is purchased for storage, use or other consumption in this City, unless the person purchasing such property shall have measures to document the temporary storage of such tangible personal property in this City by the purchaser thereof, and it shall be further presumed that said tangible personal property was purchased from a retailer on and after October 1, 1974, for storage, use or other consumption in this City. 5.3 TAXPAYER=S RESPONSIBILITY WHEN NO FORM RECEIVED. The department is authorized to provide prescribed printed forms necessary for compliance with the filing requirements 307
(3)
outlined in this section. Failure of the taxpayer to receive forms from the department does not relieve the taxpayer of the responsibility of the timely reporting of the information required on the return, nor the timely payment of the tax. 5.4 TIMELY MAILING TREATED AS TIMELY FILING AND PAYING. The provisions outlined in this section for the timely filing of any returns, payments, claims, statements, or other documents shall be administered as herein provided. (a) Date of Delivery. If any return, claim, statement, or other document required to be filed, or any payment required to be made, within a prescribed period or on or before a prescribed date under the authority of any provision of this ordinance is, after such period or such date, delivered by United States mail to the Finance Department or to the department=s designated depository where such return, claim, statement, or other document is required to be filed, or to which such payment is required to be made, the date of the United States postmark stamped on the cover in which such return, claim, statement, or other document, or payment, is mailed shall be deemed to be the date of delivery, or the date of payment, as the case may be; provided, however: (1) Weekends and Holidays. When the due date falls on a Saturday, Sunday, or City of Birmingham holiday, payment of the tax may be made without penalty on the first working day following the due date. Mailing Requirements. The return, claim, statement, or other document, or payment was, within the time prescribed in subsection (a) above, deposited in the mail in the United States in an envelope or other appropriate wrapper, postage prepaid, properly addressed to the Finance Department or to the department=s designated depository where such return, claim, statement, or other document is required to be filed, or to where such payment is required to be made.
(2)
(b) Delivery By Method Other Than United States Mail. Returns, claims, statements, or other documents, or payments which are required under any provision of this ordinance which are delivered by any method other than by United States mail shall be considered timely filed when such items are received in the Finance Department or the department=s designated depository on the due date prescribed. (c) Untimely Filing. Any return, payment, claim, statement, or other document not received in accordance with the provisions of this section shall be deemed untimely filed and shall be assessed applicable penalties and interest as prescribed by the relevant sections of this ordinance. 5.5 ELECTION TO FILE YEARLY. Notwithstanding the above, if the total amount of taxable sales/purchases of tangible personal property for which any person is liable under this ordinance does not exceed two hundred fifty dollars ($250) during the preceding calendar year, or, if the total use tax liability due to the State of Alabama for the sale/purchase of such tangible personal property during such period is less than ten dollars ($10) during the preceding calendar year, a yearly return and remittance shall be made to the department, on or before the 20th day of January of each year. 308
In order to file yearly, the election shall be made in writing and shall be filed with the department. If such election is not timely made and in accordance with the provisions of this subsection, returns shall be due quarterly as provided for in this section. 5.6 BULK SUBMISSIONS. The department may accept, for reporting and payment of taxes due the City, bulk submissions of reports, and under regulations promulgated by the department, payments owed to the City made on behalf of the taxpayer by its properly authorized representative where such submissions are made using the appropriate form prescribed by the department, as provided in Section 11-51-210(d) Code of Alabama 1975. Any such bulk submissions of reports and payments shall include: 1. The City=s assigned taxpayer identification number for each such taxpayer for each tax paid; and, Sufficiently detailed information by which each taxpayer can be identified such that a determination can be made as to the amount and method of assessment of tax against such taxpayer for the City.
2.
The acceptance by the City of such bulk submissions shall not relieve the taxpayer on whose behalf such submissions were made from liability for any use tax arising from an error or omission made by the taxpayer=s representative. Such bulk submission shall be signed by the taxpayer or its properly authorized representative.
Section 6. EXTENSION OF TIME FOR MAKING RETURN. In accordance with the provisions of Section 40-23-74 Code of Alabama 1975, the Director of Finance, at his discretion, for reasonable cause, may extend the time for making any return required under the provisions of this ordinance; however, the time for filing any such return shall not be extended for a period greater than thirty (30) days from the date such return is due to be made and shall not prevent penalty and interest from accruing during the period of such extension.
Section 7. CREDIT SALES. Pursuant to Section 40-23-68(e) Code of Alabama 1975, and except as otherwise provided in Subsection 5.5 of this ordinance, any seller making cash and credit sales for storage, use or other consumption in the City of Birmingham may report such cash sales and shall thereafter include in each quarterly report all credit collections made during the preceding quarter and shall pay the taxes due thereon at the time of filing such report, but in no event shall the gross proceeds of credit sales be included in the measure of the tax to be paid until collections of such credit sales shall have been made.
Section 8. OATHS. The monthly reports herein required to be made are not required to be made under oath, but wherever in this ordinance any report is required to be sworn to, the same shall be sworn to by the taxpayer or his agent before some officer authorized to administer oaths, and any 309
false statement to a material fact made with the intent to defraud shall constitute perjury, and upon conviction thereof, the person so convicted shall be punished as provided in Section 1-1-6, General Code of the City of Birmingham 1980, as amended and as it may be amended.
Section 9. MAINTENANCE OF RECORDS; INVESTIGATIVE POWERS; AUDIT AND SUBPOENA AUTHORITY. The provisions of this section shall be administered in accordance with the procedures set forth in Sections 40-23-83 and 40-2A-7(a) Code of Alabama 1975, except where inapplicable or where herein otherwise provided. 9.1 RECORDS TO BE KEPT. Every seller and every person storing, using or otherwise consuming in this City tangible personal property purchased from a retailer shall keep and preserve, an accurate and complete set of records, receipts, invoices and other pertinent papers suitable for the determination of the correct amount of use tax due, or other records or information as may be necessary for the proper administration of any matter under the provisions of this ordinance in such form as the department may require. The department, or any person authorized in writing by it, is hereby authorized to examine the books, papers, records and equipment of any person selling tangible personal property and any person liable for the tax imposed by this ordinance, and to investigate the character of the business of any such person in order to verify the accuracy of any return made, or if no return was made by such person, to ascertain and determine the amount required to be paid hereunder. Such books, papers, records, and equipment shall be open for examination by the department upon request at a reasonable time and location. It shall also be the duty of every person to keep and preserve such records, receipts, invoices, and other pertinent records or other information for a period of not less than five (5) years from the due date of the return on which the underlying tax is required to be reported, or five (5) years of the date the return is filed, whichever is later. (a) Reasonable Time and Reasonable Location. AReasonable time@ shall be considered to be during normal business hours of the department. AReasonable location@ shall be considered to be the taxpayer=s place of business or the offices of the taxpayer=s authorized representative, provided such business or representative is located within a fifty (50) mile radius of the City of Birmingham. Taxpayers maintaining records outside of this radius must make records available at City Hall or at such other location as agreed upon by the department. The department, when conducting an audit, review, or examination for verification, may, at its election, require any taxpayer conducting business within the City to provide the records, accounts, books, papers and other documents at a reasonable time and reasonable place agreed upon by the department, as provided herein. Taxpayer May Be Assessed Reasonable Costs. As provided in Section 40-2A6(d) Code of Alabama 1975, the department may assess and collect from the taxpayer, the reasonable costs, based on the then current state government employee per diem rates incurred by, or charged to, the City in connection with performing an examination of the taxpayer=s books and records if the taxpayer received notice by 310
(b)
certified U.S. mail, return receipt requested, at least thirty (30) days prior to the date on which the examination was to commence, and 1. The taxpayer either failed or refused to respond or did not propose a reasonable alternative date on which the examination was to commence within 15 days of receipt of notice of the pending examination, or if The taxpayer and the department agreed in writing as to an alternative date on which the examination was to commence but the taxpayer then failed or refused to permit reasonable access to its books and records on the alternative date.
2.
9.2 INVESTIGATIVE POWERS. Each taxpayer shall give to the Director of Finance the means, facilities and opportunity for the making of such audit, examination, and investigation of the records, books, or other relevant information maintained by any taxpayer or other person for the purpose of computing and determining the correct amount of value or correct amount of tax as provided for in Section 9.1. The Director of Finance is hereby authorized to examine any person under oath concerning any gross receipts which were or should have been shown in a return, and to this end, he may compel the production of books, papers, records and the attendance of all persons before him, whether as parties or as witnesses, whom he believes to have knowledge of such gross receipts. (a) Any taxpayer, or officer of a corporation or association, or partner of a partnership, or fiduciary of a trust, or responsible individual of any entity under a duty to maintain books and records pursuant to this ordinance, who fails or refuses to maintain or provide such records and books, or permit inspection, as required herein, shall be subject to the provisions of Section 11 of this ordinance, and shall be subject to contempt proceedings in the Circuit Court.
9.3 AUDIT AND SUBPOENA AUTHORITY; ADDITIONAL REQUIREMENTS. Section 40-2A-7(a), Code of Alabama 1975 outlines further requirements for the maintenance of records, in addition to the record keeping requirements set out in Section 9.1 of this ordinance. The department=s authority to audit, to subpoena records, and to enter into contracts with private examining or collecting firms is granted pursuant to Act No. 98-191, the ALocal Tax Procedures Act of 1998@, Act No. 98-192, the ALocal Tax Simplification Act of 1998@, as well as Section 402A-7(a), Code of Alabama 1975, except where inapplicable or where herein otherwise provided.
Section 10. REFUNDS. 10.1 PETITIONS FOR REFUND. Any taxpayer may file a petition for refund with the department for any overpayment of tax erroneously paid to the department as provided in Section 40-2A-7(c)(1) Code of Alabama 1975. If a final assessment for the tax has been entered by the department, a petition for refund of all or a portion of the tax may be filed only if the final assessment plus applicable interest has been paid in full prior to or with the filing of the petition for refund. 311
The petition for refund must be filed in writing jointly by the taxpayer who collected and paid over the tax to the department and the consumer/purchaser who paid the tax to the taxpayer. However, a direct petition may be filed in writing by the taxpayer if the taxpayer never collected the tax from the consumer/purchaser, or if the tax has been credited or repaid to the consumer/purchaser by the taxpayer. Unless otherwise provided by law, all petitions for refund shall include sufficient information to identify the type and amount of tax overpaid, the taxpayer, the period included, and the reasons for the refund. Such petition shall be accompanied with sufficient supporting documentation as the department may deem necessary and proper. 10.2 REFUND OVERPAYMENTS APPLIED TO OTHER TAXES. Refund overpayments may be applied to other taxes as provided in Section 40-2A-7(c)(4) Code of Alabama 1975. If a petition is granted by the department, or a court determines that a refund is due, the overpayment shall be refunded to the taxpayer by the department. If the department determines that a refund is due, the amount of overpayment may first be credited by the department against any outstanding final tax liabilities due and owing by the taxpayer to the department, and the balance of any overpayment shall be refunded to the taxpayer. If any refund or part thereof is credited to any other tax by the department, the department shall provide a written detailed statement to the taxpayer showing the amount of overpayment, the amount credited for payment to other taxes, and the amount refunded. 10.3 TIME LIMITATIONS. (a) A petition for refund must be filed in writing with the department within (i) three (3) years from the date the return was filed or (ii) two (2) years from the date of payment of the tax, whichever is later, or (iii) if no return was timely filed, two (2) years from the date of the payment of the tax. (b) The department shall either grant or deny a petition for refund within six (6) months from the date the petition is filed, unless the period is extended by written agreement of the taxpayer and the department. The taxpayer shall be notified of the department=s decision concerning the petition for refund by first class United States mail or by certified mail with return receipt requested, sent to the taxpayer=s last known address. If the department is unable to grant a refund within the time provided herein due to the taxpayer=s failure to provide adequate documentation, the petition for refund shall be deemed to be denied. (c) The department and the taxpayer may, prior to the expiration of the period for the filing of a petition for refund, agree in writing to extend the time provided for filing the petition. The petition for refund may be filed at any time prior to the expiration of the period agreed upon. The period agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon.
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10.4 INTEREST ON REFUNDS. On any overpayment of any use tax levied under any provisions of this ordinance, the City, in addition to the amount of the overpayment, shall refund interest thereon at the rate of one percent (1%) per month, or fraction thereof, from the date of such overpayment on any refund of tax erroneously paid. As provided in Section 11-51-208(f) Code of Alabama 1975, references in this subsection to Aerroneously paid@ taxes on which interest shall be due to the taxpayer shall only mean and refer to taxes erroneously paid to the City as a result of any error, omission, or inaccurate written advice by or on behalf of the City, including in connection with a prior examination of its books and records by the City.
Section 11. JEOPARDY, PRELIMINARY, FINAL ASSESSMENTS AND TIME LIMITATIONS. 11.1 JEOPARDY ASSESSMENTS. All jeopardy assessments issued by the department shall be executed pursuant to Section 40-29-91(a), (b), and (c) Code of Alabama 1975. (a) If the Director of Finance finds that a taxpayer designs quickly to depart from the City of Birmingham or to remove his property therein, or to do any other act tending to prejudice or to render wholly or partly ineffectual proceedings to collect any tax imposed by this ordinance, the Director of Finance may issue notice of such finding to the taxpayer by personal service or mailing to his/her last known address, together with a demand for immediate payment of the tax declared to be in jeopardy, including penalties and additions thereto and such tax, penalty, interest, and additions thereto shall be immediately due and payable. A final assessment of such tax may be entered immediately and if the assessment is not paid upon such demand of the Director, the Director may forthwith issue a warrant for levy and distraint of any personal property of the taxpayer which shall be collected in the same manner and with like effect as provided under Section 24 of this ordinance. (b) In the case of a tax for a current period, the Director may declare the taxable period of the taxpayer immediately terminated and may at his discretion estimate the tax liability based upon the best information obtainable. Notice of such finding and declaration shall be issued to the taxpayer in the same manner as in subsection (a). (c) When a jeopardy assessment has been made as provided in subsection (a), the collection of all or any part of such assessment may be stayed by filing with the Director an approved bond conditioned upon the payment of the assessment together with applicable interest and costs of collection. The Director shall have sole discretion to approve or disapprove the bond, but such approval shall not be unreasonably withheld. 11.2 PRELIMINARY AND FINAL ASSESSMENTS. All preliminary and final assessments issued by the department shall be executed as provided in Sections 40-2A-7(b)(1)a, 40-2A-7(b)(3), 40-2A-7(b)(4), 40-2A-7(b)(1)b, and 40-29-91 Code of Alabama 1975. The terms Apreliminary assessment@ and Afinal assessment@ shall have the respective meanings ascribed by Section 40-2A3 Code of Alabama 1975.
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(1) Entry of Preliminary Assessment. If the department determines that the amount of any tax as reported on a return is incorrect, or if no return is filed, or if the department is required to determine value, the department may calculate the correct tax or value based on the most accurate and complete information reasonably obtainable by the department. The department may thereafter enter a preliminary assessment for the correct tax or value, including any applicable penalty and interest. (2) Service of Preliminary Assessment Upon Taxpayer. The preliminary assessment entered by the department, or a copy thereof, shall be promptly mailed by the department to the taxpayer=s last known address by either first class U.S. mail or certified mail with return receipt requested, but at the option of the department, the preliminary assessment may be delivered to the taxpayer by personal delivery. (a) Disputed Preliminary Assessments. If a taxpayer disagrees with a preliminary assessment as entered by the department, the taxpayer may file a written petition for review with the Director of Finance within thirty (30) calendar days from the date of entry of the preliminary assessment, setting out the specific objections to the preliminary assessment, and showing cause why such assessment should not be made final. If a petition for review is timely filed, or if the department otherwise deems it necessary, the department shall schedule a conference with the taxpayer for the purpose of allowing the taxpayer and the department to present their respective positions, discuss any omissions or errors, and to attempt to agree upon any changes or modifications to their respective positions. If a written petition for appeal/review: 1. Is not timely filed, or 2. Is properly filed, and upon further review the department determines the preliminary assessment is due to be upheld in whole or in part, the department may make the assessment final in the amount of tax due as computed by the department, with applicable interest and penalty computed to the date of entry of the final assessment.
(b)
(3) Service of Final Assessment Upon Taxpayer. The final assessment entered by the department, or a copy thereof, shall be mailed by the department to the taxpayer=s last known address (i) by either first class U.S. mail or certified mail with return receipt requested in the case of assessments of tax or five hundred dollars ($500) or less or (ii) by certified mail with return receipt requested in the case of assessments of tax of more than five hundred dollars ($500). In either case and at the option of the department, the final assessment, or a copy thereof, may be delivered to the taxpayer by personal delivery. 11.3 TIME LIMITATION FOR ENTERING ASSESSMENTS. (a) Pursuant to Section 40-2A-7(b)(2) Code of Alabama 1975, any preliminary assessment must be entered within three (3) years from the due date of the return, or three (3) years from the date the return is filed with the department, whichever is later, or if no return is required to be filed, within three (3) years of the due date of the tax, except as follows: 314
1.
A preliminary assessment may be entered at any time if no return is filed as required, or if a false or fraudulent return is filed with the intent to evade tax; A preliminary assessment may be entered within six (6) years from the due date of the return or six (6) years from the date the return is filed with the department, whichever is later, if the taxpayer omits from the taxable base an amount properly includable therein which is in excess of twenty-five percent (25%) of the amount of the taxable base stated in the return.
2.
For purposes of this paragraph: (a) The term Ataxable base@ means the gross proceeds from sales, gross purchases, gross receipts, or other amounts on which the tax paid with the return is computed; and In determining the amount omitted from the taxable base, there shall not be taken into account any amount which is omitted from the taxable base stated in the return if the amount is disclosed in the return, or in a statement attached to the return, in a manner adequate to apprise the department of the nature and amount of the item.
(b)
3.
Section 12. APPEALS. Appeals from denial of refunds, jeopardy assessments, and final assessments shall be executed as provided in Section 6-3-11, Code of Alabama 1975. A written notice of appeal shall be filed with department and shall contain information sufficient to: (1) identify the name of the taxpayer or other party filing such notice of appeal, (2) identify the specific matter appealed from, (3) outline the basis for such appeal, and (4) specify the relief sought.
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12.1 APPEAL FROM REFUND DENIAL. (a) A taxpayer may appeal from the denial in whole or in part of a petition for refund by filing a written notice of appeal with the Circuit Court within two (2) years from the date the petition is denied. The Circuit Court shall hear the appeal according to its own rules and procedures and shall determine the correct amount of refund due, if any. (b) If an appeal is not filed with the Circuit Court within two (2) years of the date the petition is denied, then the appeal shall be dismissed for lack of jurisdiction. 12.2 APPEAL FROM JEOPARDY ASSESSMENT. (a) In any court proceeding to contest the jeopardy assessment or to enforce payment of the taxes made due and payable by virtue of the provisions of Section 11 of this ordinance, the finding of the Director of Finance, made as herein provided, shall be for all purposes presumptive evidence of jeopardy. (b) A final jeopardy assessment entered hereunder may be appealed to either the Director of Finance or the Circuit Court in the same manner as provided in subsection 12.4 of this section for the appeal of final assessments. On appeal to the Director of Finance or to the Circuit Court, the final jeopardy assessment shall be prima facie correct, and the burden of proof shall be on the taxpayer to prove such assessment is incorrect. (c) If an appeal is not filed with the Director of Finance or in the Circuit Court within the time provided herein for appeals of final assessments, the appeal shall be dismissed for lack of jurisdiction. 12.3 APPEAL FROM PRELIMINARY ASSESSMENT. (Refer to Section 11.2 (2)(a)and(b).) 12.4 APPEAL FROM FINAL ASSESSMENT. (a) A taxpayer may appeal from any final assessment entered by the department by filing a written notice of appeal with the Director of Finance within thirty (30) days from the date of entry of the final assessment, and the appeal, if timely filed, shall proceed as herein provided. (b) In lieu of the appeal under paragraph (a) of this subsection, at the option of the taxpayer, the taxpayer may appeal from any final assessment to the Circuit Court by filing written notice of appeal within thirty (30) days from the date of entry of the final assessment with both the Director of Finance and the Circuit Court. If the appeal is to Circuit Court, the taxpayer shall, also within the thirty (30) day period allowed for appeal, either (i) pay the tax, interest, and any penalty shown on the final assessment, or (ii) file a supersedeas bond with the court in double the amount of the tax, interest, and any penalty shown on the final assessment. The supersedeas bond shall be executed by a surety company licensed and authorized to do business in the State of Alabama and shall be conditioned to pay the assessment plus applicable interest, penalty, and any court costs relating to the appeal. A taxpayer may appeal a final assessment to either the Director of Finance or to Circuit Court as provided herein, even though the taxpayer has paid the tax in issue prior to taking the appeal. 316
(c) The filing of the written notice of appeal with the Director of Finance or, in the case of appeals to the Circuit Court, the filing of such notice of appeal with both the Director of Finance and the Circuit Court, and also the payment of the assessment in full and applicable interest and penalty or the filing of a bond as provided herein, are jurisdictional. If such prerequisites are not satisfied within the time provided for appeal, the appeal shall be dismissed for lack of jurisdiction. On appeal to the Director of Finance, or to the Circuit Court, the final assessment shall be prima facie correct, and the burden of proof shall be on the taxpayer to prove such assessment is incorrect.
Section 13. PENALTIES AND INTEREST. The provisions for penalties are pursuant to Section 40-2A-11 Code of Alabama 1975; provided, however, the rates and amounts of penalties are as provided herein. 13.1 FAILURE TO TIMELY FILE RETURN. If a taxpayer fails, neglects, or refuses to file any return required to be filed with the department on or before the date prescribed therefor, determined with regard to any extension of time for filing granted by the Director of Finance, there shall be assessed, in addition to the tax due or the amount of tax herein required to be collected and/or remitted, a penalty of ten percent (10%) of the amount due, or fifty dollars ($50.00), whichever is greater, together with interest thereon at the rate of one percent (1%) per month, or fraction thereof, from the date at which the tax herein levied became due and payable, such penalty and interest to be assessed and collected as part of the tax, as provided in Section 40-2A-11(a) Code of Alabama 1975. 13.2 FAILURE TO TIMELY PAY TAX. If a taxpayer fails, neglects, or refuses to pay to the department the amount of tax shown as due on a return required to be filed on or before the date prescribed for payment of the tax, determined with regard to any extension of time for payment granted by the Director of Finance, there shall be added: (1) (2) (3) In addition to the tax due or the amount of tax herein required to be collected and/or remitted; or, For any tax for which a monthly or quarterly return is required, or, For which no return is required,
a penalty of ten percent (10%) of the unpaid amount shown as tax due on the return or the amount stated in the notice and demand, together with interest thereon at the rate of one percent (1%) per month, or fraction thereof, from the date at which the tax herein levied became due and payable, as provided in Section 40-2A-11(b) Code of Alabama 1975. 13.3 UNDERPAYMENT OF TAX. Any taxpayer failing to pay the tax herein levied to the City or any amount of tax herein required to be collected and paid to the City, within the time required by this ordinance, shall pay, in addition to the tax or the amount of tax herein required to be collected and/or remitted, a penalty of ten percent (10%) of the amount of tax due, plus interest at the rate of one percent (1%) per month, or fraction thereof, from the date at which the tax or the amount of tax herein levied or required to be collected became delinquent, that is, due and payable to the City. 317
13.4 UNDERPAYMENT DUE TO NEGLIGENCE. If any part of any underpayment of tax is due to negligence or disregard of rules or regulations, there shall be added to the tax an amount equal to ten percent (10%) of that part of the tax attributable to negligence or disregard of rules or regulations. For the purpose of this section, the term Anegligence@ includes any failure to make a reasonable attempt to comply with this ordinance, and the term Adisregard@ includes any careless, reckless or intentional disregard, as provided in Section 40-2A-11(c) Code of Alabama 1975. 13.5 UNDERPAYMENT DUE TO FRAUD. If any part of any underpayment of tax required to be shown on a return is due to fraud, there shall be added to the tax an amount equal to fifty percent (50%) of that portion of the underpayment which is attributable to fraud. For purposes of this section, the term Afraud@ shall have the same meaning as ascribed to the term under Section 40-2A11(d) Code of Alabama 1975. 13.6 FRIVOLOUS APPEAL PENALTY. If any appeal to the Director of Finance or to Circuit Court is determined to be frivolous or primarily for the purpose of delay or to impede collection of the tax imposed by this ordinance, a penalty of two hundred fifty dollars ($250.00) or twenty-five percent (25%) of the tax in question, whichever is greater, shall be assessed in addition to any tax due, as provided in Section 40-2A-11(f) Code of Alabama 1975. 13.7 PENALTIES NOT EXCLUSIVE. The penalties provided in this section for failure to timely file a return, failure to timely pay tax, underpayment of tax, underpayment due to negligence and fraud, or filing a frivolous appeal may be asserted against the same taxpayer for the same tax period, as provided in Section 40-2A-11(g) Code of Alabama 1975. 13.8 WAIVER OF PENALTIES. Penalties may be waived, in whole or in part, by the Director of Finance upon a determination of reasonable cause, pursuant to Section 40-2A-11(h) Code of Alabama 1975. Reasonable cause shall include, but not be limited to, those instances in which the taxpayer has acted in good faith. The burden of proving reasonable cause shall be on the taxpayer. 13.9 PENALTY AND INTEREST ASSESSED AS TAX. All penalties and interest levied or assessed against a taxpayer and which are administered by the department shall be assessed and collected in the same manner as taxes. 13.10 INTEREST. Interest shall be computed at the rate of one percent (1%) per month or fraction thereof, and shall be added as provided herein to any tax or other amount due the department which is not paid by the due date. Interest on any delinquency or underpayment shall be charged from the due date of the tax, as provided in Section 40-1-44 Code of Alabama 1975. 13.11 ABATEMENT OF PENALTY. The department shall abate any penalty attributable to erroneous written advice furnished to a taxpayer by an employee of the department. However, this subsection shall apply only if the department employee provided the written advice in good faith while acting in his official capacity, the written advice was reasonably relied on by the taxpayer and
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was in response to a specific written request of the taxpayer, and the penalty did not result from the taxpayer=s failure to provide adequate or accurate information. 13.12 PENALTY FOR FAILURE TO PERFORM DUTIES. Any person required to collect, truthfully account for, and/or pay over any tax imposed by this ordinance who willfully fails to collect such tax, or truthfully account for, and/or pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable for a penalty up to the total amount of the tax evaded, or not collected, or not accounted for and paid over.
(d) Nothing herein shall prohibit the use of tax returns or tax information by the department in the enforcement, collection, and assessment of any tax levied or imposed by this ordinance, or any other 319
matters administered by the department. The department may also divulge to a purchaser or successor of a business or stock of goods the outstanding tax liability of the seller for which the purchaser or successor may be liable pursuant to Section 40-23-82 Code of Alabama 1975. This section shall not preclude the inspection of returns by federal or foreign state agents pursuant to Section 40-18-53 Code of Alabama 1975. (e) Nothing herein shall prohibit the exchange of information between and among county or municipal governments subject to the restrictions of this section. (f) In no event shall any damages, attorney fees, or court costs be assessed against the City or against its elected officials, officers, or employees under this section.
Section 15. REGULATIONS MAY BE PROMULGATED; PAYMENTS DUE TAXPAYERS MAY BE WITHHELD. 15.1 REGULATIONS MAY BE PROMULGATED. Regulations may be promulgated as provided in Section 40-23-83 Code of Alabama 1975, except where inapplicable or where herein otherwise provided. (a) The Director of Finance shall from time to time promulgate rules and regulations for making returns and for ascertainment, assessment and collection of the tax imposed hereunder as he/she may deem necessary to enforce its provisions; and upon request shall furnish any taxpayer with a copy of such rules and regulations. (b) The Director of Finance may prescribe, adopt, promulgate and enforce reasonable rules and regulations not in conflict with this ordinance relating to any matter or thing pertaining to the administration and enforcement of the provisions of this ordinance, including but not limited to provisions for the re-examination and correction of returns as to which overpayment or underpayment is claimed or found to have been made, and the rules and regulations so promulgated shall be binding upon all taxpayers. (c) The Director of Finance shall prescribe printed forms for use by persons subject to the provisions of this ordinance and shall make such forms available at his/her office for use by such persons. 15.2 PAYMENTS DUE TAXPAYERS MAY BE WITHHELD. Pursuant to the Mayor-Council Act, Article VI, Section 6.04(o), Act No. 452-55, Acts of Alabama, the Director of Finance, in order to protect the interests of the City, is authorized to withhold the payment of any claim or demand for payment of monies due from the City to any vendor, contractor, consultant or other person having unpaid or delinquent tax or license liabilities until such unpaid tax, including applicable interest and penalties, shall first have been settled and adjusted. The Director of Finance shall notify the taxpayer by certified mail with return receipt requested, sent to the taxpayer=s last known address, of his/her intention to make such levy, the effect of which shall be continuous from the date such levy is first made until the liability out of which such levy arose is satisfied. 320
Section 16. PURCHASER TO WITHHOLD TAXES DUE FROM PURCHASE MONEY OR BE LIABLE. Pursuant to Section 40-23-82 Code of Alabama 1975, if any retailer liable for an amount of tax herein required to be collected shall sell out his business or stock of goods or shall quit the business, he shall make a final return, as provided under Section 5 of this ordinance, and shall make payment of the taxes due within thirty (30) days after the date of selling or quitting business. His successor, successors or assigns, if any, shall be required to withhold sufficient of the purchase money to cover the amount of such taxes herein required to be collected and interest or penalties due and unpaid until such time as the former owner shall produce a receipt from the department showing that they have been paid, or a certificate stating that no amount is due. If the purchaser of a business or stock of goods shall fail to withhold purchase money as provided herein, and the taxes remain due and unpaid after said thirty-day period, he shall be personally liable for the payment of the amount of taxes herein required to be collected by the former owner, interest and penalties accrued and unpaid by any former owner, owners or assignors. If in such cases the department deems it necessary in order to collect the taxes due the City, it may make a jeopardy assessment as provided in Title 40, Chapter 29 of the Code of Alabama 1975.
Section 17. DISPOSITION OF FUNDS DERIVED FROM TAXES. All monies derived from the use tax levied under the provisions of this ordinance shall be paid to the City and placed to the credit of the General Fund of the City of Birmingham, and shall be used and expended as authorized by law and ordinance.
Section 18. [Reserved]
Section 19. DISCOUNT. A discount of three-fourths of one percent (.0075) of the taxes levied by this ordinance due and payable to the City shall be allowed to the seller or vendor provided the taxes due by such seller are paid before the same becomes delinquent, as provided in this ordinance. If the returns are not filed within the time herein provided and the taxes not paid on the dates herein provided for, no such person shall be entitled to such a discount, but shall pay to the City the amount of tax due, together with applicable penalty and interest at the rate of one percent (1%) per month, from the date the payment of said use tax became delinquent.
Section 20. SELLER TO COLLECT TAX; SELLER NOT TO ASSUME OR ABSORB TAX. (a) Pursuant to Section 40-23-67 Code of Alabama 1975, every such seller making sales of tangible personal property for storage, use or other consumption in this City, not exempted under the provisions of Section 3 of this ordinance, shall at the time of making such sales, or, if the storage, use or other consumption of the tangible personal property is not then taxable hereunder, at the time such storage, use or other consumption becomes taxable hereunder, collect the tax imposed by this ordinance from the purchaser, and give to the purchaser a receipt therefor in the manner and form 321
prescribed by the department. The tax required to be collected by the seller from the purchaser shall be displayed separately from the list, advertised in the premises, marked or other price on the sales check or other proof of sales. (b) It shall be unlawful for any such seller to advertise or hold out or state to the public or any customer, directly or indirectly, that the tax or any part thereof imposed by this ordinance will be assumed or absorbed by the seller or that it will not be added to the selling price of the property sold, or if added that it or any part thereof will be refunded. (c) Any person violating any of the provisions of this section shall be guilty of a misdemeanor and shall upon conviction be punished pursuant to Section 1-1-6 of the General Code of the City of Birmingham 1980. The tax herein required to be collected by the seller shall constitute a debt owed by the seller to this City.
Section 21. CREDIT FOR SALES OR USE TAX ERRONEOUSLY PAID. Pursuant to Section 40-23-65 Code of Alabama 1975, if a sales or use tax equal to or greater than the amount of the Birmingham tax is paid to another city under a requirement of law, the property which is the subject of such tax, when imported for use or consumption in Birmingham, is not subject to the use tax, which is required to be paid by Section 2 of this ordinance. If the amount of tax paid to the other city is less than the Birmingham tax, then the difference between the out-of-city tax and the Birmingham tax must be paid. No credit will be allowed for taxes paid on tangible personal property in any city which does not give credit for taxes paid on similar property in Birmingham. The Director of Finance shall require such proof of payment of tax to another city as he deems to be necessary and proper. 21.1 TAXES DUE THE CITY WHICH WERE ERRONEOUSLY PAID TO ANOTHER MUNICIPALITY. (a) Requirement to Request Refund of Erroneous Tax Payment Within 60 Days of Notice to Avoid Interest, Penalties (Taxpayer). In order to avoid the accrual of interest and any otherwise applicable penalties on the tax due the City of Birmingham, when a use tax owed to the City of Birmingham is erroneously paid to a different municipality or county in good faith, based on a reasonable interpretation of the enabling ordinance, resolution, or act levying or authorizing the tax, but not under a requirement of law, the taxpayer making the erroneous payment must comply with the applicable refund procedures of such municipality or county within 60 days of receiving notice from the City, a county, or other municipality or its agent of the erroneous payment. Compliance With Refund Procedure; Interest, Penalties. If the taxpayer complies with the refund procedure within the requisite 60-day period, the City shall not assess or attempt to assess the tax, or any related interest or otherwise applicable penalty thereon until the date of receipt of the overpayment from the refunding municipality or county by the taxpayer or
(b)
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the taxpayer=s agent, and no interest or penalty thereon shall accrue until such date of receipt. The taxpayer shall remit the disputed tax to the City within 15 days after receipt. (c) Failure to Comply With Refund Procedure; Interest, Penalties. If the taxpayer fails to comply with the refund procedures within the requisite 60-day period, interest and any applicable penalties shall accrue on the tax to which the City is entitled from the sixty-first (61st) day and until such time as the tax is paid.
21.2 TAXES DUE TO ANOTHER MUNICIPALITY WHICH WERE ERRONEOUSLY PAID TO THE CITY OF BIRMINGHAM. (a) Requirement to Refund Overpayment of Erroneous Tax Within 60 Days of Compliance With Refund Procedures (City of Birmingham). If a use tax owed to another municipality or county is erroneously paid to the City of Birmingham in good faith, based on a reasonable interpretation of the enabling ordinance, resolution, or act levying or authorizing the use tax, but not under a requirement of law, the City shall refund the overpaid tax, without interest, to the taxpayer within 60 days of the taxpayer=s compliance with applicable refund procedures provided in Section 10 of this ordinance. Refund of Excess Tax; Requirements. Provided, however, that if the applicable rate of use tax imposed by the City exceeds the rate of use tax imposed by the proper locality under a requirement of law, the City shall not be obligated to refund the difference unless the taxpayer properly files the applicable petition for refund, as in the case of joint petitions for refund as required by Section 10.1 of this ordinance.
(b)
Section 23. COLLECTION AFTER ASSESSMENT. The tax herein levied may be collected by levy as provided in Section 40-29-51 Code of Alabama 1975, as follows: (a) Length of Period. Where the assessment of any tax imposed by this ordinance has been begun or made within the period of limitation properly applicable thereto, such tax may be collected by levy or by a proceeding in court, but only if the levy is made or the proceeding begun: (1) (2) Within the period allowed by law after the final assessment of the tax; or Prior to the expiration of any period for collection agreed upon in writing by the Director of Finance and the taxpayer before the expiration of such period allowed by law (or, if there is a release of levy under Section 40-29-34 Code of Alabama 1975, after such period allowed by law, then before such release).
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The period so agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon. The period allowed by law as provided in this subsection during which a tax may be collected by levy shall not be extended or curtailed by reason of a judgment against the taxpayer. (b) Date When Levy is Considered Made. The date on which a levy on property or rights to property is made shall be the date on which the notice of seizure provided in Section 40-29-26 Code of Alabama 1975, is given.
Section 24. LIEN FOR TAXES. Pursuant to Sections 40-29-20 and 40-29-21 Code of Alabama 1975, the provisions of this section shall apply to the taxes, and/or any penalty or interest payable thereon, levied under this ordinance. (a) Notice of Lien. If any person liable to pay the tax herein levied, neglects or refuses to pay the same within thirty (30) days of the final assessment, the amount (including any interest, additional amount, addition to tax, or assessable penalty together with filing fees and any other costs that may accrue in addition thereto) shall be a lien in favor of the City of Birmingham upon all property and rights to property, whether real or personal, tangible or intangible, belonging to such person. The department shall give a thirty (30) day ANotice of Intent to File Lien@ to the taxpayer by any one of the following methods: (1) (2) (3) Given in person; Left at the dwelling or usual place of business of such person; or Sent by certified mail with return receipt requested to the taxpayer=s last known address.
(b) Term. Unless another date is specifically fixed by law, the lien imposed by subsection (a) shall arise at the time the final assessment, return therefor or the payment thereof, whichever is prior, was due to have been filed with or made to the department, and shall continue until the liability for the amount so assessed (or a judgment against the taxpayer arising out of such liability) is satisfied or becomes unenforceable by reason of lapse of time. (c) Right to Enforce Lien by Attachment. The department may enforce such lien in any court of competent jurisdiction, by attachment issued by any officer authorized to issue such writs, upon executing bond as in other cases of attachment, and upon making affidavit that the attachment is not sued out for the purpose of vexing or harassing the defendant, and describing the property on which the lien is claimed and setting forth all the facts necessary to the creation of the lien, and the amount due and unpaid (including any interest, additional amount, addition to tax, or assessable penalty together with filing fees and any other costs that may accrue in addition thereto).
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(d) Release of Lien. With respect to a lien described in this section, the Director of Finance shall, within ten (10) days, release the lien when the liability out of which such lien arose is satisfied, and shall promptly notify the person upon whom such lien was made that such lien has been released. Section 25. COLLECTION BY CIVIL SUIT. The department may initiate and/or maintain a civil action to recover delinquent taxes herein levied, interest, penalties, and administrative costs incurred in connection therewith, in any court of competent jurisdiction, which remedy shall be in addition to any and all other remedies which may be provided.
Section 26. VIOLATOR MAY BE RESTRAINED FROM CONTINUING IN BUSINESS. Any taxpayer who shall violate any of the provisions of this ordinance may be restrained from continuing in business, and proper prosecution shall be instituted in the name of the City of Birmingham until such person shall have complied with the provisions of this ordinance.
Section 27. VIOLATIONS. 27.1 FAILURE TO PAY THE TAX, MAKE REPORTS, KEEP OR PROVIDE RECORDS. Any person subject to the provisions of this ordinance, who shall fail to pay the tax, make the reports or any of them as herein required, or who shall fail to keep or provide records, or supply any information as herein required, shall, as provided in Section 40-29-112 Code of Alabama 1975, be guilty of a misdemeanor and upon conviction shall be fined not less than fifty dollars ($50.00), nor more than five hundred dollars ($500.00) for each offense and, in addition, may be imprisoned for a period not to exceed six (6) months. Each occurrence of such failure shall constitute a separate offense. 27.2 WILLFUL REFUSAL TO MAKE REPORTS, OR PERMIT EXAMINATION OF RECORDS. Any person subject to the provisions of this ordinance willfully failing or refusing to make the reports, furnish any supplemental returns or other data herein required, or who shall refuse to permit the examination of his records by the department, shall, as provided in Section 40-23-88 Code of Alabama 1975, be guilty of a misdemeanor, and upon conviction shall be fined not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00) for each offense, and in addition may be imprisoned for a period not to exceed to six (6) months. Each occurrence of a failure to make such reports shall constitute a separate offense, and each refusal of a written demand by the department to examine, inspect, or audit such records shall constitute a separate offense. 27.3 VIOLATION OF ORDINANCE. Any person who shall fail, neglect, or refuse to perform any duty imposed by this ordinance, or other City ordinances, or any rule, regulation, or law thereof, or who shall fail or neglect to do or perform any act or series of acts as required by this ordinance or other City ordinances shall, upon conviction, be punished by a fine not exceeding five hundred dollars ($500.00) for each offense, and in addition may be imprisoned for a period not to exceed six (6) months, or by both such fine and imprisonment, pursuant to Section 1-1-6 General Code of the City of Birmingham 1980, as amended and as it may be amended. 325
Section 28. REQUEST FOR RULING ON DETERMINATION OF TAXATION. Any taxpayer may request a ruling on the determination of whether amounts of gross sales or gross purchases at retail of tangible personal property for storage, use or other consumption in the City by a taxpayer are subject to the tax, or are not to be used as a measure of the taxes due and payable as levied by this ordinance. Such requests shall be made in writing to the Finance Department, and shall contain all pertinent facts, and shall include a copy of any written determinations or revenue rulings issued by the State of Alabama Department of Revenue relating to the item(s) in question. Section 29. SEVERABILITY. The provisions of this ordinance are severable. If any provision, section, paragraph, sentence, or part thereof, or the application thereof to any person, shall be declared unconstitutional or invalid by a court of competent jurisdiction, such declaration shall not affect or impair the remainder of the ordinance, it being the legislative intent to ordain and enact each provision, section, paragraph, sentence, and part thereof, separately and independently of each other.
Section 30. REPEAL OF ORDINANCE NO. 74-116, AS AMENDED. The Use Tax Law adopted by Ordinance No. 74-116, as amended and as it has been amended, is hereby repealed as of the date upon which this Use Tax ordinance becomes effective in the City of Birmingham; provided, however, that neither any cause of action nor fine, forfeiture, judgement, penalty, right, remedy or defense accrued at said date, nor any prosecution or complaint pending at said date shall be in any manner released, affected, abated, or impaired by this ordinance.
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AN ORDINANCE TO ADOPT THE USE TAX CODE OF THE CITY OF BIRMINGHAM, ALABAMA FOR THE CALENDAR YEAR 1998 AND CONTINUING IN EFFECT UNTIL AMENDED OR REPEALED AND TO PROVIDE FOR THE PUBLICATION THEREOF. BE IT ORDAINED by the Council of the City of Birmingham as follows: Section 1. That the codification of the Use Tax Code of the City of Birmingham for the calendar year of 1998 and continuing in effect until it is amended or repealed, consisting of 26 pages all inclusive, be and the same is hereby adopted as the AUse Tax Code of the City of Birmingham, 1998@, and shall be effective and operative as such on and after the 1st day of January, 1998 and on and after said date shall be binding within the corporate limits of the City of Birmingham. Section 2. That immediately after the adoption of this ordinance and in the presence of this Council at this meeting, the City Clerk shall further identify the said AUse Tax Code of the City of Birmingham, 1998" referred to in Section 1 hereof which is before this Council by appending thereto and signing a certificate in form substantially as follows: AI, Paula R. Smith, City Clerk, hereby certify that the AUse Tax Code of the City of Birmingham, 1998@ numbered pages 1 through 26 all inclusive to which this certificate is appended is the document referred to in Section 1 of Ordinance No. 97-186 adopted by the Council of the City of Birmingham at a regular meeting thereof held on this the 23rd day of December, 1997 and that I have signed this certificate in the presence of said Council at said regular meeting on said date. Paula R. Smith, City Clerk@. The City Clerk shall carefully preserve this ordinance and said document adopted by Section 1 hereof as the AUse Tax Code of the City of Birmingham, 1998@, as a part of the permanent records of her office. Section 3. That the Use Tax Code of the City of Birmingham adopted by Ordinance 74-116 of the City of Birmingham on the 6th day of August, 1974 be and the same hereby is repealed as of the date upon which the AUse Tax Code of the City of Birmingham, 1998", adopted by Section 1 of this ordinance, becomes effective in the City of Birmingham as provided by Section 1; provided however, that neither any cause of action nor fine, forfeiture, judgement, penalty, right, remedy or defense accrued at said date, nor any prosecution or complaint pending at said date shall be in any manner released, affected, abated, or impaired by this ordinance or by the Code adopted by this ordinance. Section 4. That it be, and hereby is, proclaimed that the Code adopted by Section 1 hereof is on file with the City Clerk of the City of Birmingham, where the same may be inspected by the public, and that this proclamation and said Code shall be made public by publication of this proclamation as part of the publication of this ordinance as ordered by Section 5 hereof. Section 5. That prior to the date specified in Section 1 hereof at least fifteen (15) copies of this ordinance and of the Code adopted by Section 1 of this ordinance shall be prepared and bound within the appropriate covers and made available to the general public at the office of the Director of Finance of the City of Birmingham, provided that said Director may charge therefore at a rate not exceeding the cost per volume to the City. Each bound volume purporting in print to contain Ordinance No. 97-186 and the AUse Tax Code of the City of Birmingham, 1998", and to have been published by authority of this Council, shall be received as prime facie evidence as provided by Section 12-21-95, Code of Alabama 1975, and may be used by courts as an aid to judicial knowledge under Act No. 193 of the 1943 Session of the Legislature of Alabama. Section 6. That the City Clerk shall cause a true copy of this ordinance to be promptly published in a newspaper published and of general circulation in the City of Birmingham and shall carefully preserve in her office a thus published copy of said ordinance as part of the permanent records of her office.
Adopted by the Council of the City of Birmingham
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December 23, 1997
STATE OF ALABAMA ) )
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JEFFERSON COUNTY ) CERTIFICATE OF CITY CLERK I, Paula R. Smith, City Clerk, do hereby certify that the foregoing Ordinance adopting the AUse Tax Code of the City of Birmingham, 1998@ for the calendar year 1998, and continuing in effect until it is amended or repealed was duly and legally adopted by the Council of the City of Birmingham at a regular meeting held in the City of Birmingham, Alabama, on the 23rd day of December, 1997, and I further certify that the foregoing manuscript contains the full, complete and true manuscript of said Code, as adopted by said Council. GIVEN UNDER MY HAND AND CORPORATE SEAL of the City of Birmingham, this 29th day of December, 1997.
SEAL
CERTIFICATE OF DIRECTOR OF FINANCE I, Mac Underwood, Director of Finance of the City of Birmingham, do hereby report to the Council of the City of Birmingham the annexed copy as the AUse Tax Code of the City of Birmingham, 1998@ for the calendar year 1998, and continuing in force until it is amended or repealed, and prepared in accordance with the direction of the Council of the City of Birmingham, this the 23rd day of December, 1997. GIVEN UNDER MY HAND this 29th day of December, 1997
MAC UNDERWOOD Director of Finance STATE OF ALABAMA ) ) JEFFERSON COUNTY )
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CERTIFICATE OF COMPARISON To The President of the City Council I, Paula R. Smith, City Clerk, hereby certify the printed AUse Tax Code of the City of Birmingham, 1998@ for the calendar year 1998, and continuing in effect until it is amended or repealed corresponds accurately and is in full accord with the original manuscript as adopted by the Council of the City of Birmingham on the 23rd day of December, 1997. GIVEN UNDER MY HAND AND CORPORATE SEAL of the City of Birmingham, this 29th day of December, 1997.
I, Mac Underwood, Director of Finance, the person charged with the duty of causing to be printed and bound 15 copies of the AUse Tax Code of the City of Birmingham, 1998@ for the calendar year 1998, and continuing in effect until it is amended or repealed, which was adopted by the Council of the City of Birmingham on the 23rd day of December, 1997, do hereby certify that I have caused to be read all the proofs and have caused to be corrected all manifest errors therein, and the Code, as printed, corresponds accurately with the original manuscript.
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WHEREAS, by Ordinance No. 97-186 adopted by the Council of the City of Birmingham on the 23rd day of December, 1997 provide for the adoption of the AUse Tax Code of the City of Birmingham, 1998@ for the calendar year 1998 and continuing in effect until it is amended or repealed it was made the duty of the Mayor upon delivery of 15 copies of said Code to issue his proclamation announcing that fact and designating the first day of January, 1998, as the day on which said Code shall go into effect, and whereas, 15 copies of said Code have this day been delivered to me. Now, therefore, in pursuance of the authority conferred upon me by said Ordinance, I, Richard Arrington, Jr., Mayor of the City of Birmingham, hereby proclaim AUse Tax Code of the City of Birmingham, 1998@ for the calendar year 1998 and continuing in effect until it is amended or repealed as reported to the Council of the City of Birmingham by the Director of Finance on the 23rd day of December, 1997 in full force and effect as of January the 1st, 1998. Dated this the 29th day of December, 1997.
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THE LEASE TAX CODE
Amended by Ordinance No. 98-110 adopted 06/30/98 Amended by Ordinance No. 98-175 adopted 11/10/98 Amended by Ordinance No. 99-212 adopted 12/21/99 Amended by Ordinance No. 00-211 adopted 12/12/00 Amended by Ordinance No. 02-178 adopted 12/10/02
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CITY OF BIRMINGHAM, ALABAMA
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AN ORDINANCE LEVYING AND IMPOSING ON LESSORS OR RENTERS OF TANGIBLE PERSONAL PROPERTY AN ADDITIONAL LICENSE BASED ON THE GROSS PROCEEDS OF SUCH BUSINESS OF LEASING OR RENTING TANGIBLE PERSONAL PROPERTY. BE IT ORDAINED by the Council of the City of Birmingham, Alabama, pursuant to Section 1151-90 Code of Alabama 1975, as follows: Section 1. DEFINITIONS. The following words, terms and phrases when used in this ordinance shall have the following meanings except 1) when the context clearly indicates a different meaning or 2) when the definition of such word or phrase conflicts with the same definition as contained in Section 40-12-220, Section 40-23-1, or Section 40-2A-3 Code of Alabama 1975, in which case the State law definition will govern: (a) AAutomotive vehicle@ shall include a power shovel, drag line, crawler, crawler crane, ditcher, or any similar machine which is self-propelled, in addition to self-propelled machines which are used primarily as instruments of conveyance. (b) ABusiness@ means all activities engaged in, or caused to be engaged in, by any person with the object of gain, profit, benefit, or advantage, either direct or indirect to such person. (c) ACity@ means the City of Birmingham, Alabama. (d) ADepartment@ means the Department of Finance of the City of Birmingham, and includes the Director of Finance. (e) ADirector of Finance@ or ADirector@ means the Director of Finance of the City of Birmingham, Alabama or his or her duly authorized agent. (f) AFinal Assessment@ means the final notice of value, underpayment, or nonpayment of any tax administered by the department. (g) AGross Proceeds@ means the value proceeding or accruing from the leasing or rental of tangible personal property, including any license or privilege taxes passed on to a lessee by a lessor, without any deduction on account of the cost of the property so leased or rented, the cost of materials used, labor or service cost, interest paid, or any other expense whatsoever, and without any deductions on account of loss, and shall also include on the part of any person claiming exemption under subdivision (4) of Section 40-12-223 Code of Alabama 1975 an amount equal to the amount of rental paid on any tangible personal property acquired under such exemption and thereafter diverted to the use of such person.
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(h) ALeasing or Rental@ means a transaction whereunder the person who owns or controls the possession of tangible personal property permits another person to have the possession or use thereof for a consideration and for the duration of a definite or indefinite period of time without transfer of the title to such property. The detention by the user thereof of freight cars, oxygen and acetylene tanks and similar property, in respect of which detention a demurrage or per diem charge is made against the user of such property, shall not be deemed to constitute a transaction whereunder property is leased or rented to another within the meaning of this ordinance. (i) ANotice of Appeal@ means any written notice sufficient to identify the name of the taxpayer or other party appealing, the specific matter appealed from, the basis for such appeal, and the relief sought. (j) APerson@ or ACompany@ means any natural person, firm, partnership, association, corporation, receiver, trust, estate, or other entity, or any other group or combination of any thereof acting as a unit. (k) APetition for Refund@ shall mean a written request for a refund of tax previously paid, including in the form of an amended return. Unless otherwise provided by law, such request shall include sufficient information to identify the type and amount of tax overpaid, the taxpayer, the period included, the reasons for the refund and sufficient documentation as required by the Director of Finance. (l) APetition for Review@ shall mean a written document filed with the department in response to a preliminary assessment in which the taxpayer sets forth reasonably specific objections to the preliminary assessment. (m) APreliminary Assessment@ shall mean the preliminary notice of value or underpayment of any tax administered by the department. (n) APrivate Auditing or Collecting Firm@ means any person in the business of collecting, through contract or otherwise, leases taxes for the City of Birmingham, or auditing any taxpayer, through the examination of books and records, for the City of Birmingham. (o) AReturn@ shall mean any report, document, or other statement required to be filed with the department for the purpose of paying, reporting, or determining the proper amount of value or tax due. (p) ATangible Personal Property@ means personal property which may be seen, weighed, measured, felt, or touched, or is in any other manner perceptible to the senses. The term Atangible personal property@ shall not include stocks, bonds, notes, insurance, or other contracts, or securities. (q) ATax@ shall mean any amount, including applicable penalty and interest, levied or assessed against a taxpayer and which the department is required or authorized to administer under the provisions of Alabama law.
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(r) ATaxpayer@ means any person subject to or liable for tax herein levied; any person required to file a return with respect to, or to pay or remit the tax herein levied, or to report any information or value to the department, or its designee; or any person required to obtain or holding any interest in any license issued by the department, or its designee, or any person that may be affected by any act or refusal to act by the department, or its designee, or to keep any records required by this ordinance. (s) ATaxpayer=s Authorized Representative@ means any individual with written authority or power of attorney to represent a taxpayer before the department; provided however, that nothing herein shall be construed as entitling any such individual who is not a licensed attorney to engage in the practice of law. (t) ATaxpayers= Bill of Rights Pamphlet@ means a written pamphlet to be distributed by the department to all taxpayers whose books and records are being examined by the department, at or before the commencement of an examination, explaining in simple and nontechnical terms, the role of the department and the rights of the taxpayer whose books and records are being examined by the department during the examination and which shall be promptly revised from time to time to reflect any changes in the applicable law or rules. (u) References to the ACode of Alabama 1975@ shall mean such sections as are currently in effect and as it or they may be amended. (v) Where the phrase Areasonable cause@ is used in this ordinance, it shall include, but not be limited to, those instances in which the taxpayer has acted in good faith. The burden of proving reasonable cause shall be on the taxpayer.
Section 2. LEVY OF TAX. Effective May 1, 1980, and pursuant to 40-12-222 Code of Alabama 1975, there is hereby levied and shall be collected and remitted as herein provided, in addition to all other taxes now imposed by law, a privilege or license tax on each person engaging or continuing within this city in the business of leasing or renting tangible personal property which shall be in the amounts to be determined by the application of the rates against gross proceeds or gross receipts derived by the lessor from the lease or rental of tangible personal property, as follows: (a) General Rate. On each person engaging or continuing within this City in the business of leasing or renting tangible personal property, there is hereby levied an amount equal to three percent (3%) of the gross proceeds derived by the lessor from the lease or rental of tangible personal property of every kind and description. Provided, that the privilege or license tax on each person or firm engaging or continuing within this City in the business of the leasing and rental of linens and garments shall also be at the rate of three percent (3%) of the gross proceeds derived by the lessor from the lease or rental of such linens and garments. (b) Automotive Rate. Provided, further, that the said privilege or license tax on each person engaging or continuing within this City in the business of leasing or renting any automotive vehicle or truck trailer, semitrailer or house trailer shall be at the rate of three-fourths (3/4) of one percent 338
(1%) of the gross proceeds derived by the lessor from the lease or rental of such automotive vehicle or truck trailer, semitrailer or house trailer. (c) Exclusions. Provided, however, that the tax levied in this ordinance shall not apply to any leasing or rental, as lessor, by the State, or any municipality or county in the State, or any public corporation organized under the laws of the State of Alabama, including without limiting the generality of the foregoing, any corporation organized under the provision of Sections 11-54-80 thru 11-54-101 Code of Alabama 1975. (d) Pass On Authority. Notwithstanding the above, nothing shall prohibit a lessor subject to the lease tax levied by this ordinance from passing such amounts on to a lessee by adding such taxes to the leasing price or otherwise, provided, however, that all such amounts passed on to the lessee shall be includable in the gross proceeds derived from the lease of tangible personal property which shall be subject to the privilege or license tax owed by the lessor. Provided, however, the authority to pass on such amounts of the privilege or license tax granted in this subsection shall not apply to the leasing or renting of tangible personal property to the State of Alabama, a municipality or county in the state, unless the flat amount collected by the lessor includes both the tax and the leasing fee.
Section 3. EXEMPTIONS. 3.1 GENERAL. Taxes imposed by this ordinance shall be subject to all exemptions as are provided in Article 4, Chapter 12, Title 40 Code of Alabama 1975, the State leasing or rental tax law, as now or hereafter amended, all acts supplementary thereto except where inapplicable or where herein otherwise provided, all of which are adopted and made a part hereof by reference. 3.2 SPECIAL. Special exemptions from the taxes imposed by this ordinance are allowed in all other instances where the Lease Taxes levied under Article 4, Chapter 12, Title 40, Code of Alabama 1975 are exempted under any other provision of the Code of Alabama 1975.
Section 4. LICENSE REQUIRED TO ENGAGE IN BUSINESS. Pursuant to Section 40-12221 Code of Alabama 1975, if any person shall engage in or continue in any business for which a privilege tax is imposed by Section 2 of this ordinance as a condition precedent to engaging or continuing in such business, he shall apply for and obtain from the department a license to engage in and to conduct such business for the current tax year upon the condition that he shall pay the taxes accruing to the City under the provisions of this ordinance; provided, that no license shall be issued under the provisions of this ordinance to any person who has not complied with the provisions of this ordinance, and no provision of this ordinance shall be construed as relieving any person from the payment of any license or privilege tax now or hereafter imposed by law.
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Section 5. FILING OF RETURNS AND PAYMENT OF TAX. The privilege license tax levied hereunder, except as otherwise provided in subsection (d) hereunder, shall be due and payable in monthly installments on or before the twentieth (20th) day of the month next succeeding the month in which the privilege license tax accrues. (a) Due Date and Contents of Returns; Payment of the Tax. On or before such twentieth (20th) day of each month, except as otherwise provided in subsection (d) hereunder, every person on whom the amounts levied hereunder are imposed shall report to the department, on a form prescribed by the department, a true and correct statement showing: (1) The gross proceeds or gross receipts, as the case may be, of his business for the next preceding month; The amount of the gross proceeds or gross receipts which are not subject to the privilege license tax, or are not to be used as a measurement of the taxes due by such person, and the nature thereof; together with Such other information as the City may deem necessary for the proper administration of this ordinance.
(2)
(3)
At the time of making such monthly report such person shall compute the privilege license taxes due and shall pay to the City the amounts shown to be due. (b) Taxpayer=s Responsibility When No Form Received. The department is authorized to provide prescribed printed forms necessary for compliance with the filing requirements outlined in this section. Failure of the taxpayer to receive forms from the department does not relieve the taxpayer of the responsibility of the timely reporting of the information required on the return, nor the timely payment of the tax. (c) Timely Mailing Treated as Timely Filing and Paying. The provisions outlined in this section for the timely filing of any returns, payments, claims, statements, or other documents shall be administered as herein provided. (1) Date of Delivery. If any return, claim, statement, or other document required to be filed, or any payment required to be made, within a prescribed period or on or before a prescribed date under the authority of any provision of this ordinance is, after such period or such date, delivered by United States mail to the Finance Department or to the department=s designated depository where such return, claim, statement, or other document is required to be filed, or to which such payment is required to be made, the date of the United States postmark stamped on the cover in which such return, claim, statement, or other document, or payment, is mailed shall be deemed to be the date of delivery, or the date of payment, as the case may be; provided, however:
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(a)
Weekends and Holidays. When the due date falls on a Saturday, Sunday, or City of Birmingham holiday, payment of the tax may be made without penalty on the first working day following the due date. Mailing Requirements. The return, claim, statement, or other document, or payment was, within the time prescribed in subsection (1) above, deposited in the mail in the United States in an envelope or other appropriate wrapper, postage prepaid, properly addressed to the Finance Department or to the department=s designated depository where such return, claim, statement, or other document is required to be filed, or to where such payment is required to be made.
(b)
(2)
Delivery By Method Other Than United States Mail. Returns, claims, statements, or other documents, or payments which are required under any provision of this ordinance which are delivered by any method other than by mailing shall be considered timely filed when such items are received in the Finance Department or the department=s designated depository on the due date prescribed. Untimely Filing. Any return, payment, claim, statement, or other document not received in accordance with the provisions of this section shall be deemed untimely filed and shall be assessed applicable penalties and interest as prescribed by the relevant sections of this ordinance.
(3)
(d) Tax Return Filing Elections. (1) Election to File Quarterly; Requirements. a. If the total amount of taxable leases/rentals for which any person is liable under this ordinance does not exceed five thousand dollars ($5,000) per month during the preceding calendar year, or, if the total tax liability due to the State of Alabama for such leases/rentals during such period averages less than two hundred dollars ($200) per month during the preceding calendar year, a quarterly return and remittance in lieu of the monthly returns may be made, by election of the taxpayer to the department, on or before the 20th day of the month next succeeding the end of the quarter for which the tax is due, and under such rules and regulations as may be prescribed in Article 4, Chapter 12, Title 40 Code of Alabama 1975. In order to file quarterly, the election shall be made in writing no later than February 20th of each year and shall be filed with the department. If such election is not timely made and in accordance with the provisions of this subsection, returns shall be due monthly as provided for in this section.
b.
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(2)
Election to File Yearly. Notwithstanding the above, if the total amount of taxable leases/rentals for which any person is liable under this ordinance does not exceed two hundred fifty dollars ($250) during the preceding calendar year, or, if the total tax liability due to the State of Alabama for such leases/rentals during such period is less than ten dollars ($10) during the preceding calendar year, a yearly return and remittance shall be made to the City, on or before the 20th day of January of each year. In order to file yearly, the election shall be made in writing and shall be filed with the department. If such election is not timely made and in accordance with the provisions of this subsection, returns shall be due monthly as provided for in this section.
(e) Bulk Submissions. The department may accept, for reporting and payment of taxes due the City, bulk submissions of reports, and under regulations promulgated by the department, payments owed to the City made on behalf of the taxpayer by its properly authorized representative where such submissions are made using the appropriate form prescribed by the department, as provided in Section 11-51-210(d) Code of Alabama 1975. Any such bulk submissions of reports and payments shall include: 1. The City=s assigned taxpayer identification number for each such taxpayer for each tax paid; and, Sufficiently detailed information by which each taxpayer can be identified such that a determination can be made as to the amount and method of assessment of tax against such taxpayer for the City.
2.
The acceptance by the City of such bulk submissions shall not relieve the taxpayer on whose behalf such submissions were made from liability for any lease tax arising from an error or omission made by the taxpayer=s representative. Such bulk submission shall be signed by the taxpayer or its properly authorized representative.
Section 6. EXTENSION OF TIME FOR MAKING RETURN. The Director of Finance, for reasonable cause, may extend the time for making any return required under the provisions of this ordinance, however, the time for filing any such return shall not be extended for a period greater than thirty (30) days from the date such return is due to be made and shall not prevent penalty and interest from accruing during the period of such extension.
Section 8. OATHS. The monthly reports herein required to be made are not required to be made under oath, but wherever in this ordinance any report is required to be sworn to, the same shall be sworn to by the taxpayer or his agent before some officer authorized to administer oaths, and any 342
false statement to a material fact made with intent to defraud shall constitute perjury and upon conviction thereof the person so convicted shall be punished as provided in Section 1-1-6 of the General Code of the City of Birmingham 1980, as amended and as may be amended.
Section 9. MAINTENANCE OF RECORDS; INVESTIGATIVE POWERS; AUDIT AND SUBPOENA AUTHORITY. The provisions of this section shall be administered in accordance with the procedures set forth in Section 40-2A-7(a) Code of Alabama 1975. 9.1 RECORDS TO BE KEPT. It shall be the duty of every lessor/renter and every person engaging or continuing in this City in any business for which a privilege tax is imposed by this ordinance, to keep and preserve an accurate and complete set of records suitable for the determination of the correct amount of gross receipts or gross proceeds of any such business and such other books or accounts as may be necessary to determine the amount of tax for which such lessor/renter or person is liable under the provisions of this ordinance. It shall be the duty of every lessor/renter and every person leasing/renting in this City tangible personal property to keep and preserve for a period of not less than five (5) years from the due date of the return on which the underlying tax is required to be reported, or five (5) years of the date the return is filed, whichever is later, all invoices of gross proceeds, or gross receipts, and other pertinent papers, in such form as the City may require, proceeding or accruing from the leasing or rental herein taxed. All such books, invoices, equipment and other records shall be open for examination by the department, upon request, at a reasonable time and location. (a) Reasonable Time and Reasonable Location. AReasonable time@ shall be considered to be during normal business hours of the department. AReasonable location@ shall be considered to be the taxpayer=s place of business or the offices of the taxpayer=s authorized representative, provided such business or representative is located within a fifty (50) mile radius of the City of Birmingham. Taxpayers maintaining records outside of this radius must make records available at City Hall or at such other location as agreed upon by the department. The department, when conducting an audit, review, or examination for verification, may, at its election, require any taxpayer conducting business within the City to provide records, accounts, books, papers and other documents at a reasonable time and reasonable place agreed upon by the department, as provided herein. Taxpayer May Be Assessed Reasonable Costs. As provided in Section 40-2A-6(d) Code of Alabama 1975, the department may assess and collect from the taxpayer, the reasonable costs, based on the then current state government employee per diem rates incurred by, or charged to, the City in connection with performing an examination of the taxpayer=s books and records if the taxpayer received notice by certified U.S. mail, return receipt requested, at least thirty (30) days prior to the date on which the examination was to commence, and
(b)
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1.
The taxpayer either failed or refused to respond or did not propose a reasonable alternative date on which the examination was to commence within 15 days of receipt of notice of the pending examination, or if The taxpayer and the department agreed in writing as to an alternative date on which the examination was to commence but the taxpayer then failed or refused to permit reasonable access to its books and records on the alternative date.
2.
(c)
Leasing for Re-Leasing. Any person leasing, who in addition leases for re-leasing, shall keep his books so as to show separately the gross proceeds of leasing and the gross proceeds of leasing for re-leasing.
9.2 INVESTIGATIVE POWERS. Each taxpayer shall give to the Director of Finance the means, facilities and opportunity for the making of such audit, examination and investigation of the records, books, or other relevant information maintained by any taxpayer or other person for the purpose of computing and determining the correct amount of value or the correct amount of tax as provided for in Section 9.1. The Director of Finance is hereby authorized to examine any person under oath concerning any gross receipts or gross proceeds which were or should have been shown in a return, and to this end, he may compel the production of books, papers, records and the attendance of all persons before him, whether as parties or as witnesses, whom he believes to have knowledge of such gross receipts or gross proceeds. (a) Any taxpayer, or officer of a corporation or association, or partner of a partnership, or fiduciary of a trust, or responsible individual of any entity under a duty to maintain books and records pursuant to this ordinance, who fails or refuses to maintain or provide such records and books, or permit inspection, as required herein, shall be subject to the provisions of Section 11 of this ordinance, and shall be subject to contempt proceedings in the Circuit Court.
Section 10. REFUNDS. 10.1 PETITIONS FOR REFUND. Any taxpayer may file a petition for refund with the department for any overpayment of tax erroneously paid to the department as provided in Section 40-2A-7(c)(1) Code of Alabama 1975. If a final assessment for the tax has been entered by the 344
department, a petition for refund of all or a portion of the tax may be filed only if the final assessment plus applicable interest has been paid in full prior to or with the filing of the petition for refund. The petition for the refund must be filed in writing by the taxpayer who paid the privilege or license tax to the department. Unless otherwise provided by law, all petitions for refund shall include sufficient information to identify the type and amount of tax overpaid, the taxpayer, the period included, and the reasons for the refund. Such petition shall be accompanied with sufficient supporting documentation as the department may deem necessary and proper. 10.2 REFUND OVERPAYMENT APPLIED TO OTHER TAXES. Refund overpayments may be applied to other taxes as provided in Section 40-2A-7(c)(4) Code of Alabama 1975. If a petition is granted by the department, or a court determines that a refund is due, the overpayment shall be refunded to the taxpayer by the department. If the department determines that a refund is due, the amount of overpayment may first be credited by the department against any outstanding final tax liabilities due and owing by the taxpayer to the department, and the balance of any overpayment shall be refunded to the taxpayer. If any refund or part thereof is credited to any other tax by the department, the department shall provide a written detailed statement to the taxpayer showing the amount of overpayment, the amount credited for payment to other taxes, and the amount refunded. 10.3 TIME LIMITATIONS. (a) A petition for refund must be filed in writing with the department within (i) three (3) years from the date the return was filed or (ii) two (2) years from the date of payment of the tax, whichever is later, or (iii) if no return was timely filed, two (2) years from the date of the payment of the tax. (b) The department shall either grant or deny a petition for refund within six (6) months from the date the petition is filed, unless the period is extended by written agreement of the taxpayer and the department. The taxpayer shall be notified of the department=s decision concerning the petition for refund by first class United States mail, or by certified mail, with return receipt requested, sent to the taxpayer=s last known address. If the department is unable to grant a refund within the time provided herein due to the taxpayer's failure to provide adequate documentation, the petition for refund shall be deemed to be denied. (c) The department and the taxpayer may, prior to the expiration of the period for the filing of a petition for refund, agree in writing to extend the time provided for filing the petition. The petition for refund may be filed at any time prior to the expiration of the period agreed upon. The period agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon. 10.4 INTEREST ON REFUNDS. On any overpayment of any lease/rental tax levied under any provisions of this ordinance, the City, in addition to the amount of the overpayment, shall refund interest thereon at the rate of one percent (1%) per month, or fraction thereof, from the date of such overpayment on any refund of tax erroneously paid. As provided in Section 11-51-208(f) Code of Alabama 1975, references in this subsection to Aerroneously paid@ taxes on which interest shall be due to the taxpayer shall only mean and refer to taxes erroneously paid to the City as a result of any 345
error, omission, or inaccurate written advice by or on behalf of the City, including in connection with a prior examination of its books and records by the City.
Section 11. JEOPARDY, PRELIMINARY, FINAL ASSESSMENTS AND TIME LIMITATIONS. 11.1 JEOPARDY ASSESSMENTS. All jeopardy assessments issued by the department shall be executed pursuant to Section 40-29-91(a), (b), and (c) Code of Alabama 1975. (a) If the Director of Finance finds that a taxpayer designs quickly to depart from the City of Birmingham or to remove his property therein or to do any other act tending to prejudice or to render wholly or partly ineffectual proceedings to collect any tax imposed by this ordinance, the Director of Finance may issue notice of such finding to the taxpayer by personal service or mailing to his/her last known address, together with a demand for immediate payment of the tax declared to be in jeopardy, including, penalties and additions thereto and such taxes, penalty, interest, and additions thereto shall be immediately due and payable. A final assessment of such tax may be entered immediately and if the assessment is not paid upon such demand of the Director, the Director may forthwith issue a warrant for levy and distraint of any personal property of the taxpayer which shall be collected in the same manner and with the like effect as provided under Section 24 of this ordinance. (b) In the case of a tax for a current period, the Director may declare the taxable period of the taxpayer immediately terminated and may at his discretion estimate the tax liability based upon the best information obtainable. Notice of such finding and declaration shall be issued to the taxpayer in the same manner as in subsection (a). (c) When a jeopardy assessment has been made pursuant to subsection (a), the collection of all or any part of such assessment may be stayed by filing with the Director an approved bond conditioned upon the payment of the assessment together with applicable interest and cost of collection. The Director shall have sole discretion to approve or disapprove the bond, but such approval shall not be unreasonably withheld. 11.2 PRELIMINARY AND FINAL ASSESSMENTS. All preliminary and final assessments issued by the department shall be executed as provided in Sections 40-2A-7(b)(1)a, 40-2A-7(b)(3), 40-2A-7(b)(4), 40-2A-7(b)(1)b, and 40-29-91 Code of Alabama 1975. The terms Apreliminary assessment@ and Afinal assessment@ shall have the respective meanings ascribed by Section 40-2A-3 Code of Alabama 1975. (1) Entry Of Preliminary Assessment. If the department determines that the amount of any tax as reported on a return is incorrect, or if no return is filed, or if the department is required to determine value, the department may calculate the correct tax or value based on the most accurate and complete information reasonably obtainable by the department. The department may thereafter enter a preliminary assessment for the correct tax or value, including any applicable penalty and interest. 346
(2) Service Of Preliminary Assessment Upon Taxpayer. The preliminary assessment entered by the department, or a copy thereof, shall be promptly mailed by the department to the taxpayer=s last known address by either first class U.S. mail or certified mail with return receipt requested, but at the option of the department, the preliminary assessment may be delivered to the taxpayer by personal delivery. (a) Disputed Preliminary Assessments. If a taxpayer disagrees with a preliminary assessment as entered by the department, the taxpayer may file a written petition for review with the Director of Finance within thirty (30) calendar days from the date of entry of the preliminary assessment, setting out the specific objections to the preliminary assessment and showing cause why such assessment should not be made final. If a petition for review is timely filed, or if the department otherwise deems it necessary, the department shall schedule a conference with the taxpayer for the purpose of allowing the taxpayer and the department to present their respective positions, discuss any omissions or errors, and to attempt to agree upon any changes or modifications to their respective positions. If a written petition for an appeal/review: 1. Is not timely filed, or 2. Is properly filed, and upon further review the department determines the preliminary assessment is due to be upheld in whole or in part, the department may make the assessment final in the amount of tax due as computed by the department, with applicable interest and penalty computed to the date of entry of the final assessment.
(b)
(3) Service of Final Assessment Upon Taxpayer. The final assessment entered by the department, or a copy thereof, shall be mailed by the department to the taxpayer=s last known address (i) by either first class U.S. mail or certified mail with return receipt requested in the case of assessments of tax of five hundred dollars ($500) or less or (ii) by certified mail with return receipt requested in the case of assessments of tax of more than five hundred dollars ($500). In either case and at the option of the department, the final assessment, or a copy thereof, may be delivered to the taxpayer by personal delivery. 11.3 TIME LIMITATION FOR ENTERING ASSESSMENT. (a) Pursuant to Section 40-2A-7(b)(2) Code of Alabama 1975, any preliminary assessment must be entered within three (3) years from the due date of the return, or three (3) years from the date the return was filed with the department, whichever is later, or if no return is required to be filed, within three (3) years of the due date of the tax, except as follows: (1) A preliminary assessment may be entered at any time if no return is filed as required, or if a false or fraudulent return is filed with the intent to evade tax;
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(2)
A preliminary assessment may be entered within six (6) years from the due date of the return or six (6) years from the date the return is filed with the department, whichever is later, if the taxpayer omits from the taxable base an amount properly includable therein which is in excess of twenty-five percent (25%) of the amount of the taxable base stated in the return.
For purposes of this paragraph: (a) The term Ataxable base@ means the gross proceeds from rentals/leases, gross receipts, or other amounts on which the tax paid with the return is computed; and In determining the amount omitted from the taxable base, there shall not be taken into account any amount which is omitted from the taxable base stated in the return if the amount is disclosed in the return, or in a statement attached to the return, in a manner adequate to apprise the department of the nature and amount of the item.
(b)
(3)
Section 12. APPEALS. Appeals from denial of refunds, jeopardy assessments, and final assessments shall be executed as provided in Sections 6-3-11, Code of Alabama 1975. A written notice of appeal shall be filed with the department and shall contain information sufficient to: (1) identify the name of the taxpayer or other party filing such notice of appeal, (2) identify the specific matter appealed from, (3) outlined the basis for such appeal, and (4) specify the relief sought. 12.1 APPEAL FROM REFUND DENIAL. (a) A taxpayer may appeal from the denial in whole or in part of a petition for refund by filing a written notice of appeal with the Circuit Court within two (2) years from the date the petition is
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denied. The Circuit Court shall hear the appeal according to its own rules and procedures and shall determine the correct amount of refund due, if any. (b) If an appeal is not filed with the Circuit Court, within two (2) years of the date the petition is denied, then the appeal shall be dismissed for lack of jurisdiction. 12.2 APPEAL FROM JEOPARDY ASSESSMENT. (a) In any court proceeding to contest the jeopardy assessment or to enforce payment of the taxes made due and payable by virtue of the provisions of Section 11 of this ordinance, the finding of the Director of Finance made as herein provided, shall be for all purposes presumptive evidence of jeopardy. (b) A final jeopardy assessment entered hereunder may be appealed to either the Director of Finance or the Circuit Court in the same manner as provided in subsection 12.4 of this section for the appeal of final assessments. On appeal to the Director of Finance or to the Circuit Court, the final jeopardy assessment shall be prima facie correct, and the burden of proof shall be on the taxpayer to prove such assessment is incorrect. (c) If an appeal is not filed with the Director of Finance or in the Circuit Court within the time provided herein for appeals of final assessments, the appeal shall be dismissed for lack of jurisdiction. 12.3 APPEAL FROM PRELIMINARY ASSESSMENT. (Refer to Section 11.2 (2)(a) and (b).) 12.4 APPEAL FROM FINAL ASSESSMENT. (a) A taxpayer may appeal from any final assessment entered by the department by filing a written notice of appeal with the Director of Finance within thirty (30) days from the date of entry of the final assessment, and the appeal if timely filed, shall proceed as herein provided. (b) In lieu of the appeal under paragraph (a) of this subsection, at the option of the taxpayer, the taxpayer may appeal from any final assessment to the Circuit Court by filing written notice of appeal within thirty (30) days from the date of entry of the final assessment with both the Director of Finance and the Circuit Court. If the appeal is to Circuit Court, the taxpayer shall, also within the thirty (30) day period allowed for appeal, either (i) pay the tax, interest, and any penalty shown on the final assessment, or (ii) file a supersedeas bond with the court in double the amount of the tax, interest, and any penalty shown on the final assessment. The supersedeas bond shall be executed by a surety company licensed and authorized to do business in the State of Alabama and shall be conditioned to pay the assessment plus applicable interest, penalty, and any court costs relating to the appeal. A taxpayer may appeal a final assessment to Circuit Court as provided herein, even though the taxpayer has paid the tax in issue prior to taking the appeal. (c) The filing of the written notice of appeal with the Director of Finance or, in the case of appeals to the Circuit Court, the filing of such notice of appeal with both the Director of Finance and the Circuit Court, and also the payment of the assessment in full and applicable interest and penalty or 349
the filing of a bond as provided herein, are jurisdictional. If such prerequisites are not satisfied within the time provided for appeal, the appeal shall be dismissed for lack of jurisdiction. On appeal to the Circuit Court or to the Director of Finance, the final assessment shall be prima facie correct, and the burden of proof shall be on the taxpayer to prove such assessment is incorrect.
Section 13. PENALTIES AND INTEREST. The provisions for penalties are pursuant to Section 40-2A-11 Code of Alabama 1975; provided, however, the rates and amounts of penalties are as provided herein. 13.1 FAILURE TO TIMELY FILE RETURN. If a taxpayer fails, neglects, or refuses to file any return required to be filed with the department on or before the date prescribed therefor, determined with regard to any extension of time for filing granted by the Director of Finance, there shall be assessed, in addition to the tax due or the amount of tax herein required to be remitted, a penalty of ten percent (10%) of the amount due or fifty dollars ($50.00), whichever is greater, together with interest thereon at the rate of one percent (1%) per month or fraction thereof, from the date at which the tax herein levied became due and payable, such penalty and interest to be assessed and collected as part of the tax as provided in Section 40-2A-11(a) Code of Alabama 1975. 13.2 FAILURE TO TIMELY PAY TAX. If a taxpayer fails, neglects, or refuses to remit to the Department the amount of tax shown as due on a return required to be filed on or before the date prescribed for payment of the tax, determined with regard to any extension of time for payment granted by the Director of Finance, there shall be added: (1) (2) (3) In addition to the tax due or the amount of tax herein required to be remitted; or For any tax for which a monthly return is required; or For which no return is required,
a penalty of ten percent (10%) of the unpaid amount shown as tax due on the return or the amount stated in the notice and demand, together with interest thereon at the rate of one percent (1%) per month or fraction thereof, from the date at which the tax herein levied became due and payable as provided in Section 40-2A-11(b) Code of Alabama 1975. 13.3 UNDERPAYMENT OF TAX. Any taxpayer failing to pay the tax herein levied to the City or any amount of tax herein required to be remitted and paid to the City, within the time required by this ordinance shall pay, in addition to the tax or the amount of tax herein required to be remitted, a penalty of ten percent (10%) the amount of tax due plus interest at the rate of one percent (1%) per month, or fraction thereof, from the date at which the tax or the amount of tax herein required to be remitted became delinquent, that is, due and payable to the City. 13.4 UNDERPAYMENT DUE TO NEGLIGENCE. If any part of any underpayment of tax is due to negligence or disregard of rules or regulations, there shall be added to the tax an amount equal to ten percent (10%) of that part of the tax attributable to negligence or disregard of rules or regulations. For the purpose of this section, the term Anegligence@ includes any failure to make a 350
reasonable attempt to comply with this ordinance, and the term Adisregard@ includes any careless, reckless or intentional disregard as provided in Section 40-2A-11(c) Code of Alabama 1975. 13.5 UNDERPAYMENT DUE TO FRAUD. If any part of any underpayment of tax required to be shown on a return is due to fraud, there shall be added to the tax an amount equal to fifty percent (50%) of that portion of the underpayment which is attributable to fraud. For purposes of this section, the term A fraud@ shall have the same meaning as ascribed to the term under Section 40-2A11(d) Code of Alabama 1975. 13.6 FRIVOLOUS APPEAL PENALTY. If any appeal to the Director of Finance or to Circuit Court is determined to be frivolous or primarily for the purpose of delay or to impede collection of the tax imposed by this ordinance, a penalty of two hundred fifty dollars ($250.00) or twenty-five percent (25%) of the tax in question, whichever is greater, shall be assessed in addition to any tax due, as provided in Section 40-2A-11(f) Code of Alabama 1975. 13.7 PENALTIES NOT EXCLUSIVE. The penalties provided in this section for failure to timely file a return, failure to timely pay tax, underpayment of tax, underpayment due to negligence and fraud, or filing a frivolous appeal may be asserted against the same taxpayer for the same tax period, as provided in Section 40-2A-11(g) Code of Alabama 1975. 13.8 WAIVER OF PENALTIES. Penalties may be waived, in whole or in part, by the Director of Finance upon a determination of reasonable cause, pursuant to Section 40-2A-11(h) Code of Alabama 1975. Reasonable cause shall include, but not be limited to, those instances in which the taxpayer has acted in good faith. The burden of proving reasonable cause shall be on the taxpayer. 13.9 PENALTY AND INTEREST ASSESSED AS TAX. All penalties and interest, levied or assessed against a taxpayer and which are administered by the department shall be assessed and collected in the same manner as taxes. 13.10 INTEREST. Interest shall be computed at a rate of one percent (1%) per month, or fraction thereof and shall be added as provided herein to any tax or other amount due the department which is not paid by the due date. Interest on any delinquency or underpayment shall be charged from the due date of the tax, as provided in Section 40-1-44 Code of Alabama 1975. 13.11 ABATEMENT OF PENALTY. The department shall abate any penalty attributable to erroneous written advice furnished to a taxpayer by an employee of the department. However, this subsection shall apply only if the department employee provided the written advice in good faith while acting in his official capacity, the written advice was reasonably relied on by the taxpayer and was in response to a specific written request of the taxpayer, and the penalty did not result from the taxpayer=s failure to provide adequate or accurate information. 13.12 PENALTY FOR FAILURE TO PERFORM DUTIES. Any person required to collect, truthfully account for, and/or pay over any tax imposed by this ordinance who willfully fails to collect such tax, or truthfully account for, and/or pay over such tax, or willfully attempts in any 351
manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable for a penalty up to the total amount of the tax evaded, or not collected, or not accounted for and paid over.
(d) Nothing herein shall prohibit the use of tax returns or tax information by the department in the enforcement, collection, and assessment of any tax levied or imposed by this ordinance, or any other matters administered by the department. The department may also divulge to a purchaser or successor of a business or stock of goods the outstanding tax liability of the seller for which the purchaser or successor may be liable pursuant to Section 40-12-224 Code of Alabama 1975. This section shall not preclude the inspection of returns by federal or foreign state agents pursuant to Section 40-18-53 Code of Alabama 1975.
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Section 15. REGULATIONS MAY BE PROMULGATED; PAYMENTS DUE TAXPAYERS MAY BE WITHHELD. Regulations may be promulgated as provided in Section 40-12-224 Code of Alabama 1975. 15.1 REGULATIONS MAY BE PROMULGATED. (a) The Director of Finance shall from time to time promulgate rules and regulations for making returns and for ascertainment, assessment and remittance of the tax imposed hereunder as he/she may deem necessary to enforce its provisions; and upon request shall furnish any taxpayer with a copy of such rules and regulations. (b) The Director of Finance may prescribe, adopt, promulgate and enforce reasonable rules and regulations not in conflict with this ordinance relating to any matter or thing pertaining to the administration and enforcement of the provisions of this ordinance, including but not limited to provisions for the re-examination and correction of returns as to which overpayment or underpayment is claimed or found to have been made, and the rules and regulations so promulgated shall be binding upon all taxpayers. (c) The Director of Finance shall prescribe printed forms for use by persons subject to the provisions of this ordinance and shall make such forms available at his/her office for use by such persons. 15.2 PAYMENTS DUE TAXPAYERS MAY BE WITHHELD. Pursuant to the Mayor-Council Act, Article VI, Section 6.04(o), Act No. 452-55, Acts of Alabama, the Director of Finance, in order to protect the interests of the City, is authorized to withhold the payment of any claim or demand for payment of monies due from the City to any vendor, contractor, consultant or other person having unpaid or delinquent tax or license liabilities until such unpaid tax, including applicable interest and penalties, shall first have been settled and adjusted. The Director of Finance shall notify the taxpayer by certified mail with return receipt requested, sent to the taxpayer=s last known address, of his/her intention to make such levy, the effect of which shall be continuous from the date such levy is first made until the liability out of which such levy arose is satisfied.
Section 16. PURCHASER TO WITHHOLD TAXES FROM PURCHASE MONEY OR BE LIABLE. If any person subject to the provisions hereof shall sell out his business or stock of goods, or shall quit the business, he shall be required to make a final return, as provided for under Section 5 of this ordinance, and shall make payment of the taxes due within thirty (30) days after the date of selling or quitting business. His successor in business shall be required to withhold sufficient of the 353
purchase money to cover the amount of said taxes herein required to be remitted, and any interest or penalties due and unpaid until such time as the former owner shall produce a receipt from the department showing that the taxes have been paid, or a certificate stating that no taxes are due. If the purchaser of a business or stock of goods shall fail to withhold purchase money as provided herein, and the taxes remain due and unpaid after the thirty (30) day period allowed, he shall be personally liable for the payment of the taxes herein required to be remitted, interest, and penalties accrued and unpaid on account of the operation of the business by the former owner. If in such cases the department deems it necessary in order to collect the taxes due the City, it may make a jeopardy assessment as provided in Title 40 Chapter 29 of the Code of Alabama 1975.
Section 17. DISPOSITION OF FUNDS DERIVED FROM TAXES. All monies derived from the lease tax levied under the provisions of this ordinance shall be paid to City and placed to the credit of the General Fund of the City of Birmingham, and shall be used and expended as authorized by law and ordinance.
Section 18. BOND REQUIREMENTS. For the purpose of securing the payment of any lease tax, penalties, or interest due or which may become due under the provisions of this ordinance, every itinerant vendor engaged in the business of leasing/renting tangible personal property in the City of Birmingham shall be required to file a bond to be approved by the Director of Finance, conditioned upon the payment of any tax, penalty, or interest due or to become due under this ordinance and upon faithful observance of the provisions of this ordinance. (a) Such bond shall: 1. 2. Be effective for a period of one year from date of issuance; Be in an amount equal to the tax estimated due or to become due under the provisions of this ordinance, but in no event shall said bond be less than one thousand dollars ($1,000) nor more than three percent (3%) of anticipated gross proceeds, whichever is greater, as fixed by the Director of Finance; and, Have a surety or sureties satisfactory to the Director of Finance; or,
3. (b)
Said itinerant vendor may deposit in cash said sum, which shall be estimated by the Director of Finance to be due or to become due under the provisions of this ordinance.
If such itinerant vendor fails to make any return due under this ordinance or to pay any taxes or penalties due hereunder, or to keep books and records as required by this ordinance, or fails to perform any other duty or obligation imposed on him under this ordinance, such bond, or cash deposited in lieu thereof, shall thereupon be forfeited, and the department shall institute an action upon such bond in the name of the City of Birmingham for the entire amount of said bond and costs.
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Sections 19 through 20.
[Reserved]
Section 21. CREDIT FOR LEASE/RENTAL TAX ERRONEOUSLY PAID. 21.1 TAXES DUE THE CITY WHICH WERE ERRONEOUSLY PAID TO ANOTHER MUNICIPALITY. (a) Requirement to Request Refund of Erroneous Tax Payment Within 60 Days of Notice to Avoid Interest, Penalties (Taxpayer). In order to avoid the accrual of interest and any otherwise applicable penalties on the tax due the City of Birmingham, when a lease/rental tax owed to the City of Birmingham is erroneously paid to a different municipality or county in good faith, based on a reasonable interpretation of the enabling ordinance, resolution, or act levying or authorizing the tax, but not under a requirement of law, the taxpayer making the erroneous payment must comply with the applicable refund procedures of such municipality or county within 60 days of receiving notice from the City, a county, or other municipality or its agent of the erroneous payment. Compliance With Refund Procedure; Interest, Penalties. If the taxpayer complies with the refund procedure within the requisite 60-day period, the City shall not assess or attempt to assess the tax, or any related interest or otherwise applicable penalty thereon until the date of receipt of the overpayment from the refunding municipality or county by the taxpayer or the taxpayer=s agent, and no interest or penalty thereon shall accrue until such date of receipt. The taxpayer shall remit the disputed tax to the City within 15 days after receipt. Failure to Comply With Refund Procedure; Interest, Penalties. If the taxpayer fails to comply with the refund procedures within the requisite 60-day period, interest and any applicable penalties shall accrue on the tax to which the City is entitled from the sixty-first (61st) day and until such time as the tax is paid.
(b)
(c)
21.2 TAXES DUE TO ANOTHER MUNICIPALITY WHICH WERE ERRONEOUSLY PAID TO THE CITY OF BIRMINGHAM. (a) Requirement to Refund Overpayment of Erroneous Tax Payment Within 60 Days of Compliance With Refund Procedures (City of Birmingham). If a lease/rental tax owed to another municipality or county is erroneously paid to the City of Birmingham in good faith, based on a reasonable interpretation of the enabling ordinance, resolution, or act levying or authorizing the lease/rental tax, but not under a requirement of law, the City shall refund the overpaid tax, without interest, to the taxpayer within 60 days of the taxpayer=s compliance with applicable refund procedures provided in Section 10 of this Ordinance. Refund of Excess Tax; Requirements. Provided, however, that if the applicable rate of lease/rental tax imposed by the City exceeds the rate of lease/rental tax imposed by the 355
(b)
proper locality under a requirement of law, the City shall not be obligated to refund the difference.
Section 23. COLLECTION AFTER ASSESSMENT. The tax herein required to be remitted may be collected by levy as provided in Section 40-29-51 Code of Alabama 1975, as follows: (a) Length of period. Where the assessment of any tax imposed by this ordinance has been begun or made within the period of limitation properly applicable thereto, such tax may be collected by levy or by a proceeding in court, but only if the levy is made or the proceeding begun: (1) (2) Within the period allowed by law after the final assessment of the tax; or Prior to the expiration of any period for collection agreed upon in writing by the Director of Finance and the taxpayer before the expiration of such period allowed by law, (or, if there is a release of levy under Section 40-29-34 Code of Alabama 1975, after such period allowed by law, then before such release).
Section 24. LIEN FOR TAXES. Pursuant to Sections 40-29-20, 40-29-21, and 11-51-96 Code of Alabama 1975, the provisions of this section shall apply to the taxes, and/or any penalty or interest payable thereon, levied under this ordinance. (a) Notice of Lien. If any person liable to pay the privilege or license tax herein levied, neglects or refuses to pay the same within thirty (30) days of the final assessment, the amount (including any interest, additional amount, addition to tax, or assessable penalty together with filing fees and any other costs that may accrue in addition thereto) shall be a lien in favor of the City of Birmingham upon all property and rights to property, whether real or personal, tangible or intangible, used in any exhibition, trade, business, vocation, occupation or profession for which a privilege or license tax is or may be required.
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The department shall give a thirty (30) day ANotice of Intent to File Lien@ to the taxpayer by any one of the following methods: (1) (2) (3) Given in person; Left at the dwelling or usual place of business of such person; or Sent by certified mail with return receipt requested to the taxpayer=s last known address.
(b) Term. Unless another date is specifically fixed by law, the lien imposed by subsection (a) shall arise at the time the final assessment, return therefor or the payment thereof, whichever is prior, was due to have been filed with or made to the department, and shall continue until the liability for the amount so assessed (or a judgment against the taxpayer arising out of such liability) is satisfied or becomes unenforceable by reason of lapse of time. (c) Right To Enforce Lien By Attachment. The department may enforce such lien in any court of competent jurisdiction, by attachment issued by any officer authorized to issue such writs, upon executing bond as in other cases of attachment, and upon making affidavit that the attachment is not sued out for the purpose of vexing or harassing the defendant, and describing the property on which the lien is claimed and setting forth all the facts necessary to the creation of the lien, and amount due and unpaid, (including any interest, additional amount, addition to tax, or assessable penalty together with filing fees and any other costs that may accrue in addition thereto). (d) Release of Lien. With respect to a lien described in this section, the Director of Finance shall, within ten (10) days, release the lien when the liability out of which such lien arose is satisfied, and shall promptly notify the person upon whom such lien was made that such lien has been released. Section 25. COLLECTION BY CIVIL SUIT. The department may initiate and/or maintain a civil action to recover delinquent taxes herein levied, interest, penalties, and administrative cost incurred in connection therewith, in any court of competent jurisdiction, which remedy shall be in addition to any and all other remedies which may be provided.
Section 26. VIOLATOR MAY BE RESTRAINED FROM CONTINUING IN BUSINESS. Any taxpayer who shall violate any of the provisions of this ordinance may be restrained from continuing in business, and proper prosecution shall be instituted in the name of the City of Birmingham until such person shall have compiled with the provisions of this ordinance.
Section 27. VIOLATIONS. 27.1 FAILURE TO PAY THE TAX, MAKE REPORTS, KEEP OR PROVIDE RECORDS. Any person subject to the provisions of this ordinance, who shall fail to pay the tax, make the reports or any of them as herein required, or who shall fail to keep or provide records, or supply any information as herein required, shall, as provided in Section 40-29-112 Code of Alabama 1975, be guilty of a misdemeanor, and upon conviction shall be fined not less than fifty dollars ($50.00) nor 357
more than five hundred dollars ($500.00) for each offense, and in addition, may be imprisoned for period not to exceed six (6) months. Each occurrence of such failure shall constitute a separate offense. 27.2 WILLFUL REFUSAL TO MAKE REPORTS OR PERMIT EXAMINATION OF RECORDS. Any person subject to the provisions of this ordinance willfully failing or refusing to make the reports, furnish any supplemental returns or other data herein required, or who shall refuse to permit the examination of his records by the department, shall be guilty of a misdemeanor, and upon conviction shall be fined not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00) for each offense, and in addition may be imprisoned for a period not to exceed six (6) months. Each occurrence of a failure to make such reports shall constitute a separate offense, and each refusal of a written demand by the department to examine, inspect or audit such records shall constitute a separate offense. 27.3 VIOLATION OF ORDINANCE. Any person who shall fail, neglect, or refuse to perform any duty imposed by this ordinance or other City ordinances, or any rule, regulation or law thereof, or who shall fail or neglect to do or perform any act or series of acts as required by this ordinance or other City ordinances shall, upon conviction, be punished by a fine not exceeding five hundred dollars ($500.00) for each offense, and in addition may be imprisoned for a period not to exceed six (6) months, or by both such fine and imprisonment, pursuant to Section 1-1-6 General Code of the City of Birmingham 1980, as amended and as may be amended.
Section 28. REQUEST FOR RULING ON DETERMINATION OF TAXATION. Any taxpayer may request a ruling on the determination of whether amounts of gross proceeds from leases or gross receipts of his/her business are subject to the tax, or are not to be used as a measure of the taxes due and payable as levied by this ordinance. Such requests shall be made in writing to the Finance Department, and shall contain all pertinent facts, and shall include a copy of any written determinations or revenue rulings issued by the State of Alabama Department of Revenue relating to the item(s) in question.
Section 29. SEVERABILITY. The provisions of this ordinance are severable. If any provision, section, paragraph, sentence or part thereof, or the application thereof to any person, shall be declared unconstitutional or invalid, by a court of competent jurisdiction, such declaration shall not affect or impair the remainder of the ordinance, it being the legislative intent to ordain and enact each provision, section, paragraph, sentence and part thereof, separately and independently of each other.
Section 30. REPEAL OF ORDINANCE NO.80-18, AS AMENDED. The Lease Tax Law adopted by Ordinance No. 80-18, as amended and as it has been amended is hereby repealed as of the date upon which this Lease Tax ordinance becomes effective in the City of Birmingham; provided, however, that neither any cause of action nor fine, forfeiture, judgment, penalty, right, 358
remedy or defense accrued at said date, nor any prosecution or complaint pending at said date shall be in any matter released, affected, abated, or impaired by this ordinance.

AN ORDINANCE TO ADOPT THE LEASE TAX CODE OF THE CITY OF BIRMINGHAM, ALABAMA FOR THE CALENDAR YEAR 1998 AND CONTINUING IN EFFECT UNTIL AMENDED OR REPEALED AND TO PROVIDE FOR THE PUBLICATION THEREOF. BE IT ORDAINED by the Council of the City of Birmingham as follows: Section 1. That the codification of the Lease Tax Code of the City of Birmingham for the calendar year of 1998 and continuing in effect until it is amended or repealed, consisting of 16 pages all inclusive, be and the same is hereby adopted as the ALease Tax Code of the City of Birmingham, 1998@, and shall be effective and operative as such on and after the 1st day of January, 1998 and on and after said date shall be binding within the corporate limits of the City of Birmingham. Section 2. That immediately after the adoption of this ordinance and in the presence of this Council at this meeting, the City Clerk shall further identify the said ALease Tax Code of the City of Birmingham, 1998" referred to in Section 1 hereof which is before this Council by appending thereto and signing a certificate in form substantially as follows: AI, Paula R. Smith, City Clerk, hereby certify that the ALease Tax Code of the City of Birmingham, 1998@ numbered pages 1 through 16 all inclusive to which this certificate is appended is the document referred to in Section 1 of Ordinance No. 97-187 adopted by the Council of the City of Birmingham at a regular meeting thereof held on this the 23rd day of December, 1997 and that I have signed this certificate in the presence of said Council at said regular meeting on said date. Paula R. Smith, City Clerk@. The City Clerk shall carefully preserve this ordinance and said document adopted by Section 1 hereof as the ALease Tax Code of the City of Birmingham, 1998@, as a part of the permanent records of her office. Section 3. That the Lease Tax Code of the City of Birmingham adopted by Ordinance 80-18 of the City of Birmingham on the 12th day of February, 1980 be and the same hereby is repealed as of the date upon which the ALease Tax Code of the City of Birmingham, 1998", adopted by Section 1 of this ordinance, becomes effective in the City of Birmingham as provided by Section 1; provided however, that neither any cause of action nor fine, forfeiture, judgement, penalty, right,
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remedy or defense accrued at said date, nor any prosecution or complaint pending at said date shall be in any manner released, affected, abated, or impaired by this ordinance or by the Code adopted by this ordinance. Section 4. That it be, and hereby is, proclaimed that the Code adopted by Section 1 hereof is on file with the City Clerk of the City of Birmingham, where the same may be inspected by the public, and that this proclamation and said Code shall be made public by publication of this proclamation as part of the publication of this ordinance as ordered by Section 5 hereof. Section 5. That prior to the date specified in Section 1 hereof at least fifteen (15) copies of this ordinance and of the Code adopted by Section 1 of this ordinance shall be prepared and bound within the appropriate covers and made available to the general public at the office of the Director of Finance of the City of Birmingham, provided that said Director may charge therefore at a rate not exceeding the cost per volume to the City. Each bound volume purporting in print to contain Ordinance No. 97-187 and the ALease Tax Code of the City of Birmingham, 1998", and to have been published by authority of this Council, shall be received as prime facie evidence as provided by Section 12-21-95, Code of Alabama 1975, and may be used by courts as an aid to judicial knowledge under Act No. 193 of the 1943 Session of the Legislature of Alabama. Section 6. That the City Clerk shall cause a true copy of this ordinance to be promptly published in a newspaper published and of general circulation in the City of Birmingham and shall carefully preserve in her office a thus published copy of said ordinance as part of the permanent records of her office.
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(STATE OF ALABAMA ) ) JEFFERSON COUNTY ) CERTIFICATE OF CITY CLERK I, Paula R. Smith, City Clerk, do hereby certify that the foregoing Ordinance adopting the ALease Tax Code of the City of Birmingham, 1998@ for the calendar year 1998, and continuing in effect until it is amended or repealed was duly and legally adopted by the Council of the City of Birmingham at a regular meeting held in the City of Birmingham, Alabama, on the 23rd day of December, 1997, and I further certify that the foregoing manuscript contains the full, complete and true manuscript of said Code, as adopted by said Council. GIVEN UNDER MY HAND AND CORPORATE SEAL of the City of Birmingham, this 29th day of December, 1997.
SEAL
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CERTIFICATE OF DIRECTOR OF FINANCE I, Mac Underwood, Director of Finance of the City of Birmingham, do hereby report to the Council of the City of Birmingham the annexed copy as the ALease Tax Code of the City of Birmingham, 1998@ for the calendar year 1998, and continuing in force until it is amended or repealed, and prepared in accordance with the direction of the Council of the City of Birmingham, this the 23rd day of December, 1997. GIVEN UNDER MY HAND this 29th day of December, 1997
MAC UNDERWOOD Director of Finance STATE OF ALABAMA ) ) JEFFERSON COUNTY ) CERTIFICATE OF COMPARISON To The President of the City Council I, Paula R. Smith, City Clerk, hereby certify the printed ALease Tax Code of the City of Birmingham, 1998@ for the calendar year 1998, and continuing in effect until it is amended or repealed corresponds accurately and is in full accord with the original manuscript as adopted by the Council of the City of Birmingham on the 23rd day of December, 1997. GIVEN UNDER MY HAND AND CORPORATE SEAL of the City of Birmingham, this 29th day of December, 1997.
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I, Mac Underwood, Director of Finance, the person charged with the duty of causing to be printed and bound 15 copies of the ALease Tax Code of the City of Birmingham, 1998@ for the calendar year 1998, and continuing in effect until it is amended or repealed, which was adopted by the Council of the City of Birmingham on the 23rd day of December, 1997, do hereby certify that I have caused to be read all the proofs and have caused to be corrected all manifest errors therein, and the Code, as printed, corresponds accurately with the original manuscript.
WHEREAS, by Ordinance No. 97-187 adopted by the Council of the City of Birmingham on the 23rd day of December, 1997 provide for the adoption of the ALease Tax Code of the City of Birmingham, 1998@ for the calendar year 1998 and continuing in effect until it is amended or repealed it was made the duty of the Mayor upon delivery of 15 copies of said Code to issue his proclamation announcing that fact and designating the first day of January, 1998, as the day on which said Code shall go into effect, and whereas, 15 copies of said Code have this day been delivered to me. Now, therefore, in pursuance of the authority conferred upon me by said Ordinance, I, Richard Arrington, Jr., Mayor of the City of Birmingham, hereby proclaim ALease Tax Code of the City of Birmingham, 1998@ for the calendar year 1998 and continuing in effect until it is amended or repealed as reported to the Council of the City of Birmingham by the Director of Finance on the 23rd day of December, 1997 in full force and effect as of January the 1st, 1998. Dated this the 29th day of December, 1997.
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THE LODGINGS TAX CODE
Adopted by Ordinance No. 02-113 on July 30, 2002
Effective December 1, 2002 and continuing in effect until amended or repealed
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Amended by Ordinance No. 02-177 adopted 12/10/02
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CITY OF BIRMINGHAM, ALABAMA ORDINANCE NO. 02-113
AN ORDINANCE TO PROVIDE FOR A MUNICIPAL PRIVILEGE TAX IMPOSED ON THE RENTAL OF ROOMS, LODGINGS, AND ACCOMMODATIONS WITHIN THE CITY OF BIRMINGHAM. BE IT ORDAINED by the Council of the City of Birmingham, Alabama, pursuant to Section 1151-90 Code of Alabama 1975, as follows: Section 1. DEFINITIONS. The following words, terms and phrases when used in this ordinance shall have the following meanings except 1) when the context clearly indicates a different meaning or 2) when the definition of such word or phrase conflicts with the same definition as contained in Section 40-26-1 or Section 40-2A-3 Code of Alabama 1975, in which case the State law definition will govern: (a) ABusiness@ means all activities engaged in, or caused to be engaged in, by any person with the object of gain, profit, benefit, or advantage, either direct or indirect to such person. (b) ACity@ means the City of Birmingham, Alabama. (c) ADepartment@ means the Department of Finance of the City of Birmingham, and includes the Director of Finance. (d) ADirector of Finance@ or ADirector@ means the Director of Finance of the City of Birmingham, Alabama or his or her duly authorized agent. (e) AFinal Assessment@ means the final notice of value, underpayment, or nonpayment of any tax administered by the department. (f) AGross Receipts@ means the total gross charges, both cash and credit, from the rental of any room, rooms, lodgings, accommodations, and including any charges for the use or rental of tangible 367
personal property and services furnished in connection therewith, and also including total collections made on credit charges previously claimed as deductions. (g) ANotice of Appeal@ means any written notice sufficient to identify the name of the taxpayer or other party appealing, the specific matter appealed from, the basis for such appeal, and the relief sought. (h) APerson@ or ACompany@ means and includes any individual, firm, foreign or domestic corporation, partnership, association, joint-stock company or joint-stock corporation, trust, business trust, cooperative non-profit membership, joint venture, estate, receiver, syndicate, holding company, society, limited liability company, limited liability partnership, unincorporated organization, and any other group or entity, or combination acting as a unit, in the singular or plural, and shall also include the agent or employee having charge or control of a business in the absence of the principals. (i) APetition for Refund@ shall mean a written request for a refund of tax previously paid, including in the form of an amended return. Unless otherwise provided by law, such request shall include sufficient information to identify the type and amount of tax overpaid, the taxpayer, the period included, the reasons for the refund and sufficient documentation as required by the Director of Finance. (j) APetition for Review@ shall mean a written document filed with the department in response to a preliminary assessment in which the taxpayer sets forth reasonably specific objections to the preliminary assessment. (k) APreliminary Assessment@ shall mean the preliminary notice of value or underpayment of any tax administered by the department. (l) APrivate Auditing or Collecting Firm@ means any person in the business of collecting, through contract or otherwise, lodgings taxes for the City of Birmingham, or auditing any taxpayer, through the examination of books and records, for the City of Birmingham. (m) AReturn@ shall mean any report, document, or other statement required to be filed with the department for the purpose of paying, reporting, or determining the proper amount of value or tax due. (n) ATax@ shall mean any amount, including applicable penalty and interest, levied or assessed against a taxpayer and which the department is required or authorized to administer under the provisions of Alabama law. (o) ATaxpayer@ means any person subject to or liable for tax herein levied; any person required to file a return with respect to, or to pay or remit the tax herein levied, or to report any information or value to the department, or its designee; or any person required to obtain or holding any interest in
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any license issued by the department, or its designee, or any person that may be affected by any act or refusal to act by the department, or its designee, or to keep any records required by this ordinance. (p) ATaxpayer=s Authorized Representative@ means any individual with written authority or power of attorney to represent a taxpayer before the department; provided however, that nothing herein shall be construed as entitling any such individual who is not a licensed attorney to engage in the practice of law. (q) ATaxpayers= Bill of Rights Pamphlet@ means a written pamphlet to be distributed by the department to all taxpayers whose books and records are being examined by the department, at or before the commencement of an examination, explaining in simple and nontechnical terms, the role of the department and the rights of the taxpayer whose books and records are being examined by the department during the examination and which shall be promptly revised from time to time to reflect any changes in the applicable law or rules. (r) References to the ACode of Alabama 1975@ shall mean such sections as are currently in effect and as it or they may be amended. (s) Where the phrase Areasonable cause@ is used in this ordinance, it shall include, but not be limited to, those instances in which the taxpayer has acted in good faith. The burden of proving reasonable cause shall be on the taxpayer.
Section 2. LEVY OF TAX. Effective December 1, 2002, and pursuant to City of Birmingham Ordinance No. 02-113, adopted July 30, 2002, there is hereby levied and shall be collected and remitted as herein provided, a lodging privilege or license tax as hereinafter provided: (a) Lodgings Tax Rate. On each person, firm, or corporation engaging or continuing within this City in the business of renting or furnishing any room or rooms, lodgings, or accommodations to transients in any hotel, motel, inn, tourist camp, tourist cabin, or any other place in which rooms lodgings, or accommodations are regularly furnished to transients for a consideration, there is hereby imposed, in addition to all other taxes of every kind now imposed by law, a privilege or license tax, in an amount to be determined by the application of the rate of three percent (3%) of the charge of such room, rooms, lodgings, or accommodations, including the charge for use or rental of personal property and services furnished in such rooms. (b) Relationship to State Law. This ordinance and the taxes levied herein shall be subject to all definitions, exceptions, exemptions, proceedings, requirements, rules regulations, provisions, penalties, fines punishments and deductions that are applicable to the taxes levied pursuant to Section 40-26-1 et seq, Code of Alabama 1975 (the ALodgings or Transient Occupancy Statutes@), except where inapplicable or herein otherwise provided.
Section 3. EXEMPTIONS. 369
3.1 GENERAL. There is exempted from the tax levied under this ordinance any rentals or services taxed under Division 1 of Article 1 of Chapter 23 of the Code of Alabama 1975. Taxes imposed by this ordinance shall be subject to all exemptions as are provided in Chapter 26, Title 40 Code of Alabama 1975, the State Lodging or Transient Occupancy Tax, as now or hereafter amended, all acts supplementary thereto except where inapplicable or where herein otherwise provided, all of which are adopted and made a part hereof by reference. 3.2 SPECIAL. Special exemptions from the taxes imposed by this ordinance are allowed in all other instances where the Lodgings Taxes levied under Chapter 26, Title 40, Code of Alabama 1975 are exempted under any other provision of the Code of Alabama 1975.
Section 4. LICENSE REQUIRED TO ENGAGE IN BUSINESS. If any person shall engage in or continue in any business for which a privilege tax is imposed by Section 2 of this ordinance as a condition precedent to engaging or continuing in such business, he shall apply for and obtain from the department a license to engage in and to conduct such business for the current tax year upon the condition that he shall pay the taxes accruing to the City under the provisions of this ordinance; provided, that no license shall be issued under the provisions of this ordinance to any person who has not complied with the provisions of this ordinance, and no provision of this ordinance shall be construed as relieving any person from the payment of any license or privilege tax now or hereafter imposed by law.
Section 5. FILING OF RETURNS; PAYMENT OF THE TAX; ANNUAL RETURN AND PAYMENT; BULK SUBMISSIONS. 5.1 Due Date and Contents of Returns; Payment of the Tax. Effective December 1, 2002, the taxes levied under the provisions of this ordinance shall be due and payable in monthly installments on or before the 20th day of the month next succeeding the month in which the tax accrues. On or before the twentieth (20th) day of each month, every person on whom the amounts levied hereunder are imposed shall report to the department, on a form prescribed by the department, a true and correct statement showing: (1) The gross proceeds or gross receipts, as the case may be, of the business from the renting or furnishing of any rooms, lodgings, or accommodations, including any charges for the use or rental of personal property and services furnished in such rooms, lodgings or accommodations, for the current reporting period; The amount of gross receipts which are not subject to the privilege or license tax, or are not to be used as a measure of the taxes due by such person, and the nature thereof; The amount of lodgings tax due based on those gross receipts reported;
(u)
(v)
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(4) (e) (6)
The number of rooming nights accrued during the reporting period; The correct reporting period; and Such other pertinent information as the department may deem necessary.
At the time of making such monthly report such person shall compute the privilege license taxes due and shall pay to the City the amounts shown to be due. 5.2 Annual Return and Payment. In addition to the monthly return required by this section, on or before January 31st of each year, each person, firm, or corporation liable for the payment of a privilege tax as levied by this ordinance shall make a return showing the gross proceeds of the business during the preceding year and compute the amount of tax chargeable against him or it in accordance with the provisions of this ordinance, and deduct the amount of monthly payments as hereinbefore provided, if any have been made, and transmit with this report a remittance in the form required by this ordinance covering the residue of the tax chargeable against him, to the department, and such report shall be verified by oath. 5.3 Taxpayer=s Responsibility When No Form Received. The department is authorized to provide prescribed printed forms necessary for compliance with the filing requirements outlined in this section. Failure of the taxpayer to receive forms from the department does not relieve the taxpayer of the responsibility of the timely reporting of the information required on the return, nor the timely payment of the tax. 5.4 Timely Mailing Treated as Timely Filing and Paying. The provisions outlined in this section for the timely filing of any returns, payments, claims, statements, or other documents shall be administered as herein provided. (1) Date of Delivery. If any return, claim, statement, or other document required to be filed, or any payment required to be made, within a prescribed period or on or before a prescribed date under the authority of any provision of this ordinance is, after such period or such date, delivered by United States mail to the Finance Department or to the department=s designated depository where such return, claim, statement, or other document is required to be filed, or to which such payment is required to be made, the date of the United States postmark stamped on the cover in which such return, claim, statement, or other document, or payment, is mailed shall be deemed to be the date of delivery, or the date of payment, as the case may be; provided, however: (a) Weekends and Holidays. When the due date falls on a Saturday, Sunday, or City of Birmingham holiday, payment of the tax may be made without penalty on the first working day following the due date. Mailing Requirements. The return, claim, statement, or other document, or payment was, within the time prescribed in subsection (1) above, deposited in 371
(b)
(2)
the mail in the United States in an envelope or other appropriate wrapper, postage prepaid, properly addressed to the Finance Department or to the department=s designated depository where such return, claim, statement, or other document is required to be filed, or to where such payment is required to be made. Delivery By Method Other Than United States Mail. Returns, claims, statements, or other documents, or payments which are required under any provision of this ordinance which are delivered by any method other than by mailing shall be considered timely filed when such items are received in the Finance Department or the department=s designated depository on the due date prescribed. Untimely Filing. Any return, payment, claim, statement, or other document not received in accordance with the provisions of this section shall be deemed untimely filed and shall be assessed applicable penalties and interest as prescribed by the relevant sections of this ordinance.
(3)
5.5 Bulk Submissions. The department may accept, for reporting and payment of taxes due the City, bulk submissions of reports, and under regulations promulgated by the department, payments owed to the City made on behalf of the taxpayer by its properly authorized representative where such submissions are made using the appropriate form prescribed by the department, as provided in Section 11-51-210(d) Code of Alabama 1975. Any such bulk submissions of reports and payments shall include: 1. The City=s assigned taxpayer identification number for each such taxpayer for each tax paid; and, Sufficiently detailed information by which each taxpayer can be identified such that a determination can be made as to the amount and method of assessment of tax against such taxpayer for the City.
2.
The acceptance by the City of such bulk submissions shall not relieve the taxpayer on whose behalf such submissions were made from liability for any lodgings tax arising from an error or omission made by the taxpayer=s representative. Such bulk submission shall be signed by the taxpayer or its properly authorized representative.
Section 6. EXTENSION OF TIME FOR MAKING RETURN. The Director of Finance, for reasonable cause, may extend the time for making any return required under the provisions of this ordinance, however, the time for filing any such return shall not be extended for a period greater than thirty (30) days from the date such return is due to be made and shall not prevent penalty and interest from accruing during the period of such extension.
Section 7. [Reserved] 372
Section 8. OATHS. The monthly reports herein required to be made are not required to be made under oath, but wherever in this ordinance any report is required to be sworn to, the same shall be sworn to by the taxpayer or his agent before some officer authorized to administer oaths, and any false statement to a material fact made with intent to defraud shall constitute perjury and upon conviction thereof the person so convicted shall be punished as provided in Section 1-1-6 of the General Code of the City of Birmingham 1980, as amended and as may be amended.
Section 9. MAINTENANCE OF RECORDS; INVESTIGATIVE POWERS; AUDIT AND SUBPOENA AUTHORITY. The provisions of this section shall be administered in accordance with the procedures set forth in Section 40-2A-7(a) Code of Alabama 1975. 9.1 RECORDS TO BE KEPT. It shall be the duty of every person, firm or corporation engaging or continuing in this City in any business for which a privilege or license tax is imposed by this ordinance, to keep and preserve an accurate and complete set of records suitable for the determination of the correct amount of gross receipts or gross proceeds of any such business and such other books or accounts as may be necessary to determine the amount of tax for which such person is liable under the provisions of this ordinance. It shall be the duty of every person, firm or corporation furnishing rooms, lodgings, or accommodations in this city to keep and preserve for a period of not less than five (5) years from the due date of the return on which the underlying tax is required to be reported, or five (5) years of the date the return is filed, whichever is later, all invoices of gross proceeds, or gross receipts, and other pertinent papers, in such form as the City may require, proceeding or accruing from the furnishing of rooms, lodgings, or accommodations herein taxed. All such books, invoices, equipment and other records shall be open for examination by the department, upon request, at a reasonable time and location. (a) Reasonable Time and Reasonable Location. AReasonable time@ shall be considered to be during normal business hours of the department. AReasonable location@ shall be considered to be the taxpayer=s place of business or the offices of the taxpayer=s authorized representative, provided such business or representative is located within a fifty (50) mile radius of the City of Birmingham. Taxpayers maintaining records outside of this radius must make records available at City Hall or at such other location as agreed upon by the department. The department, when conducting an audit, review, or examination for verification, may, at its election, require any taxpayer conducting business within the City to provide records, accounts, books, papers and other documents at a reasonable time and reasonable place agreed upon by the department, as provided herein. Taxpayer May Be Assessed Reasonable Costs. As provided in Section 40-2A-6(d) Code of Alabama 1975, the department may assess and collect from the taxpayer, the reasonable costs, based on the then current state government employee per diem rates incurred by, or charged to, the City in connection with performing an examination of 373
(b)
the taxpayer=s books and records if the taxpayer received notice by certified U.S. mail, return receipt requested, at least thirty (30) days prior to the date on which the examination was to commence, and 1. The taxpayer either failed or refused to respond or did not propose a reasonable alternative date on which the examination was to commence within 15 days of receipt of notice of the pending examination, or if 2. The taxpayer and the department agreed in writing as to an alternative date on which the examination was to commence but the taxpayer then failed or refused to permit reasonable access to its books and records on the alternative date.
9.2 INVESTIGATIVE POWERS. Each taxpayer shall give to the Director of Finance the means, facilities and opportunity for the making of such audit, examination and investigation of the records, books, or other relevant information maintained by any taxpayer or other person for the purpose of computing and determining the correct amount of value or the correct amount of tax as provided for in Section 9.1. The Director of Finance is hereby authorized to examine any person under oath concerning any gross receipts or gross proceeds which were or should have been shown in a return, and to this end, he may compel the production of books, papers, records and the attendance of all persons before him, whether as parties or as witnesses, whom he believes to have knowledge of such gross receipts or gross proceeds. (a) Any taxpayer, or officer of a corporation or association, or partner of a partnership, or fiduciary of a trust, or responsible individual of any entity under a duty to maintain books and records pursuant to this ordinance, who fails or refuses to maintain or provide such records and books, or permit inspection, as required herein, shall be subject to the provisions of Section 11 of this ordinance, and shall be subject to contempt proceedings in the Circuit Court.
Section 10. REFUNDS. 10.1 PETITIONS FOR REFUND. Any taxpayer may file a petition for refund with the department for any overpayment of tax erroneously paid to the department as provided in Section 40-2A-7(c)(1) Code of Alabama 1975. If a final assessment for the tax has been entered by the department, a petition for refund of all or a portion of the tax may be filed only if the final 374
assessment plus applicable interest has been paid in full prior to or with the filing of the petition for refund. The petition for the refund must be filed in writing by the taxpayer who paid the privilege or license tax to the department. Unless otherwise provided by law, all petitions for refund shall include sufficient information to identify the type and amount of tax overpaid, the taxpayer, the period included, and the reasons for the refund, and sufficient documentation as required by the Director of Finance. 10.2 REFUND OVERPAYMENT APPLIED TO OTHER TAXES. Refund overpayments may be applied to other taxes as provided in Section 40-2A-7(c)(4) Code of Alabama 1975. If a petition is granted by the department, or a court determines that a refund is due, the overpayment shall be refunded to the taxpayer by the department. If the department determines that a refund is due, the amount of overpayment may first be credited by the department against any outstanding final tax liabilities due and owing by the taxpayer to the department, and the balance of any overpayment shall be refunded to the taxpayer. If any refund or part thereof is credited to any other tax by the department, the department shall provide a written detailed statement to the taxpayer showing the amount of overpayment, the amount credited for payment to other taxes, and the amount refunded. 10.3 TIME LIMITATIONS. (a) A petition for refund must be filed in writing with the department within (i) three (3) years from the date the return was filed or (ii) two (2) years from the date of payment of the tax, whichever is later, or (iii) if no return was timely filed, two (2) years from the date of the payment of the tax. (b) The department shall either grant or deny a petition for refund within six (6) months from the date the petition is filed, unless the period is extended by written agreement of the taxpayer and the department. The taxpayer shall be notified of the department=s decision concerning the petition for refund by first class United States mail, or by certified mail, with return receipt requested, sent to the taxpayer=s last known address. If the department is unable to grant a refund within the time provided herein due to the taxpayer's failure to provide adequate documentation, the petition for refund shall be deemed to be denied. (c) The department and the taxpayer may, prior to the expiration of the period for the filing of a petition for refund, agree in writing to extend the time provided for filing the petition. The petition for refund may be filed at any time prior to the expiration of the period agreed upon. The period agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon. 10.4 INTEREST ON REFUNDS. On any overpayment of any lodgings tax levied under any provisions of this ordinance, the City, in addition to the amount of the overpayment, shall refund interest thereon at the rate of one percent (1%) per month, or fraction thereof, from the date of such overpayment on any refund of tax erroneously paid. As provided in Section 11-51-208(f) Code of Alabama 1975, references in this subsection to Aerroneously paid@ taxes on which interest shall be due to the taxpayer shall only mean and refer to taxes erroneously paid to the City as a result of any 375
error, omission, or inaccurate written advice by or on behalf of the City, including in connection with a prior examination of its books and records by the City. Section 11. JEOPARDY, PRELIMINARY, FINAL ASSESSMENTS AND TIME LIMITATIONS. 11.1 JEOPARDY ASSESSMENTS. All jeopardy assessments issued by the department shall be executed pursuant to Section 40-29-91(a), (b), and (c) Code of Alabama 1975. (a) If the Director of Finance finds that a taxpayer designs quickly to depart from the City of Birmingham or to remove his property therein or to do any other act tending to prejudice or to render wholly or partly ineffectual proceedings to collect any tax imposed by this ordinance, the Director of Finance may issue notice of such finding to the taxpayer by personal service or mailing to his/her last known address, together with a demand for immediate payment of the tax declared to be in jeopardy, including, penalties and additions thereto and such taxes, penalty, interest, and additions thereto shall be immediately due and payable. A final assessment of such tax may be entered immediately and if the assessment is not paid upon such demand of the Director, the Director may forthwith issue a warrant for levy and distraint of any personal property of the taxpayer which shall be collected in the same manner and with the like effect as provided under Section 24 of this ordinance. (b) In the case of a tax for a current period, the Director may declare the taxable period of the taxpayer immediately terminated and may at his discretion estimate the tax liability based upon the best information obtainable. Notice of such finding and declaration shall be issued to the taxpayer in the same manner as in subsection (a). (c) When a jeopardy assessment has been made pursuant to subsection (a), the collection of all or any part of such assessment may be stayed by filing with the Director an approved bond conditioned upon the payment of the assessment together with applicable interest and cost of collection. The Director shall have sole discretion to approve or disapprove the bond, but such approval shall not be unreasonably withheld. 11.2 PRELIMINARY AND FINAL ASSESSMENTS. All preliminary and final assessments issued by the department shall be executed as provided in Sections 40-2A-7(b)(1)a, 40-2A-7(b)(3), 40-2A-7(b)(4), 40-2A-7(b)(1)b, and 40-29-91 Code of Alabama 1975. The terms Apreliminary assessment@ and Afinal assessment@ shall have the respective meanings ascribed by Section 40-2A-3 Code of Alabama 1975. (1) Entry Of Preliminary Assessment. If the department determines that the amount of any tax as reported on a return is incorrect, or if no return is filed, or if the department is required to determine value, the department may calculate the correct tax or value based on the most accurate and complete information reasonably obtainable by the department. The department may thereafter enter a preliminary assessment for the correct tax or value, including any applicable penalty and interest.
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(2) Service Of Preliminary Assessment Upon Taxpayer. The preliminary assessment entered by the department, or a copy thereof, shall be promptly mailed by the department to the taxpayer=s last known address by either first class U.S. mail or certified mail with return receipt requested, but at the option of the department, the preliminary assessment may be delivered to the taxpayer by personal delivery. (a) Disputed Preliminary Assessments. If a taxpayer disagrees with a preliminary assessment as entered by the department, the taxpayer may file a written petition for review with the Director of Finance within thirty (30) calendar days from the date of entry of the preliminary assessment, setting out the specific objections to the preliminary assessment and showing cause why such assessment should not be made final. If a petition for review is timely filed, or if the department otherwise deems it necessary, the department shall schedule a conference with the taxpayer for the purpose of allowing the taxpayer and the department to present their respective positions, discuss any omissions or errors, and to attempt to agree upon any changes or modifications to their respective positions. If a written petition for an appeal/review: 1. Is not timely filed, or 2. Is properly filed, and upon further review the department determines the preliminary assessment is due to be upheld in whole or in part, the department may make the assessment final in the amount of tax due as computed by the department, with applicable interest and penalty computed to the date of entry of the final assessment.
(b)
(3) Service of Final Assessment Upon Taxpayer. The final assessment entered by the department, or a copy thereof, shall be mailed by the department to the taxpayer=s last known address (i) by either first class U.S. mail or certified mail with return receipt requested in the case of assessments of tax of five hundred dollars ($500) or less or (ii) by certified mail with return receipt requested in the case of assessments of tax of more than five hundred dollars ($500). In either case and at the option of the department, the final assessment, or a copy thereof, may be delivered to the taxpayer by personal delivery. 11.3 TIME LIMITATION FOR ENTERING ASSESSMENT. (a) Pursuant to Section 40-2A-7(b)(2) Code of Alabama 1975, any preliminary assessment must be entered within three (3) years from the due date of the return, or three (3) years from the date the return was filed with the department, whichever is later, or if no return is required to be filed, within three (3) years of the due date of the tax, except as follows: (1) A preliminary assessment may be entered at any time if no return is filed as required, or if a false or fraudulent return is filed with the intent to evade tax; A preliminary assessment may be entered within six (6) years from the due date of the return or six (6) years from the date the return is filed with the department, 377
(2)
whichever is later, if the taxpayer omits from the taxable base an amount properly includable therein which is in excess of twenty-five percent (25%) of the amount of the taxable base stated in the return. For purposes of this paragraph: (a) The term Ataxable base@ means the gross proceeds from renting, or furnishing any room or rooms, lodging, or accommodations to transients in any hotel, motel, inn, tourist camp, tourist cabin, or any other place in which rooms, lodgings, or accommodations are regularly furnished to transients for a consideration, gross receipts, or other amounts on which the tax paid with the return is computed; and In determining the amount omitted from the taxable base, there shall not be taken into account any amount which is omitted from the taxable base stated in the return if the amount is disclosed in the return, or in a statement attached to the return, in a manner adequate to apprise the department of the nature and amount of the item.
(b)
(3)
Section 12. APPEALS. Appeals from denial of refunds, jeopardy assessments, and final assessments shall be executed as provided in Sections 6-3-11, Code of Alabama 1975. A written notice of appeal shall be filed with the department and shall contain information sufficient to: (1) identify the name of the taxpayer or other party filing such notice of appeal, (2) identify the specific matter appealed from, (3) outlined the basis for such appeal, and (4) specify the relief sought. 12.1 APPEAL FROM REFUND DENIAL. (a) A taxpayer may appeal from the denial in whole or in part of a petition for refund by filing a written notice of appeal with the Circuit Court within two (2) years from the date the petition is 378
denied. The Circuit Court shall hear the appeal according to its own rules and procedures and shall determine the correct amount of refund due, if any. (b) If an appeal is not filed with the Circuit Court, within two (2) years of the date the petition is denied, then the appeal shall be dismissed for lack of jurisdiction. 12.2 APPEAL FROM JEOPARDY ASSESSMENT. (a) In any court proceeding to contest the jeopardy assessment or to enforce payment of the taxes made due and payable by virtue of the provisions of Section 11 of this ordinance, the finding of the Director of Finance made as herein provided, shall be for all purposes presumptive evidence of jeopardy. (b) A final jeopardy assessment entered hereunder may be appealed to either the Director of Finance or the Circuit Court in the same manner as provided in subsection 12.4 of this section for the appeal of final assessments. On appeal to the Director of Finance or to the Circuit Court, the final jeopardy assessment shall be prima facie correct, and the burden of proof shall be on the taxpayer to prove such assessment is incorrect. (c) If an appeal is not filed with the Director of Finance or in the Circuit Court within the time provided herein for appeals of final assessments, the appeal shall be dismissed for lack of jurisdiction. 12.3 APPEAL FROM PRELIMINARY ASSESSMENT. (Refer to Section 11.2 (2)(a) and (b).) 12.4 APPEAL FROM FINAL ASSESSMENT. (a) A taxpayer may appeal from any final assessment entered by the department by filing a written notice of appeal with the Director of Finance within thirty (30) days from the date of entry of the final assessment, and the appeal if timely filed, shall proceed as herein provided. (b) In lieu of the appeal under paragraph (a) of this subsection, at the option of the taxpayer, the taxpayer may appeal from any final assessment to the Circuit Court by filing written notice of appeal within thirty (30) days from the date of entry of the final assessment with both the Director of Finance and the Circuit Court. If the appeal is to Circuit Court, the taxpayer shall, also within the thirty (30) day period allowed for appeal, either (i) pay the tax, interest, and any penalty shown on the final assessment, or (ii) file a supersedeas bond with the court in double the amount of the tax, interest, and any penalty shown on the final assessment. The supersedeas bond shall be executed by a surety company licensed and authorized to do business in the State of Alabama and shall be conditioned to pay the assessment plus applicable interest, penalty, and any court costs relating to the appeal. A taxpayer may appeal a final assessment to Circuit Court as provided herein, even though the taxpayer has paid the tax in issue prior to taking the appeal. (c) The filing of the written notice of appeal with the Director of Finance or, in the case of appeals to the Circuit Court, the filing of such notice of appeal with both the Director of Finance and the Circuit Court, and also the payment of the assessment in full and applicable interest and penalty or 379
the filing of a bond as provided herein, are jurisdictional. If such prerequisites are not satisfied within the time provided for appeal, the appeal shall be dismissed for lack of jurisdiction. On appeal to the Circuit Court or to the Director of Finance, the final assessment shall be prima facie correct, and the burden of proof shall be on the taxpayer to prove such assessment is incorrect.
Section 13. PENALTIES AND INTEREST. The provisions for penalties are pursuant to Section 40-2A-11 Code of Alabama 1975; provided, however, the rates and amounts of penalties are as provided herein. 13.1 FAILURE TO TIMELY FILE RETURN. If a taxpayer fails, neglects, or refuses to file any return required to be filed with the department on or before the date prescribed therefor, determined with regard to any extension of time for filing granted by the Director of Finance, there shall be assessed, in addition to the tax due or the amount of tax herein required to be remitted, a penalty of ten percent (10%) of the amount due or fifty dollars ($50.00), whichever is greater, together with interest thereon at the rate of one percent (1%) per month or fraction thereof, from the date at which the tax herein levied became due and payable, such penalty and interest to be assessed and collected as part of the tax as provided in Section 40-2A-11(a) Code of Alabama 1975. 13.2 FAILURE TO TIMELY PAY TAX. If a taxpayer fails, neglects, or refuses to remit to the Department the amount of tax shown as due on a return required to be filed on or before the date prescribed for payment of the tax, determined with regard to any extension of time for payment granted by the Director of Finance, there shall be added: (1) (2) (3) In addition to the tax due or the amount of tax herein required to be remitted; or For any tax for which a monthly return is required; or For which no return is required,
a penalty of ten percent (10%) of the unpaid amount shown as tax due on the return or the amount stated in the notice and demand, together with interest thereon at the rate of one percent (1%) per month or fraction thereof, from the date at which the tax herein levied became due and payable as provided in Section 40-2A-11(b) Code of Alabama 1975. 13.3 UNDERPAYMENT OF TAX. Any taxpayer failing to pay the tax herein levied to the City or any amount of tax herein required to be remitted and paid to the City, within the time required by this ordinance shall pay, in addition to the tax or the amount of tax herein required to be remitted, a penalty of ten percent (10%) the amount of tax due plus interest at the rate of one percent (1%) per month, or fraction thereof, from the date at which the tax or the amount of tax herein required to be remitted became delinquent, that is, due and payable to the City. 13.4 UNDERPAYMENT DUE TO NEGLIGENCE. If any part of any underpayment of tax is due to negligence or disregard of rules or regulations, there shall be added to the tax an amount equal to ten percent (10%) of that part of the tax attributable to negligence or disregard of rules or regulations. For the purpose of this section, the term Anegligence@ includes any failure to make a 380
reasonable attempt to comply with this ordinance, and the term Adisregard@ includes any careless, reckless or intentional disregard as provided in Section 40-2A-11(c) Code of Alabama 1975. 13.5 UNDERPAYMENT DUE TO FRAUD. If any part of any underpayment of tax required to be shown on a return is due to fraud, there shall be added to the tax an amount equal to fifty percent (50%) of that portion of the underpayment which is attributable to fraud. For purposes of this section, the term A fraud@ shall have the same meaning as ascribed to the term under Section 40-2A11(d) Code of Alabama 1975. 13.6 FRIVOLOUS APPEAL PENALTY. If any appeal to the Director of Finance or to Circuit Court is determined to be frivolous or primarily for the purpose of delay or to impede collection of the tax imposed by this ordinance, a penalty of two hundred fifty dollars ($250.00) or twenty-five percent (25%) of the tax in question, whichever is greater, shall be assessed in addition to any tax due, as provided in Section 40-2A-11(f) Code of Alabama 1975. 13.7 PENALTIES NOT EXCLUSIVE. The penalties provided in this section for failure to timely file a return, failure to timely pay tax, underpayment of tax, underpayment due to negligence and fraud, or filing a frivolous appeal may be asserted against the same taxpayer for the same tax period, as provided in Section 40-2A-11(g) Code of Alabama 1975. 13.8 WAIVER OF PENALTIES. Penalties may be waived, in whole or in part, by the Director of Finance upon a determination of reasonable cause, pursuant to Section 40-2A-11(h) Code of Alabama 1975. Reasonable cause shall include, but not be limited to, those instances in which the taxpayer has acted in good faith. The burden of proving reasonable cause shall be on the taxpayer. 13.9 PENALTY AND INTEREST ASSESSED AS TAX. All penalties and interest, levied or assessed against a taxpayer and which are administered by the department shall be assessed and collected in the same manner as taxes. 13.10 INTEREST. Interest shall be computed at a rate of one percent (1%) per month, or fraction thereof and shall be added as provided herein to any tax or other amount due the department which is not paid by the due date. Interest on any delinquency or underpayment shall be charged from the due date of the tax, as provided in Section 40-1-44 Code of Alabama 1975. 13.11 ABATEMENT OF PENALTY. The department shall abate any penalty attributable to erroneous written advice furnished to a taxpayer by an employee of the department. However, this subsection shall apply only if the department employee provided the written advice in good faith while acting in his official capacity, the written advice was reasonably relied on by the taxpayer and was in response to a specific written request of the taxpayer, and the penalty did not result from the taxpayer=s failure to provide adequate or accurate information. 13.12 PENALTY FOR FAILURE TO PERFORM DUTIES. Any person required to collect, truthfully account for, and/or pay over any tax imposed by this ordinance who willfully fails to collect such tax, or truthfully account for, and/or pay over such tax, or willfully attempts in any 381
manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable for a penalty up to the total amount of the tax evaded, or not collected, or not accounted for and paid over.
(d) Nothing herein shall prohibit the use of tax returns or tax information by the department in the enforcement, collection, and assessment of any tax levied or imposed by this ordinance, or any other matters administered by the department. The department may also divulge to a purchaser or successor of a business or stock of goods the outstanding tax liability of the seller for which the purchaser or successor may be liable pursuant to Section 16 of this ordinance. This section shall not preclude the inspection of returns by federal or foreign state agents pursuant to Section 40-18-53 Code of Alabama 1975.
382
Section 15. REGULATIONS MAY BE PROMULGATED; PAYMENTS DUE TAXPAYERS MAY BE WITHHELD. Regulations may be promulgated as provided in Section 40-26-19 and Section 11-51-204 Code of Alabama 1975. 15.1 REGULATIONS MAY BE PROMULGATED. (a) The Director of Finance shall from time to time promulgate rules and regulations for making returns and for ascertainment, assessment and remittance of the tax imposed hereunder as he/she may deem necessary to enforce its provisions; and upon request shall furnish any taxpayer with a copy of such rules and regulations. (b) The Director of Finance may prescribe, adopt, promulgate and enforce reasonable rules and regulations not in conflict with this ordinance relating to any matter or thing pertaining to the administration and enforcement of the provisions of this ordinance, including but not limited to provisions for the re-examination and correction of returns as to which overpayment or underpayment is claimed or found to have been made, and the rules and regulations so promulgated shall be binding upon all taxpayers. (c) The Director of Finance shall prescribe printed forms for use by persons subject to the provisions of this ordinance and shall make such forms available at his/her office for use by such persons. 15.2 PAYMENTS DUE TAXPAYERS MAY BE WITHHELD. Pursuant to the Mayor-Council Act, Article VI, Section 6.04(o), Act No. 452-55, Acts of Alabama, the Director of Finance, in order to protect the interests of the City, is authorized to withhold the payment of any claim or demand for payment of monies due from the City to any vendor, contractor, consultant or other person having unpaid or delinquent tax or license liabilities until such unpaid tax, including applicable interest and penalties, shall first have been settled and adjusted. The Director of Finance shall notify the taxpayer by certified mail with return receipt requested, sent to the taxpayer=s last known address, of his/her intention to make such levy, the effect of which shall be continuous from the date such levy is first made until the liability out of which such levy arose is satisfied.
Section 16. PURCHASER TO WITHHOLD TAXES FROM PURCHASE MONEY OR BE LIABLE. If any person subject to the provisions hereof shall sell out his business or stock of goods, or shall quit the business, he shall be required to make a final return, as provided for under Section 5 of this ordinance, and shall make payment of the taxes due within thirty (30) days after the date of 383
selling or quitting business. His successor in business shall be required to withhold sufficient of the purchase money to cover the amount of said taxes herein required to be remitted, and any interest or penalties due and unpaid until such time as the former owner shall produce a receipt from the department showing that the taxes have been paid, or a certificate stating that no taxes are due. If the purchaser of a business or stock of goods shall fail to withhold purchase money as provided herein, and the taxes remain due and unpaid after the thirty (30) day period allowed, he shall be personally liable for the payment of the taxes herein required to be remitted, interest, and penalties accrued and unpaid on account of the operation of the business by the former owner. If in such cases the department deems it necessary in order to collect the taxes due the City, it may make a jeopardy assessment as provided in Title 40 Chapter 29 of the Code of Alabama 1975.
Section 17. DISPOSITION OF FUNDS DERIVED FROM TAXES. All monies derived from the lodgings tax levied under the provisions of this ordinance shall be paid to City and placed to the credit of the General Fund of the City of Birmingham, and shall be used and expended as authorized by law and ordinance.
Section 18. CASH AND CREDIT BUSINESSES. Any person, firm or corporation taxable under this ordinance having a cash and credit business may report such cash business and the taxpayer shall thereafter include in each monthly report all credit collections made during the month preceding and shall pay the taxes due thereon at the time of filing such report, but in no event shall the gross proceeds of such credit business be included in the measure of the tax to be paid until collections of such credit business shall have been made.
Sections 19 through 20.
[Reserved]
Section 21. CREDIT FOR LODGINGS TAX ERRONEOUSLY PAID. 21.1 TAXES DUE THE CITY WHICH WERE ERRONEOUSLY PAID TO ANOTHER MUNICIPALITY. (a) Requirement to Request Refund of Erroneous Tax Payment Within 60 Days of Notice to Avoid Interest, Penalties (Taxpayer). In order to avoid the accrual of interest and any otherwise applicable penalties on the tax due the City of Birmingham, when a lodgings tax owed to the City of Birmingham is erroneously paid to a different municipality or county in good faith, based on a reasonable interpretation of the enabling ordinance, resolution, or act levying or authorizing the tax, but not under a requirement of law, the taxpayer making the erroneous payment must comply with the applicable refund procedures of such municipality or county within 60 days of receiving notice from the City, a county, or other municipality or its agent of the erroneous payment.
384
(b)
Compliance With Refund Procedure; Interest, Penalties. If the taxpayer complies with the refund procedure within the requisite 60-day period, the City shall not assess or attempt to assess the tax, or any related interest or otherwise applicable penalty thereon until the date of receipt of the overpayment from the refunding municipality or county by the taxpayer or the taxpayer=s agent, and no interest or penalty thereon shall accrue until such date of receipt. The taxpayer shall remit the disputed tax to the City within 15 days after receipt. Failure to Comply With Refund Procedure; Interest, Penalties. If the taxpayer fails to comply with the refund procedures within the requisite 60-day period, interest and any applicable penalties shall accrue on the tax to which the City is entitled from the sixty-first (61st) day and until such time as the tax is paid.
(c)
21.2 TAXES DUE TO ANOTHER MUNICIPALITY WHICH WERE ERRONEOUSLY PAID TO THE CITY OF BIRMINGHAM. (a) Requirement to Refund Overpayment of Erroneous Tax Payment Within 60 Days of Compliance With Refund Procedures (City of Birmingham). If a lodgings tax owed to another municipality or county is erroneously paid to the City of Birmingham in good faith, based on a reasonable interpretation of the enabling ordinance, resolution, or act levying or authorizing the lodgings tax, but not under a requirement of law, the City shall refund the overpaid tax, without interest, to the taxpayer within 60 days of the taxpayer=s compliance with applicable refund procedures provided in Section 10 of this Ordinance. Refund of Excess Tax; Requirements. Provided, however, that if the applicable rate of lodgings tax imposed by the City exceeds the rate of lodgings tax imposed by the proper locality under a requirement of law, the City shall not be obligated to refund the difference.
(b)
Section 23. COLLECTION AFTER ASSESSMENT. The tax herein required to be remitted may be collected by levy as provided in Section 40-29-51 Code of Alabama 1975, as follows: (a) Length of period. Where the assessment of any tax imposed by this ordinance has been begun or made within the period of limitation properly applicable thereto, such tax may be collected by levy or by a proceeding in court, but only if the levy is made or the proceeding begun: (1) (2) Within the period allowed by law after the final assessment of the tax; or Prior to the expiration of any period for collection agreed upon in writing by the Director of Finance and the taxpayer before the expiration of such period allowed by law, (or, if there is a release of levy under Section 40-29-34 Code of Alabama 1975, after such period allowed by law, then before such release). 385
Section 24. LIEN FOR TAXES. Pursuant to Sections 40-29-20, 40-29-21, and 11-51-96 Code of Alabama 1975, the provisions of this section shall apply to the taxes, and/or any penalty or interest payable thereon, levied under this ordinance. (a) Notice of Lien. If any person liable to pay the privilege or license tax herein levied, neglects or refuses to pay the same within thirty (30) days of the final assessment, the amount (including any interest, additional amount, addition to tax, or assessable penalty together with filing fees and any other costs that may accrue in addition thereto) shall be a lien in favor of the City of Birmingham upon all property and rights to property, whether real or personal, tangible or intangible, used in any exhibition, trade, business, vocation, occupation or profession for which a privilege or license tax is or may be required. The department shall give a thirty (30) day ANotice of Intent to File Lien@ to the taxpayer by any one of the following methods: (1) (2) (3) Given in person; Left at the dwelling or usual place of business of such person; or Sent by certified mail with return receipt requested to the taxpayer=s last known address.
(b) Term. Unless another date is specifically fixed by law, the lien imposed by subsection (a) shall arise at the time the final assessment, return therefor or the payment thereof, whichever is prior, was due to have been filed with or made to the department, and shall continue until the liability for the amount so assessed (or a judgment against the taxpayer arising out of such liability) is satisfied or becomes unenforceable by reason of lapse of time. (c) Right To Enforce Lien By Attachment. The department may enforce such lien in any court of competent jurisdiction, by attachment issued by any officer authorized to issue such writs, upon executing bond as in other cases of attachment, and upon making affidavit that the attachment is not sued out for the purpose of vexing or harassing the defendant, and describing the property on which the lien is claimed and setting forth all the facts necessary to the creation of the lien, and amount due and unpaid, (including any interest, additional amount, addition to tax, or assessable penalty together with filing fees and any other costs that may accrue in addition thereto). 386
(d) Release of Lien. With respect to a lien described in this section, the Director of Finance shall, within ten (10) days, release the lien when the liability out of which such lien arose is satisfied, and shall promptly notify the person upon whom such lien was made that such lien has been released.
Section 25. COLLECTION BY CIVIL SUIT. The department may initiate and/or maintain a civil action to recover delinquent taxes herein levied, interest, penalties, and administrative cost incurred in connection therewith, in any court of competent jurisdiction, which remedy shall be in addition to any and all other remedies which may be provided.
Section 26. VIOLATOR MAY BE RESTRAINED FROM CONTINUING IN BUSINESS. Any taxpayer who shall violate any of the provisions of this ordinance may be restrained from continuing in business, and proper prosecution shall be instituted in the name of the City of Birmingham until such person shall have compiled with the provisions of this ordinance.
Section 27. VIOLATIONS. 27.1 FAILURE TO PAY THE TAX, MAKE REPORTS, KEEP OR PROVIDE RECORDS. Any person subject to the provisions of this ordinance, who shall fail to pay the tax, make the reports or any of them as herein required, or who shall fail to keep or provide records, or supply any information as herein required, shall, as provided in Section 40-26-8 Code of Alabama 1975, be guilty of a misdemeanor, and upon conviction shall be fined not less than twenty-five dollars ($25) nor more than five hundred dollars ($500.00) for each offense, and in addition, may be imprisoned for period not to exceed six (6) months. Each occurrence of such failure shall constitute a separate offense. 27.2 WILLFUL REFUSAL TO MAKE REPORTS OR PERMIT EXAMINATION OF RECORDS. Any person subject to the provisions of this ordinance willfully failing or refusing to make the reports, furnish any supplemental returns or other data herein required, or who shall refuse to permit the examination of his records by the department, shall be guilty of a misdemeanor, and upon conviction shall be fined not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00) for each offense, and in addition may be imprisoned for a period not to exceed six (6) months. Each month of failure to make such reports shall constitute a separate offense, and each refusal of a written demand by the department to examine, inspect or audit such records shall constitute a separate offense. 27.3 FAILURE TO ADD TAX TO PRICE OF SERVICE; REFUND OR ABSORPTION OF TAX PROHIBITED. It shall be unlawful for any person, firm or corporation engaged in or continuing within this city in any business for which a privilege or license tax is required by this ordinance to fail or refuse to add to the price of the service rendered the amount due by the taxpayer on account of the tax levied by this ordinance. Nor shall any person refund or offer to refund all or 387
any pert of the amount collected as tax under this ordinance or to absorb such tax or to advertise directly or indirectly the absorption or refund of such tax or any portion of the same. Any person firm, or corporation violating any of the provisions of this section shall be guilty of a misdemeanor and upon conviction shall be fined in a sum not less than fifty dollars ($50) nor more than one hundred dollars ($100), or may be imprisoned in the city jail for not more than six months, or by both such fine and imprisonment, and each act or violation of the provisions of this ordinance shall constitute a separate offense. 27.4 VIOLATION OF ORDINANCE. Any person who shall fail, neglect, or refuse to perform any duty imposed by this ordinance or other City ordinances, or any rule, regulation or law thereof, or who shall fail or neglect to do or perform any act or series of acts as required by this ordinance or other City ordinances shall, upon conviction, be punished by a fine not exceeding five hundred dollars ($500.00) for each offense, and in addition may be imprisoned for a period not to exceed six (6) months, or by both such fine and imprisonment, pursuant to Section 1-1-6 General Code of the City of Birmingham 1980, as amended and as may be amended.
Section 28. REQUEST FOR RULING ON DETERMINATION OF TAXATION. Any taxpayer may request a ruling on the determination of whether amounts of gross receipts from the furnishing of rooms, lodgings, or accommodations by him or it are subject to the tax, or are not to be used as a measure of the taxes due and payable as levied by this ordinance. Such requests shall be made in writing to the Finance Department, and shall contain all pertinent facts, and shall include a copy of any written determinations or revenue rulings issued by the State of Alabama Department of Revenue relating to the item(s) in question.
Section 29. SEVERABILITY. The provisions of this ordinance are severable. If any provision, section, paragraph, sentence or part thereof, or the application thereof to any person, shall be declared unconstitutional or invalid, by a court of competent jurisdiction, such declaration shall not affect or impair the remainder of the ordinance, it being the legislative intent to ordain and enact each provision, section, paragraph, sentence and part thereof, separately and independently of each other.
Section 30. ARTICLE CUMULATIVE. This ordinance shall not be construed to repeal any of the provisions of The Business License Code of the City of Birmingham (Ordinance No. 97-183, as amended and as it may be amended), but shall be held to be cumulative and the amounts of the taxes herein levied shall be in addition to the amounts of other license taxes imposed by the City by its Business License Code.
Section 31. EFFECTIVE DATE OF ORDINANCE. This ordinance shall become effective and operative as such commencing on and after January 1, 2003, and on and after said date shall be binding in the City of Birmingham. 388
BERNARD KINCAID Mayor
389
390

2004 Birmingham Business License Code

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2004 Birmingham Business License Code

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CITY OF BIRMINGHAM, ALABAMA

BUSINESS LICENSE CODE

OCCUPATIONAL TAX CODE

SALES TAX CODE

USE TAX CODE

LEASE TAX CODE

LODGINGS TAX CODE

Folasade A. Olanipekun Director of Finance

Michael Johnson Deputy Director of Finance

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THE BUSINESS LICENSE CODE

Adopted by Ordinance No. 97-183 on December 23, 1997

Effective January 1, 1998 and continuing in effect until amended or repealed

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THE BUSINESS LICENSE CODE of the CITY OF BIRMINGHAM, ALABAMA

039 - BOTTLERS, MANUFACTURING 13

047 - CAR BUILDERS (RAILROAD) 15

Permit to be obtained from Mayor's Office before issuance of license.

required for all establishments selling tobacco products.

066 - CONCERTS, SHOWS, DEBATES, AMUSEMENT AND ENTERTAINMENTS 18

License Amt = = = = = $ 50,000 $ 50,000 $ 50,000 $ 10,000 $160,000

$ 50,000,000 x .001 $100,000,000 x .0005 $250,000,000 x .0002 $500,000,000

094 - DRY CLEANING 26

102 - FISH AND OYSTER PEDDLER 29

125 - HAT CLEANING 35

Division at the time of application a current, valid Health Department Permit.

oil is sold of............................................................................................................................$ 60.00

213A - REAL ESTATE AGENTS AND/OR BROKERS 60

225 - SKATING RINK Each.......................................................................................................................................$120.00

A minimum license of $200.00 shall be paid in any case.

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Section 2. APPLICATION FOR AND ISSUANCE OF BUSINESS LICENSE. 96

6. 7. 8. 9. 10. 11. 12. 13. 14.

007B 020 024 026 032 038 041 067

068 069 070 071

084A 084B 084C 084D

087A 092 096 100

170B 179 180 182 192

248 251 255 259

Section 38. LIEN FOR LICENSE. 126

RICHARD ARRINGTON, JR. Mayor

A true copy. PAULA R. SMITH, City Clerk

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ORDINANCE NO. 97-183

Adopted by the Council of the City of Birmingham December 23, 1997

Approved by the Mayor December 29, 1997

RICHARD ARRINGTON, JR. Mayor

Paula R. Smith City Clerk

MAC UNDERWOOD Director of Finance

Paula R. Smith City Clerk SEAL

GIVEN UNDER MY HAND this 29th day of December, 1997.

MAC UNDERWOOD Director of Finance

PROCLAMATION BY THE MAYOR OF THE CITY OF BIRMINGHAM, ALABAMA

RICHARD ARRINGTON, JR. Mayor of the City of Birmingham, Alabama

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THE OCCUPATIONAL TAX CODE

Adopted by Ordinance No. 97-184 on December 23, 1997

Effective January 1, 1998 and continuing in effect until amended or repealed

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CITY OF BIRMINGHAM, ALABAMA ORDINANCE NUMBER 97-184 210

(5) (6) (7)

(8) (9) (10)

Section 18 thru Section 20. [Reserved].