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Sales & Use Tax Ordinance 10127 Page 4

Page 1 of Ordinance
Page 2 of Ordinance
Page 3 of Ordinance
Page 5 of Ordinance

Section 14. PROCEEDINGS TO COMPEL ACTION

a. If any dealer subject to make and file a return required by any provision of this ordinance fails to render such return within the time required, or renders a return which is false or fraudulent in that it contains statements which differ from the true gross sales, purchases, leases or rentals, or other transactions taxable under this ordinance, or otherwise fails to comply with the provisions of this ordinance, for the taxable period for which said return is due, the Director shall give such dealer fifteen (15) days notice, in writing, requiring such dealer to appear before him with such books, records and papers as he may require, relating to the business of such dealer for such taxable period. The Director may require such dealer, or the agents or employees of such dealer, to give testimony or to answer interrogatories, under oath administered by the Director respecting the sale at retail, the use, or consumption, or distribution, or storage for use or consumption, in the taxing jurisdiction, or lease or rental of tangible personal property, or other transactions subject to tax, or the failure to make report thereof, as provided in this ordinance.

b. If any dealer fails to make any such return, or refuses to permit an examination of his books, records or papers, or to appear and answer questions within the scope of such investigation relating to the sale, use, consumption, distribution, storage, lease or rental of tangible personal property, or sale of services, the Director may apply to any court of competent jurisdiction for an order requiring such dealer to make such return, or requiring the dealer or his agents or employees to appear and answer any such questions or permit such examination, and the court or any judge thereof shall thereupon issue an order, upon such reasonable notice as shall be prescribed therein, to be served upon said dealer or the agents or employees of such dealer, directing him to so appear and testify, and to produce such books, records and papers as may be required.

c. Any person failing to comply with any such order shall be guilty of contempt and shall be punished as provided by law in cases of contempt.

Section 15. JEOPARDY ASSESSMENT

a. If the Director finds that a taxpayer designs quickly to depart from the taxing jurisdiction, or to remove therefrom any property subject to any tax or to any lien for a tax, or to discontinue business, or to do any other act tending to prejudice or render wholly or partly ineffectual any proceedings that might be instituted to collect such tax, whereby it shall have become important that such proceedings be instituted without delay, he may immediately make a determination, from any available information or by estimate or otherwise, of the amount of tax, penalty and interest such taxpayer is liable to pay under this ordinance. Having made such determination, the Director shall immediately assess said amount, and by a writing to be retained as part of his official records, indicate such assessment has been made, and without any notice, proceed to distrain as is hereinafter provided any property belonging to the taxpayer. This type of assessment may be made whenever a tax becomes due under the provisions of this ordinance, regardless of whether it is then payable or not.

b. As soon as is feasible after such assessment, and not later than two calendar days thereafter, the Director shall send by registered or certified mail a notice to the taxpayer against whom the assessment lies, at the address given in the last report filed by said taxpayer, or if no such report has been filed, to any such address as may be obtainable. Such notice shall inform the taxpayer of the assessment, its basis, and jeopardous nature; make demand for immediate payment thereof; and give notice that any property distrained or to be distrained will be subject to sale as hereinafter provided to satisfy the assessment.

c. The taxpayer against whom the assessment lies can stay distraint of his property, or sale of his property already distrained, as the case may be, only by the immediate payment of the assessment or by posting with the Director a surety bond for twice the amount of such assessment, or of a lower amount acceptable to the Director, with such sureties as the Director deems necessary. The taxpayer shall have sixty (60) calendar days from the date of payment, or the date of posting bond, to appeal to the courts as provided in Section 19 hereof for a redetermination of the assessment. During this period, the Director shall hold any payment made in an escrow account. If the taxpayer does not appeal, the Director shall immediately credit such payment to tax collections or proceed to collect from sureties, if any were given. In the event of an appeal, such payment or demand for payment from sureties given shall be held in abeyance pending the redetermination or affirmation of the assessment by the court which reviews the matter. Final payment, or collection from sureties, will be for the amount of the affirmed or redetermined assessment.

 

Section 16. DISTRAINT PROCEDURE

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

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

c. Whenever the Director shall distrain any property of a taxpayer or dealer, he shall cause to be made a list of the property or effects distrained, a copy of which, signed by the Director shall be sent by certified mail to the taxpayer, dealer or retailer at his last known address or business address or served on him in person. This list shall be accompanied with a note of the sum demanded and a notice of the time and place where the property will be sold, if such a sale is necessary. Thereafter, the Director shall cause a notice to be published in the official journal of the taxing jurisdiction wherein distraint is made, specifying the property distrained, and the time and place of sale. The sale shall be held not less than fifteen (15) calendar days from the date of the notice mailed or served on the taxpayer or dealer or the date of publication in the official journal, whichever is later. The Director may postpone such sale from time to time, if he deems advisable, but not for a time to exceed thirty (30) calendar days in all. If the sale is continued it shall be readvertised.

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

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

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

Section 17. SUMMARY PROCEEDINGS

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

a. All such proceedings, whether original or by intervention or third opposition, or otherwise, brought by or on behalf of the taxing jurisdiction, or by or on behalf of the Director, for the determination or collection of any tax, interest, penalty, attorney fees, costs or other charge, claimed to be due under any provision of this ordinance, shall be summary and shall always be tried or heard by preference, in all courts, original or appellate, whether in or out of term time, and either in open court or chambers, at such time as may be fixed by the court, which shall be not less than two (2) nor more than ten (10) days after notice to the defendant or opposing party.

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

c. All matters involving any such claim shall be decided within forty-eight (48) hours after submission, whether in term time or in vacation, and whether in the court of first instance or in an appellate court and all judgments sustaining any such claim shall be rendered and signed the same day, and shall become final and executory on the fifth (5th) calendar day after rendition. No new trial, rehearing or devolutive appeal shall be allowed. Suspensive appeals may be granted, but must be perfected within five (5) calendar days from the rendition of the judgment by giving of bond, with good and solvent security, in a sum double that of the total amount of the judgment, including costs. Such appeals, whether to a court of appeals or to the Supreme Court, shall be made returnable in not more than fifteen (15) calendar days from the rendition of the judgment.

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

e. The City Police for the City of Baton Rouge and the Sheriff for the Parish of East Baton Rouge shall enforce all injunctions prohibiting the further pursuit of business when a valid injunction and judgment has been obtained from a court of competent jurisdiction involving delinquent sales and use tax under the provision of this ordinance until such time as the delinquent tax, interest, penalties and costs have been paid by the dealer-retailer.

f. Failure to pay any tax due, as provided in this ordinance, shall ipso facto, without demand or putting in default, cause said tax, interest, penalties and costs to become immediately delinquent, and the taxing jurisdiction is hereby vested with authority, on motion in a court of competent jurisdiction, to take a rule on the dealer to show cause in not less than two (2) or more than ten (10) days, exclusive of holidays, after the service thereof, which may be tried out of term and in chambers, and shall always be tried by preference, why the dealer should not be ordered to cease from further pursuit of business as a dealer and in case the rule is made absolute, the order thereon rendered shall be considered a judgment in favor of the taxing jurisdiction, prohibiting such dealer from the further pursuit of business until such time as he has paid the delinquent tax, interest, penalties and every violation of the injunction shall be considered as a contempt of court and punished according to law. For the purpose of the enforcement of this ordinance and the collection of the tax levied hereunder, it is presumed that all tangible personal property subject to the provisions of this ordinance will be sold at retail, used or consumed, or stored for use or consumption in the taxing jurisdiction, or leased or rented within the taxing jurisdiction, and is subject to the tax herein levied; however, such presumption shall be prima facie only, and subject to proof furnished to the Director.

Section 18. DEALER'S RIGHT TO A HEARING

If any dealer shall be aggrieved by any findings or assessment of the Director, he may, within thirty (30) days of the receipt of notice of the assessment or finding, file a protest with the Director in writing, signed by himself or his duly authorized agent, which shall be under oath and shall set forth the reason therefor, and may request a hearing. Thereafter, the Director shall grant a hearing to said dealer, if a hearing has been requested, and may make any order confirming, modifying or vacating any such finding or assessment. The filing of any such protest shall not abate any penalty for nonpayment, nor shall it stay the right of the taxing jurisdiction to collect the tax in any manner herein provided. Appeals from the decision of the Director shall be directed to any state, city or federal court of competent jurisdiction, as provided for in Section 19b hereof.

Section 19. LEGAL REMEDIES FOR DISPUTE SETTLEMENT

a. (1) A right of action is hereby created to afford a remedy at law for any dealer aggrieved by any provisions of this ordinance. In the case of such dealer's resisting the payment of any amount found due, or the enforcement of any provisions of this ordinance in relation thereto, such dealer shall pay under protest the amount found due by the Director, and shall give the Director notice, at the time, of his intention to file suit for the recovery of the same. Upon receipt of such notice, the amount so paid shall be segregated and held by the Director for a period of thirty (30) days. If suit is filed within such time for recovery of the amount paid, such funds so segregated shall be further held pending the outcome of the suit. if the dealer prevails, the Director shall refund the amount to the claimant with interest at the rate provided in R.S. 33:2718, covering the period from the date the funds were received by the taxing jurisdiction to the date of refund.

(2) The Director may transfer to the taxpayer at any time before judgment, taxes, penalty, and interest paid under protest when there is a genuine legal issue and he feels such transfer is in the best interest of the taxing jurisdiction. Interest in connection with such transfers shall be calculated as follows:

(a) For whatever portion of the judgment awarded to the taxing jurisdiction, the taxpayer shall owe interest at the rate specified in this ordinance from the date the tax was due until the date it was paid under protest. Further, the taxpayer shall owe interest at one-half the rate specified in this ordinance from the date the Director transferred the tax, penalty, and interest to the taxpayer until the date of repayment by the taxpayer.

(b) For that portion of the judgment awarded to the taxpayer, the taxing jurisdiction shall owe interest at the rate specified in this ordinance from the date taxes were paid under protest until the date of transfer to the taxpayer by the Director.

b. This section shall afford a legal remedy and right of action in any state, city or federal court having jurisdiction of the parties and subject matter for a full and complete adjudication of any and all questions arising in the enforcement of this ordinance as to the legality of any tax accrued or accruing or the method of enforcement thereof. In such actions, service shall be upon the Mayor-President.

c. This section shall be construed to provide a legal remedy in the state, city or federal courts, by action of law, in case such taxes or their collection are claimed to be an unlawful burden upon interstate commerce, in violation of any Act of Congress or the United States Constitution, or the Constitution of the State of Louisiana, or in federal jurisprudence; however, upon request of the dealer and upon proper showing by such dealer that the principle of law involved in an additional assessment is already pending before the courts for judicial determination, the dealer, upon agreement to abide by the decision of the courts, may pay the additional assessment under protest, but need not file an additional suit. In such cases, the tax so paid under protest shall be segregated and held by the Director until the question of law involved has been determined by the courts and shall then be disposed of as therein provided.

Section 20. PERSONAL LIABILITY OF DEALER

The liability of any person or dealer arising from any tax, interest and penalty from the time they are due shall be a personal debt of such person or dealer to the taxing jurisdiction, recoverable in any court of competent jurisdiction in an action at law by the taxing jurisdiction. Such debts, whether sued upon or not, shall be a lien on all the property of such delinquent person or dealer, except as against an innocent purchaser for value without notice in the actual course of business, and shall have preference in any distribution of the assets of the person or dealer, whether in bankruptcy, insolvency, or otherwise. The proceeds of any judgment or order obtained hereunder shall be paid to the taxing jurisdiction.

Section 21. OFFICER AND DIRECTOR LIABILITY

a. Notwithstanding any other provision of law to the contrary, if any corporation fails to file returns or to remit the sales and use taxes collected from purchasers or consumers, the Director is authorized, as an alternative means of enforcing collection, to hold those officers or directors having direct control or supervision of such taxes or charged with the responsibility of filing such returns and remitting such taxes and who willfully fail to remit or account for such taxes withheld or collected, personally liable for the total amount of such taxes withheld or collected, and not accounted for or not remitted, together with any interest, penalties, and fees accruing thereon. Collection of the total amount due may be made from any one or any combination of such officers or directors who willfully fail to remit or account for such taxes withheld or collected, by use of any of the alternative remedies for the collection of taxes.

b. A corporation by resolution of the board of directors may designate an officer or director having direct control or supervision of such taxes or charged with the responsibility of filing such returns and remitting such taxes, and such resolution shall be filed with the Director.

Section 22. SUCCESSOR LIABILITY

a. If any dealer liable for any tax, interest or penalty hereunder shall sell out his business or stock of goods, or shall quit the business, he shall make a final return and payment within fifteen (15) days after the date of selling or quitting business. His successor, successors or assigns, if any, shall withhold sufficient of the purchase money to cover the amount of such taxes, interest and penalties due and unpaid until such time as the former owner shall produce a receipt from the Director, showing that they have been paid, or a certificate stating that no taxes, interest or penalties are due. If the purchaser of a business or stock of goods shall fail to withhold purchase money as above provided, he shall be personally liable for the payment of the taxes, interest and penalties accrued and unpaid on account of the operation of the business by any former owner, owners or assignors.

b. In the case of a dealer who has quit a business, and who subsequently opens another similar business under the same ownership, whether that ownership is individual, partnership, corporation, or other, that dealer shall be liable for any tax, interest, or penalty owed by the original business.

Section 23. THIRD PARTY LIABILITY

In the event that any dealer is delinquent in the payment of the tax herein provided for, the Director may give notice of the amount of such delinquency by registered mail to all persons having in their possession, or under their control, any credits or other personal property belonging to such dealer or owing any debts to such dealer at the time of receipt by them of such notice, and thereafter, any person so notified shall neither transfer nor make any other disposition of such credits, either personal property or debts, until the Director shall have consented to a transfer or disposition, or until thirty (30) days shall have elapsed from and after the receipt of such notice. All persons so notified must, within five (5) days after receipt of such notice, advise the Director of any and all such credits, other personal property, or debts in their possession, under their control, or owing by them.

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