05/24/2016 Ordinances 9588ORDINANCE NO. 9588
An ordinance pertaining to occupation tax; to repeal Chapter 23, Article VII,
entitled "Food Service, Drinking Places, and Restaurant Tax," of the Grand Island City Code; to
amended Chapter 23, by adding Article VII, pertaining to food and beverage retailer occupation
tax; to provide for survival of claims, penalties and liens for unpaid occupation tax and
enforcement thereof; to repeal any ordinance or parts of ordinances in conflict herewith; and to
provide for publication and the effective date of this ordinance..
BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF
GRAND ISLAND, NEBRASKA:
SECTION 1. Effective 11:59 p.m., June 30, 2016, Grand Island City Code
Chapter 23, Article VII, entitled "Food Service, Drinking Places, and Restaurant Tax", as
amended, is repealed.
SECTION 2. Effective 12:00 a.m., July 1, 2016, Grand Island City Code Chapter
23 is hereby amended to read as follows:
Article VII.
FOOD AND BEVERAGE RETAILER OCCUPATION TAX
§23-64. Definitions
As used in this Article, the following words and phrases shall have the meanings ascribed
to them in this section, except where the context clearly indicates or requires a different meaning:
(A) Beverage shall mean all substances, whether in liquid or frozen form, sold for ingestion
by humans and are consumed for their taste or nutritional value and contain one-half of
one percent or more of alcohol by volume.
(B) City shall mean the City of Grand Island and the area within the corporate limits of the
City of Grand Island.
(C) Commercial Establishment shall mean any retail location in the City that sells food or
beverages as herein defined.
(D) Food shall mean substances, whether in liquid, concentrated, solid, frozen, dried, or
dehydrated form, that are sold for ingestion or chewing by humans and are consumed for
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May 25, 2016 City orney
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ORDINANCE NO. 9588 (Cont.)
their taste or nutritional value, excluding beverages as defined herein and tobacco
products.
Gross Receipts shall mean the total amount of consideration, donation, contributions, or
monetary charges of any nature paid to obtain food or beverage without any deduction on
account of expenses, taxes, or other costs.
Notwithstanding anything herein to the contrary, the term gross receipts shall not include:
(i.) receipts from the sale of food or beverages exempt from or not otherwise subject to
Nebraska Sales and Use Tax as provided by the Nebraska Revenue Act of 1967 as
amended from time to time; (ii.) The value of food or beverages furnished by the
commercial establishment to employees as part of their compensation when no charge is
made to the employee; and (iii.) Tips to an employee of a food services and drinking
places when the amount of the tip is wholly in the discretion of the purchaser, whether or
not the tip is paid to the employee or added to the bill and if the amount of the tip is
turned over to the employee. Amounts that are added to the price of the meal and
required to be paid by the purchaser, whether or not designated as a tip or a service
charge, shall be exempt as a tip to the extent the mandatory amount does not exceed
twenty-five percent (25%) of the food and beverage sales price.
Finance Director shall mean the Finance Director of the City of Grand Island.
Person shall mean any natural person, individual, partnership, association, organization
or corporation of any kind or character engaging in retail sales of food or beverages.
Retail shall mean sale for use or consumption and not for resale in any form.
Retail location shall mean any permanent, temporary or mobile place, location or facility
where retail sales occur, including, but not limited to, brick and mortar locations, mobile
trucks and temporary stands.
Sale or to sell shall mean any transfer of possession for consideration, donation,
contributions, or monetary charges of any nature paid to obtain or for access to food or
beverage.
Taxpayer shall mean any person operating a commercial establishment herein defined
who is required to pay the tax herein imposed.
§23-65. Intent and Purpose of Article
(A) Pursuant to the authority of Nebraska Revised Statute R.R.S. 1943, Section 16-
205, the City Council finds, determines and declares that it is appropriate that a tax be imposed
on commercial establishments that sell food and beverages as herein defined for the purpose of
raising revenues. The foregoing determination is made with due consideration of business in the
City and the relation of business to the municipal welfare, together with relation thereof, to
expenditures required by the City, and with consideration of just, proper and equitable
distribution of the tax burdens within the City and other properly associated matters.
(B) That revenue derived from Grand Island City Code, Article VII - the Food and
Beverages Tax shall be designated for use in the following order:
(i) To make the City's quarterly payments to the Nebraska State Fair Support and
Improvement Fund as required by Neb Rev. Stat. §§2-108-110;
(ii) Promote entertainment, agricultural and livestock shows, trade shows and
similar events that will attract visitors to Grand Island;
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ORDINANCE NO. 9588 (Cont.)
(iii) Ongoing enhancement and development of recreation and athletic facilities such
as hike, bike and recreational trails, ball fields and other community activity
needs; and
(iv) Invest in community development projects and activities that stimulate progress
and growth for Grand Island.
§23-66. Tax Imposed; Collection of Tax
(A) On or after July 1, 2016 and in each calendar month thereafter there is hereby
imposed a food and beverages retailer occupation tax upon each and every person operating a
commercial establishment within the City for any period of time during a calendar month. The
amount of such tax shall be one and one-half percent (1 %2%) of all gross receipts for each
calendar month derived from the sale of food and beverages subject to this tax.
(B) The person engaged in the sale of food and beverages may but is not required to
itemize the tax levied on a bill, receipt, or other invoice to the purchaser, but each person
engaged in the sale of food or beverages shall remain liable for the tax imposed by this section.
(C) Gross receipts subject to the tax shall include receipts from the sale of food and
beverages but excluding receipts from the sale of food or beverages exempt from or not
otherwise subject to Nebraska Sales and Use Tax as provided by the Nebraska Revenue Act of
1967 as amended from time to time.
§23-67. Tax Imposed for Revenue Purposes; Tax Cumulative
(A) The t� imposed by this article is purely for revenue purposes to support the
programs of the government of the City. The levy of the tax under this article is in addition to all
other fees, taxes, excises and licenses levied and imposed under any contract or any other
provisions of this Code or ordinances of the City, in addition to any fee, tax, excise or license
imposed by the state.
(B) Payment of the tax imposed by this article shall not relieve the person paying the
same from payment of any other t� now or hereafter imposed by contract or ordinance or by
this Code, including those imposed for any business or occupation he or she may carry on, unless
so provided therein. It is the intent of this Council that the occupational taxes imposed by this
article shall be cumulative except where otherwise specifically provided.
§23-68. Return
(A) Each and every person operating a commercial establishment within the City for
the calendar month beginning July 2016, and for each and every calendar month thereafter, shall
prepare and file, on or before the 25th day of the month, or the next business day should the 25th
fall on a Federal holiday or weekend, following on a form prescribed by the Finance Director, a
return for the taxable calendar month, and at the same time pay to the Finance Director the tax
herein imposed. Any return that is remitted via the United State Postal Service shall be
postmarked by the 25th day of the month to be considered an on time filing.
(B) A commercial establishment may make reports and remittances quarterly in lieu
of monthly if their monthly remittance would be $100.00 or less.
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ORDINANCE NO. 9588 (Cont.)
§23-69. Suspension or Revocation of Other Licenses
(A) No delinquency in payment of the tax herein provided for by this article and no
revocation or conviction for violation of this article shall be grounds for the suspension or
revocation of any other license issued to any person engaged in business within the City by the
Finance Director or any other official of the City under any licensing provisions of this Code or
other ordinances, nor shall the same be grounds for the suspension or revocation of any other
license issued by any licensing authority pursuant to the statutes enacted by the State of
Nebraska.
§23-70. Failure to File Return; Delinquency; Assessment by Finance Director
(A) If any person neglects or refuses to make a return or payment of the taxes as
required by this article, the Finance Director shall make an estimate, based upon such
information as may be reasonably available, of the amount of taxes due for the period or periods
for which the taxpayer is delinquent, and upon the basis of such estimated amount, compute and
assess in addition thereto a penalty equal to ten percent (10%) thereof, together with interest on
such delinquent taxes, at the rate of one percent (1%) per month, or fraction thereof from the date
when due.
(B) The Finance Director shall give the delinquent taxpayer written notice of such
estimated taxes, penalty, and interest, which notice must be served personally or by certified
mail.
(C) Such estimate shall thereupon become an assessment, and such assessment shall
be final and due and payable from the taxpayer to the Finance Director ten (10) days from the
date of service of the notice or the date of mailing by certified mail; however, within such ten
(10) day period the delinquent taxpayer may petition the Finance Director for a revision or
modification of such assessment and shall, within such ten (10) day period, furnish the Finance
Director the facts and correct figures showing the correct amount of such taxes.
(D) Such petition shall be in writing, and the facts and figures submitted shall be
submitted in writing and shall be given under oath of the taxpayer.
(E) Thereupon, the Finance Director shall modify such assessment in accordance with
the facts which he or she deems correct. Such adjusted assessment shall be made in writing, and
notice thereof shall be mailed to the taxpayer within ten (10) days; and all such decisions shall
become final upon the expiration of thirty (30) days from the date of service, unless proceedings
are commenced within that time for appeal in the District Court of Hall County, Nebraska by the
filing of a petition with the Clerk of the Court. This appeal shall be conducted in conformance
with the Nebraska Rules of Civil Procedure and Rules of the Court as may be adopted by the
Court or enacted by the Legislature.
§23-71. Jeopardy Assessment
(A) If the Finance Director finds that the collection of the tax will be jeopardized by
delay, in his or her discretion, he or she may declare the taxable period immediately terminated,
determine the t�, and issue notice and demand for payment thereof, and, having done so, the tax
shall be due and payable forthwith, and the Finance Director may proceed to collect such tax as
hereinafter provided.
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ORDINANCE NO. 9588 (Cont.)
(B) Collection may be stayed if the taxpayer gives such security for payment as shall
be reasonably satisfactory to the Finance Director.
§23-72. Administration of Article; Miscellaneous Provisions
(A) Administration bv Finance Director. The administration of the provisions of this
article are hereby vested in the Finance Director, who shall prescribe forms in conformity with
this article for the making of returns, for the ascertainment, assessment and collection of the tax
imposed hereunder, and for the proper administration and enforcement hereof. The Finance
Director shall adopt such rules and regulation as may be necessary or desirable for the
administration and enforcement of this Article.
(B) Duties performed bv others. Duties of the Finance Director herein provided may
be performed by any qualified person designated by the Finance Director.
(C) Notices to be sent bv registered or certifed mail. All notices required to be given
to the t�payer under the provisions of this article shall be in writing, and if mailed postpaid by
registered or certified mail, return receipt requested, to him or her at his or her last known
address shall be sufficient for the purposes of this article.
(D) Dutv to keep books and records. It shall be the duty of every taxpayer to keep and
preserve suitable records and other books or accounts as may be necessary to determine the
amount of tax for which he/she is liable hereunder.
(i) Records of the gross revenue by which this tax is measured shall be kept
separate and apart from the records of other sales or receipts in order to facilitate the examination
of books and records as necessary for the collection of this tax.
(ii) It shall be the duty of every such taxpayer to keep and preserve for a
period of four (4) years all such books, invoices and other records, which shall be open for
examination at any time by the Finance Director or his or her duly designated persons. If such
person keeps or maintains his books, invoices, accounts or other records, or any thereof, outside
of the state, upon demand of the Finance Director he/she shall make the same available at a
suitable place within the City, to be designated by the Finance Director, for examination,
inspection and audit by the Finance Director or his or her duly authorized persons.
(iii) The Finance Director, in his or her discretion, may make, permit or cause
to be made the examination, inspection or audit of books, invoices, accounts or other records so
kept or maintained by such person outside of the state at the place where same are kept or
maintained or at any place outside the state where the same may be made available, provided
such person shall have entered into a binding agreement with the City to reimburse it for all costs
and expenses incurred by it in order to have such examination, inspection or audit made in such
place.
(E) Investigation of taxpaver's books. For the purpose of ascertaining the correctness
of a return, or for the purpose of determining the amount of t� due from any person, the Finance
Director or his or her duly authorized persons, may hold investigations and hearings concerning
any matters covered by this article; and may examine any relevant books, papers, records or
memoranda of any such person; and may require the attendance of such person, or any officer or
employee of such person, or of any person having knowledge thereof; and may take testimony
and require proof of his or her information. The Finance Director and his or her duly authorized
persons shall have power to administer oath to such persons.
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ORDINANCE NO. 9588 (Cont.)
(F) Sale of business. Whenever any taxpayer sells his/her food services, drinking
places business, or restaurant or quits engaging in such business, any tax payable under this
article shall become immediately due and payable and such person shall immediately make a
report and pay the tax due.
(G) Status of unpaid tax and bankruptcv and receivership. Whenever the business or
property of any taxpayer subject to this article shall be placed in receivership, bankruptcy or
assignment for the benefit of creditors, or seized under distraint for property taxes, all taxes,
penalties, and interest imposed by this article and for which the taxpayer is in any way liable
under the terms of this article shall be a prior and preferred lien against the property of the
taxpayer, except as to pre-existing claims or liens of a bona fide mortgagee, pledgee, judgment
creditor or purchaser whose rights shall have attached prior to the filing of the notice as
hereinafter provided on the property of the taxpayer, other than the goods, stock in trade, and
business fixtures of such taxpayer; and no sheriff, receiver, assignee or other official shall sell
the property of any person subject to this article under process or order of any court without first
ascertaining from the Finance Director the amount of any taxes due and payable under this
article; and if there be any such taxes due, owing and unpaid, it shall be the duty of such officer
to first pay the amount of such taxes out of the receipts of such sale before making payment of
any monies to any judgment creditor or other claimants of whatsoever kind or nature, except the
cost of the proceedings and other pre-existing claims or liens as above provided.
(H) Release of liens. The tax imposed by this article, together with the interest and
penalties herein provided and the cost of collection which may be incurred, shall be and, until
paid, remain a first and prior lien, except as otherwise provided by the constitution or statute,
superior to all other liens, on all the merchandise, furniture and fixtures, tools and equipment of
the taxpayer within the City, and may be foreclosed by seizing under distraint and sale of so
much of said merchandise, furniture and fixtures, tools and equipment, as may be necessary to
discharge the lien. The lien created by this article shall apply only to tax obligations hereafter
incurred. Any lien for taxes as shown on the records of the county clerks and recorders as herein
provided shall, upon the payment of all taxes, penalties and interest covered thereby, be released
by the Finance Director in the same manner as mortgages or judgments are released.
(I) Statute o�'Limitations. No suit for collection of any taxes imposed by this article
for any interest thereon or penalties with respect thereto may be instituted, or any other action to
collect the same shall be commenced, nor shall any notice of lien be filed, or distraint warrant be
issued, more than four (4) years after the date on which the tax was or is payable. In case of a
false or fraudulent return with intent to evade tax, the tax, together with interest and penalties
thereon, may be assessed or proceedings for the collection of such taxes may be begun at any
time. Before the expiration of such period of limitation, the taxpayer and the Finance Director
may agree in writing to an extension thereof; and the period so agreed on may be extended by
subsequent agreement in writing.
§23-73. Recovery of Unpaid Tax by Action at Law
(A) The Finance Director may also treat any such taxes, penalties or interest due and
unpaid as a debt due the City.
(B) In case of failure to pay the ta�es, or any portion thereof, or any penalty or interest
thereon when due, the Finance Director may recover at law the amount of such taxes, penalties
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ORDINANCE NO. 9588 (Cont.)
and interest in any court of Hall County, Nebraska or of the county wherein the taxpayer resides
or has its principal place of business having jurisdiction of the amounts sought to be collected.
(C) The return of the taxpayer or the assessment made by the Finance Director, as
herein provided, shall be prima facie proof of the amount due.
(D) Such actions may be actions and attachments, and writs of attachment may be
issued to the constable or sheriff, as the case may be; and in any such proceeding no bond shall
be required of the Finance Director except as may be required by statute, nor shall any constable
or sheriff require of the Finance Director an indemnifying bond for executing the writ of
attachment or writ of execution upon any judgment entered in such proceeding; and, in
accordance with the procedure established by statute, if any, the Finance Director may prosecute
appeals or writs of error in such cases without the necessity of providing bond therefor;
(E) The city attorney, when requested by the Finance Director may commence an
action for the recovery of taxes due under this article; and this remedy shall be in addition to all
other existing remedies, or remedies provided in this article.
§23-74. City a Party to Title Actions for Determination of Lien
In any action affecting the title to real estate or the ownership or rights to possession of
personal property, the City may be made a party defendant for the purpose of obtaining a
judgment or determination of its lien upon the property involved therein.
§23-75. Authority of Finance Director to Waive Penalty
The Finance Director is hereby authorized to waive, for good cause shown, any penalty
assessed as in this article provided; and any interest imposed in excess of six percent (6%) per
annum shall be deemed a penalty.
§23-76. Penalty
(A) Penalties or deficiencies caused bv disre�ard of rules. If any part of the
deficiency is due to negligence or intentional disregard of authorized rules and regulations with
knowledge thereof, but without intent to defraud, there shall be added ten percent (10%) of the
total amount of the deficiency; and in such case interest shall be collected at the rate of one
percent (1%) per month, or fraction thereof, on the amount of the deficiency from the time the
return was due, from the person required to file the return, which interest in addition shall
become due and payable within ten (10) days after written notice and demand by the Finance
Director.
(B) Penalties,for deficiencies caused b�fraud. If any part of the deficiency is due to
fraud with the intent to evade the tax, then there shall be added fifty percent (50%) of the total
amount of the deficiency, and in such case the whole amount of the tax that is unpaid, including
the additions, shall become due and payable ten (10) days after written notice and demand by the
Finance Director, and an additional one percent (1%) per month, or fraction thereof, on said
amounts shall be added from the date the return was due until paid.
§23-77. Severability
If any provisions, clause, sentence or paragraph of this article or the application thereof to
any person or circumstances shall be held invalid, that invalidity shall not affect the other
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ORDINANCE NO. 9588 (Cont.)
provisions of this article which can be given effect without the invalid provision or application,
and to this end the provisions of this article are declared to be severable.
SECTION 3. The repeal provided herein of the original provisions of Chapter 23,
Article VII entitled "Food Service, Drinking Places, and Restaurant Tax." adopted on September
9, 2008 as Ordinance No. 9189, as amended, shall not operate or be construed to release, forgive,
or discharge any occupation tax liability imposed as a result of said Ordinance 9189, as
amended, nor any penalties imposed for failure to pay the same, or any liens arising therefrom.
Occupation tax returns, assessments, payment, enforcement, administration, recovery, penalties
thereon, and liens arising therefrom shall be had and done as set forth by Sections 23-67 through
23-76, above, as though the same were provided for and imposed by this Ordinance.
SECTION 4. Any ordinances or parts of ordinances in conflict herewith be, and
hereby are, repealed
SECTION 5. This ordinance shall be in force and take effect from and after its
passage and publication.
Enacted: May 24, 2016.
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Jere y . Jens , yor
Attest:
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Nicki Stoltenberg, City Cler em
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