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HomeMy WebLinkAbout2008-003 Approving Class Action Settlement with Us Cellular and Related Entities concerning Gross Receipt Tax on WirelessBILL NO.2008-03 ORDINANCE N0.2008-03 AN ORDINANCE APPROVING A CLASS ACTION SETTLEMENT WITH UNTTED STATES CELLULAR CORPORATION, UNITED STATES CELLULAR OPERATING COMPANY, LLC, AND USCOC OF GREATER MISSOURI, LLC, AND THEIR RELATED ENTITIES CONCERNING GROSS RECEIPT TAX ON WIRELESS SERVICE WHEREAS, Section 705.010 of the Municipal Code of the City of Riverside, Missouri imposes a five percent (5%) tax on gross receipts from telephone services; and WHEREAS, a class action is pending in the Circuit Court of St. Louis County, Missouri, Case No. Ol-cc-004454, captioned City of University City, Missouri, as individuals, and on behalf of all other similarly situated and the general public, v. Peace Valley Cellular Telephone Company, United States Cellular Corporation, United States Cellular Operating Company, LLC, and USCOC of Greater Missouri, LLC, et al. (the "Class Action Suit") in which plaintiffs contend that United States Cellular Corporation, United States Cellular Operating Company, LLC, and USCOC of Greater Missouri, LLC, ("U S Cellular") did not pay taxes on gross receipts as required by the municipal code of the City of University City, Missouri and other similarly situated municipalities; and WHEREAS, based on the information available to both sides, and the risks involved in a trial, the attorneys for the class have concluded that a settlement proposed by U S Cellular is fair, reasonable, and adequate, and that it serves the best interests of the class members. NOW, THEREFORE, be it ordained by the Board of Aldermen of the City of Riverside, Missouri as follows: 1. The Board of Aldermen determines that the proposed settlement of the Class Action Suit with U S Cellular is fair, reasonable, and in the best interests of the City and its citizens. 2. The settlement agreement as described in the Notice of Class Action and Approval Hearing attached hereto as Exhibit A is hereby approved. The Mayor is hereby authorized to execute the settlement claim form attached hereto as Exhibit B on behalf of the City. 3. This Ordinance shall take effect immediately. Passed and approved by the Board of Aldermen of the City of Riverside this 8th day of January, 2008. Kathleen L. Rose, Mayor ATTEST: [seal] Louise Rusick, City Clerk EXHIBIT A IN THE CIRCUIT COURT OF SL LOUIS COUNTY STATE OF MISSOURI Case No. 01-CC-004454 NOTICE OF CLASS ACTION SETTLEMENT AND APPROVAL HEARING To: Finance Director Riverside 2950 NW Vivion Road Riverside, MO 04152 City of University City, Missouri, as Individuals, and on behalf of all others similarly stituated and the general public, Plaintiffs, v. Peace Valley Cellular Telephone Company, Urdted States Cellular Corporatlon, United States Cellular Operating Company, LLC, and USCOC of Greater Missouri, LLC, et aI, Defendants. Thts notice explains the settlement of a class action lawsuit concerning business license tax that munidpalities sough to impose on U S Cellular. The settlement has been preliminarily approved by the Court and provides for the payment of past taxes and future taxes to these municipalities. PLEASE TAKE NOTICE THAT on February 21, 2006, in Division 4 of the Circuit Court of St. Louis County, State of Mtasourl, 7900 Carondelet Avenue, Clayton, Missouri 63105, at 9:00 a.m., a hearing shall be conducted to determine whether to grant final approval to the settlement, consider any timely objections to the settlement, and rule on the fee and expense application submitted by attorneys for the plaintiffs. No payment of past taxes from U S Cellular will be made available to municipalities under the settlement agreement until after the settlement has become final and non-appealable. Read this notice carefully. You may be entitled to share in the settement proceeds of this lawsuit. Your rights to a monetary award may be affected. What is Ihls lawsuit about? Plaintiffs contend that U S Cellular did not pay taxes on gross receipts derived from providing commercial mobile radio services (collectively, "CMRS"), taxes for maintaining antennas or other facilities, and flat taxes with respect to providing such services, and for interest and/or penalties on any such taxes not timety paid. U S Cellular has denied these allegations and argued that these taxes did not appty to CMRS offered by U S Cellular. Based on the information available to both sides, and the risks involved in a trial, attorneys for the class have concluded that the proposed settlement is fair, reasonable, and adequate, and that it serves the best interests of class members. 2. Who are the parties in this class action? The named plaintiffs in this class action are the City of Blue Springs, Missouri, City of Cape Giradeau, Missouri, City of Chesterfield, Missouri, City of Dexter, Missouri, City of Ellisville, Missouri, Ciy of Ferguson, Missouri, City of Florissant, Missouri, Ciy of Gladstone, Missouri, City of Independence, Missouri, City of Jennings, Missouri, City of Kirksville, Missouri, City of Ironwood, Missouri, City of Manchester, Missouri, City of Maplewood, Missouri, City of Maryland Heights, Missouri, qty of Northwoods, Missouri, City of O'Fallon, Missouri, City of St. Joseph, Missouri, City of Vinita Park, Missouri, City of Warson Woods, Missouri, Cily of Wellston, Missouri, City of Winchester, Missouri, and City of University City, Missouri. Piaintifls filed this lawsuit as a class action to assert their own indhriduet claims and to represent a class of municipalities who have similar claims. The defendants involved in this Settlement are Peace Valley Cellular Telephone Company, United States Cellular Corporation, United States Cellular Operating Company, LLC, and USCOC of Greater Missouri, LLC. Other wireless service providers ere defendants in this lass edlon. The municipalities' claims against these other defendants are not being seuied, or have been separatety settled, and will not be affected by the settlement agreement with U S Celhrlar. The lawsuit is pending in the Circuit Court for St. Louis County, State of Missouri before Judge Barnhardt Drumm. 3. What compensation or benefits wilt the setttement provide? The settlement, if it is finally approved by the Court, provides for the payment of past taxes and future taxes as described in more detail below. In addition, to the extent that U S Cellular has paid any taxes under protest and has initiated any tax protest actions against you, those protest actions will be dismissed and the protested tax released unconditlonally to you upon the effective date of the settlement: a. Payment of Past Taxes. The Settlement specifies a past tax payment with respect to each municipality, and your past tax payment is shown below. This payment was determined as follows: Notice of Class Action Settlement and Approves Hearing - Page 1 of 5 (1) If you impose a business license tax on gross receipts, the payment depends on whether you are in the St. Louie market as defined in the Settlement Agreement1. Because U S Cellular has been In business for such a short time in the St. Louis market, the payment is based on a percentage of its back taxes. (e) In the St. Louis Market, the payment includes the amount of tax that would have been paid on 25% of its gross receipts from providing telecommunications services for the period beginning July 1, 2006 and ending June 30, 2007 plus 62.5% of such gross receipts for the month of July, 2007, plus 100% of such gross receipts for the period from August 1, 2007 through October 31, 2007, all without regard to any interest or penalty (which shall not be considered in delemdning the payment). This payment amount is based on an estimate for October 2007 that assumes the tax owed for this month equaled the amount of tax for September 2007. If the actual tax is more in October 2007, U S Cellular will pay the difference to you later. If the actual tax is less, U S Cellular will still pay the amount based on September 2007. (b) In the rest of Missouri the payment includes the amount of fax that would have been paid on its gross receipts from providing telecommunications service for the period beginning September 1, 2005 and ending October 31, 2007, without regard to any Interest or penalty (which shag not be considered In determining the payment). This payment amount is based on an estimate for October 2007 that assumes the tax owed for Otis month equaled the amount of tax for September 2007. If the actual tax is more In Ootober 2007, U S Cellular will pay the difference to you later. If the actual tax is less, U S Cellular will still pay the amount based on September 2007. PLUS (2) If you impose a flat tax on an annual or other periodic basis, or impose a tax for maintaining an antenna or other facility, then the payment Includes the amount of these taxes that would have been paid for any tax period that includes, In whole or in pad, the period begiming September 1, 2005 and ending October 31, 2007, without regard to any Interest or penalty (which shall not be considered In determining the payment). MINUS (3) The sum of p) any Business License Tax, excluding Protested Taxes, actually paid by U S Cellular to you for the period beginning September 1, 2005, and ending October 31, 2007, above, plus (i) the amount of Protested Tax for that period that will be released to you after Final Approval of the Settlement.. The amount of the Past Tax Payment for you pursuant to the Settlement is: Business LlcenseTax on gross receipts through 10131/2007 at Rate $0 Business License Tax at flat rate of per year for9/1/2005 through 10/31/2007 $0 Business License Tax on 0 antenna(*) for9/1/2005 Through 1031/2007 $0 subtotal $0 LESS tax paid and Protested Tax paid by U 8 Cellular that will be released for you $0 PAST TAX PAYMENT $0 b. payment of Future Taxes. U S Cellular has agreed to pay the applicable Business License Tax for lax periods and partial tax periods commencing on and after November 1, 2007. For such taxes that are imposed with respect to gross receipts derived from CMRS That are subject to the federal Mobile Telecommunications Sourcing Act ('MTSA'), U 3 Celkdar will pay such taxes at the tax rates set forth in your ordinance on ell receipts from providing Telecommunications Service that are sourced to you under the federal Mobile Telecommunication Sourcing Act, Including receipts from any retail customer now or hereafter exempt from the state sales tax, but excluding any class of users excluded under your Business License Tax. IF YOU ARE A MEMBER OF THE CLASS RECEIVING THIS NOTICE AND D0 NOT FILE A CLAIM FORM, YOU WILL NOT BE ENTITLED TO RECEIVE ANY PAYMENT FOR PAST TAXES THAT ARE THE SUBJECT OF THIS LAWSUIT. 4. Are you a member of the class? This notice has been sent to you because you may be a member cl a group of municipali0es (a class) for whom a settlement wlth U S Cellular has been reached. The class consists of all Missouri municipalties (except Clayton and Jefferson City, Missouri) who have imposed a business license tax on or before October 31, 2007, on providers of telephone service, exchange telephone service, or any other type of telecommunications service, including gross receipts taxes, IIat•amount annual or other periodic taxes, and antenna taxes. h The St. Louis market is defined In the Settlement Agreement as the City of St. Louts and all Municipalities within the Counties of Callaway, Franklin, Jefferson, Uncw n, Montgomery, St. Charles and St. Louis. Notice of Class Action Settlement and Approval Hearing — Page 2 of 5 If the "subtotal' amount for you shown in Section 3 above Is zero (0), it signifies That according to records available to U S Cellular end class counsel you either do not have a Business License Tax or U S Cellular did not do business in your Municipality on or before October 31, 2007. If you disagree with this, you can submit an explanation for the basis of your disagreement along with your claim form as described in Section 6(b) below. 5. What do you have to do to receive compensation or benefits from the settlement? In order to receive compensation or benefits from the settlement, your duly authorized representative must Umely submit the attached claim form providing: (1) your name and address; (2) the name, address and telephone number of your duly authorized representative(s), to whom all inquiries regarding the Claim Form and your Business License Tax may be directed; (3) copies of the ordinances or municipal code provisions imposing your Business License Tax between September 1, 2005 and October 31, 2007 (or between July 1, 2005 and October 31, 2007 if you are in the St. Louts market); (4) copies of an ordinance enacted by you accepting and binding you to all terms and provisions of the Settlement Agreement or —if you can bind yourself to the Settlement Agreement without ending an ordinance and choose to do so instead of enacting an ordnance —some other acknowledgment binding you 10 the terms of the Settlement Agreement if the agreement is approved by the Court; and (5) the name and address to which your Past Tax Payment shall be made and mailed by U S Cellular. If you choose to acknowledge that you are bound by the Settlement Agreement without enacting an ordinance, then you will also need to provide an opinion of counsel, addressed to U S Cellular, that you are bound by the Settlement Agreement. The deadline for filing a claim is 60 days from the date of this Notice. Any claim that is postmarked after this date will be rejected and you will not be entitled to any class relief. 6. What are your options? If you are a member of the class and have received this notice, you will have the following options: • File a claim if you meet the criteria set out in Section 5 above. • Do nothing, thereby foregoing the possiblity of receiving any class relief. • Stay in the dass and file an objection if you disagree with any part of the settlement or the request for attorneys' fees or expenses. • Exclude yourself from the class, welch means you will not participate In any of the financial benefits from the proposed settlement, will not be bound by the releases made or judgment entered In connection with the settlement, and will not be permilted to object to any part of the settlement. The following sections explain the consequences of pursuing each option. a. What happens if you file a claim? If you are a class member and you complete and mall the enclosed claim form, and if the mailed claim form is approved by U S Cellular, you will receive the payments described above once the settlement has become final. Additionally, if your claim form is approved, any tax protest actions brought by U S Cellular against you for the tax period from September t, 2005 through October 31, 2007, shall, upon Final Approval of the settlement, be dismissed, and such protested amounts released to you. Any Business License Tax payments made by U S Cellular for the interim tax period between November 1, 2007 end the Final Approval of this settlement will deemed to be made under protest and ,each class member must hold any such payments in a segregated account until Final Approval of this settlement at which point, U you have filed an approved claim form, all of these payments will be released to you. Unless you submit a Request for Exclusion (see Section 6(e) below), you will be prohibited from bringing a lawsuit against U S Cellular based on or related to any of the claims asserted by the plaintiffs. If you foie a claim form, attorneys for the class will act as your representatives while your claim is processed at no cost to you. b. What happens if the Municipality disagrees with the amount of the Past Tax Payment? Under the terms of the settlement, a Municipality that disagrees with the Past Tax Payment amount may submit a detailed explanation as to why U believes the Past Tax Payment was incorrectly calculated with its Claim Form. In the event that U S Cellular disagrees with the Municipality's contention, U S Cellular is obligated to meet and confer in good faith with Class Counsel and representatives of the Municipality in question in an effort 10 resolve the issue. If after such consultation, the Municipality and U S Cellular cannot agree on the Past Tax Payment, the Past Tax Payment contained in this Notice shall be the amount the Municipality is entitled to receive pursuant to the Settlement. If the Municipality does not agree with the amount of the Past Tax Payment, it may either opt -out of the Settlement as set forth in Section 6(e) of this Notice, or nonetheless accept the amount of the Past Tax Payment as calculated by U S Cellular. The opt - out deadline shall be extended for such Municipality for a period of 30 days to resolve disputes related solely to the amount of the Past Tax Payment. If the parties are unable to resolve a disagreement as to the amount of the Past Tax Payment after the consultation set forth above, such disagreement shall not be subject to other challenge or appeal. Notice of Class Action Settlement and Approval Hearing — Page 3 of 5 c. What happens if you do not file a clalm? Under the terms of the settlement, if you do not file a claim form, you will not receive any payment for past taxes or future taxes. Assuming the Court approves the settlement, and if you do not file a claim, but do not submit a request for exclusion, you nevertheless will be prohibited from bringing or joining any lawsuit against U S Cellular based on or related to any of the claims asserted by the plaintiffs. d. How do I file an objection? You must state your objection in writing and file it with the Court postmarked no later than February 11, 2008. The objection should be addressed to the Honorable Bernhardt Drumm, Division 4 of the Circuit Court of St. Louis County, State of Missouri, 7900 Carondelet Avenue, Clayton, Missouri 63105, and marked to indicate °objections to proposed settlement In City of University City, Missouri v. U S Cellular, Case No. 01-CC-004454' You must simultaneously mall your objection to plaintiffs' attorneys: John W. Hoffman Douglas R. Sprong Korean Tillery, LLC 505 N. 76 Street, Suite 3600 St. Louis, MO 63101 Howard Papemer 9322 Manchester Road St. Louis, MO 63119 John F. Mulligan, Jr. 7700 Bonhomme Ave., Suite 200 Clayton, MO 63105 and to U S Cellular's attorneys: Scott Sifton Blackwell Sanders LLP 720 Olive Suite 2400 St. Louis, MO 63101. Included in any such objection must be a statement of the basis for your objection and a declaration stating that you are a member of the class as described In Section 4 above. If you do not properly file and serve an objection by the required date, any objections you have to the settlement will be waived. e. How do I exclude myself from the class? You can exclude yourself from the class, which means you will not participate In any aspect of the settlement and you may pursue your own claims, if any, at your own expense against the defendants. To exclude yourself, you must state your request to be excluded in writing and deliver or postmark your request no later than February 11, 2008 to: U S Cellular Missouri Municipal Tax Settlement Administrator John Reilly Senior Manager -Tax Compilance and Planning U. S. Cellular 8410 W. Bryn Mawr Avenue Chicago, Illinois 60831 You must simultaneously mall your exclusion request to plaintiffs' attorneys: John W. Hoffman Douglas R. Sprong Korein Tillery, LLC 505 N. 76 Street, Suite 3600 St. Louis, MO 63101 Howard Papemer 9322 Manchester Road St. Louis, MO 63119 and to U S Cellular' attorneys: Scott Sillon Blackwell Sanders LLP 720 Olive Suite 2400 St. Louts, MO 63101. John F. Mulligan, Jr. 7700 Bonhomme Ave., Suite 200 Clayton, MO 63105 Notice of Class Action Settlement and Approval Hearing — Page 4 of 5 7. When will the Court conduct the Approval Hearing? The Court MI conduct a public hearing to determine whether to approve the proposed settlement, and determine the amount of fees and expenses to be awarded to the attorneys for the plaintiffs and the class, on February 21, 2008 at 9:00 a.m. Although the hearing will be open to the public, you will not be permitted to speak in opposition to the issues above at the hearing unless you have filed a timely objection to the settlement, or the attorneys' fees and expenses in the manner described above. If you have filed an objection, you may appear with your own counsel and be heard at the hearing. e. How much money will the attorneys be paid and who will pay It? The attomeys for the plaintiffs and the class MI submit to the Cowl for approval a request for attorneys' fees and expenses in the amount of $1,120,000, to be paid by defendants. In addition, attorneys for the plaintiffs will submit to the Court for approval a request for an additional amount of $27,300 for partial reimbursement of the expenses of some plaintiffs In initiating the litigation. U S Cellular has agreed not to oppose an award of fees and expenses in the amount set forth in this Notice. The Court will determine the amount of any fees and expenses awarded to plaintiffs' counsel, which will not be deducted from the credits or refund payments made to the class. The amount of money that any individual class member may receive will not depend upon the amount of fees or expenses awarded to counsel or the number of claim forms submitted. 9. Assignment to the Missouri Municipal League or St. Louis County Municipal League The settlement allows you to assign a portion of your Past Tax Payment, not to exceed live percent (5%) of the 'subtotal' amount for you as shown in Section 3 above, to the Missouri Municipal League or the St. Louis County Municipal League (if you are located within S1. Louis County). If you wish to make such assignment, you may check the applicable box on the Claim Form. Additionally, the ordinance or other action that you take making the settlement enforceable against you must specifically authorize the making of this assignment. The amount of the past tax payment that you receive will be reduced by the amount of this assignment. 10. Where can you get additional information? This notice provides only a summary of matters regarding the lawsuit. The documents, settlement agreement, and orders In the lawsuit provide greater detail and may clarify matters that are described only in general or summary terms In this notice. Copies of the settlement agreement, other documents, court orders, and other information related to the lawsuit may be examined at http://vmw.mocities.com. You may also examine the settlement agreement, the Court orders and the other papers filed I the lawsuit at the Office of the Clerk of the Circuit Court of St. Louts County, Missouri at 7900 Carondelet Avenue, Clayton, Missouri 63105, during regular business hours. If you wish, you may seek the advice and guidance of your own attorney, at your own expense. If you wish to communicate with or obtain information from attorneys for the class, you may do so by letter al the addresses listed below. You should direct any such inquiries concerning a claim or other matters described in this notice to plaintiffs' attorneys: John W. Hoffman John F. Mulligan, Jr. Douglas R. Sprong 7700 Bonhomme Ave., Suite 200 Korein Tillery, LLC Clayton, MO 63105 505 N. 76 Street, Suite 3600 St. Louis, MO 63101 Howard Papemer 9322 Manchester Road St. Louis, MO 63119 Please do not contact the Court, Counsel for U S Cellular, or any U S Cellular representative for information. Dated: December 7, 2007 By order of the Circuit Court of St. Louis County, State of Missouri Honorable Bernhardt Drumm Notice of Clees Action Settlement and Approval Hearing — Page 5 of 5 EXHIBIT B U S Cellular Municipal Tax Settlement Claim Form Finance Director Riverside 2950 NW Vivion Road Riverside, MO 64152 If you want to participate In the Settlement, you must complete this form and submit it along with the necessary claim information to the address below, postmarked by February 5, 2008, after first reading the attached NOTICE. PAYMENT OF PAST TAXABILITY The Past Tax Payment that would be payable to you is as follows: Business License Tax on gross receipts for through 10/31/2007 at Rate (see Notice for details) $0 License Tax at flat rate of per year for 9/1/2005 through 10/31/2007 $0 Business License Tax on 0 antenna(s) for 9/1/2005 through 10/31/2007 $0 subtotal $0 LESS tax paid and Protested Tax paid by U S Cellular that will be released to you $0 PAST TAX PAYMENT $0 If you disagree with the amount of the Past Tax Payment, you must submit a detailed exp anaon the amount was incorrectly calculated. If you are unable to agree with U 3 Cellular on the amount of the Past Tax Payment you may either opt -out of the settlement or accept the amount of the Past Tax Payment as calculated by U S Cellular. Please Indicate where your Past Tax Payment should be sent by checking one of the following two options: ❑ OPTION 1: Make the check payable In the name of the Municipality listed above and mall it to the duly authorized rep sentative listed below; OR X OPTION 2: Make the Past Tax Payment as follows: Make Check Payable To: City of Riverside Mail Check to the Attention of: Finance Director Street Address: 2950 NW Vivion Road City, State, Zip Code: Riverside, MO 64150 ASSIGNMENT TO MISSOURI MUNICIPAL LEAGUE OR ST. LOUIS COUNTY MUNICIPAL LEAGUE If you wish to assign part of your Past Tax Payment to the Missouri Municipal League or the St. Louis County Municipal League (if you are located within St. Louis County), please mark this box and enter the amount here: $ not to exceed 5% (the assigned amount may not exceed $<amount>). Please Note: the amount of the Past Tax Payment you receive will be directly reduced by the amount assigned to the Missouri Municipal League or St. Louis County Municipal League. In order to obtain the benefits of the Settlement, you must attach BOTH of the following to this Claim Form: o Copies of the ordinances or municipal code provisions Imposing Business License Tax between September 1, 2006 end October 31, 2007 (or, In you are In the St. Louis market, between July 1, 2005 and October 31, 2007). o Copies of an ordinance enacted by the Municipality accepting all terms and provisions of the Settlement Agreement, or other acknowledgment that the Municipality agrees to be bound by the terms of the Settlement Agreement if approved by the Court as well as an opinion of counsel, addressed to U S Cellular, that the Settlement Agreement, if approved by the Court, Is a binding obligation of the Municipality. If you have elected to make an assignment to the Missouri Municipal League or St. Louis County Municipal League, the ordinance or other acknowledgment must expressly authorize the assignment. Sample acceptable ordinances are attached; provided, however, you should consult with legal counsel to determine an appropriate ordinance for you. The Municipality's duly authorized representative, to whom all inquiries regarding this Claim Form may be directed, is: Name: Donna Resz - Finance Director - City of Riverside Address: 2950 NW Vivion Rd Riverside MO 64150 Telephone number. 816-741-3993 The Municipality's duly authorized representative, to whom all inquiries regarding its Business License Tax may be directed, is: Same as above Other X Name: Louise Rusick, City Clerk Address: 2950 NW Vivion Rd Riverside MO 64150 Telephone number. 816-741-3993 I certify that: 1. I am authorized to submit the Claim Form on behalf of the Municipality identified above and to make the representations set forth in this Claim Form on behalf of the Municipality; 2. After due inquiry, the information contained in and submitted with this Claim Form is complete and accurate to the best of my knowledge and that of the Municipality; 3. The Municipality agrees to be bound by the terms of the Settlement Agreement if approved by the Court; and 4. Prior to bmitting the Claim Form, the Municipality has taken all actions necessary for the Settlement Agreement to be enforceable against the Municipality. Kathleen L. Rose 1-8-08 Signature of Duly Authorized Representative Date Kathleen Rose Mayor Printed Name Title MAIL YOUR COMPLETED CLAIM FORM TO John Reilly Senior Manager -Tax Compliance and Planning 8410 W. Bryn Mawr Avenue Chicago, Illinois 60631 CHAPTER 705: UTILITY GROSS RECEIPTS TAX Editor's Note —Ord. no. 2006-63 §1, adopted May 2, 2006, states that for the purpose of complying with the Act until a final determination by the Missouri Supreme Court whether the Act is constitutional and enforceable with respect to any cost, fee or tax imposed by the aty, the aty Administrator is hereby authorized to promulgate and publish a revenue neutral tax rate, effective July 1, 2006, on all persons and companies engaged in the business of providing telecommunications services equal to four and nine -tenths percent (4.9%) of the gross receipts from the retail sale of domestic, commercial and industrial telecommunications services in the City which are subject to taxation under Sections 144.010 and 144.020, RSMo. Effective July 1, 2006, to the extent then required by the act, section 705.010 of this code shall be deemed to conform to the requirements of the act. Ordinance Number 369 was passed in compliance with HB209 of the 2006 Missouri Legislative session. Provisions contained in HB209 were subsequently deemed unconstitutional by the Missouri Supreme Court on August 8, 2006 in City of Springfield, Appellant V Sprint Spectrum, L.P., Respondent Case No. SC87238. SECTION 705.010: UTILITY TAX Every gas, electricity, water or telephone company and every corporation, company, association, joint stock company or association, partnership and person, their lessees, trustees or receivers appointed by any court whatsoever, owning, operating, managing, leasing or controlling a gas, electricity, water or telephone plant or system for the manufacture, distribution, sale or furnishing of gas (natural or manufactured), electricity, water or telephone service, shall, in addition to all other taxes, payments or requirements now or hereinafter required by law or City ordinance, pay to the City as a license fee a sum equal to five percent (5%) of the licensee's gross receipts from the sale of gas, electricity, water or telephone service sold for domestic, commercial and industrial purposes within the limits of the City under the licensee's applicable rate schedules on file with and approved by the Public Service Commission of Missouri. Provided however, said gross receipts shall not include any receipts collected by the utility pursuant to the City's sales tax nor any receipts collected pursuant to this Chapter. This licensee shall no later than February first (1st) and August first (1st) respectively of each year make a report to the Governing Body of the City of its said gross receipts for the six (6) month period preceding December thirty-first (31st) and June thirtieth (30th) respectively and at the time of making such reports shall pay into the City Treasury the aforesaid license fee based upon the gross receipts so reported. The acceptance of such fees shall not prejudice the right of the City to collect any additional fee thereafter found to be due upon its gross receipts for any period by reason of its inability to determine accurately the amount properly due, licensee shall be entitled following a determination of the overpayment to deduct such overpayment and receive a credit therefor against the amount of license fee due for the next succeeding period or periods following the determination of the overpayment. The City, by its duly authorized representatives, shall have the right, at all reasonable times during business hours, to make such examinations and inspections of the books of such licensee as may be necessary to determine the correctness of such reports. The City shall have the right, at its own expense, to employ the same accountants who make the annual audit of the books, records and accounts of the business of the licensee, to audit, at the same time, the licensee's accounts and records and certify as to the correctness of any payments due and payable by the licensee to the City. The City may at its option employ independent accountants to inspect the books, records and accounts of the licensee. (CC 1971 §12.17; Ord. No. 77-7 §1, 5-3-77; Ord. No. 78-1 §1, 1-3-78; Ord. No. 90-3 §1, 1-2-90) 561 Supp. #22, 8/06