Article 3 — TRANSIENT OCCUPANCY TAX

This article shall be known as the “Uniform Transient Occupancy Tax Law” of the city.

('66 Code, § 3-5.301) (Ord. 621-A, passed 11-9-64)

For the purpose of this article, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

HOTEL. Any structure, or any portion of any structure, which is occupied, or intended or designed for occupancy, by transients for dwelling, lodging, or sleeping purposes and shall include any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodging house, rooming house, apartment house, dormitory, public or private club, mobile home or house trailer at a fixed location, or other similar structure, or portion thereof.

OCCUPANCY. The use or possession, or the right to the use or possession, of any room, or portion thereof, in any hotel for dwelling, lodging, or sleeping purposes.

OPERATOR. The person who is the proprietor of the hotel, whether in the capacity of owner, lessee, sublessee, mortgagee in possession, licensee, or any other capacity. Where the operator performs his functions through a managing agent of any type or character other than an employee, the managing agent shall also be deemed an operator for the purposes of this article and shall have the same duties and liabilities as his principal. Compliance with the provisions of this article by either the principal or the managing agent, however, shall be considered to be compliance by both.

PERSON. Any individual, firm, partnership, joint venture, association, social club, fraternal organization, joint stock company, corporation, estate, trust, business trust, receiver, trustee, syndicate, or any other group or combination acting as a unit.

RENT. The consideration charged, whether or not received, for the occupancy of space in a hotel valued in money, whether to be received in money, goods, labor, or otherwise, including all receipts, cash, credits, property, and services of any kind or nature, without any deduction therefrom whatsoever.

TAX ADMINISTRATOR. The Director of Finance of the city.

TRANSIENT. Any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, or other agreement for a period of 30 consecutive calendar days or less, counting portions of calendar days as full days. Any such person so occupying space in a hotel shall be deemed to be a transient until the period of 30 days has expired unless there is an agreement in writing between the operator and the occupant providing for a longer period of occupancy. In determining whether a person is a transient, uninterrupted periods of time extending both prior and subsequent to the effective date of the provisions of this article may be considered.

('66 Code, § 3-5.302) (Ord. 621-A, passed 11-9-64; Am. Ord. 2040-C-S, passed 5-25-10)

For the privilege of occupancy in any hotel or motel, each person shall be subject to and shall pay a tax in the amount of 10% of the rent charged by the operator. Such tax shall constitute a debt owed to the city, which debt shall be extinguished only by payment to the operator and thence to the city. The occupant shall pay the tax to the operator of the hotel or motel at the time the rent is paid. If the rent is paid in installments, a proportionate share of the tax shall be paid with each installment. The unpaid tax shall be due upon the occupant's ceasing to occupy space in the hotel or motel.

('66 Code, § 3-5.303) (Ord. 621-A, passed 11-9-64; Am. Ord. 122-C-S, passed 8-1-70; Am. Ord. 626-C-S, passed 4-10-86; Am. Ord. 851-C-S, passed 9-1-92) Penalty, see § 3-5.314

(A) The operator shall be entitled to deduct from the calculation of tax paid an amount attributable to the provision of food and beverages provided to guests, the uniform cost of which is included in the price of the accommodation.

(1) When only coffee and tea, cookies, and/or candy are provided, the amount of one dollar may be deducted from the amount of rent for each room for each night that the room is occupied from

the rent otherwise subject to tax.

(2) When a continental breakfast is provided, meaning generally pastries, cereals, fruit, and beverages, an amount of five dollars per room per night may be so deducted.

(3) When a made-to-order hot breakfast is provided, an amount of ten dollars per room per night may be so deducted.

(B) The operator may apply for permission from the Tax Administrator to deduct higher amounts for food and/or beverages provided, and the Administrator shall approve such deductions, upon a showing that the operator's reasonably imputed value for the food and/or beverage is higher than the amounts specified in this section for flat deductions. The reasonableness of the imputed value may be determined by the operator's actual costs, reasonable overhead and profit.

(Ord. 1045-C-S, passed 4-12-05)

(A) No tax shall be imposed upon:

(1) Any person as to whom, or any occupancy as to which, it is beyond the power of the city to impose the tax provided for in this article;

(2) Any federal or state officer or employee when on official business;

(3) Any officer or employee of a foreign government, which officer or employee is exempt by reason of express provision of federal law or international treaty; or

(4) Any person who is placed in the hotel by the American Red Cross as a result of fire or disaster. However, any such exemption shall apply only to the first 30 days of such occupancy.

(B) No exemption shall be granted except upon a claim therefor made at the time the rent is collected and under penalty of perjury upon a form prescribed by the Tax Administrator.

('66 Code, § 3-5.304) (Ord. 621-A, passed 11-9-64; Am. Ord. 803-C-S, passed 2-21-91)

Each operator shall collect the tax imposed by the provisions of this article to the same extent and at the same time as the rent is collected from every transient. The amount of tax shall be separately stated from the amount of the rent charged, and each transient shall receive a receipt for payment from the operator. No operator of a hotel shall advertise or state in any manner, whether directly or indirectly, that the tax, or any part thereof, will be assumed or absorbed by the operator, or that it will not be added to the rent, or that, if added, any part will be refunded except in the manner provided in this article.

('66 Code, § 3-5.305) (Ord. 621-A, passed 11-9-64) Penalty, see § 3-5.314

(A) Within 30 days after commencing business, each operator of any hotel renting an occupancy to transients shall register such hotel with the Tax Administrator and obtain from him a “Transient Occupancy Registration Certificate” which shall at all times be posted in a conspicuous place on the premises.

(B) Such certificate shall, among other things, set forth the following information:

(1) The name of the operator;

(2) The address of the hotel;

(3) The date upon which the certificate was issued; and

(4) A statement as follows:

This Transient Occupancy Registration Certifi-cate signifies that the person named on the face hereof has fulfilled the requirements of the Uniform Transient Occupancy Tax Law by registering with the Tax Administrator for the purpose of collecting from transients the Transient Occupancy Tax and remitting such tax to the Tax Administrator. This certificate shall not authorize any person to conduct any unlawful business or to conduct any lawful business in an unlawful manner, nor to operate a hotel without strictly complying with all local applicable laws, including, but not limited to, those requiring a permit from any board, commission, department, or office of this City. This certificate shall not constitute a permit.

('66 Code, § 3-5.306) (Ord. 621-A, passed 11-9-64) Penalty, see § 3-5.314

Each operator shall, on or before the last day of the month following the close of each calendar quarter, or at the close of any shorter reporting period which may be established by the Tax Admini- strator, make a return to the Tax Administrator, on forms provided by him, of the total rents charged and received and the amount of tax collected for transient occupancies. At the time the return is filed, the full amount of the tax collected shall be remitted to the Tax Administrator. The Tax Administrator may establish shorter reporting periods for any certificate holder if he deems it necessary in order to insure collection of the tax, and he may require further information in the return. Returns and payments shall be due immediately upon cessation of business for any reason. All taxes collected by operators pursuant to the provisions of this article shall be held in trust for the account of the city until payment thereof is made to the Tax Administrator.

('66 Code, § 3-5.307) (Ord. 621-A, passed 11-9-64) Penalty, see § 3-5.314

(A) Original delinquency. Any operator who shall fail to remit any tax imposed by the provisions of this article within the time required shall pay a penalty in the amount of 10% of the tax in addition to the amount of the tax.

(B) Continued delinquency. Any operator who shall fail to remit any delinquent remittance on or before a period of 30 days following the date on which the remittance first became delinquent shall pay a second delinquency penalty in the amount of 10% of the tax in addition to the amount of the tax and the 10% penalty first imposed.

(C) Fraud. If the Tax Administrator shall determine that the nonpayment of any remittance due pursuant to the provisions of this article is due to fraud, a penalty in the amount of 25% of the amount of the tax shall be added thereto in addition to the penalties set forth in division (A) and (B) of this section.

(D) Interest. In addition to the penalties imposed, any operator who shall fail to remit any tax imposed by the provisions of this article shall pay interest at the rate of one-half of one percent per month, or fraction thereof, on the amount of the tax, exclusive of penalties, from the date on which the remittance first became delinquent until paid.

(E) Penalties and interest merged with tax. Every penalty imposed, and such interest as accrues, pursuant to the provisions of this section shall become a part of the tax required to be paid by the provisions of this article.

('66 Code, § 3-5.308) (Ord. 621-A, passed 11-9-64) Penalty, see § 3-5.314

If any operator shall fail or refuse to collect such tax and to make, within the time provided in this article, any report and remittance of such tax, or any portion thereof, required by the provisions of this article, the Tax Administrator shall proceed in such manner as he may deem best to obtain the facts and information on which to base his estimate of the tax due. As soon as the Tax Administrator shall procure such facts and information as he is able to obtain upon which to base the assessment of any such tax imposed by the provisions of this article and payable by any operator who has failed or refused to collect the same and to make such report and remittance, the Tax Administrator shall proceed to determine and assess against such operator the tax, interest, and penalties provided for by the provisions of this article. In the event such determination is made, the Tax Administrator shall give notice of the amount so assessed by serving it personally or by depositing it in the United States Mail, postage prepaid, addressed to the operator so assessed at his last known place of address. Such operator may, within 10 days after the service or mailing of such notice, make an application in writing to the Tax Administrator for a hearing on the amount assessed. If an application by the operator for a hearing is not made within the time prescribed, the tax, interest, and penalties, if any, determined by the Tax Administrator shall become final and conclusive and immediately due and payable. If such an application is made, the Tax Administrator shall give not less than five days' written notice in the manner prescribed in this section to the operator to show cause at a time and place fixed in such notice why the amount specified therein should not be fixed for such tax, interest, and penalties. At such hearing the operator may appear and offer evidence why such specified tax, interest, and penalties should not be so fixed. After such hearing the Tax Administrator shall determine the proper tax to be remitted and shall thereafter give written notice to the person in the manner prescribed in this section of such determination and the amount of such tax, interest, and penalties. The amount determined to be due shall be payable after 15 days unless an appeal is filed as provided in § 3-5.310 of this article.

('66 Code, § 3-5.309) (Ord. 621-A, passed 11-9-64) Penalty, see § 3-5.314

The tax established by this article shall run with the business and any successor operator shall be responsible and liable for payment of any unpaid transient occupancy taxes attributable to the business prior to transfer of ownership, unless the successor operator has applied to the Tax Administrator for a tax clearance certificate pursuant to Cal. Rev. and Tax. Code § 7283.5 and has received from the Administrator a certificate indicating that no tax is due, owing, delinquent or attributable to the business prior to transfer of ownership.

(Ord. 1045-C-S, passed 4-12-05)

Any operator aggrieved by any decision of the Tax Administrator with respect to the amount of such tax, interest, and penalties, if any, may appeal to the Council by filing a notice of appeal with the City Clerk within 15 days after the service or mailing of the determination of the tax due. The Council shall fix a time and place for hearing such appeal, and the City Clerk shall give notice in writing to such operator at his last known place of address. The findings of the Council shall be final and conclusive and shall be served upon the appellant in the manner prescribed in this article for the service of a notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of notice.

('66 Code, § 3-5.310) (Ord. 621-A, passed 11-9-64)

It shall be the duty of every operator liable for the collection and payment to the city of any tax imposed by the provisions of this article to keep and preserve, for a period of three years, all records as may be necessary to determine the amount of such tax as he may have been liable for the collection of and payment to the city, which records the Tax Administrator shall have the right to inspect at all reasonable times.

('66 Code, § 3-5.311) (Ord. 621-A, passed 11-9-64) Penalty, see § 3-5.314

(A) Whenever the amount of any tax, interest, or penalty has been overpaid, or paid more than once, or erroneously or illegally collected or received by the city pursuant to the provisions of this article, such amount may be refunded as provided in divisions (B) and (C) of this section provided a claim in writing, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed in accordance with Chapter 13 of Title 3 of the Antioch Municipal Code with the exception that the claim is filed with the Tax Administrator instead of the City Clerk.

(B) Any operator may claim a refund when it has established in a manner prescribed by the Tax Administrator that the person from whom the tax has been collected was not a transient; provided, however that a refund shall not be allowed unless the amount of the tax has been refunded to the transient or credited to rent subsequently payable by the transient to the operator.

(C) A transient may obtain a refund of taxes overpaid, paid more than once, or erroneously or illegally collected or received by the city by filing a claim in the manner provided in division (A) of this section but only when the tax was paid by the transient directly to the Tax Administrator or when the transient having paid the tax to the operator, establishes to the satisfaction of the Tax Administrator that the transient has been unable to obtain a refund from the operator who collected the tax.

(D) No refund shall be paid pursuant to the provisions in this section unless the claimant establishes his or her right by written records.

(E) No suit or proceeding shall be maintained in any court for recovery of any amount alleged to have been erroneously or illegally determined or collected unless a claim for each refund has been filed pursuant to this section.

(F) No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action or proceeding in any court against the city or any officer of the city, to prevent or enjoin collection of taxes sought to be collected pursuant to this article and payment of all tax, interest and penalties shall be required as a condition precedent to seeking judicial review of any tax liability.

('66 Code, § 3-5.312) (Ord. 621-A, passed 11-9-64; Am. Ord. 1069-C-S, passed 6-13-06; Am. Ord. 2040-C-S, passed 5-25-10)

Any tax required to be paid by any transient pursuant to the provisions of this article shall be deemed a debt owed by the transient to the city. Any such tax collected by an operator which has not been paid to the city shall be deemed a debt owed by the operator to the city. Any person owing money to the city pursuant to the provisions of this article shall be liable to an action brought in the name of the city for the recovery of such amount.

('66 Code, § 3-5.313) (Ord. 621-A, passed 11-9-64)

Any operator or other person who fails or refuses to register as required, or to furnish any return required to be made, or who fails or refuses to furnish a supplemental return or other data required by the Tax Administrator, or who renders a false or fraudulent return or claim shall be guilty of a misdemeanor and punishable as set forth in §§ 1-2.01 et seq. Any person required to make, render, sign, or verify any report or claim and who makes any false or fraudulent report or claim with intent to defeat or evade the determination of any amount due required by the provisions of this article to be made shall be guilty of a misdemeanor and punishable as set forth in §§ 1-2.01 et seq.

('66 Code, § 3-5.314) (Ord. 621-A, passed 11-9-64)