Artesia Municipal Code Art. 3 Transient Occupancy Taxes

This article shall be known as the "Uniform Transient Occupancy Tax Law of the City of Artesia."

(Ord. 245, § 1; Ord. 543, § 1)

For the purposes of this article, unless otherwise apparent from the context, certain words and phrases used in this article are defined as follows:

"Hotel"

shall mean 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"

shall mean 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"

shall mean the person who is 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 or her 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 or her principal. Compliance with the provisions of this article by either the principal or the managing agent shall, however, be considered to be compliance by both.

"Person"

shall mean 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"

shall mean 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"

shall mean the City Treasurer.

"Transient"

shall mean any person who exercises occupancy or is entitled to occupancy by reason of a 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.

(Ord. 245, § 2; Ord. 543, § 1; Ord. 23-946, 9/11/2023)

For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of twelve and one-half (12.5%) percent. The tax imposed shall be calculated as a percentage of the occupancy rent charged by the operator. Said tax constitutes a debt owed by the transient to the City, which debt shall be extinguished only by payment to the operator or to the City. The transient shall pay the tax to the operator or to the City. The transient shall pay the tax to the operator of the hotel 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 installation. The unpaid tax shall be due upon the transient's ceasing to occupy space in the hotel. If for any reason the tax due is not paid to the operator of the hotel, the Tax Administrator may require that such tax shall be paid directly to the Tax Administrator.

(Ord. 245, § 3; Ord. 360, § 1; Ord. 361, § 1; Ord. 362, § 1; Ord. 543, § 1; Ord. 09-749, § 1)

No tax shall be imposed upon:

(a) 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;

(b) Any Federal or State officer or employee when on official business; or

(c) Any officer or employee of a foreign government, which officer or employee is exempt by reason of express provisions of Federal laws or international treaties.

(Ord. 245, § 4; Ord. 543, § 1)

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 the 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 the tax will not be added to the rent, or that, if added, any part will be refunded, except in the manner provided in this article.

(Ord. 245, § 5; Ord. 543, § 1)

(a) Required. On or before May 12, 1976, or within 30 days after commencing business, whichever is later, each operator of any hotel renting an occupancy to transients shall register such hotel with the Tax Administrator and obtain from him or her a "transient occupancy registration certificate" which shall be posted in a conspicuous place on the premises at all times.

(b) Certificates. Such certificate, among other things, shall 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 Certificate signifies that the person named on the face hereof has fulfilled the requirements of the Uniform Transient Occupancy Tax Law of the City 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 the City. This certificate shall not constitute a permit."

(Ord. 245, § 6; Ord. 543, § 1)

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 Administrator, each operator shall make a return to the Tax Administrator, on forms provided by him or her, of the total rents charged and received and the amount of taxes collected for transient occupancies. At the time the return is filed, the full amount of the taxes collected shall be remitted to the Tax Administrator. The Tax

Administrator may establish shorter reporting periods for any certificate holder if he or she deems it necessary in order to insure the collection of the tax, and he or she may require further information in the return. Returns and payments shall be due immediately upon the cessation of the 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.

(Ord. 245, § 7; Ord. 543, § 1)

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

(b) Continued Delinquencies. Any operator who shall fail to remit any delinquent remittance on or before 30 days following the date on which the remittance first became delinquent shall pay a 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 determines that the non payment of any remittance due pursuant to the provisions of this article is due to fraud, a penalty of 25% of the amount of the tax shall be added thereto, in addition to the penalties set forth in Subsections (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 1/2 of 1% 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.

(Ord. 245, § 8; Ord. 543, § 1)

If any operator shall fail or refuse to collect the tax required by the provisions of this article and to make, within the time provided in this article, any report and remittance of such tax, or any portion thereof, the Tax Administrator shall proceed in such manner as he or she may deem best to obtain facts and information on which to base his or her estimate of the tax due. As soon as the Tax Administrator shall procure such facts and information as he or she is able to obtain upon which to base the assessment of any such tax imposed and payable by any operator who has failed or refused to collect the tax 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 this article. In the event such determination is made, the Tax Administrator shall give a notice of the amount so assessed by serving such notice personally or by depositing it in the United States mail, postage prepaid, addressed to the operator so assessed at his or her last known place of address. Such operator within 10 days after the service or mailing of such notice, may 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.

Upon the receipt of an application for a hearing, the Tax Administrator shall give not less than five days' written notice, in the manner set forth in this section, to the operator to show cause at the time and place set forth 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 set forth 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 Section 3-5.310 of this article.

(Ord. 245, § 9; Ord. 543, § 1)

Any operator aggrieved by any decision of the Tax Administrator, as set forth in Section 3-5.309 of this article, 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 or her 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 set forth in Section 3-5.309 of this article for the service of the notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of notice.

(Ord. 245, § 10; Ord. 543, § 1)

It is 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 necessary to determine the amount of such tax as he or she 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.

(Ord. 245, § 11; Ord. 543, § 1)

(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 Subsections (b) and (c) of this section provided a claim in writing therefor, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the Tax Administrator within three years after the date of payment. The claim shall be on forms furnished by the Tax Administrator.

(b) An operator may claim a refund or take as credit against taxes collected and remitted the amount overpaid, paid more than once, or erroneously or illegally collected or received when it is 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, neither a refund nor a credit shall be allowed unless the amount of the tax so collected has either 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 Subsection (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 of this section unless the claimant establishes his or her right thereto by written records showing entitlement thereto.

(Ord. 245, § 12; Ord. 543, § 1)

The tax required to be paid by any transient pursuant to the provisions of this article shall be deemed a debt owed to the City by such transient. Any such tax collected by an operator, which tax has not been paid to the City, shall be deemed a debt owed to the City by such operator. 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.

(Ord. 245, § 13; Ord. 543, § 1)

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 in violation of the provisions of this article and shall be punishable as set forth in Chapter 2 of Title 1 of this Code. Any person required to make, render, sign, or verify any report or claim 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 in violation of the provisions of this article and shall be punishable as set forth in Chapter 2 of Title 1 of this Code.

(Ord. 245, § 14; Ord. 543, § 1)