Bakersfield Municipal Code Ch. 3.40 Transient Lodging Tax

Sections: 3.40.010 Definitions. 3.40.020 Tax imposed—Rate—Revenue measure. 3.40.030 Collection of tax. 3.40.031 Enjoining collection forbidden. 3.40.032 Action to challenge validity. 3.40.033 Refunds. 3.40.040 Reports and remittances. 3.40.050 Interest and penalties for late payments.

3.40.060 Failure to collect and report tax—Collection. 3.40.070 Records to be kept. 3.40.080 Security requirements. 3.40.090 Immediate payment of tax on cessation of business. 3.40.100 Successor or assignee of business to withhold tax from purchase money—Certificate of no tax due. 3.40.110 Liability of successor or assignee for tax—Issuance of certificate. 3.40.120 Exemptions. 3.40.130 Duty of tax collector to ascertain name of violators. 3.40.140 Information confidential—Types of disclosures permitted. 3.40.150 Enforcement.

The words and phrases set out in this section, when used in this chapter, shall, for the purposes of this chapter, have the following respective meanings except where the context clearly indicates a different meaning:

A. “Hotel” means any public or private hotel, inn, hostelry, tourist home or house, motel, roominghouse or other lodging place within the city offering lodging, wherein the owner and operator thereof, for compensation, furnishes lodging to any transient as defined in subsection E of this section.

B. “Permanent resident” means any person who, as of a given date, has occupied or has had the right to occupy a room or rooms in a particular hotel, as defined in subsection A of this section, for the thirty consecutive days next preceding such date.

C. “Room rental” means the total charge made by any such hotel for lodging and/or lodging space furnished any such transient. If the charge made by such hotel to such transient includes any charge for services or accommodations in addition to that of lodging, and/or the use of lodging space, then such portion of the total charge as represents only room and/or lodging space rental shall be distinctly set out and billed on the transient by such hotel as a separate item.

D. “Tax collector” means the tax collector of the city of Bakersfield.

E. “Transient” means any person who, for any period of not more than thirty consecutive days, either at his or her own expense or at the expense of another, obtains lodging or the use of any lodging space in any hotel as defined in subsection A of this section, for which lodging or use of lodging space a charge is made. For purposes of this section only, “person” does not mean partnership, corporation or association of any nature whatsoever. (Ord. 4571 § 1, 2009; prior code § 6.12.010)

A. There is imposed and levied on each and every transient a tax equivalent to twelve percent of the total amount paid for room rental by and for any such transient to any hotel; which tax shall be collected from the transient at the time and in the manner provided in Section 3.40.030.

B. The tax is levied for revenue purposes and is necessary for the usual financial operation of the city. (Ord. 4573 § 1, 2009; Ord. 3544 § 1, 1993; Ord. 2861 § 1, 1983; prior code § 6.12.020)

A. On and after the effective date of the ordinance codified in this chapter, as amended, every person receiving any payment for room rental with respect to which a tax is levied under this chapter shall collect the amount of tax imposed from the transient on whom the same is levied or from the person paying for the room rental, at the time payment for the room rental is made.

B. Where the tax has been collected for room rental for thirty days or less and the occupant subsequently completes thirty-one consecutive days of occupancy, the person whose duty it is to collect the tax may return the tax to the occupant or person obligated to pay the tax.

C. If the person whose duty it is to collect the tax has paid the tax over to the city, he or she may, within one year from the date of the payment to the tax collector, and provided he or she has returned the tax to the occupant or person obligated to pay the tax, either take credit for the tax so paid on any subsequent return filed by him or her or file a claim for refund of the tax.

D. The claim may be paid to the person by the tax collector.

E. The taxes required to be collected under this chapter shall be deemed to be held in trust by the person required to collect the same until remitted as required in Section 3.40.040. (Prior code § 6.12.030)

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 thereof, to prevent or enjoin the collection of transient lodging taxes sought to be collected. (Ord. 3701 § 1, 1996)

Notwithstanding any provision of law to the contrary, any taxpayer may, no later than thirty days after the effective date of this section, seek declaratory relief in the superior court of Kern County alleging that the transient lodging taxes have been illegally or unconstitutionally assessed or collected or are to be so assessed or collected.

The relief granted pursuant to this section shall be limited to a declaration that the taxes assessed or collected or to be assessed or collected are unconstitutional or otherwise legally invalid.

This section shall not be interpreted to allow a taxpayer to postpone payment of transient lodging taxes pending the decision of the court. All assessment and collection provisions of Chapter 3.40 shall continue to apply to businesses affected by this section.

This section shall be applicable only in instances where the alleged illegal or unconstitutional assessment or collection occurs as the direct result of a change in administrative regulations or statutory or constitutional law that became effective not more than twelve months prior to the date the action is initiated by the taxpayer.

The procedure for obtaining a declaratory relief judgment under this section shall be the same as that used to obtain a writ of mandate. (Ord. 3701 § 1, 1996)

No refund of taxes paid pursuant to this chapter shall be required in whole or in part unless a written claim for refund is filed within one year of the date the tax was paid. (Ord. 3701 § 1, 1996)

A. The person collecting any such tax shall prepare a report upon such forms and setting forth such information as the tax collector may prescribe and require, showing the amount of room rental charges collected, and the tax required to be collected, and shall sign and deliver the same to the tax collector with a remittance of the tax.

B. The reports and remittances shall be due the first day of each month covering the amount of tax collected during the preceding month.

C. If the remittance is by check or money order, the same shall be payable to the city. (Ord. 4743 § 1, 2013; Ord. 4574 § 1, 2009; prior code § 6.12.040)

If any person fails or refuses to remit to the tax collector the tax required to be collected and paid under this chapter in the amount specified in this chapter, on or before the last day of the month in which the remittance becomes due, there shall be added to the tax by the tax collector a penalty of ten percent of the amount of the tax, and if the tax remains delinquent and unpaid thereafter for a period of thirty days, there shall be added thereto by the tax collector an additional penalty of ten percent. (Prior code § 6.12.050)

A. If any person fails or refuses to collect the tax and to make, within the time provided in this chapter, any report and remittance required by this chapter, the tax collector shall proceed in such manner as he or she deems best to obtain facts and information on which to base his or her estimate of the tax due.

B. As soon as the tax collector procures such facts and information as he or she is able to obtain upon which to base the assessment of any tax payable by any person who has failed or refused to collect the same and to make the report and remittance, he or she shall proceed to determine and assess against the person the tax and penalties provided for by this chapter and shall notify the person by mail sent to his or her last known place of address of the total amount of the tax and interest and penalties, and the total amount thereof shall be payable within ten days from the date of the notice. (Prior code § 6.12.060)

It shall be the duty of every person liable for the collection and payment to the city of any tax imposed by this chapter to keep and preserve, for a period of three years, such suitable records as may be necessary to determine the amount of the tax as he or she may have been liable for the collection of and payment to the city, which records the tax collector shall have the right to inspect at all reasonable times. (Ord. 4536 § 1, 2008; prior code § 6.12.070)

A. The tax collector, whenever he or she deems it necessary to insure compliance with this chapter, may require any person subject thereto, to place with him or her such security as the tax collector may determine. The amount of the security shall be fixed by the tax collector but, except as noted below, shall not be greater than twice the estimated average liability of persons filing returns for monthly periods or ten thousand dollars whichever amount is the lesser. The limitations provided in this chapter apply regardless of the type of security placed with the tax collector. The amount of the security may be increased or decreased by the tax collector subject to the limitations provided in this chapter. The tax collector may sell the security at public auction if it becomes necessary to do so in order to recover any tax or amount required to be collected, interest, or penalty due. Notice of the sale may be served upon the person who placed the security personally or by mail; if by mail, service shall be addressed to the person at his or her address as it appears in the records of the tax collector. Security in the form of a bearer bond issued by the United States or the state which has a prevailing market price may, however, be sold by the tax collector at private sale at a price not lower than the prevailing market price thereof. Upon any sale any surplus above the amounts due shall be returned to the person who placed the security. Upon cessation of business an audit shall be conducted by the tax collector. Any unpaid amounts due to the city of Bakersfield shall be deducted from the security deposit and any remaining amounts shall be returned to the person who placed the security deposit. (Ord. 4575 § 1, 2009; prior code § 6.12.075)

Whenever any person required to collect and pay to the city a tax under this chapter ceases to operate or otherwise dispose of his or her business, any tax payable under this chapter to the city shall become immediately due and payable and such person shall immediately make a report and pay the tax due. (Prior code § 6.12.080)

money—Certificate of no tax due.

If any person liable for any amount under this chapter sells out his or her business or quits the business, his or her successors or assigns shall withhold sufficient of the purchase price to cover such amount until the former owner produces a receipt from the tax collector showing that all taxes due from the person quitting, selling or assigning his or her business have been paid or a certificate stating that no amount is due. (Ord. 4576 § 1, 2009; prior code § 6.12.085)

A. If the purchaser of a business fails to withhold purchase price as required in Section 3.40.100, he or she shall be personally liable for the payment of the amount requested to be withheld by him or her to the extent of the purchase price, valued in money.

B. Within sixty days after receiving a written request from the purchaser for a certificate, or within sixty days from the date the former owner’s records were made available for audit, whichever period expires the later, but in any event not later than ninety days after receiving the request, the tax collector shall either issue the certificate or mail notice to the purchaser at his or her address as it appears in the records of the tax collector of the amount that must be paid as a condition of issuing the certificate. (Ord. 4577 § 1, 2009; prior code § 6.12.086)

A. No tax shall be payable under this chapter on room rental paid to any hospital, medical clinic, convalescent home or home for aged people.

B. No tax shall be payable under this chapter on room rental if it is paid for directly by the federal government or a federal instrumentality of the U.S. Government and if the transient provides the following upon check in:

1. A completed exemption form provided by the city treasurer’s office;

2. Photo identification;

3. Proof of government employment;

4. Travel orders on federal agency letterhead stating that the individual is on official business for the
government and the dates of stay.

A copy of all four of the documents listed above must be included with the hotel transient lodging tax return in order to claim the exemption. (Ord. 4572 § 1, 2009; prior code § 6.12.090)

It shall be the duty of the tax collector to ascertain the name of every person operating a hotel in the city, liable for the collection of the tax levied by this chapter, who fails, refuses or neglects to collect the tax or to make, within the time provided by this chapter, the reports or remittances required in this chapter. (Prior code § 6.12.110)

It is unlawful for the collector or any person having an administrative duty under the provisions of this chapter to make known in any manner whatever information pertaining to the business affairs, operations, or other information obtained by an investigation of records and equipment of any person required to pay a transient lodging tax, or any other person visited or examined in the discharge of official duty, or the amount or source of income, profits, losses, expenditures, or any particular thereof, set forth in any statement or application, or copy of either, or any book containing any abstract or particulars thereof to be seen or examined by any person; provided, that nothing in this section shall be construed to prevent:

A. That disclosure to, or the examination of records and equipment by, another city official, employee, or agent for collection of taxes for the sole purpose of administering or enforcing any provisions of this chapter, or collecting taxes imposed under this chapter.

B. The disclosure of information to, or the examination of records by, federal or state officials, or the tax officials of another city or county, or city and county, if a reciprocal arrangement exists, or to a grand jury or court of law, upon subpoena.

C. The disclosure of information and results of examination of records of particular taxpayers, to a court of law in a proceeding brought to determine the existence or amount of any transient lodging tax liability of the particular taxpayers to the city.

D. The disclosure after the filing of a written request to that effect, to the taxpayer him or herself, or to his or her successors, receivers, trustees, executors, administrators, assignees and guarantors, if directly interested, of information as to the items included in the measure of any paid tax, any unpaid tax or amounts of tax required to be collected, interest and penalties; provided further, however, that the city attorney approves each such disclosure and that the collector may refuse to make any disclosure referred to in this subsection when in his or her opinion the public interest would suffer thereby.

E. The disclosure of the names and addresses of persons that are required to pay a transient lodging tax, and the general type or nature of their business.

F. The disclosure by way of public meeting or otherwise of such information as may be necessary to the collector in order to permit it to be fully advised as to the facts when a taxpayer files a claim for refund of transient lodging taxes, or submits an offer of compromise with regard to a claim asserted against him or her by the city for transient lodging taxes, or when acting upon any other matter.

G. The disclosure of general statistics regarding taxes collected or business done in the city.

H. The disclosure of information and examination of records of any person required to pay a transient lodging tax or who is a litigant in any lawsuit involving the city and such information is relevant to the issues in such lawsuit. (Ord. 4744 § 1, 2013)

Pursuant to the provisions of California Penal Code Section 836.5, any officer or employee of the finance department of the city holding the position of finance director, treasurer or financial investigator may enforce the provisions of this chapter and may arrest a person without a warrant whenever that officer or employee has reasonable cause to believe that the person to be arrested has committed a misdemeanor in his or her presence which is a violation of any of the provisions of this chapter. An officer or employee making an arrest under the authority of this section shall follow the citation release procedures prescribed in Chapter 5C, Title 3, Part 2 of the California Penal Code (Section 853.5 et seq.) or such procedure hereafter enacted by the state of California. (Ord. 4578 § 1, 2009; Ord. 3004 § 3, 1985)