Chapter 3.16 — TRANSIENT OCCUPANCY TAX

State Law reference— Hotel occupancy tax, Revenue and Taxation Code § 7280 et seq.

This chapter shall be known as the "Uniform Transient Occupancy Tax Ordinance of the City of Barstow."

(Code 1969, § 3.16.010; Ord. No. 678(part), 1992)

For the purposes of this chapter, the following words shall have the meanings set forth in this section, unless the context clearly indicates a different meaning:

Occupancy means the use or possession or the right to the use or possession of any portion of any transient occupancy facility for sleeping, lodging, dwelling or similar purposes.

Operator means any person, corporation, entity or partnership which is the proprietor of the hotel, whether in the capacity of owner, lessee, sublessee, mortgagee in possession, debtor in possession, licensee or any other capacity. Where the operator performs its functions though a managing agent of any type or character other than as an employee, the managing agent shall also be deemed an operator and shall have the same duties and liabilities as its principal. For purposes of the notice and appeal provisions of this chapter only, the term "operator" also means and includes any managing employee or employee in charge of the hotel.

Rent means 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 and property and services of any kind or nature, without any deduction therefrom whatsoever.

Tax means all taxes, interest and penalties due on the return.

Tax administrator means the tax and license collector of the city.

Transient means any person who exercises occupancy or is entitled to exercise occupancy, whether by agreement (oral or written), concession, permit, right of access, license, contract, payment of rent or similar entitlement, for a period of 30 consecutive calendar days or less, counting portions of calendar days as full days. Any person so occupying space in a transient occupancy facility shall be deemed to be a transient until the period of 30 days has expired, and there is a lease agreement or month-to-month rental agreement in writing between the operator and the transient, providing for a period of occupancy in excess of 30 days. In determining whether a person is a transient, uninterrupted periods of time extending both prior and subsequent to the effective date of the ordinance codified in this chapter may be considered.

Transient occupancy facility means any structure, or portion of any structure, which is occupied or intended or designed for occupancy by transients for lodging or sleeping purposes in conformance with the city's

zoning regulations and including, but not limited to, any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel or other similar structure or portion thereof, and shall further include any space, lot, area or site in any trailer court, camp, park or lot which is occupied or intended or designed for occupancy by a tent, trailer, recreational vehicle, mobile home, motor home, or other similar conveyance, for dwelling, lodging or sleeping purposes.

(Code 1969, § 3.16.020; Ord. No. 678(part), 1992)

For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of 12.5 percent of the rent charged by the operator. This tax constitutes a debt owed by the transient to the city which is extinguished only by payment to the operator 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 transient's ceasing to occupy space in the hotel.

(Code 1969, § 3.16.030; Ord. No. 678(part), 1992; Ord. No. 780, § 1, 2002)

Upon review and written approval by the city manager, any charitable organization exempt from both federal and state taxes while said organization is providing emergency housing for victims of a natural disaster shall be exempt from payment of the transient occupancy tax as shall the lodging facility providing such occupancy to transients. Said exemption shall apply only to those victims of natural disasters who are placed by said tax exempt organization.

(Code 1969, § 3.16.040; Ord. No. 689, § 1, 1993)

Each operator shall collect the tax imposed by this chapter to the same extent and at the same time as the rent is collected from every transient. The amount of the rent and the tax thereon shall be separately stated from all other amounts on all receipts and books of record of the hotel, and each transient shall be tendered a receipt for payment from the operator with rent and tax separately stated thereon. 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 chapter.

(Code 1969, § 3.16.050; Ord. No. 678(part), 1992)

Each operator of a transient occupancy facility shall obtain a business license prior to commencing business. This license does 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.

(Code 1969, § 3.16.060; Ord. No. 678(part), 1992)

Each operator shall, on or before the last day of the month following the close of each calendar quarter, 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 business license holder if he deems it necessary in order to ensure collection of the tax and he may require further information in the return. Returns and payments are due immediately upon cessation of business for any reason. All taxes collected by operators pursuant to this chapter shall be held in trust for the account of the city until payment thereof is made to the tax administrator.

(Code 1969, § 3.16.070; Ord. No. 678(part), 1992)

(a)

Original delinquency. Any operator who fails to remit any tax imposed by this chapter within the time required shall pay a penalty of $10.00 or ten percent of the amount of the tax, whichever dollar amount is greater, in addition to the amount of the tax.

(b)

Continued delinquency. Any operator who fails 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 of $10.00 or ten percent of the amount of the tax, whichever dollar amount is greater, in addition to the amount of the tax and the first penalty imposed.

(c)

Interest. In addition to the penalties imposed, any operator who fails to remit any tax imposed by this chapter shall pay interest at the rate of 1½; 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. In the event of payment of the tax and nonpayment of interest or penalties, interest at the rate set in this section shall accrue upon the amount of the unpaid interest and penalty until date of payment.

(d)

License cancellation. If the tax, penalties and interest are not paid within 60 days from the date on which the tax became delinquent, the tax administrator shall give written notice to the operator in whose name the business license was issued of his intention to cancel the license after 15 days from the date on the notice, should the taxes, penalties and interest then due not be paid. Written notice shall be deemed given when a copy of same is enclosed in a sealed envelope with postage thereon fully prepaid and certified in the United States mail and addressed to that address given by the operator in the application for the license. The license shall be canceled upon lapse of the 15 days provided in the notice, if all taxes, penalties and interest are not paid in full within the 15-day period.

(e)

Fraud. If the tax administrator determines that the nonpayment of any remittance due under this chapter is due to fraud, a penalty of 25 percent of the amount of the tax shall be added thereto in addition to the penalties stated in subsections (a) and (b) of this section.

(Code 1969, § 3.16.080; Ord. No. 678(part), 1992)

hearing.

(a)

In addition to section 3.16.080(d), if any operator shall fail or refuse to collect said tax and to make, within the time provided in this chapter, any report and remittance of said tax or any portion thereof required by this chapter, the tax administrator shall proceed in such manner as he may deem best to obtain 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 determine an estimate of any tax imposed by this chapter, payable by any operator who has failed or refused to collect the same and to make such report and remittance, he shall proceed to assess against such operator the tax and administrative charges provided for by this chapter. In case such determination is made, the tax administrator shall give a notice of the amount so assessed by serving it personally or by depositing it in the United States mail, postage prepaid and certified, addressed to the operator so assessed at his last known place of address.

(b)

Such operator may, within ten days after the serving or mailing of such notice, make application in writing to the tax administrator for a hearing on the amount assessed. If application by the operator for a hearing is not made within the time prescribed, the tax and administrative charges, if any, determined by the tax administrator shall become final and conclusive and immediately due and payable.

(c)

If such application is made, the tax administrator shall give not less than five days' written notice in the manner prescribed herein to the operator to show cause at a time and place fixed in the notice why the estimated tax specified therein should not be fixed for such tax. At such hearing, the operator may appear and offer evidence why such estimated tax should not be so fixed.

(d)

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 herein of such determination and the amount of such tax and administrative charges. The amount determined to be due shall be payable after 15 days unless an appeal is taken as provided in section 3.16.100.

(Code 1969, § 3.16.090; Ord. No. 678(part), 1992)

Any operator aggrieved by a decision of the tax administrator with respect to the amount of such tax and administrative charges, if any, may appeal to the council by filing a notice of appeal with the city clerk

within 15 days of the serving or mailing of the determination of 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 section 3.16.090 for the service of notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of notice.

(Code 1969, § 3.16.100; Ord. No. 678(part), 1992)

(a)

No reports or statements of an operator shall be conclusive as to the matters set forth therein, nor shall the filing of such reports or statements preclude the city from collection by appropriate action such sum as is actually due and payable. Each report or statement and each of the items therein shall be subject to audit and verification by the tax administrator or authorized agents of the city who are hereby authorized to examine, audit and inspect such books and records as may be necessary in their judgment to verify or determine the tax due.

(b)

Every operator shall keep and preserve for a period of four years all records as may be necessary to determine the tax. Said record shall be made available to the city at all reasonable times within ten days of the date of the written request sent by certified mail. Each operator is required to permit an examination of such books and records at a location within the city. In the event the books and records cannot be made available within the city, the operator shall reimburse the city for the cost of all transportation, lodging, meals, portal to portal travel time, and other incidental costs reasonably incurred by the city in conducting the audit.

(c)

Confidential or proprietary information furnished to or secured by the city from an operator in the implementation of this chapter shall be confidential. This section shall not apply, however, to disclosures made in connection with any hearing, appeal, or any civil action or proceeding relating to the determination or recovery of the tax.

(Code 1969, § 3.16.110; Ord. No. 678(part), 1992)

(a)

Whenever the amount of any tax, interest or penalty has been overpaid or paid more than once or has been erroneously or illegally collected or received by the city under this chapter it 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 of 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, that 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 or 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 under the provisions of this section unless the claimant establishes his right thereto by written records showing entitlement thereto.

(Code 1969, § 3.16.120; Ord. No. 678(part), 1992)

(a)

Any tax required to be paid by any transient under the provisions of this chapter 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 under the provisions of this chapter shall be liable to an action brought in the name of the city for the recovery of such amount.

(b)

If any tax is not paid when due, the tax administrator may record, in the office of the county recorder of such counties as the tax administrator may determine, a certificate of lien which specifies the amount of tax due and the name and address of the operator owing the tax. The certificate shall include a statement that the tax administrator has complied with all legal requirements in the determination of the tax owed, and a legal description of the real property of the owner. Upon recording of the certificate, the tax constitutes a lien upon all real property owned or thereafter acquired by the operator. The lien has the force, effect and priority of a judgment lien.

(c)

At any time after the recording of a certificate of lien, the tax administrator may issue a check or warrant directed to any sheriff or marshal for the enforcement of the lien and the collection of such tax. The warrant shall have the same effect as a writ of execution, and be executed in the same manner and with the same

effect as a levy and sale pursuant to writ of execution. The tax administrator may pay or advance to the sheriff or marshal such fees, commissions and expenses for services as are provided by law.

(d)

In lieu of issuing a check or warrant as provided in subsection (c) of this section, after an assessment is issued or certificate of lien is recorded under subsection (b) of this section, the tax administrator may collect the delinquent amount by seizing or causing to be seized any property, real or personal, of the operator and selling non-cash or nonnegotiable property at public auction to pay the tax due, together with any cost of the seizure and sale. Any seizure made shall only be of property not exempt from execution under the provisions of the Code of Civil Procedure.

(Code 1969, § 3.16.130; Ord. No. 678(part), 1992)

(a)

Any operator liable for any tax who sells or otherwise disposes of a hotel, and the operator's successor, shall notify the tax administrator of the date of sale at least 30 days prior to the date of sale, immediately. The successor shall withhold from the operator for the account of the city a portion of the purchase price sufficient to pay the amount of the tax owed to the city until the operator secures a written release from the tax administrator stating that no tax is due from the operator through the date of the sale. If no release is presented by the operator to the successor within 30 days after the successor commences operation of the hotel, the successor shall immediately deposit the amount withheld from the amount of the tax owed by the prior operator.

(b)

If the successor fails to withhold the amount required by subsection (a) of this section, the successor is liable to the city for payment of the tax owed by the operator.

(c)

The tax administrator shall, within 30 days of receipt of a written request for a release, either issue the release or give written notice to the operator, with a copy to the successor, of the amount of tax which must be paid to secure issuance of the release. The release shall be a defense, available solely to the successor and not the operator, to any claim the city may assert against the successor for taxes owed by the operator.

(d)

Any operator from whom the successor has withheld and paid to the city a portion of the purchase price may challenge the tax administrator's determination pursuant to section 3.16.090, by making application in writing for a hearing on the amount determined by the tax administrator within ten days of mailing by the tax administrator. Following receipt of a timely request for hearing, the hearing provisions of section 3.16.090 shall apply.

(Code 1969, § 3.16.140; Ord. No. 678(part), 1992)

The tax administrator may make rules and regulations not inconsistent with the provisions of this chapter as may be necessary or desirable to aid in the enforcement and administration of this chapter. Any such rule or regulation which may affect the amount of the tax owed the city shall be subject to approval of the city council. Said rules and regulations shall be filed in the office of the tax administrator and maintained in an orderly and readily accessible manner. Taxes are considered paid only upon receipt of the return, and penalty, interest, and completed exemption certificate when appropriate. The burden to secure and comply with the rules and regulations shall be upon the operator.

(Code 1969, § 3.16.150; Ord. No. 678(part), 1992)