Brisbane Municipal Code Ch. 3.24 Uniform Transient Occupancy Tax

This chapter shall be known as the "uniform transient occupancy tax ordinance of the city."

(Ord. 450 § 1(part), 2000).

A. "Hosting platform" means through which an operator may offer a dwelling unit, or portion thereof, for transient occupancy. A hosting platform includes, but is not limited to, an internet-based platform that allows an operator to advertise and potentially arrange for temporary occupation of the dwelling unit, or portion thereof, through a publicly searchable website, whether the transient user pays rent directly to the operator or to the hosting platform.

B. "Hotel" means 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 includes any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodginghouse, roominghouse, dormitory, public or private club, suite hotel for long term guests or other similar structure or portion thereof. "Hotel" does not mean any of the following: any hospital, sanitarium, medical clinic, convalescent home, rest home, home for aged people, foster home or other similar facility operated for the care or treatment of human beings; any asylum, jail, prison, orphanage or other facility in which human beings are detained and housed under legal restraint; any housing owned or controlled by any educational institution or used exclusively to house students, faculty or other employees, and any fraternity or sorority house or similar facility occupied exclusively by students or employees of such educational institution, and officially recognized or approved by it; any housing operated or used exclusively for religious, charitable or educational purposes by any organization having qualification for exemption from property taxes under the laws of California; or any housing owned by a governmental agency and used to house its employees or for governmental purposes.

C. "Occupancy" means the use or possession, or right to use or possession, of any room or rooms or portion thereof, in any hotel for dwelling, lodging or sleeping purposes.

D. "Operator" means 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 functions through a managing agent or any type of character other than an employee, the managing agent of any type or character is an operator for the purposes of this chapter and shall have the same duties and liabilities as his principal. Compliance with the provisions of this chapter by either the principal or the managing agent shall, however, be considered to be compliance by both.

E. "Person" means 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.

F. "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, without any deduction therefrom whatsoever. The value of complimentary meals or other similar services or inducements shall not be deducted. In the event of dispute, the tax administrator shall determine the proper rent.

G. "Tax administrator" means the city's finance director or his designated representative.

H. "Transient" means any person who exercises occupancy or is entitled to occupancy of a specific room in a hotel by reason of concession, permit, right of access, license or other agreement. Any person so occupying space in a hotel shall be deemed to be a transient until such person has ceased occupancy of the room.

(Ord. 450 § 1(part), 2000).

(Ord. No. 692, § 1, 10-3-24)

For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of fourteen percent (14%) of the rent charged by the operator. The tax is also applicable to the rent of hotel rooms by businesses on a long term basis for temporary use by their clients or employees. Such tax constitutes a debt owed by the transient to the city, which is extinguished only by payment 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 installment. The unpaid tax shall be due upon the transient's ceasing to occupy space or rent space for potential occupancy 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. 450 § 1(part), 2000).

(Ord. No. 540, § 1, 11-3-09; Ord. No. 645, § 1, 11-5-19)

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 this tax; provided, employees of the state or federal government are exempt only if room charges are paid directly by their employing agency. (State and federal employees are not exempt. 46 Ops. Atty.Gen. 16.)

B. Any properly credentialed officer or employee of a foreign government who is exempt by reason of express provision of federal law or international treaty.

No exemption shall be granted except under a claim therefor made at the time rent is collected upon a form prescribed by the tax administrator.

(Ord. 450 § 1(part), 2000).

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 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 chapter.

(Ord. 450 § 1(part), 2000).

No more than five (5) days after commencing business or after a change in operator, each operator of any hotel in the city renting occupancy to transients shall register the hotel with the tax administrator and obtain from him a "transient occupancy registration certificate" to be at all times posted in a conspicuous place on the premiss. The certificate shall, among other things, state the following:

A. The name of the operator;

B. The address of the hotel;

C. The date upon which the certificate was issued;

D. The following statement:

This Transient Occupancy Registration Certificate signifies that the person named on the face thereof has fulfilled the requirements of the uniform transient occupancy tax ordinance by registering with the tax administrator for the purpose of collecting from transients the transient occupancy tax and remitting said tax to the tax administrator. This certificate 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 the City of Brisbane. This certificate does not constitute a permit.

(Ord. 450 § 1(part), 2000).

A. Each operator shall, on or before the last day of each month, make a return to the tax administrator, on forms provided by him, of the total rents charged and the amount of tax calculated for transient occupancies for the preceding month. Unless a separate bank account is established as hereinafter set forth, the full amount of the tax calculated shall be remitted to the tax administrator at the time the return is filed. The tax administrator may establish shorter reporting and/or remitting periods for any operator and may require additional information in any return. Such actions of the tax administrator may be appealed pursuant to Section 3.24.100. 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.

B. All operators shall make weekly deposits of such taxes into a separate bank account established for each operator in the city's bank; such account shall be payable only to the city, shall be at no cost to the operator, and any interest thereon shall accrue to the city. The tax administrator shall establish procedures for the deposit and withdrawal of funds from such accounts in the city bank. He may require that a bond, as described in the following paragraph, be posted if an operator fails to make timely deposits to its account.

C. In lieu of such a separate bank account, an operator may post a bond guaranteeing payment of taxes, equal to one quarter's tax as determined by the tax administrator. Any such bond must provide for no less than ten (10) days prior written notice of cancellation to the city. The tax administrator may require, in lieu of a bond, that a cash deposit equal to one quarter's tax as determined by the tax administrator be deposited with the city as guarantee of payment of taxes. The cash deposit shall be held in trust by the tax administrator; interest earned on the cash deposit shall accrue to the depositor.

(Ord. 450 § 1(part), 2000).

Any hosting platform that assists with arranging transient occupancy may enter into a voluntary collection agreement (or equivalent) with the city for the collection and payment of transient occupancy taxes. Where a hosting platform has entered into such an agreement, the hosting platform shall have the same duties and liabilities of the operator under this chapter. Compliance with the provisions of this chapter by either the operator or the hosting platform shall be considered to be compliance by both. To comply with Section 3.24.060, a hosting platform shall register in its own name and post its transient occupancy registration certificate on its website, if applicable. Operators that only use a hosting platform for providing lodging to transients shall not be required to register separately with the tax administrator or post a transient occupancy registration certificate on-site so long as such hosting platform used by the operator has registered pursuant to Section 3.24.060.

(Ord. No. 692, § 2, 10-3-24)

A. Original Delinquency. Any operator who fails to remit any tax imposed by this chapter within the time required shall pay a penalty of ten percent (10%) of the amount of the tax 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 thirty (30) days following the date on which the remittance first became delinquent shall pay a second delinquency penalty of ten percent (10%) of the amount of the tax in addition to the amount of the tax and the ten percent (10%) penalty first imposed.

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

D. 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 one percent (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 Merged with Tax. Every penalty imposed and such interest as accrues under the provisions of this section shall become a part of the tax required to be paid by this chapter.

(Ord. 450 § 1(part), 2000).

A. Assessment of Estimated Tax. If any operator shall fail or refuse to collect the tax and to make, within the time provided in this chapter, any report and remittance of the 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 base the assessment of any tax imposed by this chapter and payable by any operator who has failed or refused to collect the same and to make such report and remittance, he shall proceed to determine and assess against such operator the tax, interest and penalties provided for by this chapter. He may include in the assessment costs of any necessary audits or investigations.

B. Notice of Assessment—Determination of Tax. Where a determination and assessment of the tax is made under the preceding paragraph, 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, addressed to the operator so assessed at his last known place of address. Such operator may, within ten (10) 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, interest and penalties, if any, determined by the tax administrator shall become final and conclusive and immediately due and payable. If such application is made, the tax administrator shall give not less than five (5) 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 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 operator in the manner prescribed herein of such determination and the amount of such tax, interest and penalties. The amount determined to be due shall be paid in full within fifteen (15) days unless an appeal is taken as provided in Section 3.24.100.

(Ord. 450 § 1(part), 2000).

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 city council by filing a notice of appeal with the city clerk within fifteen (15) days of the serving or mailing of the determination of tax due. The city 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 city council shall be final and conclusive and shall be served upon the appellant in the manner prescribed above for service of notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of the notice.

(Ord. 450 § 1(part), 2000).

It shall be the duty of every operator 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 (3) 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. Such records shall be maintained at the operator's premises or shall be available for delivery to the tax administrator within one week after request. Such records shall be so maintained for at least six (6) months after a change of operator. The records shall include at least the following:

A. Daily summaries of room occupancies;

B. A record of each occupancy charge for which an exemption is claimed, including the name of the individual occupying the room, dates of occupancy, reasons for exemption and a copy of the claim of the completed and duly executed claim of exemption;

C. Lists of bad debts claimed for exemption, including names and addresses of debtor and amount of room rent unpaid;

D. Bank statements for the separate account required in Section 3.24.070.

(Ord. 450 § 1(part), 2000).

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 or perjury the specific grounds upon which the claim is founded, is filed with the tax administrator within three (3) years of the date of payment or the date the tax was due, whichever was earlier. The claim shall be presented in a form approved 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 to the satisfaction of 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 person who paid the tax or credited to rent subsequently payable by such person 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 to such refund.

(Ord. 450 § 1(part), 2000).

A. Actions to Collect. 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 collectible by any 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. Notice of Intent to Record Lien-Hearing. If any amount required to be paid to the city under this chapter is not paid when due, the tax administrator may within three (3) years after the amount is due, and in addition to any other rights and remedies available for collection of such amount, give written notice to the person liable for such tax of the city's intention to record a lien against the property on which the operator's hotel is located. The notice shall specify a time and place at which a hearing will be conducted by the tax administrator to consider any objections by the operator to the recording of such lien, which shall be not less than fifteen (15) days from the date of the notice. The date of the hearing may be continued by the tax administrator from time to time. At the conclusion of the hearing, the tax administrator shall render a decision as to whether a lien should be filed with respect to any amount payable to the city under this chapter which the tax administrator finds is then delinquent. The decision of the tax administrator may be appealed to the city council as provided in Section 3.24.100.

C. Recordation and Enforcement of Tax Lien. Upon a final determination of the amount of the delinquency by the tax administrator or by the city council on appeal, as the case may be, the tax administrator may file for record in the office of the San Mateo County recorder a tax lien specifying the amount of tax, penalties and interest due, the name and address as it appears on the records of the operator liable for the same, and the legal description of the property on which the operator's hotel is located. From the time of the filing for record, the amount required to be paid together with penalties and interest constitutes a lien upon such real property. Such lien shall be valid for a period of ten (10) years and may be enforced by an action to foreclose the lien in the manner provided by law.

D. Successor's Liability—Withholding by Purchaser. If any operator liable for any amount under this chapter sells or transfers his hotel or any ownership interest therein, his successor or transferee shall withhold sufficient funds out of the purchase price to cover such amount until the former owner produces a receipt from the tax administrator showing that it has been paid or a certificate stating that no amount is due.

E. Liability of Purchaser—Release. If the purchaser of a hotel fails to withhold funds from the purchase price as required, he shall become personally liable for the payment of the amount required to be withheld by him to the extent of the purchase price, valued in money. Within sixty (60) days after receiving a written request from the purchaser for a transient occupancy registration certificate, or within sixty (60) days from the date the former owner's records are made available for audit, whichever period expires the later, but in any event, not later than ninety (90) days after receiving the request, the tax administrator shall either issue the certificate or mail notice to the purchaser at his address as it appears on the records of the tax administrator of the amount that must be paid as a condition of issuing the certificate. Failure of the tax administrator to mail the notice shall release the purchaser from any further obligation to withhold purchase price as above provided.

F. Continued Liability of Operator. Sale of a hotel, dismissal of the operator or other termination of his rights to operate the facility shall not relieve him from liability for taxes due or owing under this chapter.

(Ord. 450 § 1(part), 2000).

A. The violation of any of the provisions of this chapter shall constitute a misdemeanor, punishable by the fines, penalties and enforcement provisions set forth in Chapters 1.14, 1.16 and 1.18 of this code.

B. Any operator or other person who fails or refuses to register as required herein, 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 report or claim, is guilty of a misdemeanor, and is punishable as aforesaid. 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 this chapter to be made, is guilty of a misdemeanor and is punishable as aforesaid.

(Ord. 450 § 1(part), 2000).

(Ord. No. 554, § 3, 1-18-11)