Concord Municipal Code Art. IV Hotel Transient Occupancy Tax

Cross references: Businesses and business regulations, Ch. 18.

This article shall be known as the Uniform Transient Occupancy Tax Ordinance of the City of Concord.

(Code 1965, § 8501; Code 2002, § 98-121. Ord. No. 786)

For the purposes of this article, the following words and phrases shall have the meanings respectively ascribed to them by this section:

Director. The Director is the Director of Finance and Management Services.

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 includes any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodginghouse, roominghouse, 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 proprietor of the hotel, whether in the capacity of owner, lessee, sublessee, mortgagee in possession, licensee, manager, or any other capacity. Where the operator performs 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 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, and property and services of any kind or nature, without any deduction therefrom whatsoever.

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 this article may be considered.

(Code 1965, § 8502; Code 2002, § 98-122. Ord. No. 786; Ord. No. 92-20)

Cross references: Definitions generally, § 1.05.100.

For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of ten percent of the rent charged by the operator. 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 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 Director may require that such tax shall be paid directly to the city.

(Code 1965, § 8503; Code 2002, § 98-123. Ord. No. 786; Ord. No. 1134; Ord. No. 83-17; Ord. No. 91-15; Ord. No. 92-20)

(a) No tax under this article shall be imposed upon the following:

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

(2) Any federal or state officer or employee when on official business and when the room charge is paid directly by the United States government or the state. This exemption does not apply to a transient employed by an entity which is exempt from payment of the tax when the payment is later reimbursed by the entity;

(3) Any officer or employee of a foreign government who is exempt by reason of express provisions of federal law or international treaty.

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

(Code 1965, § 8504; Code 2002, § 98-124. Ord. No. 786; Ord. No. 92-20)

Each operator shall collect the tax imposed by 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 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.

(Code 1965, § 8505; Code 2002, § 98-125. Ord. No. 786; Ord. No. 92-20)

(a) Within ten days after commencing business, each operator of any hotel shall register with the Director by completing a registration form provided by the city. Such registration form shall, among other things, provide the following information:

(1) The name of the hotel;

(2) The name and telephone number of the operator;

(3) The address and telephone number of the hotel;

(4) The date upon which the hotel began operation under this operator;

(5) The number of rooms available for rent;

(6) The County Assessor’s parcel number of the hotel;

(7) The date upon which the certificate was issued.

(b) This registration application 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 applicable local laws, including but not limited to those requiring a permit from any board, commission, department, division, or office of this city. This registration does not constitute a permit.

(Code 1965, § 8506; Code 2002, § 98-126. Ord. No. 786; Ord. No. 92-20)

(a) (1) Each operator shall, on or before the last day of the month following the close of the month for which the transient occupancy tax was collected, or at the close of any shorter reporting period which may be established by the Director, make a return to the Director, on forms provided by him, of the total rents charged and received and the amount of tax collected from the transient occupancies.

(2) Returns filed and taxes remitted by mail shall be considered timely only if the envelope or similar container enclosing the returns and taxes is addressed to the Director, has sufficient postage, and bears a United States postmark or other postage meter imprint prior to midnight on the last day for such reporting and remitting without penalty. If such envelope or other container bears a postage meter imprint as well as a United States Post Office cancellation mark, the latter shall govern in determining whether the filing and remittance are timely.

(b) The Director may require that an operator who is delinquent in the payment of the tax remit taxes directly to the city’s Department of Finance and Management Services on a weekly or daily basis.

(c) All taxes collected by the operator pursuant to this article are considered public monies and the sole and separate property of the city from the time of collection and shall be received and held in trust for the city until remittance thereof is made by the operator to the Director.

(Code 1965, § 8507; Code 2002, § 98-127. Ord. No. 786; Ord. No. 91-15; Ord. No. 92-20)

(a) An operator who is transferring, selling, or terminating his business shall notify the Director, in writing, of such sale, transfer, or termination and the name and address of the purchaser, or transferee, at least 30 days in advance of the date of transfer, sale, or termination, unless the decision to sell, transfer, or terminate was made within less than a 30-day period prior to the transfer, sale, or termination, in which case the operator shall then immediately notify the Director. An operator who is transferring, selling, or terminating his business shall also remit, to the Director, an amount either in cash, certificate of deposit, or other security acceptable to the city the estimated tax due the city, including any penalties and interest that may be outstanding as of the estimated date for the close of escrow. Upon cessation of the business and following the procedures set forth in subsection (b), the operator shall be entitled either to a refund of excess taxes paid or be liable for additional taxes owing the city following the submission of the final return and any audit of the operator’s records by the city.

(b) Each operator, upon cessation of business for any reason, shall, on or before ten days following the cessation of business, make a return to the Director on approved forms of the total taxable rents charged and the amount of tax collected. After filing the final return, the operator shall make his records of account available for a closeout audit by the Director or duly authorized city employee or agent.

(c) In the event an operator who is liable for any tax or penalties under this article sells or otherwise disposes of his business without complying with subsection (a) or (b), his successor shall notify the Director of the date of sale at least 30 days after the date of sale and shall withhold a sufficient portion of the hotel’s receipts to equal the amount of such tax or penalty until the selling operator produces a receipt from the Director showing that the tax or penalty has been paid or a tax clearance certificate from the Director stating that no tax or penalty is due. If the seller does not present a receipt or tax clearance certificate within 30 days after such successor commences to conduct business, the successor shall deposit the withheld amount with the Director pending settlement of the account of the seller.

(d) If the successor to the business fails to withhold a portion of the purchase price as required, he shall be liable to the city for the payment of the amount required to be withheld. Within 30 days after receiving a written request from the successor for a tax clearance certificate stating that no tax or penalty is due, the Director shall either issue the certificate or mail notice to the successor at his address as it appears on the records of the Director of the estimated amount of the tax and penalty that must be paid as a condition of issuing the certificate.

(Code 1965, § 8508; Code 2002, § 98-128. Ord. No. 786; Ord. No. 92-20)

(a) Original delinquency. Any operator who fails to remit any tax imposed by this article within the time required shall pay a penalty of ten percent of the amount of the tax in addition to the amount of the tax or the estimated tax.

(b) Continued delinquency. Any operator who fails to remit any delinquent taxes on or before a period of 30 days following the date on which the taxes first became delinquent shall pay a second delinquency penalty of ten percent of the amount of the tax, in addition to the amount of the tax and the ten percent penalty first imposed.

(c) Fraud. If the Director determines that the nonpayment of any remittance due under this article 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.

(d) Interest. In addition to the penalties imposed, any operator who fails to remit any tax imposed by this article shall pay interest at the rate 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 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.

(f) Audit deficiency. If, upon audit by the city, an operator is found to be deficient in either his return or remittance, or both, the Director shall immediately invoice the operator for the amount of the net deficiency, plus a penalty of ten percent of the net deficiency. If the operator fails or refuses to pay the deficient amount and applicable penalties within 30 days of the date of the invoice, an additional ten percent penalty shall be added to the original deficiency. In addition to the penalties imposed, any operator who fails to remit payment of billed audit deficiencies within 30 days of the date of the invoice shall pay interest at the rate of one percent per month, or fraction thereof, on the amount of the tax, exclusive of penalties. The operator shall also be liable for the cost incurred by the city for the audit if a deficiency is substantiated.

(Code 1965, § 8509; Code 2002, § 98-129. Ord. No. 786; Ord. No. 92-20)

If any operator shall fail or refuse to collect the tax imposed by this article and to make, within the time provided in this article, any report and remittance of such tax, or any portion thereof, the Director shall proceed in such manner as he may deem best to obtain facts and information on which to base an estimate of the tax due. As soon as the Director procures such facts and information as is possible upon which to base the assessment of any tax imposed by this article and payable by any operator who has failed or refused to collect the same, and to make such report and remittance, the Director shall proceed to determine and assess against such operator the tax, interest, and penalties provided for by this article. In case such determination is made, the Director 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 the last known place of address. Such operator may, within ten days after the serving or mailing of such notice, make application, in writing, to the Director for a hearing on the amount assessed. If application by the operator for a hearing is not made within the time prescribed, the minimum tax, interest, and penalties, if any, determined by the Director shall become final and conclusive and immediately due and payable. If such application is made, the Director shall give no 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 such 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 Director shall determine the minimum amount of 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 taken as provided in section 3.15.310.

(Code 1965, § 8510; Code 2002, § 98-130. Ord. No. 786; Ord. No. 845; Ord. No. 92-20)

Any operator aggrieved by any decision of the Director with respect to the amount of such tax, interest, and penalties, if any, may appeal to the City Council pursuant to section 2.05.050 et seq. 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 notice.

(Code 1965, § 8511; Code 2002, § 98-131. Ord. No. 786; Ord. No. 92-20)

(a) It shall be the duty of every operator liable for the collection and payment to the city of any tax imposed by this article to keep and preserve, for a period of three years, within the boundaries of this city, all business records as may be necessary to determine the amount of such tax for which the operator is liable for the collection and payment to the city. The Director and authorized deputies or agents, in the exercise of duties imposed by this article, shall have the right to inspect such records at all reasonable times and to apply auditing procedures necessary to determine the amount of tax due to the city. All records which may be necessary to inspect shall be kept within the city or shall be produced within ten working days of written notice at the business location within the city.

(b) In the event records are not produced upon request, or such records are not reasonably able to be audited, the tax, interest, and penalties will be levied based upon the prior collections and remittances of taxes by the operator to the city for that operator’s hotel during the audit period. Further, and without limitation, any operator who does not produce records following written notice as set forth herein shall pay, as a civil penalty, in addition to any tax, penalty, or interest, the sum of $100.00 per day for each business day the records are not produced for audit.

(Code 1965, § 8512; Code 2002, § 98-132. Ord. No. 786; Ord. No. 92-20)

(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 article, it may be refunded as provided in subsections (b) and (c) of this section, provided that a claim in writing therefor, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the Director within one year of the date of payment.

(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 Director that the person from whom the tax has been collected was not a transient, provided 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, 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 Director, or when the transient having paid the tax to the operator establishes, to the satisfaction of the Director, 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 therefor by written records showing entitlement thereto.

(Code 1965, § 8513; Code 2002, § 98-133. Ord. No. 786; Ord. No. 92-20; Ord. No. 03-5)

(a) Any tax required to be paid by any transient under the provisions of this article shall be deemed a debt owed by the transient to the city and payable through the operator. Any tax collected by an operator which has not been paid to the city shall be deemed funds held in trust for the account of the city which are due and payable by the operator to the city pursuant to the provisions of this article. Any person owing money to the city under the provisions of this article shall be liable to an action brought in the name of the city for the recovery of such amount.

(b) If any amount required to be paid to the city under this article is not paid when due, the Director may record, in the office of the County Recorder, a certificate which specifies the amount of tax and penalties due, the name and address of the operator liable for the same, and a statement that the Director has complied with all provisions of this article in the determination of the real property owned by the operator. From the time of the recording of the certificate, the amount required to be paid, together with penalties, constitutes a lien upon all real property in the county owned by the operator or thereafter acquired before the lien expires. The lien has the force, effect, and priority of a judgment lien and shall continue for ten years from the filing of the certificate, unless sooner released or otherwise discharged.

(c) At any time within three years after the recording of a certificate of lien under subsection (b) of this section, the Director may issue a warrant directed to any sheriff or marshal for the enforcement of the lien and the collection of any tax and penalties required to be paid the city under this article. 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 a writ of execution. The Director may pay or advance to the sheriff or marshal such fees, commission, and expenses for services as are provided by law for similar services pursuant to a writ of execution.

(d) In lieu of issuing a warrant under subsection (c) of this section, at any time within the three years after an assessment was issued or a certificate of lien was recorded under subsection (b) of this section, the Director may collect the delinquent amount by seizing, or causing to be seized, any property, real or personal, of the operator and sell any non-cash or non-negotiable property, or a sufficient part of it, at public auction to pay the amount of tax due, together with any penalties, interest, and any costs incurred on account of the seizure and sale. Any seizure made to collect taxes due shall only be of property of the operator not exempt from execution under the provisions of the Code of Civil Procedure.

(Code 1965, § 8514; Code 2002, § 98-134. Ord. No. 92-20)

(a) Any person violating any of the provisions of this article shall be guilty of a misdemeanor pursuant to Section 1.05.230, and shall be liable for costs incurred by city in the prosecution of any civil action filed for any such violation as provided by Section 1.05.210.

(b) It shall not be a defense to violations of this article that the operator has forwarded any return due or tax collected to his principal or corporate headquarters, noting that any failure to file or remit taxes was based on the direction or inaction of such principal or corporate headquarters.

(c) Any person charged with the receipt, safekeeping, transfer, or disbursement of these public tax funds who fails to remit said taxes when due shall be subject to provisions of Penal Code § 424.

(Code 1965, § 8515; Code 2002, § 98-135. Ord. No. 94-5; Ord. No. 92-20)