Corning Municipal Code Ch. 3.28 Transient Occupancy Tax

* For statutory provisions on transient occupancy taxes, see Rev. and Tax. Code §7280 et seq.

Except where the context otherwise requires, the definitions given in this section govern the construction of this chapter.

"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, dormitory, public or private club, mobile home or recreational vehicle or house trailer at a fixed location, or other similar structure or portion thereof. Mobile homes located in a mobile home park are exempted from any tax imposed by this chapter.

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

"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 of any type or character other than an employee, the managing agent shall also be deemed an operator for the purpose 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 managing agent shall, however, be considered to be compliance by both.

"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.

"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.

"Transient" means 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 thirty 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 thirty 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 ordinance codified in this chapter may be considered.

(Ord. 551 §1, 1994; Ord. 323 §6, 1978; Ord. 258 §1, 1970).

A. 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.

B. Such 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 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 of finance of the city shall require that such tax be paid directly to the director of finance of the city.

(Ord. 551 §2, 1994; Ord. 523 §1, 1992: Ord. 258 §2, 1970).

A. No tax shall be imposed upon:

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

2. Any federal officer or employee when on official business.

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 finance director.

(Ord. 615 §1, 2004; Ord. 258 §3, 1970).

Within thirty days after the effective date of the ordinance codified in this chapter or within thirty days after commencing business, whichever is later, each operator of any hotel renting occupancy to transients shall register the hotel with the finance director and obtain from him a transient occupancy registration certificate to be at all times posted in & conspicuous place on the premises. 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. "This Transient Occupancy Registration Certificate signifies that the person named on the face hereof has fulfilled the requirements of the Uniform Transient Occupancy Tax Ordinance by registering with the Finance Director of the City of Corning for the purpose of collecting from transients the Transient Occupancy Tax and remitting said tax to the Corning Finance Director. 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 this City. This certificate does not constitute a permit."

(Ord. 258 §5, 1970).

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. 258 §4, 1970).

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 years, all records as may be necessary to determine the amount of such tax as he may have been liable for the collection of any payment to the city, which records the finance director shall have the right to inspect at all reasonable times.

(Ord. 258 §10, 1970).

Each operator shall, on or before the last day of the month following the close of each calendar quarter, make a return to the finance director, 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 finance director. 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 finance director.

(Ord. 258 §6, 1970).

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 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 days following the date on which the 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 finance director determines that the nonpayment of any remittance due under this chapter is due to fraud, a penalty of twenty-five 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 chapter shall pay interest at the rate of one-half of one percent per month or fraction thereof on the amount of the tax, exclusive of the 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 in this chapter to be paid.

(Ord. 258 §7, 1970).

If any operator fails or refuses 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 finance director 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. The city clerk is authorized under the ordinance codified in this section and pursuant to Government Code Sections 37104 through 37109 to issue subpoenas requiring the attendance of witnesses or the production of documents in proceedings pending before it and, upon signature of a subpoena by the mayor, may have such subpoena served in accordance with California Code of Civil Procedure Section 1987 for the purpose of enforcing the provisions of this chapter. As soon as the finance director procures 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. In case such determination is made, the finance 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 his 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 finance director for a hearing on the amount assessed. If application by the operator for a hearing on the amount assessed is not made within the time prescribed, the tax, interest and penalties, if any, determined by the finance director shall become final and conclusive and immediately due and payable. If such application is made, the finance director shall give not 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 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 finance director shall determine the proper tax to be remitted and shall thereafter give written notice to the person in themanner 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 fifteen days unless an appeal is taken as provided in Section 3.28.100 of this chapter.

(Ord. 615 §2, 2004; Ord. 258 §8, 1970).

Any operator aggrieved by any decision of the finance director with respect to the amounts 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 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 council shall be final and conclusive and shall be served upon the appellant in the manner prescribed in Section 3.28.090 of this chapter for service of notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of notice.

(Ord. 258 §9, 1970).

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 finance director within three years of the date of payment. The claim shall be on forms furnished by the finance director.

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 finance director 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, 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 to the finance director, or when the transient, having paid the tax to the operator, establishes to the satisfaction of the finance 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 thereto by written records showing entitlement thereto.

(Ord. 258 §11, 1970).

Any tax required to be paid by any transient under the provisions of this chapter shall be deemed to be 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.

(Ord. 258 §12, 1970).

A. Recording Certificate—Lien. If any amount required to be paid to the city under this chapter is not paid when due, the finance director may, within three years after the amount is due, file for record in the office of the Tehama County recorder a certificate specifying the amount of tax, penalties and interest due, the name and address of the operator liable for the same as it appears on the records of the city, and the fact that the finance director has complied with all provisions of this chapter in the determination of the amount required to be paid. Such certificate shall constitute a lien.

B. Effective Date of Lien. From the time of the filing of the certificate of tax, penalties and interest due, the amount required to be paid, together with penalties and interest, constitutes a lien upon real property in the county owned by the operator or acquired by him afterward and before the lien expires. The lien has the force, effect and priority of a judgment lien for the payment of tax and shall continue for ten years from the time of filing the certificate unless sooner released or otherwise discharged. This chapter does not give the city a preference over any recorded lien that was attached prior to the date when the amounts required to be paid became a lien.

C. Priority of Tax Lien on Property of Operator. The amounts required to be paid by any operator under this chapter shall be satisfied first in any of the following cases:

1. Whenever the operator is insolvent;

2. Whenever the operator makes a voluntary assignment of his or her assets;

3. Whenever the estate of the operator in the hands of executors, administrators or heirs is insufficient to pay all the debts due from the deceased; or

4. Whenever the estate and/or property of an absconding, concealed or absent operator required to pay any amount under this chapter are levied upon by process of law.

D. Warrant for Collection of Tax. At any time within three years after any operator is delinquent in the payment of any amount required to be paid under this chapter or within ten years of the last recording of a certificate of lien, the finance director may issue a warrant for the enforcement of any liens and for the collection of any amount required to be paid to the city under this chapter. The warrant shall be directed to any sheriff, marshal or constable and shall have the same effect as a writ of execution. The warrant and a sale made pursuant to it shall be levied in the same manner and with the same effect as a levy of and a sale pursuant to a writ of execution. The finance director may pay or advance to the sheriff, marshal or constable the same fees, commissions and expenses for his or her services as are provided by law for similar services pursuant to a writ of execution.

E. Seizure and Sale of Operator's Property. At any time within three years after any operator is delinquent in the payment of any amount required to be paid under this chapter or within three years of the last recording of a certificate of lien by the city, the finance director may forthwith collect the amount in the following manner:

The finance director shall seize any property, real or personal, of the operator and sell the property, or a sufficient part of it, at public auction to pay the amount due together with any penalties and interest imposed for the delinquency and any costs incurred on account of the seizure and sale. Any seizure made to collect occupancy taxes due shall be only of property of the operator not exempt from execution under the provisions of the California Code of Civil Procedure or other applicable laws and regulations. The finance director shall obtain a warrant from a court of competent jurisdiction prior to entering upon the property of the operator without the permission of the operator.

(Ord. 615 §3, 2004).