Chapter 3.08 — TRANSIENT OCCUPANCY TAX

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

(Ord. 435 § 1, 1964)

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

(1)

Hotel. "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, motel, studio hotel, bachelor hotel, lodging house, rooming house, apartment house, dormitory, public or private club, mobilehome or house trailer at a fixed location, or other similar structure or portion thereof. Any house or home, or portion thereof occupied by transients shall be deemed a hotel during the period of such occupancy.

(2)

Occupancy. "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.

(3)

Operator. "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 performed 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 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.

(4)

Person. "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.

(5)

Rent. "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.

(6)

Tax administrator. "Tax administrator" means the town treasurer.

(7)

Transient. "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. 435 § 2, 1964)

(Ord. No. 1031, § 1, 11-7-2023)

For the privilege of occupancy in any hotel/motel, including, without limitation, a residence used for occupancy for thirty days or less, each transient is subject to and shall pay a tax in the amount of ten percent of the rent charged by the operator. This tax constitutes a debt owed by the transient to the town which is extinguished only by payment to the operator or to the town. The transient shall pay the tax to the operator of the hotel/motel 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/motel. If for any reason the tax due is not paid to the operator of the hotel/motel, the tax administrator may require that such tax shall be paid directly to the tax administrator.

(1)

Twenty percent of the transient occupancy tax collected by the town after the effective date of the ordinance increasing the tax to ten percent shall be allocated to the Corte Madera Chamber of Commerce under rules and regulations adopted by resolution of the town council which shall include, at a minimum, provision for the following: record keeping requirements on the part of the chamber of commerce, regular payments of said collected tax by the town to the chamber of commerce, insurance requirements, limitations on the purposes for which said funds may be used by the chamber of commerce consistent with this chapter, indemnification of the town by the chamber and other terms and conditions required by the town.

(2)

The purposes, for which the funds authorized hereby to be allocated to the chamber of commerce may be used, shall be the following: expenses incurred by the town in connection with 4th of July celebrations; office space rental and operational overhead by the chamber of commerce; and publishing, printing and distributing historical and promotional brochures pertaining to the town; and such additional items as specified in resolutions adopted by the town council.

(3)

Notwithstanding anything to the contrary stated above, in the event that the Corte Madera Chamber of Commerce dissolves or ceases conducting any and all activities, the funds otherwise allocable under this section shall not be allocated to the chamber of commerce and shall be reserved in the town's general fund to be expended for promoting a healthy business community.

(Ord. 761 § 1, 1989: Ord. 711 § 1, 1982: Ord. 614 § 1, 1974: Ord. 496 § 1, 1968: Ord. 435 § 3, 1964)

(Ord. No. 1031, § 1, 11-7-2023)

No tax shall be imposed upon:

(1)

Any person as to whom, or any occupancy as to which, it is beyond the power of the town to impose the tax herein provided;

(2)

Any federal or state officer or employee when on official business;

(3)

Any 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 upon a claim therefor made at the time rent is collected and under penalty of perjury upon a form prescribed by the tax administrator.

(Ord. 435 § 4, 1964)

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 Section 3.08.120.

(Ord. 435 § 5, 1964)

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 tax administrator and obtain from him a transient occupancy registration certificate to be at all times posted in a conspicuous place on the premises. The certificate shall, among other things, state the following:

(1)

The name of the operator;

(2)

The address of the hotel;

(3)

The date upon which the certificate was issued;

(4)

"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 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 this town. This certificate does not constitute a permit."

(Ord. 435 § 6, 1964)

Each operator shall, on or before the last day of each and every month, or at the close of any shorter reporting period which may be established by the tax administrator, make a return to the tax administrator, on forms provided by him/her, 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 certificate holder if he/she deems it necessary in order to insure collection of the tax and he/she 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 town until payment thereof is made to the tax administrator. The full amount of tax due under this chapter, whether collected or owed but not collected, shall be deemed a debt owed to the town by the operator and shall be discharged only upon payment to the town. (Ord. 435 § 7, 1964)

(Ord. No. 912, § 1, 9-1-2009)

(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 remittance 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 tax administrator 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 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 herein required to be paid.

(Ord. 435 § 8, 1964)

If any operator fails or refuses to collect said 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/she may deem best to obtain facts and information on which to base his/her estimate of the tax due. As soon as the tax administrator shall procure such facts and information as he/she 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/she 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 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/her last known place of address. The operator may within fifteen days after the earlier of the personal service or mailing of such notice may appeal the decision of the tax administrator pursuant to Section 3.08.100. For the purpose of this chapter, a service by mail is complete at the time of deposit in the United States mail, postage prepaid. If the operator fails to file an appeal 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, but penalties and interest as provided by this chapter shall continue to accrue until paid. (Ord. 435 § 9, 1964)

(Ord. No. 912, § 2, 9-1-2009)

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 said decision by filing a notice of appeal with the town clerk within fifteen days of the serving or mailing of the determination of tax due as provided in Section 3.08.090. The notice of appeal shall be accompanied by a written statement of the basis or bases for the appeal. The town shall appoint an Independent Hearing Officer (IHO) to hear the appeal. The IHO may not be eligible for a future appointment by the town for a period of three years after the completion of his/her duties as IHO.

The IHO shall hold the hearing within thirty days of his/her appointment under such rules and procedures as the IHO may determine in the reasonable exercise of his/her discretion. At least fifteen day[s] prior [to] the hearing, the IHO shall give notice in writing to the operator and the tax administrator of the time and place for the hearing. A rebuttable presumption shall exist at the hearing that the amount of any tax assessed by the tax administrator is correct and the burden of proof shall be upon the operator. At the hearing before the IHO, the appellant and the representative of the tax administrator may submit such

evidence and argument as they believe to be relevant to their respective positions. The IHO may require the presentation of additional evidence or argument, or both, from either the appellant or the representative of the tax administrator, or from both, and may continue the hearing from time to time for the purpose of allowing the presentation of additional evidence or argument, or both, but in no event may the hearing continue beyond thirty days from the date the hearing began. Within thirty days after the conclusion of the hearing, the IHO shall determine the proper amount of the tax, including any penalties and interest. The decision and findings of the IHO shall be conclusive and final. Written notice of the IHO's decision shall be given to the appellant in the same form and in the same manner as the notice of assessment. Any amount found to be due shall be immediately due and payable upon the service of notice. 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 town or any officer thereof, to prevent or enjoin the collection of taxes sought to be collected pursuant to this chapter. Payment of all tax, interest and penalties shall be required as a condition precedent to seeking judicial review of any tax liability. (Ord. 435 § 10, 1964)

(Ord. No. 912, § 3, 9-1-2009)

It shall be the duty of every operator liable for the collection and payment to the town 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 and payment to the town, which records the tax administrator shall have the right to inspect at all reasonable times.

(Ord. 435 § 11, 1964)

(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 town under this chapter, it may be refunded as provided in Subsections (b) and (c) of this section provided a claim in writing therefor, which complies with the procedures and provisions contained in Chapter 3.46 of this code is filed with the town.

(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 town 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.

(Ord. 883 § 2, 2003; Ord. 435 § 12, 1964)

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 town. Any such tax collected by an operator which has not been paid to the town shall be deemed a debt owed by the operator to the town. Any person owing money to the town under the provisions of this chapter shall be liable to an action brought in the name of the town for the recovery of such amount.

Acceptance of any payment upon an assessment, the validity of which has not previously been passed upon by the tax administrator or independent hearing officer, shall not preclude the tax administrator from subsequently levying another assessment in any case where the original assessment does not truly reflect the correct tax liability. (Ord. 435 § 13, 1964)

(Ord. No. 912, § 4, 9-1-2009)

Any person violating any of the provisions of this chapter is guilty of a misdemeanor punishable for a fine of not more than one thousand dollars or by imprisonment in the county jail for a period of not more than six months or by both such fine and imprisonment.

Any operator or other person who fails or refuses to register as required in this chapter, 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 return 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 provided in this section.

(Ord. 730 § 3, 1985; Ord. 435 § 14, 1964)