El Monte Municipal Code Ch. 3.16 Uniform Transient Occupancy Tax

This chapter shall be known as the "Uniform Transient Occupancy Tax of the City of El Monte."

(Prior code § 6600.1)

For the purpose of this chapter certain words and terms are hereafter defined and shall have the meaning thus ascribed:

"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, 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.

"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 a 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 purposes of this chapter and shall have the same duties and liabilities as his or her 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.

"Rent" means the consideration charged, whether or nor 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 Administrator" means the City License Officer.

"Transient" means any person who exercises occupancy or is entitled to occupancy by reason of concession, permit or right of access, license or other agreement for a period of thirty (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 thirty (30) days has expired.

(Prior code §§ 6600.2—6600.7)

Tax imposed for the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of ten (10) percent of the rent charged by the operator. Said 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 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.

(Prior code § 6601)

A. The tax enacted by this chapter shall not be imposed upon any person or agency defined in the following subsections:

1. Exempted by Law. Any person as to whom, or any occupancy as to which, it is beyond the power of the city to impose the tax herein provided;

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

B. Procedure. 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.

(Prior code §§ 6602—6602.1, 6602.3—6602.4)

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 hereinafter provided.

(Prior code § 6603)

Within thirty (30) days after the effective date of the ordinance codified in this chapter, or within thirty (30) days after commencing business, whichever is later, each operator of any hotel renting occupancy to transients shall register said hotel with the Tax Administrator and obtain from him or her a transient occupancy registration certificate to be at all times posted in a conspicuous place on the premises. Said 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 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 City. This certificate does not constitute a permit."

(Prior code § 6603.1)

The Tax Administrator shall prepare and revise from time-to-time one or more tax reporting forms to be completed by operators and submitted to the city together with each remittance of the tax imposed by this chapter. The tax as imposed by this chapter shall be remitted to the city in monthly installments unless a shorter remittance period is ordered by the Tax Administrator. On or before the last day of the month following the close of the reporting month, each operator shall transmit to the Tax Administrator the tax as impounded under this chapter during the preceding or reporting month, together with such completed forms which identify the total rents charged and received by the operator. A completed form shall include a statement by the operator which identities and describes the posted room rates, as such term is defined by the Civil Code Section 1863, which were applicable during the reporting period. At the time the completed form is submitted to the Tax Administrator, the full amount of the tax collected shall also be remitted to the Tax Administrator. Returns and tax payments are due immediately upon cessation of business by an operator for any reason. All taxes collected by operators under this chapter shall be held in trust for the account of the city. The Tax Administrator may establish shorter reporting periods for any operator, provided the Tax Administrator has first determined that a shorter reporting period is necessary or appropriate in order to insure prompt remittance of the tax and/or submission of accurate tax reporting information. In particular cases, the Tax Administrator may determine that the submission of supplemental accounting, rent cash receipt, transient occupancy tax trust account deposit records, occupancy reports, and other operator business records are necessary or appropriate in connection with the submission of a report (or series of reports) by an operator.

(Ord. 2497 § 1, 1999: Ord. 2496 § 1, 1999: prior code § 6603.2)

Penalties shall apply and interest be due as provided in the following subsections:

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 (10) 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 (30) days following the date on which the remittance first became delinquent shall pay a second delinquency penalty of ten (10) percent of the amount of the tax in addition to the amount of the tax and the ten (10) 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 (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 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 provision of this chapter shall become a part of the tax herein required to be paid.

(Prior code §§ 6603.3—6603.3.5)

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 or her estimate of the tax due. As soon as the Tax Administrator shall procure such facts and information as he or 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 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 or her 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 said notice why said 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 person 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 payable after fifteen (15) days unless an appeal is taken as provided in Section 3.16.100.

(Prior code § 6603.4)

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 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 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 or her 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 above for service of notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of notice.

(Prior code § 6603.4.1)

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 or she 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.

(Prior code § 6603.5)

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 the following subsections 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 (3) years of the date of payment. The claim shall be on forms furnished by the Tax Administrator.

(Prior code § 6603.6)

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 as 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.

(Prior code § 6603.6.1)

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 Section 3.16.120, 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.

(Prior code § 6603.6.2)

No refund shall be paid under the provisions of this chapter unless the claimant establishes his or her right thereto by written records showing entitlement thereto.

(Prior code § 6603.6.3)

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.

(Prior code § 6603.7)

The city may, for good cause, conduct an audit of the books and records of a motel. If there is substantial deviation in the amount of taxes as a result of the audit, the cost of the audit is to be borne by the operator together with the imposition of appropriate penalties.

(Added during 1999 recodification)

No person shall fail or refuse to register as required by this chapter, or to furnish any return required to be made by this chapter, or fail or refuse to furnish a supplemental return or other data required by the Tax Administrator. No person required to make, render, sign or verify any report, return or claim shall make any false or fraudulent report, return or claim with intent to defeat or evade the determination required by this chapter to be made of any amount due. No person shall fall or refuse to pay any sum required by this chapter to be paid.

(Prior code § 6603.8)