Emeryville Municipal Code Art. 4 Transient Occupancy Taxes

This article shall be known as the "Uniform Transient Occupancy Tax Law of the City of Emeryville."

(Sec. 25.50, E.T.C., as added by Ord. 72-09)

For the purposes of this article, unless otherwise apparent from the context, certain words and phrases used in this article are defined as follows:

(a)

"Hotel"

shall mean 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 shall include any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodging house, roominghouse, apartment house, dormitory, public or private club, mobile home, or house trailer at a fixed location, or other similar structure, or portion thereof.

(b)

"Occupancy"

shall mean 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.

(c)

"Operator"

shall mean the person who is the 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 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, however, shall be considered to be compliance by both.

(d)

"Person"

shall mean 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.

(e)

"Rent"

shall mean the consideration charged, whether or not received, for the occupancy of space in a hotel valued in money, whether received in money, goods, labor, or otherwise, including all receipts, cash, credits, property, and services of any kind or nature, without any deduction therefrom whatsoever.

(f)

"Tax Administrator"

shall mean the City Treasurer.

(g)

"Transient"

shall mean (i) 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 (30) consecutive calendar days or less, counting portions of calendar days as full days; or (ii) any individual who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, or other agreement between an operator and a person other than the individual 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 transient until the period of thirty (30) days has expired, unless there is an agreement in writing approved by the City of Emeryville between the operator and the person providing for a longer period of occupancy, in which case the person shall be deemed to be transient only for the first thirty (30) days of such period of occupancy.

(Sec. 3, Ord. 03-004, eff. May 15, 2003; Sec. 3, Ord. 02-016, eff. Nov. 1, 2002; Sec. 2, Ord. 00-006, eff. Aug. 31, 2000; Sec. 25.51, E.T.C., as added by Ord. 72-09)

For the privilege of occupancy in any hotel, each transient shall be subject to and shall pay a tax in the amount of twelve percent (12%) of the rent charged by the operator.

(Sec 2, Ord. 01-007, eff. Nov. 6, 2001; Sec. 2, Ord. 92-04, eff. Feb. 20, 1992; Sec. 2, Ord. 89-013, eff. Sept. 1, 1989; Sec. 25.52, E.T.C., as added by Ord. 72-09, as amended by Ord. 83-015)

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 the tax provided for in this article; or

(b) Any officer or employee of a foreign government, which officer or employee is exempt by reason of express provision of Federal laws or international treaties.

No exemption shall be granted except upon a claim therefor made at the time the rent is collected and under penalty of perjury upon a form prescribed by the Tax Administrator.

(Sec. 25.53, E.T.C., as added by Ord. 72-09)

No tax shall be imposed pursuant to this article after the first thirty (30) days of occupancy upon a person, who is a common carrier by air certified and licensed by the Federal Aviation Administration, whose employees exercise occupancy or are entitled to occupancy by reason of concession, permit, right of access, license, or other agreement entered into between an operator and such person after April 1, 2003, provided said person pays the rent on behalf of their employees directly to the operator. No more than twenty five percent (25%) of the rooms in the hotel of the operator may be subject to such an agreement with a common carrier by air at any one time. All such agreements entered into by an operator shall be filed with the Tax Administrator within five (5) business days after execution. This section and the tax exemption it provides shall automatically expire, terminate and be of no further force or effect as of June 30, 2006.

(Sec. 2, Ord. 05-007, eff. Aug. 18, 2005; Sec. 2, Ord. 03-004, eff. May 15, 2003)

Each operator shall collect the tax imposed by the provisions of 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 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 article.

(Sec. 25.54, E.T.C., as added by Ord. 72-09)

On or before September 11, 1972, or within thirty (30) days after commencing business, whichever is later, each operator of any hotel renting an occupancy to transients shall register such hotel with the Tax Administrator and obtain from him a Transient Occupancy Registration Certificate which shall at all times be posted in a conspicuous place on the premises. Such certificate, among other things, shall set forth the following information:

(a) The name of the operator;

(b) The address of the hotel;

(c) The date upon which the certificate was issued; and

(d) A statement as follows:

"This Transient Occupancy Registration Certificate signifies that the person named on the face hereof has fulfilled the requirements of the Uniform Transient Occupancy Tax Law by registering with the Tax Administrator for the purpose of collecting from transients the transient occupancy tax and remitting such tax to the Tax Administrator. This certificate shall 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."

(Sec. 25.55, E.T.C., as added by Ord. 72-09)

Each operator, on or before the last day of the month following the close of each calendar quarter, or at the close of any shorter reporting period which may be established by the Tax Administrator, shall make a return to the Tax Administrator, on forms provided by him, of the total rents charged and received and the amount of taxes collected for transient occupancies. At the time the return is filed, the full amount of the taxes collected shall be remitted to the Tax Administrator. The Tax Administrator may establish shorter reporting periods for any certificate holder if the Tax Administrator deems it necessary in order to insure the collection of the tax, and he may require further information in the return. Returns and payments shall be due immediately upon the cessation of the business for any reason. All taxes collected by operators pursuant to the provisions of this article shall be held in trust for the account of the City until payment thereof is made to the Tax Administrator.

(Sec. 25.56, E.T.C., as added by Ord. 72-09)

(a) Original Delinquencies. Any operator who shall fail to report and remit any tax imposed by the provisions of this article within the time required shall pay a penalty in the amount of ten percent (10%) of the tax in addition to the amount of the tax.

(b) Continued Delinquencies. Any operator who shall fail 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 in the amount of ten percent (10%) 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 shall determine that the nonpayment of any remittance due pursuant to the provisions of this article is due to fraud, a penalty in the amount of twenty-five percent (25%) of the amount of the tax shall be added thereto, in addition to the penalties set forth in subsections (a) and (b) of this section.

(d) Interest. In addition to the penalties imposed, any operator who shall fail to remit any tax imposed by the provisions of this article shall pay interest at the rate of one-half of one percent (0.5%) 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 and Interest Merged with Tax. Every penalty imposed, and such interest as accrues, pursuant to the provisions of this section, shall become a part of the tax required to be paid by the provisions of this article.

(Sec. 25.57, E.T.C., as added by Ord. 72-09)

(a) Assessments. If any operator shall fail or refuse to collect such tax and to make, within the time provided in this article, any report and remittance of such tax, or any portion thereof, required by the provisions of this article, the Tax Administrator shall proceed in such manner as he may deem best to obtain the 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 such tax imposed by the provisions of this article and payable by any operator who has failed or refused to collect the tax and to make such report and remittance, the Tax Administrator shall proceed to determine and assess against such operator the tax, interest, and penalties provided for by this article.

(b) Assessments – Notices. In the event such determination is made, the Tax Administrator shall give 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, within ten (10) days after the service or mailing of such notice, may make an application in writing to the Tax Administrator for a hearing on the amount assessed.

(c) Assessments – Finality. If an 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.

(d) Assessments – Hearings – Notices. If such an application for a hearing is made, the Tax Administrator shall give not less than five (5) 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 the amount specified therein should not be fixed for such tax, interest, and penalties.

(e) Assessments – Hearings. At such hearing the operator may appear and offer evidence why such specified tax, interest and penalties should not be so fixed.

(f) Assessments – Hearings – Determinations – Notices. 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 set forth in this section of such determination and the amount of such tax, interest and penalties.

(g) Assessments – Due Dates. The amount determined to be due shall be payable after fifteen (15) days, unless an appeal is filed as provided in Section 3-3.410 of this article.

(Sec. 25.58, E.T.C., as added by Ord. 72-09)

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 after the service or mailing of the determination of the 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 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 set forth in Section 3-3.409 of this article for the service of a notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of such notice.

(Sec. 25.59, E.T.C., as added by Ord. 72-09)

It shall be the duty of every operator liable for the collection and payment to the City of any tax imposed by the provisions of this article 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 any payment to the City, which records the Tax Administrator shall have the right to inspect at all reasonable times.

(Sec. 25.60, E.T.C., as added by Ord. 72-09)

(a) No tax collected under the provisions of this article shall be refundable or prorated in any manner, unless the operator or transient subject to the tax:

(1) Establishes that it has paid the tax more than once, the tax was erroneously or illegally collected, or it has paid in excess of the correct amount;

(2) Establishes by written records its right to a refund, and;

(3) Files a claim with the City within one (1) year from the date of the payment in accordance with all applicable statutes, regulations and ordinances.

(b) If a claim filed by an operator in accordance with subsection (a) is accepted by the City Council, the City may refund the entire amount to the operator or credit the refund against any amounts then due and payable to the City from the operator. However, no refund shall be allowed unless the amount of the tax has either been refunded to the transient(s) or credited to rent subsequently payable by the transient(s) to the operator.

(c) A transient may obtain a refund of taxes pursuant to subsection (a) of this section only when the tax was paid by the transient directly to the Finance Department, or when the transient, having paid the tax to the operator, establishes that the transient has been unable to obtain a refund from the operator who collected the tax and remitted the tax to the City.

(as amended by Sec. 3, Ord. 96-001, eff. Mar. 19, 1996; Sec. 25.61, E.T.C., as added by Ord. 72-09)

Any tax required to be paid by any transient pursuant to the provisions of this article shall be deemed a debt owed by the transient to the City. Any such tax collected by an operator, which tax 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 pursuant to the provisions of this article shall be liable to an action brought in the name of the City for the recovery of such amount.

(Sec. 25.62, E.T.C., as added by Ord. 72-09)

Net revenues to the City resulting from the tax imposed by the provisions of this article shall be placed in the General Fund and accounted for by the City Clerk.

(Sec. 25.63, E.T.C., as added by Ord. 72-09, as amended by Ord. 73-03)

Any operator or other person who fails or refuses to register as required by the provisions of this article, or who fails 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 shall be guilty of a violation of the provisions of this article and punishable as set forth in Chapter 2 of Title 1 of this Code. Any person required to make, render, sign, or verify any report or claim and who makes any false or fraudulent report or claim with intent to defeat or evade the determination of any amount due required by the provisions of this article to be made shall be guilty of a violation of the provisions of this article and punishable as set forth in Chapter 2 of Title 1 of this Code.

(Sec. 25.64, E.T.C., as added by Ord. 72-09)