Fremont Municipal Code Art. III Uniform Transient Occupancy Tax

This article shall be known as the uniform transient occupancy tax ordinance of the city. (Ord. 453 § 1. 1990 Code § 2-6300.)

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

(a) “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.

(b) “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, mobile home or house trailer at a fixed location, or other similar structure or portion thereof.

(c) “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.

(d) “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 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.

(e) “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.

(f) “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/her 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/her principal. Compliance with the provisions of this article by either the principal or the managing agent shall, however, be considered to be compliance by both. (Ord. 453 § 1; amended during 2012 reformat. 1990 Code § 2-6301.)

(a) For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of eight percent of the rent charged by the operator. Commencing January 1, 2009, and continuing thereafter, the amount of tax shall be 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 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 spaces in the hotel.

(b) If the sales and use taxes imposed pursuant to the Sales and Use Tax Law and the Bradley-Burns Uniform Sales and Use Tax Law are authorized in a total amount which exceeds seven percent, each transient shall pay a tax, in accord with the procedure set forth in subsection (a) of this section, in an amount equal to the total amount so authorized for such sales and use taxes, less the tax imposed by subsection (a) of this section. (Ord. 453 § 2; Ord. 909 § 1, 6-27-72; Ord. 999 § 1, 6-25-74; Ord. 1249 § 1, 5-23-78; Ord. 1254 § 1, 6-27-78; Ord. 1685 § 1, 8-27-85; Ord. 2059 § 1, 1-25-94; Ord. 23-2008 § 1, 12-2-08. 1990 Code § 2-6302.)

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 herein provided;

(b) Any federal or state of California officer or employee when on official business;

(c) 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 director of finance. (Ord. 453 § 1. 1990 Code § 2-6303.)

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 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. (Ord. 453 § 1. 1990 Code § 2-6304.)

Prior to commencing or carrying on any business, which the operator is responsible, language for the collection of the tax imposed by this article, said operator shall register its hotel with the director of finance and obtain from the director 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 director of finance for the purpose of collecting from transients the Transient Occupancy Tax and remitting said tax to the director of finance. 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. 453 § 1; Ord. 2059 § 2, 1-25-94. 1990 Code § 2-6305.)

Each operator shall, on or before the last day of the month following the close of each month, or at the close of any shorter reported period which may be established by the director of finance, make a return to the director of finance, 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 director of finance. Returns and payments are due immediately upon cessation of business for any reason. All taxes collected by operators pursuant to this article shall be held in trust for the account of the city until payment thereof is made to the director of finance. (Ord. 453 § 1; Ord. 2059 § 3, 1-25-94; amended during 2012 reformat. 1990 Code § 2-6306.)

(a) Penalties. Any operator who fails to remit any tax imposed by this article within the time required shall pay a penalty of 10 percent per month of the amount of the tax due, but in no event shall the penalty exceed 50 percent of the tax due. Any penalty imposed herein by this article is in addition to the tax imposed by this article.

(b) Fraud. If the director of finance 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 subsection (a) of this section.

(c) 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.

(d) 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. 453 § 1; Ord. 2059 § 4, 1-25-94. 1990 Code § 2-6307.)

If any operator shall fail or refuse to collect said tax and to make, within the time provided in this article, any report and remittance of said tax or any portion thereof required by this article, the director of finance 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 director of finance 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 article 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 article. In case such determination is made, the director of finance 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. Such operator may within 10 days after the service or mailing of such notice make application in writing to the director of finance 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 director of finance shall become final and conclusive and immediately due and payable. If such application is made, the director of finance or the director of finance’s designee shall give not less than five 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 director of finance, or the director of finance’s designee, 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 15 days unless an appeal is taken as provided in Section 3.10.350. (Ord. 453 § 1; Ord. 2059 § 5, 1-25-94; amended during 2012 reformat. 1990 Code § 2-6308.)

(a) Any operator aggrieved by the decision of the director of finance or the director of finance’s designee, with respect to the amount of such tax, interest and penalties, if any, may appeal to the board of review by filing a notice of appeal with the city clerk within 10 days of the serving or mailing of the determination of tax due. The board of review shall thereupon fix a time and place for hearing such appeal. The board of review shall be composed of the city attorney, the city clerk and the city manager. The city clerk shall give written notice to such person of the time and place of hearing by serving it personally or by depositing it in the United States Post Office at Fremont, California, postage prepaid, addressed to such person at his/her last known address. The board of review shall have the authority to determine all questions raised on such appeal. No such determination shall conflict with any substantive provision of this article.

The board of review shall consider all evidence offered by the operator and by the director of finance. It may continue the hearing from time to time. It shall make its findings in writing and serve a copy on the operator in the same manner prescribed for giving notice of the hearing.

The board of review may increase or decrease the amount of the assessment as the evidence introduced may require; but the amount of the assessment shall not be increased unless the claim for the increase is asserted on behalf of the city either before or during the hearing.

The amount determined to be due by the board of review shall be payable after 10 days of service of notice of the findings of the board, unless an appeal is taken to the city council as provided in subsection (b) of this section.

(b) Any operator aggrieved by a final decision of the board of review made pursuant to subsection (a) of this section may appeal to the city council pursuant to Chapter 1.25. The findings of the city council on appeal shall be final and conclusive and shall be served upon the appellant in the manner prescribed for service of notice of hearing. Any amount found to be due shall be immediately due and payable upon service of notice. (Ord. 453 § 1; Ord. 1078 § 2, 12-9-75; Ord. 2059 § 6, 1-25-94; amended during 2012 reformat. 1990 Code § 2-6309.)

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, all records as may be necessary to determine the amount of such tax as he/she may have been liable for the collection of and payment to the city, which records the director of finance or the director of finance’s designee shall have the right to inspect at all reasonable times. (Ord. 453 § 1; Ord. 2059 § 7, 1-25-94; amended during 2012 reformat. 1990 Code § 2-6310.)

(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 a claim in writing therefor, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the director of finance within one year of the date of payment. The claim shall be on forms furnished by the director of finance.

(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 of finance 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 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 of finance, or when the transient, having paid the tax to the operator, establishes to the satisfaction of the director of finance 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/her right thereto by written records showing entitlement thereto. (Ord. 453 § 1; Ord. 2059 § 8, 1-25-94; amended during 2012 reformat. 1990 Code § 2-6311.)

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. 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 article shall be liable to an action brought in the name of the city of Fremont for the recovery of such amount. (Ord. 453 § 1. 1990 Code § 2-6312.)

No operator or other person shall fail or refuse to register as required herein, or to furnish any return required to be made, or fail or refuse to furnish a supplemental return or other data required by the director of finance, or render a false or fraudulent return or claim. No person required to make, render, sign or verify any report or claim shall make any false or fraudulent report or claim with intent to defeat or evade the determination of any amount due required by this article to be made. (Ord. 453 § 1. 1990 Code § 2-6313.)