Imperial County Municipal Code Ch. 4.16 Transient Occupancy Tax

This chapter shall be known as the "Uniform Transient Occupancy Tax of the County of Imperial."

(Prior code § 25200)

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

"Living space" means any structure, or any portion of any structure in the unincorporated territory of the county of Imperial, 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, campsite, space at a campground or recreational vehicle park, mobile home 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 for sleeping purposes.

"Operator" means the person who is proprietor of the hotel or living space, whether in the capacity of owner, lessee, sublessee, mortgagee in possession, licensee, or any other capacity. Where the operator performs his or 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 chapter and shall have the same duties and liabilities as his or her principal.

"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 living space, as defined in this chapter, 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 there from whatsoever.

"Tax administrator" means the treasurer/tax collector of the county of Imperial, who shall be charged with administration of the tax imposed by this chapter.

"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 (30) consecutive calendar days or less, counting portions of calendar days as full days. Any such person occupying living space in a hotel shall be deemed to be a transient until the period of thirty (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 the ordinance codified in this chapter may be considered.

(Ord. 1397 § 1, 2005)

For the privilege of occupancy in any hotel or other living space, each transient is subject to and shall pay a tax in the amount of eight percent of the rent charged by the operator. This tax constitutes a debt owed by the transient to the county, which is extinguished only by payment to the operator or to the county. 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 the living space. If for any reason the tax due is not paid to the operator, the tax administrator may require that such tax shall be paid directly to the tax administrator. Food served to lodgers is exempt from this tax, pursuant to Revenue and Taxation Code Section 7282.3.

(Ord. 1341 § 9, 2001: prior code § 25202)

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 charges, and each transient shall receive a receipt for payment from the operator. No operator of a hotel or other living space 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 § 25203)

Within thirty (30) days after the effective date of this chapter, or within thirty (30) days after commencing business, whichever is later, each operator of any hotel or living space as a renting occupancy to transients shall register the hotel or living space 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. The certificate shall, among other things, state the following:

A. The name of the business;

B. The type of business (e.g., motel, R.V. park);

C. The type of ownership (e.g., corporation, partnership);

D. The name and address of the operator: if not an individual, name and address of all officers, directors and/or partners;

E. Telephone number of operator and agents/officers;

F. If existing business:

1. Purchase or lease date, and

2. Name and address of previous owner;

G. Date of first rented units for thirty (30) days or less;

H. Number, type and rate of units subject to transient occupancy tax;

I. Number and type of unit rented for more than thirty (30) consecutive days;

J. The address of the hotel or living space;

K. The date upon which the certificate was issued;

L. This transient occupancy registration certificate signifies that the person named on the face hereof has fulfilled the requirements of the uniform transient occupancy tax 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 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 or living space 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 county. This certificate does not constitute a permit.

(Ord. 1397 § 2, 2005)

Each operator shall, 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, make a return to the tax administrator, on forms provided by him or her, of the total rents charged and received and the amount of tax collected for transient occupancies. At the time the return is filled, 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 or she deems it necessary in order to insure collection of the tax and he or 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 county until payment thereof is made to the tax administrator. The tax administrator may, in his or her discretion, extend for a period not to exceed thirty (30) days the time for the making of a return required herein provided that, upon application of the operator, he or she determines that any of the following conditions exist:

A. The operator is incapacitated by reason of illness;

B. The operator is deceased;

C. The operator's business records have been destroyed or lost due to fire or theft.

(Prior code § 25205)

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 (10%) 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 percent (10%) of the amount 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 determines that the nonpayment of any remittance due under this chapter is due to fraud, a penalty of twenty-five percent (25%) 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 and one-half percent per month or fraction thereof on the amount of 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 part of the tax herein required to be paid.

(Prior code § 25206)

If any operator shall fail or refuse 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 tax administrator shall proceed in such manner as he or she 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 or 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 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 days written notice in the manner prescribed herein to the operator to show cause at a time and place fixed in the notice why the 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 4.16.090.

(Prior code § 25207)

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 board of supervisors by filing a notice of appeal with the clerk of the board of supervisors within fifteen (15) days of the serving or mailing of the determination of tax due. The board of supervisors shall fix a time and place for hearing such appeal, and the clerk of the board of supervisors shall give notice in writing to such operator at his or her last known place of address. The findings of the board of supervisors 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 § 25208)

It shall be the duty of every operator liable for the collection and payment to the county of any tax imposed by this chapter to keep and preserve, for a period of four 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 county, which records the tax administrator and the auditor-controller of Imperial County shall have the right to inspect and audit at all reasonable times. (Prior code, § 25209)

(Ord. No. 1447, § 1, 3-31-09)

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 county under this chapter, it may be refunded as provided in subsections A and B of this section provided a claim in writing therefore, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the tax administrator within three years of the date of payment. The claim shall be on forms furnished by the tax administrator.

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 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 county by filing a claim in the manner provided in subsection A of this section, but only when the tax was paid by 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 established his or her right thereto by written records showing entitlement thereto.

(Prior code § 25210)

A. 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 county and payable through the operator. Any tax collected by an operator, which has not been paid to the county, shall be deemed funds held in trust for the account of the county, which are due and payable, by the operator to the county pursuant to the provisions of this chapter. Any person owing money to the county under the provisions of the chapter shall be liable to an action brought in the name of the county of Imperial for the recovery of such amount.

B. If any amount required to be paid to the county under this chapter is not paid when due, the tax administrator may record in the office of the Imperial County recorder a certificate which specifies the amount of tax and penalties due, the name and address of the operator liable for the same, a statement that the treasurer/tax collector has complied with all provisions of this chapter in the determination of the amount required to be paid and a legal description of the real property owned by the operator. From the time of the recording of the certificate, the amount required to be paid together with penalties constitutes a lien upon all real property in the county owned by the operator or thereafter acquired before the lien expires. The lien has the force, effect and priority of a judgment lien and shall continue for ten (10) years from the filing of the certificate, unless sooner released or otherwise discharged.

C. At any time within three years after the recording of a certificate of lien under subsection B of this section, the treasurer/tax collector may issue a warrant directed to any sheriff for the enforcement of the lien and the collection of any tax and penalties required to be paid to the county under this chapter. The warrant shall have the same effect as a writ of execution, and be executed in the same manner and with the same effect as a levy and sale pursuant to a writ of execution. The treasurer/tax collector may pay or advance to the sheriff such fees, commissions and expenses for services as are provided by law for similar services pursuant to a writ of execution.

D. In lieu of issuing a warrant under subsection C of this section, at any time within three years after an assessment was issued or a certificate of lien was recorded under subsection B of this section, the treasurer/tax collector may collect the delinquent amount by seizing or causing to be seized any property, real or personal, of the operator and sell any noncash or nonnegotiable property or a sufficient part of it at public auction to pay the amount of tax due together with any penalties, interest and any costs incurred on account of the seizure and sale. Any seizure made to collect taxes due shall only be of property of the operator not exempted from execution under the provisions of the Code of Civil Procedure.

(Ord. 1397 § 3, 2005)

Any person violating any of the provisions of this chapter shall be guilty of a misdemeanor and shall be punishable therefor by a fine of not more than five hundred dollars ($500.00) 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 herein, 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 aforesaid.

(Prior code § 25212)

No tax shall be due for hotel occupancy:

A. By any person as to whom, or any occupancy as to which, it is beyond the power of the County to impose the tax in this chapter;

B. By any federal or State of California officer or employee on official business;

C. By any foreign government officer or employee exempt under federal law or international treaty.

(Ord. No. 1447, § 1, 3-31-09)