Jackson Municipal Code Ch. 3.24 Transient Occupancy Tax

The short title of this chapter shall be the "transient occupancy ordinance."

(Ord. 531 §2, 1990)

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

"Hotel"

means any structure, or any portion of any structure, which is occupied or intended or designed for use or occupancy by transients, including but not limited to 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, time-share project or facility, dormitory, public or private club, mobile home, motor home recreation vehicle, house trailer or other similar structure or portion thereof, any duplex, triplex, or single family dwelling units, except, any private dwelling or other dwelling unit or portion thereof rented only very infrequently and incidental to the normal occupancy by the owner or his or her family. The authority to establish that housing or facility as a hotel as defined in this subsection shall vest solely with the tax administrator, and the owner or operator thereof shall file with the tax administrator such information as the tax administrator may require to determine and maintain such status.

"Occupancy"

means the use or possession, or the right or entitlement to the occupancy, use or posses-sion, of any hotel, room, rooms or any portion thereof offered for rent to be used or occupied for dwelling, lodging or sleeping purposes regardless of the purpose for which the rooms are rented or provided.

"Operator"

means the person who is proprietor of the hotel whether in the capacity of owner, lessee, sublessee, mortgagee in possession, licensee, time-share project or facility manager or operator, or in any other capacity. Where the operator performs his or her or its functions through a managing agent of any type or character, the managing agent shall also be deemed an operator for the purpose of this chapter, and shall have jointly and severally the same duties and liabilities as the 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.

"Person"

means any individual, firm, partnership, church, joint venture, association, social club, fraternal organization, joint stock company, corporation, estate, trust, business trust, receiver, trustee, syndicate, school or any other group or organization acting as a unit.

"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.

"Tax administrator"

means the city manager or his or her designated agent.

"Time-share occupancy"

means occupancy related to the situation wherein a purchaser receives the right or entitlement in perpetuity, for life, or for a term of years or other extended term, to the recurrent, exclusive use or occupancy of a lot, parcel, unit, room(s), hotel or portion thereof, or segment of real property, annually or on some other seasonal or periodic basis, for a period of time that has been or will be allotted from the use or occupancy periods into which the time-share project which is involved has been divided. The right or entitlement to occupancy may attach in advance to a specific lot, parcel, unit, room(s), or portion of a hotel, or segment of real property, or may involve designation or selection of the same at a future time or times.

"Transient"

means any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, time-share arrangement or ownership or agreement, or other agreement of whatever nation, for a period of thirty consecutive calendar days or less, counting portions of calendar days as full days. Any person continuously occupying the same space in a hotel, as defined above, shall be deemed to be a transient if his or her actual total period of uninterrupted occupancy does not exceed thirty days. Unless days of occupancy or entitlement to occupancy by one person are consecutive without any break, then prior or subsequent periods of such occupancy or entitlement to occupancy shall not be counted when determining whether a period exceeds the stated thirty calendar days.

(Ord. 531 §2, 1990; Ord. 696 §1, 2016)

Effective January 1, 2003, for the privilege of occupancy in any hotel, each transient is subject to, and shall pay a tax in the amount of, ten percent of the rent charged by the operator. Said tax constitutes a debt owed by the transient to the city for which the operator is the collecting agent, which is extinguished only by payment to the operator of the city. The transient shall pay the tax to the operator of the transient lodging facility at the time the rent is paid. If for any reason the tax due is not paid to the operator of the lodging facility, it must be paid directly to the city. The rent deemed payable on the account of time-share or similar interval or fractional ownership occupancy by a transient shall be established by resolution of the city council in a manner consistent with the provisions of California Revenue and Taxation Code Section 7280(b) or any successor section thereto.

(Ord. 531 §2, 1990; Ord. 550 §1, 1992; Ord. 632 §1, 2002)

A. No tax shall be imposed upon 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. Charges incurred by a person in the performance of official duties as an employee of local, State, Federal and foreign governmental entities shall be exempt from the tax herein provided if an exemption certificate is submitted and payment is made either: (1) directly to the hotel for rentals by the governmental entity; or (2) by government-sponsored corporate charge card. As an alternative to (1) or (2), the exemption certificate may be submitted with official government travel papers.

C. No exemption shall be imposed on the owner of a timeshare estate occupying a room or rooms in a timeshare project, as defined in Section 3.24.020(G).

D. The tax will be imposed on persons occupying space in a hotel until the period of thirty consecutive calendar days has expired unless there is an agreement in writing between the operator and the occupant for a period longer than thirty consecutive calendar days of occupancy. Absent an agreement, anyone occupying space for more than thirty consecutive days will be exempt from the tax after the first thirty consecutive days, the first thirty days are subject to tax.

E. 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 Collector. All exemptions should be reported and remitted as outlined in Section 3.24.080. All claims for exemption forms and rental agreements shall be kept and preserved for three years as outlined in Section 3.24.140.

(Ord. 531 §2, 1990; Ord. 696 §1, 2016)

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 the tax shall be separately stated from the amount of the rent charged. 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 be refunded except in the manner provided in this chapter.

(Ord. 531 §2, 1990)

A. Every person desiring to engage in or conduct business as operator of a hotel renting to transients within the city shall file with the tax administrator an application for a transient occupancy registration permit for each place of business. Every application for such a permit shall be made upon a form prescribed by the tax administrator and shall set forth the name under which the applicant transacts or intends to transact business, the location of his or her place of business and such other information as the tax administrator may require. The application shall be signed by the owner if a natural person, by a member or partner, if an association or partnership, by an executive officer or some person specifically authorized by the corporation to sign the application in the case of a corporation, and all such signatures shall be confirmed by the attestation of a notary public. The transient occupancy registration permit must be in effect at all times while business is in operation and shall be at all times posted in a conspicuous place on the premises. The permit shall, among other things, state the following:

1. Name of hotel;

2. Name of operator;

3. Hotel address;

4. The date upon which the permit was issued;

5. "This Transient Occupancy Registration Permit signifies that the person named on the face hereof has fulfilled the requirements of the Transient Occupancy Tax Chapter 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 Permit does not authorize any person to conduct any unlawful business in any unlawful manner, nor operate a hotel without strictly complying with all applicable laws, including but not limited to those requiring a permit from any board, commission, department or office of this City. This Permit does not apply in lieu of such other permits which are otherwise required."

B. At the time of filing an application for a registration permit, the applicant shall pay a registration fee for each permit issued.

(Ord. 531 §2, 1990)

The tax imposed under Section 3.24.030 is:

A. Due to the tax administrator at the time it is collected by the operator; and

B. Becomes delinquent and subject to penalties if not post marked or received by the tax administrator on or before the last working day of the month following the close of each calendar quarter.

(Ord. 531 §2, 1990; Ord. 696 §1, 2016)

Commencing on or before the last working day of the month following the close of each calendar quarter throughout the fiscal year, commencing each July 1st, each operator shall file a return with the tax administrator on the forms provided by him or her, of the total rents charged or chargeable as provided in Section 3.24.030, whether or not received, including any rentals charged for occupancies exempt under the provi-sions of Sections 3.24.020(G) and 3.24.040 and, all such amount of tax collected for transient occupancies. The assessor-collector 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 city until payment thereof is made to the assessor-collector. Each such return shall contain a declaration under penalty of perjury, executed by the operator or his or her authorized agent, that to the best of the signator's knowledge, the statements in the return are true, correct and complete. Amounts claimed on the return as exempt from the tax pursuant to Sections 3.24.020(G), 3.24.040 and 3.24.150 shall be fully itemized and explained on the return or supporting schedule. In determining the amount of "taxable receipts" on the tax return, "rent" as defined in Section 3.24.020(E), may not be reduced by any business expenses including but not limited to the amount of service charges deducted by credit card companies or commissions paid to travel agencies. At the time the return is filed, the tax fixed at the prevailing transient occupancy tax rate for the amount of rentals charged or chargeable, which are not exempt from the tax pursuant to this chapter shall be remitted to the tax administrator. The tax administrator may establish other reporting periods and may require a cash deposit or bond or a separate trust fund bank account for any permit 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. All taxes collected by operators pursuant to this chapter shall be held in trust for the account of the city until remittance thereof is made to the tax administrator.

(Ord. 531 §2, 1990; Ord. 696 §1, 2016)

Each operator shall notify the tax administrator no less than fifteen days prior to the sale or cessation of business for any reason, and, returns and remittances are due immediately upon the sale or cessation of business.

(Ord. 531 §2, 1990)

Any operator who fails to remit any required tax to the city by the due date stated on the remittance shall become delinquent on the next day and must include a penalty of ten percent of the tax with payment. Any operator who fails to pay any penalty imposed under this section by the tenth day after the due date on the remittance shall pay interest at the rate of two percent per month, or fraction thereof from the date on which the penalty becomes due and payable to the city until the date of the payment.

(Ord. 531 §2, 1990; Ord. 696 §1, 2016)

If the tax administrator determines that the failure to make any remittance or payment due under this chapter is due to fraud, a penalty of one hundred percent of the amount of the tax and penalties shall be added thereto in addition to the penalties stated in Section 3.24.100.

(Ord. 531 §2, 1990)

If any operator fails or refuses 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 procures 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 payable by any operator who has failed or refused to collect the tax and make such report and remittance, he or she shall proceed to determine and assess against the operator the tax, interest and penalties provided for by this chapter. When 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 address. The operator may within ten days after serving or mailing of the 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 the application is made, the tax administrator shall give not less than five days' written notice in the manner prescribed in this section 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 the tax, interest and penalties. At the hearing, the operator may appear and offer evidence why the specified tax, interest and penalties should not be so fixed. After the 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 in this section of the determination and the amount of the tax, interest and penalties. The amount determined to be due shall be payable after fifteen days unless an appeal is taken as provided in Section 3.24.130.

(Ord. 531 §2, 1990)

Any operator aggrieved by any decision of the tax administrator pursuant to a hearing in accord with the provisions of Section 3.24.120, with respect to the amount of any tax, interest and penalties, if any, may appeal to the city council by filing a notice of appeal with the city clerk within fifteen days of service of the assessment or determination of tax and penalties, if any due. The city council shall fix a time and place for hearing the appeal, and the city clerk shall give notice in writing to the operator at his or her last known address. The findings of the city council shall be final and conclusive and shall be served upon the appellant in the manner prescribed in this chapter for service of notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of the notice.

(Ord. 531 §2, 1990)

It shall be the duty of every operator liable for the collection and remittance to the city of any tax imposed by this chapter to keep and preserve, in the city, for a period of three years, records in such form as the tax administrator may require to determine the amount of the tax. The tax administrator shall have the right to inspect such records at all reasonable times and may subpoena the records of any operator who refuses to make them available for examination. The tax administrator shall have the authority to require such records be implemented through mandatory use of a mechanical or electronic cash register which will print a daily statement of income and a monthly total of income.

(Ord. 531 §2, 1990)

A. Whenever the amount of any tax, interest or penalty has been overpaid or paid more than once or has been erroneously collected or received by the city under this chapter, 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 tax administrator within three years of the date of payment. The claims shall be in such form determined 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 collected or paid more than once 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 person or credited to rent subsequently payable by the person to the operator.

C. A transient may obtain a refund of taxes overpaid or paid more than once 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 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 or her right thereto by written records.

(Ord. 531 §2, 1990)

Whenever any operator fails to comply with any provision of this chapter relating to occupancy tax or any rule or regulation of the tax administrator relating to occupancy tax prescribed and adopted under this chapter, the tax administrator upon hearing, after giving the operator ten days' notice in writing specifying the time and place of hearing and requiring him or her to show cause why his or her permit or permits should not be revoked, may suspend or revoke any one or more of the permits held by the operator. The. tax administrator shall give to the operator written notice of the suspension or revocation of any of his or her permits. The notices required in this section may be served personally or by mail in the manner prescribed for service of notice of a deficiency determination. The tax administrator shall not issue a new permit after the revocation of a permit unless he or she is satisfied that the former holder of the permit has complied and will comply with the provisions of this chapter relating to the occupancy tax and regulations of the tax administrator.

(Ord. 531 §2 1990)

During any period of time during which a permit has not been issued, or is suspended, revoked or otherwise not validly in effect, the tax administrator may require that the hotel be closed.

(Ord. 531 §2, 1990)

If any amount required to be remitted or paid to the city under this chapter is not remitted or paid when due, the tax administrator may, within three years after the amount is due, file for record in the office of the county recorder a certificate specifying the amount of tax, penalties and interest due, the name and address as it appears on the records of the tax administrator of the operator liable for the same and the fact that the tax administrator has complied with all provisions of this chapter in the determination of the amount required to be remitted and paid. From the time of the filing for record, the amount required to be remitted together with penalties and interest constitutes a lien upon all real property in the county owned by the operator or afterwards and before the lien expires acquired by him or her. The lien has the force, effect and priority of a judgment lien and shall continue for ten years from the time of filing of the certificate unless sooner released or otherwise discharged.

(Ord. 531 §2, 1990)

A. The amounts required to be remitted and or paid by any operator under this chapter with penalties and interest shall be satisfied first in any of the following cases:

1. Whenever the person is insolvent;

2. Whenever the person makes a voluntary assignment of his or her assets;

3. Whenever the estate of the person in the hands of executors, administrators, or heirs is insufficient to pay all debts due from the deceased;

4. Whenever the estate and effects of an absconding, concealed or absent person required to pay any amount under this chapter are levied upon by process law. This chapter does not give the city a preference over any recorded lien which attached prior to the date when the amounts required to be paid became a lien.

B. The preference given to the city by this section shall be subordinate to the preferences given to claims for personal services by Sections 1204 and 1206 of the Code of Civil Procedure.

(Ord. 531 §2, 1990)

At any time within three years after any operator is delinquent in the remittance or payment of any amount required in this chapter to be remitted or paid within three years after the last recording of a certificate under Section 3.24.160, the tax administrator may issue a warrant for the enforcement of any liens and for the collection of any amount required to be paid to the city under this chapter. The warrant shall be directed to any sheriff, marshal, or constable and shall have the same effect as a writ of execution. The warrant shall be levied and sale made pursuant to it in the same manner with the same effect as a writ of execution. The tax administrator may pay or advance to the sheriff, marshal, or constable the same fees, commissions and expenses for his or her services as are provided by law for similar services pursuant to a writ of execution. The tax administrator, and not the court, shall approve the fees for publication in a newspaper.

(Ord. 531 §2, 1990)

At any time within three years after any operator is delinquent in the remittance or payment of any amount, the tax administrator may forthwith collect the amount in the following manner.

The tax administrator shall seize any property, real or personal, of the operator and sell the property, or a sufficient part of it, at public auction to pay the amount due together with any penalties and interest imposed for the delinquency and any costs incurred on account of the seizure and sale. Any seizure made to collect occupancy taxes due shall be only of property of the operator not exempt from the execution under the provisions of the Code of Civil Procedure.

(Ord. 531 §2, 1990)

If any operator liable for any amount under this chapter sells out his or her business or quits the business, his or her successor assigns shall withhold sufficient of the purchase price to cover such amount until the former owner produces a receipt from the tax administrator showing that it has been paid or a certificate stating that no amount is due.

(Ord. 531 §2, 1990)

If the purchaser of a hotel fails to withhold purchase price as required, he or she shall become personally liable for the payment of the amount required to be withheld by him or her to the extent of the purchase price, valued in money. Within sixty days from the date of the former owner's records are made available for audit, whichever period expires the later, but in any event not later than ninety days after the receiving the request, the tax administrator shall either issue the certificate or mail notice to the purchaser at his or her address as it appears on the records of the tax administrator of the amount that must be paid as a condition of issuing the certificate. Failure of the tax administrator to mail the notice will release the purchaser from any further obligation to withhold purchase price as provided in this section. The time within which the obligation of the successor may be enforced shall start to run at the time the operator sells his or her business or at the time that the determination against the operator becomes final, whichever occurs later.

(Ord. 531 §2, 1990)

Any tax required to be paid by any transient under the provisions of this chapter shall be deemed a debt owed to the city by the operator. Any such tax collected by an operator which has not been remitted to the city is a fiduciary obligation of the operator to the city and collectible in the same manner as a debt. 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.

(Ord. 531 §2, 1990)

If any person or operator is delinquent in the remittance or payment of the amount required to be remitted or paid by him or her or in the event a determination has been made against him or her for the remittance of tax and payment of the penalty, the city may, within three years after the tax obligation became due, give notice thereof personally or by registered mail to all persons, including the state or any political subdivision thereof, having in their possession or under their control any credits or other personal property belonging to the taxpayer. After receiving the withholding notice, the person so notified shall make no disposition of the taxpayer's credits, other personal property or debts until the city consents to a transfer or disposition or until sixty days elapse after the receipt of the notice, whichever expires earlier. All persons, upon receipt of the notice shall advise the city immediately of all such credits, other personal property or debts in their posses-sion, under their control or owing by them. If the notice seeks to prevent the transfer or other disposition of a deposit in a bank or other credits or personal property in the possession or under the control of the bank, to be effective the notice shall be delivered or mailed to the branch or office of the bank at which the deposit is carried or at which the credits or personal property is held. If any person so notified makes transfer or disposition of the property or debts required to be held under this section during the effective period of the notice to withhold, he or she shall be liable to the city to the extent of the value of the release up to the amount of the indebtedness owed by the taxpayer to the city.

(Ord. 531 §2, 1990)

A. Except for failure of an operator to pay to the tax administrator taxes collected under this chapter which is punishable as a felony pursuant to Section 424 of the Penal Code, every violation of this chapter is a misdemeanor and punishable by a fine not exceeding five hundred dollars or imprisonment in the county jail for not more than six months or by both such fine and imprisonment.

B. If the offense is not otherwise punishable as mentioned in subsection A of this section, any person willfully failing to comply with, or knowingly violating, any of the provisions of this chapter shall be guilty of a misdemeanor.

C. Any operator or other person who willfully 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. Any person required to make, render, sign or verify and report or claim who willfully 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.

(Ord. 531 §2, 1990)

The tax administrator, for good cause, may extend for not to exceed one month the time for making any return or paying any amount required to be paid under this chapter. The extension may be granted at any time, provided a request therefor is filed with the tax administrator within or prior to the period for which the extension may be granted. Any person to whom an extension is granted shall pay, in addition to the tax, interest at the rate of two percent per month or fraction thereof, from the date on which the tax would have been due without the extension until the date of payment.

(Ord. 531 §2, 1990)

It is unlawful for any person having an administrative duty under this chapter to make known in any manner whatever the business affairs, operations, or information obtained by the investigation of the records of any operator or any other person visited or examined in the discharge of official duty, or the amount or source of income, profits, losses, expenditures, or any particular thereof, set forth or disclosed in any return, or to knowingly permit any return or copy thereof or any abstract or particulars thereof to be seen or examined by any person. Successors, receivers, trustees, executors, administrators, assignees and guarantors, if directly interested, may be given information as to the items included in the amounts of any unpaid tax or amounts of tax, penalties and interest required to be collected.

(Ord. 531 §2, 1990)