La Mesa Municipal Code Ch. 6.09 Transient Occupancy Tax

This chapter shall be known as the "transient occupancy tax ordinance of the city of La Mesa."

(Ord. 2089, § 1, Nov. 9, 1976)

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

A. "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 is held out as such to the public. "Hotel" does not mean any hospital, convalescent home or sanitarium;

B. "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;

C. "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 functions through a managing agent of any type or character other than as 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 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;

D. "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;

E. "Rent" means the consideration charged 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. "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 consecutive calendar days or less, counting portions of calendar days as full days. Any person who in fact exercises occupancy or in fact is entitled to occupancy for a period of thirty-one days or more, counting portions of calendar days as full days, shall be deemed not to have been a transient with respect to the first thirty days of occupancy or entitlement to occupancy.

(Ord. 2089; November 9, 1976)

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 commencing January 1, 1991. Said tax constitutes a debt owed by the transient to the city which is extinguished only by payment to the operator or 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 Director of Finance may require that such tax shall be paid directly to the Director of Finance of the city.

(Ord. 2089; November 9, 1976 as amended by Ord. 2323; October 1, 1983; Ord 2568 § 1; November 6, 1990)

No tax shall be imposed:

(a) Where the rent is at a rate of fifteen dollars ($15.) a day or less;

(b) When a person has exercised occupancy or was entitled to occupancy for a period of thirty-one consecutive days or more;

(c) When hotel rents are directly paid by the U.S. Government or the State of California or their respective agencies. This exemption does not exempt a transient who is employed by an exempt entity from payment of the tax when the payment is later to be reimbursed by the entity;

(d) When the transient is by treaty or federal or state law exempt from payment of transient occupancy taxes.

(Ord. 2089; November 9, 1976: Ord. 2570 § 1; February 26, 1991)

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 hereinbefore provided.

(Ord. 2089; November 9, 1976)

Upon the effective date of the ordinance, or within thirty days after commencing business, whichever is later, each operator of any hotel renting occupancy to transients shall register said hotel with the Director of Finance and obtain from him 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 Transient Occupancy Tax Ordinance by registering with the Director of Finance for the purpose of 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. 2089, § 1, Nov. 9, 1976)

A. 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 Director of Finance, make a return to the Director of Finance, on forms provided by him, of the total rents charged and received and the amount of tax collected for the transient occupancies. At the time the return is filed, the full amount of tax collected shall be remitted to the Director of Finance. The Director of Finance may establish shorter reporting periods for any certificate holder if he deems it necessary in order to insure collection of the tax, and he may require further information in the return. Returns filed or taxes remitted and actually received by the Director of Finance on or before the last day of the month following the close of each calendar quarter shall be deemed timely filed or remitted. Returns filed or taxes remitted by mail shall be deemed timely filed only if the envelope or similar container enclosing the returns or taxes is addressed to the Director of Finance, has sufficient postage and bears a United States postmark or a postage meter imprint prior to midnight on the last day for reporting or remitting without penalty. If such envelope or other container bears a postage meter imprint as well as a United States post office cancellation mark, the latter shall govern in determining whether the filing or remittance is timely.

B. Returns and payments are due immediately upon cessation of business for any reason. All taxes collected by operators pursuant to this chapter shall be paid in trust for the account of the city until payment thereof is made to the Director of Finance. All returns and payments submitted by each operator shall be treated as confidential by the Director of Finance and shall not be released by him except upon order of a court of competent jurisdiction or to an officer or agent of the United States, the state of California, the county of San Diego, or the city, for official use only.

(Ord. 2089, § 1, Nov. 9, 1976)

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 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 within thirty days following the date on which the remittance first became delinquent shall pay a second delinquent penalty of ten percent of the amount of the tax in addition to the amount of the tax and ten percent penalty first imposed, provided that the Director of Finance has notified, by certified or registered United States mail, the operator of the delinquency and the ten percent penalty first imposed, such notification to be given within the thirty day period of the initial delinquency, and provided that the operator has not paid the tax and penalty due within fourteen days after notification or within the thirty-day period of the initial delinquency, whichever is later.

C. Fraud: If the Director of Finance determines that the nonpayment of any remittance due under this ordinance is due to fraud, a penalty of twenty-five 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. Audit deficiency: If, upon audit by the city, an operator is found to be deficient in his return or his remittance or both, the Director of Finance shall immediately notify the operator of the net deficiency and the original ten percent delinquency penalty. If the operator fails or refuses to pay the deficient amount and applicable penalties within fourteen days after the date of the Director of Finance's notice, the penalties prescribed after the date of the Director of Finance's notice, the penalties prescribed in subsection B above shall apply, using the fifteenth day after the date of the Director of Finance's notice as the date when the continued delinquency penalty first applies.

(Ord. 2089, § 1, Nov. 9, 1976)

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 said tax or any portion thereof required by this chapter, the Director of Finance shall proceed in such manner as he may deem best to obtain facts and information on which to base his estimate of the tax due. As soon as the Director of Finance procures such facts and information as he 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 same and to make such report and remittance, he shall proceed to determine and assess against such operator the tax and penalties provided for by this chapter. In case such determination is made, the Director of Finance 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.

(Ord. 2089, § 1, Nov. 9, 1976)

The operator described in Section 6.09.090 above may, within ten days after the serving 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 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 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 the amount specified therein should not be fixed for such tax and penalties. At such hearing, the operator may appear and offer evidence why such specified tax and penalties should not be so fixed. After such hearing the Director of Finance 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 and penalties. The amount determined to be due shall be payable after fifteen days unless an appeal is taken as provided in Section 6.09.110.

(Ord. 2089, § 1, Nov. 9, 1976)

Any operator aggrieved by any decision of the Director of Finance with respect to the amount of such tax and penalties, if any, may appeal to the council by filing a notice of appeal with the City Clerk within fifteen 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 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.

(Ord. 2089, § 1, Nov. 9, 1976)

It is 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 years, all records as may be necessary to determine the amount of such tax as he may be liable for the collection of and payment to the city, which records the Director of Finance shall have the right to inspect at all reasonable times.

(Ord. 2089, § 1, Nov. 9, 1976)

A. Whenever the amount of any tax 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 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 three years 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 a credit against taxes collected and remitted, of 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 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. An operator who has remitted an amount in excess of the amount required to be paid by this chapter may receive a credit to the extent of the excess. If the excess is discovered as a result of an audit by the city, no claim need be filed by the operator. Such credit, if approved by the Director of Finance, shall be applied to any deficiency found or further tax payments due under the rules prescribed by the Director of Finance.

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

(Ord. 2089, § 1, Nov. 9, 1976)

Any tax required to be paid by any transient under the provisions of this chapter shall be deemed to be 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 a 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.

(Ord. 2089, § 1, Nov. 9, 1976)

The Director of Finance may prescribe reasonable regulations to implement the provisions of this chapter. Such regulations shall become effective upon approval by the City Council.

(Ord. 2089, § 1, Nov. 9, 1976)

If any operator who is liable for any tax or penalty under this chapter sells or otherwise disposes of his business, his successor shall withhold a sufficient portion of the purchase price to equal the amount of such tax or penalty until the selling operator produces a receipt from the Director of Finance showing that the tax or penalty has been paid or a certificate from the Director of Finance stating that no tax or penalty is due. If the seller does not present a receipt or certificate within thirty days after such successor commences to conduct business, the successor shall deposit the withheld amount with the Director of Finance pending settlement of the account of the seller.

(Ord. 2089, § 1, Nov. 9, 1976)

If the successor to the business fails to withhold a portion of the purchase price as required, he shall be liable for the payment of the amount required to be withheld. Within thirty days after receiving a written request from the successor for a certificate, the Director of Finance shall either issue the certificate or mail notice to the successor at his address as it appears on the records of the Director of Finance of the estimated amount of the tax and penalty that must be paid as a condition of issuing the certificate. The time period within which the obligation of a successor may be enforced shall commence at the time the operator sells or otherwise disposes of his business or at the time that the determination against the operator becomes final, whichever event occurs later, and shall expire, in the absence of fraud, three years thereafter.

(Ord. 2089, § 1, Nov. 9, 1976)

All revenues collected by the city under this chapter and remaining after payment of the costs incurred in the administration of this chapter shall be deposited in the general fund and the council may, from time to time, by resolution, specifically designate the purpose for which these revenues may be utilized.

(Ord. 2089, § 1, Nov. 9, 1976)

Any person violating any of the provisions of this chapter is guilty of a misdemeanor and shall be punishable therefor by a fine of not more than five hundred dollars 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 Director of Finance, 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 a 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.

(Ord. 2089, § 1, Nov. 9, 1976)