Lindsay Municipal Code § 5.24 Transient Occupancy Tax

This chapter shall be known as the "Transient Occupancy Tax Ordinance of the City of Lindsay."

(Ord. 408 § 1 (part), 1986)

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

1. "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 shall include any hotel, inn, tourist home or house, motel, studio, hotel, bachelor hotel, lodginghouse, roominghouse, apartment house, dormitory, public or private club, mobile home or house trailer at a fixed location, recreational vehicle park spaces, or other similar structures, facilities or portions thereof.
2. "Occupancy" means 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.
3. "Operator" means 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 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.
4. "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.
5. "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, property and services of any kind or nature, without any deduction therefrom whatsoever.
6. "Tax administrator" means the finance director of the city.
7. "Transient" means any person who exercises occupancy or is entitled to occupancy by reason of concessions permit, right of access, license, or other agreement for a period of twenty-nine 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 twenty-nine 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 provisions of the ordinance codified in this chapter may be considered.

(Ord. 408 § l (part), 1986)

For the privilege of occupancy in any hotel, each transient shall be subject to and shall pay a tax in the amount of a percentage of the rent charged by the operator. Such tax shall constitute a debt owed by the transient to the city, which debt shall be extinguished only by payment to the operator or to 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 is not paid to the operator of the hotel, the finance director may require that such tax shall be paid directly to the finance director.

(Ord. 408 § l (part), 1986)

The rate to be charged by the city for transient occupancy within the city shall be established by resolution of the city council after a duly noticed public hearing regarding the establishment of the rate.

(Ord. 408 § l (part), 1986)

1. No tax shall be imposed under this chapter upon:
2. 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 for;
3. Any federal or state officer or employee when on official business;
4. Any officer or employee of a foreign government, which officer or employee is exempt by reason of express provision of federal law or international treaty; or
5. Any occupant whose rent is of a value of less than two dollars per day;
6. 5. Any occupant for more than thirty successive calendar days.
7. No exemption shall be granted pursuant to subsections A1, A2 and A3 of this section except upon a claim therefor made at the time the rent is collected and under penalty of perjury, upon a form prescribed by the finance director.

(Ord. 408 § 1 (part), 1986)

Each operator shall collect the tax imposed by the provisions of 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 net be added to the rent, or that, if added, any part will be refunded except in the manner provided in this chapter.

(Ord. 408 § l (part), 1986)

1. On or before October 1, 1986, or within thirty days after commencing business, whichever is later, each operator of any hotel renting an occupancy to transients shall register such hotel with the finance director and obtain from him/her a "Transient Occupancy Registration Certificate," which shall at all times be posted in a conspicuous place en the premises. Such certificate shall, among other things, set forth the following information:
2. The name of the operator;
3. The address of the hotel;
4. The date upon which the certificate was issued;
5. A statement as follows: "This Transient Occupancy Registration Certificate signifies that the person named on the face hereof has fulfilled the requirements of the Transient Occupancy Tax Ordinance registering with the Finance Director for the purpose of collecting from transients the Transient Occupancy Tax and remitting such tax to the finance director. 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"; and
6. Such additional information as may be required by the finance director.
7. Such privilege of registration after October 1, 1986, shall not relieve any person from the obligation of the collection and payment of the tax after October 1, 1986, regardless of registration.

(Ord. 408 § l (part), 1986)

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 finance director, make a return to the finance director, 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 finance director. The finance director 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 and payments shall be due immediately upon cessation of business for any reason. All taxes collected by operators pursuant to the provisions of this chapter shall be held in trust for the account of the city until payment thereof is made to the finance director.

(Ord. 408 § 1 (part), 1986)

If a remittance to cover payment required by the provisions of this chapter to be made to the finance director on or before a specified date is sent through the United States mail, properly addressed, with postage prepaid, it shall be deemed to have been received by the finance director on the date shown by the Post Office cancellation mark stamped upon the envelope containing the remittance, or on the date it was mailed if proof satisfactory to the finance director establishes that the mailing occurred on an earlier date. Nothing in this section shall be construed as constituting payment of any remittance required unless such remittance is actually received by the finance director.

(Ord. 408 § l (part), 1986)

1. Original Delinquency. Any operator who fails to remit any tax imposed by the provisions of this chapter within the time required shall pay a penalty in the amount of ten percent of the tax, in addition to the amount of the tax.
2. Continued Delinquency. Any operator who fails to remit any delinquent remittance on or before a period of thirty days following the date on which the remittance first became delinquent shall pay a second delinquency penalty in the amount of ten percent of the tax in addition to the amount of the tax and the ten-percent penalty first imposed.
3. Fraud. If the finance director shall determine that the nonpayment of any remittance due pursuant to the provisions of this chapter is due to fraud, a penalty in the amount of twenty-five percent 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.
4. Interest. In addition to the penalties imposed, any operator who fails to remit any tax imposed by the provisions of this chapter 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.
5. 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 chapter.

(Ord. 408 § l (part), 1986)

1. If the operator fails or refuses to collect such tax, or any portion thereof required by the provisions of this chapter, the finance director shall proceed in such manner as he/she may deem best to obtain the facts and information on which to base his estimate of the tax due. As soon as the finance director 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 chapter and payable by any operator who has failed or refused to collect the same, and to make such report and remittance, the finance director shall proceed to determine and assess against such operator the tax, interest and penalties provided for by the provisions of this chapter.
2. In the event such determination is made, the finance director 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 address. Such operator may, within ten days after the service or mailing of such notice, make an application in writing to the finance director for a hearing on the amount assessed.
3. 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 finance director shall become final and conclusive, and immediately due and payable. If such an application is made, the finance director 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 such notice why the amount specified therein should not be fixed for such tax, interest and penalties.
4. At such hearing, the operator may appear and offer evidence why such specified tax, interest and penalties shall not be so fixed. After such hearing, the finance director shall determine the proper tax to be remitted, and shall thereafter give written notice to the operator in the manner prescribed in this section of such determination and the amount of such tax, interest and penalties.
5. The amount determined to be due shall be payable fifteen days after the service of mailing of such notice unless an appeal is filed as provided in Section 5.24.130 of this chapter.

(Ord. 408 § l (part), 1986)

If the finance director is not satisfied with a return filed by an operator or the amount of the tax required to be paid to the city pursuant to a return, he may compute and determine the amount required to be paid upon the basis of the facts contained in the return, or upon the basis of any information within his possession, or that may come into his possession. One or more deficiency determinations may be made of the amount due for any period. The finance director shall give to the operator written notice of his determination in the same manner as provided in Section 5.24.110 of this chapter. The operator shall be entitled to apply for a hearing on the amount assessed to him pursuant to the procedure set forth in Section 5.24.110 of this chapter, and shall thereafter be entitled to appeal to the council in accordance with the provisions of Section 5.24.130 of this chapter. The penalties and interest provided in Section 5.24.100 of this chapter shall be applicable to the amount of deficiency established pursuant to the provisions of this section.

(Ord. 408 § 1 (part), 1986)

Any operator aggrieved by any decision of the finance director 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 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 address. The decision of the council shall be final and conclusive, and shall be served upon the appellant in the manner prescribed in this chapter for the service of a notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of notice.

(Ord. 408 § 1 (part), 1986)

It shall be the duty of every operator liable for the collection payment to the city of any tax imposed by the provisions of this chapter to keep and preserve, for a period of three years and six months, 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 finance director shall have the right to inspect at all reasonable times.

(Ord. 408 § 1 (part), 1986)

1. Whenever the amount of any tax, interest or penalty has been overpaid, or paid more than once, or erroneously or illegally collected or received by the city pursuant to the provisions of this chapter, such amount 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 found, is filed with the finance director within three years after the date of payment. The claim shall be on forms furnished by the finance director.
2. Any operator may claim a refund or take as a 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 finance director that the person from whom the tax has been collected was not a transient; provided, however, 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.
3. A transient may obtain a refund of taxes overpaid, 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 finance director, or when the transient, having paid the tax to the operator, establishes to the satisfaction of the finance director that the transient has been unable to obtain a refund from the operator who collected the tax.
4. No refund shall be paid pursuant to the provisions of this section unless the claimant establishes his right thereto by written records showing entitlement thereto.

(Ord. 408 § 1 (part), 1986)

Any tax required to be paid by any transient pursuant to the provisions of this chapter 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 pursuant to 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. 408 § 1 (part), 1986)

All funds collected pursuant to the provisions of this chapter, including interest and penalties collected for delinquencies, shall be deposited in the general fund, and shall be used for the purposes for which such funds may be used. Any refunds paid pursuant to the provisions of this chapter shall be out of such fund.

(Ord. 408 § l (part), 1986)

Any operator or other person who fails or refuses to register as required, 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 finance director, or who renders a false or fraudulent return or claim, shall be guilty of an infraction. 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 chapter to be made, shall be guilty of an infraction.

(Ord. 408 § 1 (part), 1986)