Los Banos Municipal Code Ch. 13 Transient Occupancy Taxes

This chapter shall be known as the "Uniform Transient Occupancy Tax Law" of the City.

(§ 1, Ord. 354)

For the purposes of this chapter, unless otherwise apparent from the context, certain words and phrases used in this chapter are defined as follows:

"Hotel"

shall mean 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, 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.

"Occupancy"

shall mean 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.

"Operator"

shall mean 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 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. Compliance with the provisions of this chapter by either the principal or the managing agent, however, shall be considered to be compliance by both.

"Person"

shall mean 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"

shall mean 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.

"Tax Administrator"

shall mean the City Manager.

"Transient"

shall mean any person who exercises occupancy or is entitled to occupancy by reason of a 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 long 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 this chapter may be considered.

(§ 2, Ord. 354, as amended by § 1, Ord. 684, eff. July 31, 1981, and § 1, Ord. 686, eff. August 5, 1981)

For the use and privilege of occupancy in any hotel, each transient shall be subject to and shall pay a tax in the amount of 10% 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 due is not paid to the operator of the hotel, the Tax Administrator may require that such tax be paid directly to the Tax Administrator.

(§ 3, Ord. 354, as amended by § 1, Ord. 437, eff. May 21, 1971, tax operative July 1, 1971, § 1, Ord. 477, eff. August 31, 1973, § 1, Ord. 613, eff. June 21, 1978, and § 1, Urgency Ord. 790, eff. November 16, 1988, and § 1, Ord. 886, eff. June 3, 1995)

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 provided for in this chapter; or

(b) Any officer or employee of a foreign government, which officer or employee is exempt by reason of express provisions of Federal laws or international treaties.

(§ 4, Ord. 354, as amended by § 1, Ord. 373)

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 not be added to the rent, or that, if added, any part will be refunded, except in the manner provided in this chapter.

(§ 5, Ord. 354)

On or before November 16, 1964, or within 30 days after commencing business, whichever is later, each operator of any hotel renting occupancy to transients shall register such hotel with the Tax Administrator and obtain from him or her a "Transient Occupancy Registration Certificate" which shall at all times be posted in a conspicuous place upon the hotel premises. The certificate issued by the Tax Administrator shall be personal to each operator and shall not be transferable from person to person or from place to place. Such certificate, among other things, shall set forth the following information:

(a) The name of the operator;

(b) The address of the hotel;

(c) The date upon which the certificate was issued; and

(d) A statement as follows: "This Transient Occupancy Registration Certificate signifies that the person named on the face hereof has fulfilled the requirements of the Uniform Transient Occupancy Tax Law 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 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. THIS CERTIFICATE IS NOT TRANSFERABLE. A new proprietor of this hotel must obtain a new Transient Occupancy Registration Certificate from the Tax Administrator within 30 days. A new proprietor is liable for all accrued and unpaid transient occupancy taxes."

(§ 6, Ord. 354, as amended by § 2, Ord. 684, eff. July 31, 1981, and § 2, Ord. 686, eff. August 5, 1981)

Each operator, 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, shall make a return to the Tax Administrator, on a form 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 filed, 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 deems it necessary in order to insure collection of the tax, and he may require further information on the return. Returns and payments shall be due immediately upon the 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 Tax Administrator.

(§ 7, Ord. 354)

(a) Original delinquency. Any operator who shall fail to remit any tax imposed by the provisions of this chapter within the time required shall pay a penalty in the amount of 10% of the tax in addition to the amount of the tax.

(b) Continued delinquency. Any operator who shall fail to remit any delinquent remittance on or before each period of 30 days following the date on which the remittance first became delinquent shall pay an additional delinquency penalty in the amount of 10% of the tax for each additional period of 30 days.

(c) Fraud. If the Tax Administrator shall determine the nonpayment of any remittance due pursuant to the provisions of this chapter is due to fraud, a penalty of 25% 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.

(d) Interest. In addition to the penalties imposed, any operator who shall fail to remit any tax imposed by the provisions of this chapter shall pay interest at the rate of 1/2 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.

(e) 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.

(§ 8, Ord. 354, as amended by § 3, Ord. 684, eff. July 31, 1981, and § 3, Ord. 686, eff. August 5, 1981)

If any operator shall fail or refuse to collect such tax and to make, within the time provided in this chapter, any report and remittance of such tax, or any portion thereof, required by the provisions of this chapter, the Tax Administrator shall proceed in such manner as he 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 is able to obtain upon which to base the assessment of any 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 Tax Administrator shall proceed to determine and assess against such operator the tax, interest, and penalties provided for by the provisions of this chapter. In the event 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 10 days after the service or mailing of such notice, make an application in writing to the Tax Administrator for a hearing on the amount assessed. 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 Tax Administrator shall become final and conclusive and immediately due and payable. If such an 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 such 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 in this section 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 filed as provided in Section 3-13.10 of this chapter.

(§ 9, Ord. 354)

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 Council by filing a notice of appeal with the City Clerk within 15 days of 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 or her 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 in this chapter for service of a notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of notice.

(§ 10, Ord. 354)

It shall be the duty of every operator liable for the collection and payment to the City of any tax imposed by the provisions of 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 have been liable for the collection of and payment to the City, which records the Tax Administrator shall have the right to inspect at all reasonable times.

(§ 11, Ord. 354)

(a) 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 founded, is filed with the Tax Administrator within three years after 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, 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 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 pursuant to the provisions of this section unless the claimant establishes his or her right thereto by written records showing entitlement thereto.

(§ 12, Ord. 354)

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.

(§ 13, Ord. 354)

Any person violating any of the provisions of this chapter shall be deemed guilty of a misdemeanor and, upon conviction, shall be punishable as set forth in Chapter 2 of Title 1 of this Code.

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 Tax Administrator, or who renders a false or fraudulent return or claim shall be guilty of a misdemeanor and punishable as set forth in this section. 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 the provisions of this chapter to be made shall be guilty of a misdemeanor and punishable as provided in this section.

(§ 14, Ord. 354)

The Council from time to time, in its discretion, and by ordinance and/or resolution, may fix, alter, change, amend, or revise the rate of the tax imposed for the use and occupancy of any hotel.

(§ 2, Ord. 613, eff. June 21, 1978)

(a) To insure compliance with transient occupancy tax payment requirements, the Tax Administrator may require each person subject to such requirements to deposit with the City such security in the form of cash, bond, or other security in the amount required by the terms of this subsection. The required security shall be equal to an amount not greater than the person's estimated average liability for a period of one year, or the sum of Fifteen Thousand and No/100ths ($15,000.00) Dollars, whichever is the lesser.

(b) If any person is delinquent in the payment of the amount required to be paid, or in the event a determination has been made that any amount due remains unpaid, the Tax Administrator, not later than three years after the payment became delinquent, may give notice thereof by certified mail to all persons in the County having in their possession or under their control any credits or other personal property belonging to the delinquent or owing any debts to the delinquent. After receiving the notice, the persons so notified shall neither transfer nor make any other disposition of the credits, other personal property, or debts in their possession or under their control at the time they receive the notice until the Tax Administrator consents to a transfer or disposition or until 20 days elapse after the receipt of the notice. All persons so notified, within five days after the receipt of the notice, shall advise the Tax Administrator of all such creditors, other personal property, or debts in their possession, under their control, or owing by them.

(c) At any time within three years after any tax or any amount of tax required to be collected becomes due and payable, or at any time within three years after any determination becomes final, the Tax Administrator may bring an action in the courts of the State, or of any other state or of the Untied States, in the name of the City to collect the amount delinquent, together with penalties and interest.

(d) To recover transient occupancy taxes, including penalties and interest, remittable by the depositor, the Tax Administrator may apply or sell at public auction the security deposited with him or her. Security deposits in the form of bearer bonds issued by the United States of America or by the State may be sold by the Tax Administrator at private sale for the current market price. At least 10 days prior to the application or sale of a security deposit, the Tax Administrator shall serve upon the depositing operator notice of intent to apply or sell the security deposit. Service of the notice may be made by placing the notice in the United States mail, postage prepaid, addressed to the depositing operator at his or her hotel. Any portion of the proceeds from the sale of the security remaining after the satisfaction of the outstanding transient occupancy taxes, penalties, interest, and costs of sale may be retained by the Tax Administrator for security or may be paid over by him or her to the depositing operator.

(e) If any operator liable for any amount under this chapter sells out a business or quits a business, whether voluntarily or involuntarily, the successors or assigns of such person shall withhold sufficient of the purchase price to cover such amount until the former owner produces a receipt from the Tax Administrator showing that payment has been made or a certificate stating that no amount is due. If the purchaser of a business fails to withhold the tax from the purchase price as required, such person shall become personally liable for the payment of the amount required to be withheld to the extent of the purchase price, valued in money. Within 30 days after receiving a written request from the purchaser for a certificate, the Tax Administrator shall either issue the certificate or mail a notice to the purchaser at the 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 the purchase price as provided in this subsection. The time within which the obligation of a successor may be enforced shall start to run at the time the operator sells out a business or at the time the determination against the operator becomes final, whichever event occurs later.

(§ 1, Ord. 666, eff. September 19, 1980, as amended by §§ 4 and 5, Ord. 684, eff. July 31, 1981, § 4, Ord. 686, eff. August 5, 1981 and § 1, Ord. 866, eff. March 19, 1993)