Napa County Municipal Code Ch. 3.32 Uniform Transient Occupancy Tax

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Editor's note— Ord. No. 1415, § 1, amended former Ch. 3.32, §§ 3.32.010—3.32.140, in its entirety to read as herein set out. Former Ch. 3.32 pertained to similar subject matter and derived from the prior code, §§ 3100—3113; Ord. No. 925, § 1, 1989; Ord. No. 970, § 2, 1990; Ord. No. 04-06, § 3, 2004; Ord. No. 1333, § 1, 1-12-2010.

The ordinance codified in this chapter shall be known as the Uniform Transient Occupancy Tax Ordinance of Napa County.

(Ord. No. 1415, § 1, 11-8-2016)

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

"Bed and breakfast establishment" means a bed and breakfast establishment as defined in Section 18.08.080 of the Napa County Code.

"Cancellation fee" means a minimal fee with the purpose of recovering the administrative costs associated with processing a reservation cancellation and is not construed to be a no-show fee or a forfeited deposit.

The word "hotel" means any structure, or any portion of any structure, or vessel, which is occupied or intended or designed for occupancy by transients for dwelling, lodging or sleeping purposes, including but not limited to any hotel, motel, inn, house, townhouse, condominium, apartment, dormitory, public or private club, bed and breakfast establishment, mobile home or house trailer at a fixed location, or other similar structure or portion thereof, or houseboat or power cruiser equipped for overnight accommodations at a fixed location, or other similar vessel.

"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. The right to use or possession includes any nonrefundable deposit or guaranteed no-show fee paid by a person, whether or not the person making the deposit actually exercises the right to occupancy by using or possessing any room or rooms or portion thereof.

"Operator" means the person who is proprietor of the hotel, whether in the capacity of owner, lessee, sub lessee, mortgagee in possession, licensee, or any other capacity. Where the operator acts 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 the principal. However, compliance with the provisions of this chapter by either the principal or the managing agent shall be considered compliance by both.

"Person" for the purpose of this Chapter, means an 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.

"Package rate" means the inclusion of other amenities or services in a room rate wherein the various components of the package are not identified separately by cost in the advertisement or the operator's records. The inability to identify individual costs for each component results in the gross package rate as the taxable rent paid by the transient.

"Rent" means the consideration charged, whether or not received, including nonrefundable deposits and guaranteed no-show fees, for the occupancy or right of 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. Rent does not include: (1) the value of paid optional or complimentary products or services offered to a guest of a hotel, provided the products or services are charged and identified separately on the guest receipt and not included in a consolidated package rate, (2) use of banquet or meeting rooms, (3) childcare services, (4) use of safes or storage areas, or (5) cancellation fees.

"Tax" or "TOT" means transient occupancy tax as governed by this chapter.

"Tax administrator" means the county treasurer-tax collector or designee.

"Transient" means any person who occupies or is entitled to occupy a hotel by reason of concession, permit, right of access, license, nonrefundable deposit, guaranteed no-show fee or other agreement, for a period of thirty 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 thirty 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. No. 1415, § 1, 11-8-2016)

A. For the privilege of occupancy or the right to occupancy by nonrefundable deposit or guaranteed no-show fee in any hotel, each transient is subject to and shall pay a tax in the amount of thirteen percent of the rent charged by the operator. The TOT 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 TOT 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 TOT shall be paid with each installment. The unpaid tax shall be due upon the transient's ceasing to occupy or failing to occupy the space in the hotel. If for any reason the TOT due is not paid to the operator of the hotel by the transient, the tax administrator may require the operator to pay the TOT directly to the tax administrator.

B. Any tax imposed by this chapter shall be remitted to the county. The amount allocated to room rental rates, number of rooms rented, tax, and products or services shall be readily identifiable in the operator's accounting records. The allocation to non-rent items shall not exceed the prices normally charged for those items.

C. Any operator offering a package rate must assess tax on the entire package rate unless the separate components of the package are clearly identified. Allocation of room rents from the package rate shall not be below prevailing room rates.

D. If for any reason the operator fails to collect tax due at the time of occupancy, the operator becomes liable for the TOT due.

E. Revenues generated from the thirteen percent TOT shall be allocated as follows: twelve percent shall be allocated to the county's general fund discretionary revenues, and one percent shall be deposited and maintained in a segregated account to be used for affordable and workforce housing programs and services.

(Ord. No. 1415, § 1, 11-8-2016; Ord. No. 2018-04, § 3, 12-18-2018)

Editor's note— An increase in the transient occupancy tax was approved by the voters at an election held on Nov. 6, 2018.

A. No TOT shall be imposed upon:

1. Any person for whom emergency housing is provided pursuant to a voucher issued by a non-profit, tax exempt agency or organization;

2. The owner of a timeshare estate, or guest of the owner, occupying a room or rooms in the timeshare project, as defined in Business and Professions Code Section 11212;

3. Any campsites or recreational vehicle spaces on state lands;

4. Any lands owned or operated by the Napa County Regional Park and Open Space District.

B. Federal, state, foreign or local governmental officers or employees shall be granted exemption while on official business. The exemption shall not be approved unless the person requesting the exemption shows satisfactory credentials reflecting current performance of official duties (including, but not limited to, a current photo government identification card and evidence the stay is due to official government business).

1. A copy of the credentials of the person requesting exemption shall be attached to each exemption claim.

2. A separate exemption claim must be filed for each occupied room subject to rental for which the exemption is requested.

C. 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 administrator.

(Ord. No. 1415, § 1, 11-8-2016)

In order for the county to have an accurate record of parties collecting the transient occupancy tax, each operator shall register as follows:

A. Prior to commencing business, and annually thereafter during January of each year, each operator of a hotel shall register such hotel with the tax administrator and obtain from the tax administrator a certificate of authority to collect TOT. The certificate shall be posted in a conspicuous place on the premises at all times. Such certificate shall, at a minimum, state the following:

1. Name and address of the hotel;

2. Name of the operator;

3. Name and address of owner;

4. Certificate number and date issued.

B. The certificate shall not be transferable, and shall be returned to the tax administrator upon sale or other transfer of the property and/or sale/transfer/cessation of the business at the time the final remittance of TOT is due. Prior to sale or transfer, purchaser or transferee may request issuance of a TOT clearance certificate in order to avoid inheriting any unpaid, unreported, or underreported TOT. Any purchaser or transferee who obtains ownership without obtaining a tax clearance certificate, or obtains a tax clearance certificate that shows a tax liability and fails to withhold sufficient funds in the escrow account, shall be held liable for the amount of the TOT due (California Revenue and Taxation Code Section 7283.5)

C. The operator named in the certificate shall be responsible for collecting from transients the TOT and remitting it to the tax administrator. The certificate does not authorize any person to conduct any unlawful business or to conduct any lawful business in any unlawful manner, or to operate a hotel without strictly complying with all local applicable laws including, but not limited to, those requiring a permit of any kind from the county.

(Ord. No. 1415, § 1, 11-8-2016)

Each operator shall collect the TOT 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 TOT shall be separately stated from the amount of the rent charged, and the operator shall provide each transient with a receipt for payment of TOT. No operator shall advertise or state in any manner, whether directly or indirectly, that the TOT or any part thereof will be assumed or absorbed by the operator, or that the TOT will not be added to the rent, or that, if added, any part will be refunded except in the manner hereinafter provided.

(Ord. No. 1415, § 1, 11-8-2016)

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, submit a return to the tax administrator, on prescribed forms containing, the following information: (1) the total rents charged and received, (2) the total amount of exemptions, and (3) the amount of TOT collected for transient occupancies. In addition, at the time the return is filed, the full amount of the TOT collected shall be remitted to the tax administrator. The tax administrator may establish shorter reporting periods or additional information for any certificate holder if deemed necessary to ensure collection of the TOT. Returns and payments are due immediately upon cessation of business for any reason. All taxes collected by operators pursuant to this chapter shall be considered public monies at the time of collection and the separate property of the county and shall be held in trust for the account of the county until payment thereof is made to the tax administrator.

(Ord. No. 1415, § 1, 11-8-2016)

A. An operator who intends to transfer, sell or terminate permanently or temporarily its hotel operations shall notify the tax administrator in writing of such action at least thirty days in advance of the date of transfer, sale or termination.

B. For transfers and sales, the written communication must include the name and address of the purchaser or transferee.

C. Upon cessation of operations for any reason each operator shall, on or before the last day of the month following the cessation of operations, file a return with the tax administrator on an approved form of the total taxable rents charged, the amount of the exemptions granted, the amount of tax due for the reporting period, remittances made, if any and the balance of the TOT due. At the time the return is filed, the full amount of the balance due, if any, shall be remitted to the tax administrator.

D. Returns filed and taxes received and remitted to the tax administrator on or before the last day of the month following cessation of operations shall be deemed timely filed and remitted; otherwise, the taxes are delinquent and subject to the penalties imposed by this chapter.

(Ord. No. 1415, § 1, 11-8-2016)

A. 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 TOT in addition to the amount of the TOT.

B. 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 an additional penalty of ten percent of the amount of the TOT in addition to the amount of the TOT and the ten-percent penalty first imposed.

C. If the tax administrator determines that the nonpayment of any remittance due under this chapter is attributable to fraud, a penalty of twenty-five percent of the amount of the TOT shall be added thereto in addition to the penalties stated in subsections (A) and (B) of this section.

D. 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 on the unpaid balance of the TOT, including penalties, from the date on which the remittance first became delinquent until paid.

E. Every penalty imposed and such interest as accrues under the provisions of this section shall become a part of the TOT herein required to be paid.

(Ord. No. 1415, § 1, 11-8-2016)

A. If any operator fails or refuses to collect the TOT imposed by this chapter and to make, within the time provided in this chapter, any report and remittance of such tax or any portion thereof, the tax administrator shall obtain facts and information on which to base an estimate of the TOT due. The tax administrator shall determine and assess against such operator the TOT, interest and penalties provided for by this chapter. In case such determination is made, the tax administrator shall give a notice of the amount to the operator for full collection by serving it personally or by depositing it in the United States mail, postage prepaid, addressed to the operator's last known address.

B. For purposes of determining the liability of any operator failing or refusing to file a return to the tax administrator, there shall be a rebuttable presumption that the liability equals the liability for the same quarter of the previous fiscal year, plus a ten percent penalty. If no such quarter exists, the liability will be the highest rate times the number of rooms available during that quarter, plus a ten percent penalty.

C. Such operator may, within ten days after the serving or mailing of such notice, apply in writing to the tax administrator for a hearing on the amount assessed. If the application is not made within the time prescribed, the TOT, 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 working days' written notice to the operator in the manner prescribed in this section to show cause at a time and place stated 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.

D. After such hearing, the tax administrator shall determine the proper tax to be remitted and shall 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. The amount determined to be due shall be payable after fifteen working days, unless an appeal is filed as provided in Section 3.32.100.

(Ord. No. 1415, § 1, 11-8-2016)

Any operator aggrieved by the 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 intent to appeal with the clerk of the board of supervisors in compliance with Chapter 2.88 of this code. The findings of the board of supervisors shall be final and conclusive, and shall be served upon the operator 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. The provisions of Chapter 2.88 shall govern appeals filed under this chapter.

(Ord. No. 1415, § 1, 11-8-2016)

Every operator liable for the collection and payment to the county of the TOT imposed by this chapter shall keep and preserve, for a period of three years, all records necessary to determine the amount of such tax as the operator may have been liable to collect and pay to the county. At a minimum, the records deemed necessary for this determination shall include the following:

A. Cash receipts ledger showing room rates and tax separately, or other means acceptable to the county auditor-controller of summarizing the operator's monthly or quarterly revenue, supported by room registrations (including the name and address of the transient);

B. A calendar of advance registrations;

C. Copies of forms used to claim exemption from the TOT;

D. Any lodging agreements for periods of greater than thirty consecutive calendar days,

E. Pre-numbered payment receipts showing payment for occupancy which state the room rate separate from the amount of tax paid.

These records shall be made available within a reasonable time upon request for inspection by the tax administrator or the county auditor-controller. Mere inspection by the county does not waive the county's right to any tax or the three-year requirement of preserving records.

(Ord. No. 1415, § 1, 11-8-2016)

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. Any such tax collected by an operator which has not been paid to the county shall be deemed a debt owed by the operator to the county. If an operator fails or refuses to collect the TOT imposed by this chapter, the amount determined due by the tax administrator shall be deemed a debt owed by the operator to the county. Any person owing money to the county under the provisions of this chapter shall be liable to an action by the county for the recovery of such amount. The county shall be entitled to recover all attorney fees, personnel costs and other expenses incurred due to the failure of timely remittance of tax proceeds to the county. Said delinquencies shall be collected in the same manner as any unsecured tax collection procedure as provided by the California Revenue and Taxation Code, including, but not limited to, liens, seizure and sale, and till taps.

(Ord. No. 1415, § 1, 11-8-2016)

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 (B) and (C) of this section, provided a claim in writing, stating under penalty of perjury the specified 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 TOT has been collected was not a transient. However, no refund or credit shall be allowed unless the amount of the TOT 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 county by filing a claim in the manner provided in subsection (A) of this section, but only when the TOT was paid by the transient directly to the tax administrator, or when the transient, having paid the TOT 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 TOT.

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

(Ord. No. 1415, § 1, 11-8-2016)

A. Any person who violates any of the provisions of this chapter shall be guilty of a misdemeanor and subject to a one thousand dollar fine or imprisonment in accordance with California Penal Code 19.

B. 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.

C. 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.

(Ord. No. 1415, § 1, 11-8-2016)

A. The operator's records are subject to examination at the discretion of the tax administrator, upon fourteen days written notice to the operator. During the examination, full access must be granted to all original records for the period under examination.

B. The examination may include, but is not limited to the cash receipts, deposits, reservation calendar, computer accounting system, ledgers, financial statements, bank statements, and supporting documents and forms for exemptions (allowances) including thirty day written agreements providing for a longer period of occupancy between the operator and the person.

C. If the operator cannot provide all the necessary documentation needed to support the amounts reported on the forms prescribed by the tax administrator, then the amount of gross rent revenue and exemptions will be estimated for purposes of determining the TOT due and payable to the county.

D. In the event records are not produced upon request, or such records are not reasonably auditable, tax, interest and penalties will be levied upon the average room rate and occupancies for similar properties within the same area for the period under examination.

E. The operator's records are subject to examination prior to transfer of ownership. The operator must notify the tax administrator no less than thirty days prior to the transfer of ownership.

(Ord. No. 1415, § 1, 11-8-2016)