Article III — TRANSIENT OCCUPANCY TAX

SECTION:

22-10: Title

22-11: Definitions

22-12: Amount Of Tax; Payment By Transient

22-13: Exemptions

22-14: Operator's Duties

22-15: Registration

22-16: Reporting And Remitting

22-17: Remittance By Mail

22-18: Penalties And Interest; Original Delinquency

22-19: Penalties And Interest; Continued Delinquency

22-20: Penalties And Interest; Fraud

22-21: Penalties And Interest; Interest

22-22: Penalties Merged With Tax

22-23: Failure To Collect And Report Tax; Determination Of Tax By Tax Administrator

22-24: Deficiency Determinations

22-25: Appeal

22-26: Records

22-27: Refunds

22-28: Actions To Collect

22-29: Violations; Misdemeanor

22-10: TITLE:

This article shall be known as the UNIFORM TRANSIENT OCCUPANCY TAX LAW OF THE CITY OF PORTERVILLE. (Ord. 807 § 1, 1- 1-1965)

22-11: DEFINITIONS:

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

HOTEL: 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 includes 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.

"Hotel" does not include a hospital room, medical clinic, convalescent home or home for the aged. Also, "hotel" does not include a private home, vacation cabin or similar facility which is rented by a person who is not regularly engaged in the business of renting such facilities and does so only occasionally and incidentally to his own use thereof.

OCCUPANCY: 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.

OPERATOR: 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 an employee, the managing agent shall also be deemed an operator for the purposes of this article and shall have the same duties and liabilities as his principal. Compliance with the provisions of this article by either the principal or the managing agent shall, however, be considered to be compliance by both.

PERSON: 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: 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: The administrative services director or designee of the city of Porterville.

TRANSIENT: 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 (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 thirty (30) 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 this article may be considered. (Ord. 807 § 1, 1-1-1965; Ord. 1614 § 1, 9-17-2002)

22-12: AMOUNT OF TAX; PAYMENT BY TRANSIENT:

For the privilege of occupancy in any hotel/motel, each transient is subject to and shall pay a tax in the amount of eight percent (8%) of the rent charged by the operator. The tax constitutes a debt owed by the transient to the city which debt is extinguished only by payment to the operator or to the city. The transient shall pay the tax to the operator of the hotel/motel 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/motel. If for any reason the tax due is not paid to the operator of the hotel/motel, such tax shall be paid directly to the tax administrator. (Ord. 807 § 1, 1-1-1965; Ord. 895 § A, 1-4-1968; Ord. 1046 § A, 9-18-1973; Ord. 1443 § A, 10-2- 1990)

22-13: EXEMPTIONS:

No tax shall be imposed upon the following persons and occupancies:

A. Any person as to whom, or any occupancy as to which, it is beyond the power of the county to impose the tax herein provided.

B. Any officer or employee of a foreign government who is exempt by reason of express provision of federal law or international treaty.

C. Any occupancy, by one or more occupants, for which the total rent paid by the occupants is less than two dollars ($2.00) a day.

No exemption shall be granted under subsection A or B of this section unless a claim of exemption in the form prescribed by the tax collector is executed by the transient under penalty of perjury and filed with the operator at the time rent is collected. (Ord. 807 § 1, 1-1- 1965; Ord. 837 § A, 10-21-1967)

22-14: OPERATOR'S DUTIES:

Each operator shall collect the tax imposed by this article 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 hereinafter provided. (Ord. 807 § 1, 1-1-1965)

22-15: REGISTRATION:

Within thirty (30) days after the effective date hereof, or within thirty (30) days after commencing business, whichever is later, each operator of any hotel renting occupancy to transients shall register said hotel with the tax administrator and obtain from him a "transient occupancy registration certificate" to be at all times posted in a conspicuous place on the premises. Said registration shall be on a form provided by the tax administrator.

The privilege of registration after the date of imposition of the tax provided in this article shall not relieve any person from the obligation of collection and payment of the tax on and after the date of imposition thereof, regardless of registration.

Such registration form shall set forth the name under which such person transacts or intends to transact business, the location of his place or places of business and such other information to facilitate the collection of the tax as the tax administrator may require. The registration form shall be signed by the owner if a natural person, by a member or partner in case of an association or partnership, and by an executive officer or some person specifically authorized by the corporation to sign the registration form in the case of a corporation. The tax administrator shall, within ten (10) days after receiving such registration form, issue without charge, the "transient occupancy registration certificate".

Said certificate shall certify as to the authority of registrant to collect tax from transients, and duplicates thereof for each additional place of business of such registrants shall also be issued. Such certificates shall be nonassignable and nontransferable and shall be surrendered immediately to the tax administrator upon the cessation of business at the location named or upon sale or transfer of the hotel. Said certificates shall contain the following information:

A. The name of the operator.

B. The address of the hotel.

C. The date upon which the certificate was issued.

D. The following statement:

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 said 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.

E. That said certificate is nonassignable and nontransferable.

F. Such additional information as may be required by the tax administrator. (Ord. 807 § 1, 1-1-1965)

22-16: REPORTING AND REMITTING:

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, make a return to the tax administrator, on forms provided by him, 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 ensure collection of the tax, and he 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 article shall be held for the account of the city until payment thereof is made to the tax administrator. (Ord. 807 § 1, 1-1-1965)

22-17: REMITTANCE BY MAIL:

If a remittance to cover a payment required by this article to be made to the tax administrator 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 tax administrator 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 tax administrator 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 tax administrator. (Ord. 807 § 1, 1-1-1965)

22-18: PENALTIES AND INTEREST; ORIGINAL DELINQUENCY:

Any operator who fails to remit any tax imposed by this article within the time required shall pay a penalty of ten percent (10%) of the amount of the tax in addition to the amount of the tax. (Ord. 807 § 1, 1-1-1965)

22-19: PENALTIES AND INTEREST; CONTINUED DELINQUENCY:

Any operator who fails to remit any delinquent remittance on or before a period of thirty (30) days following the date on which the remittance first became delinquent shall pay a second delinquency penalty of ten percent (10%) of the amount of the tax in addition to the amount of the tax and the ten percent (10%) penalty first imposed. (Ord. 807 § 1, 1-1-1965)

22-20: PENALTIES AND INTEREST; FRAUD:

If the tax administrator determines that the nonpayment of any remittance due under this article is due to fraud, a penalty of twenty five percent (25%) of the amount of the tax shall be added thereto in addition to the penalties stated in sections 22-18 and 22-19 of this article. (Ord. 807 § 1, 1-1-1965)

22-21: PENALTIES AND INTEREST; INTEREST:

In addition to the penalties imposed, any operator who fails to remit any tax imposed by this article shall pay interest at the rate of one- half of one percent (0.5%) 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. (Ord. 807 § 1, 1-1-1965)

22-22: PENALTIES MERGED WITH TAX:

Every penalty imposed and such interest as accrues under the provisions of sections22-18 through 22-21 of this article shall become a part of the tax herein required to be paid. (Ord. 807 § 1, 1-1-1965)

22-23: FAILURE TO COLLECT AND REPORT TAX; DETERMINATION OF TAX BY TAX ADMINISTRATOR:

If any operator shall fail or refuse to collect said tax and to make, within the time provided in this article, any report and remittance of said tax or any portion thereof required by this article, the tax administrator 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 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 this article and payable by any operator who has failed or refused to collect the same and to make such report and remittance, he shall proceed to determine and assess against such operator the tax, interest and penalties provided for by this article. In case 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 last known place of address. Such operator may within ten (10) days after the serving or mailing of such 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 such application is made, the tax administrator shall give not less than five (5) days' written notice in the manner prescribed herein to the operator to show cause at a time and place fixed in said notice why said 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 herein of such determination and the amount of such tax, interest, and penalties. The amount determined to be due shall be payable after fifteen (15) days unless an appeal is taken as provided in section 22-25 of this article. (Ord. 807 § 1, 1-1-1965)

22-24: DEFICIENCY DETERMINATIONS:

If the tax administrator 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 determination may be made of the amount due for any period. The tax administrator shall give to the operator written notice of his determination in the same manner as provided in section 22-23 of this article. The operator shall be entitled to apply for a hearing on the amount assessed to him pursuant to the procedure set forth in section 22-23 of this article and shall thereafter be entitled to appeal to the city council in accordance with the provisions of section 22-25 of this article. The penalties and interest provided by sections 22-18 through 22-22 of this article shall be applicable to the amount of deficiency established pursuant to this section. (Ord. 807 § 1, 1-1-1965)

22-25: APPEAL:

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 city council by filing a notice of appeal with the city clerk within fifteen (15) days of the serving or mailing of the determination of tax due. The city 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 city 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. 807 § 1, 1-1-1965)

22-26: RECORDS:

It shall be the duty of every operator liable for the collection and payment to the city of any tax imposed by this article to keep and preserve, for a period of three (3) 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. (Ord. 807 § 1, 1-1-1965)

22-27: REFUNDS:

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 city under this article it may be refunded as provided in subsections B and C of this section, provided a verified 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 (3) 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 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 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 under the provisions of this section unless the claimant establishes his right thereto by written records showing entitlement thereto. (Ord. 807 § 1, 1-1-1965)

22-28: ACTIONS TO COLLECT:

Any tax required to be paid by any transient under the provisions of this article shall be deemed a debt owned 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 owned by the operator to the city. Any person owing money to the city under the provisions of this article shall be liable to an action brought in the name of the city of Porterville for the recovery of such amount. (Ord. 807 § 1, 1-1-1965)

22-29: VIOLATIONS; MISDEMEANOR:

Any person violating any of the provisions of this article shall be guilty of a misdemeanor and shall be punishable therefor by a fine of not more than five hundred dollars ($500.00) or by imprisonment in the city or county jail for a period of not more than six (6) 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 tax administrator, 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 any false or fraudulent report or claim with intent to defeat or evade the determination of any amount due required by this article to be made, is guilty of a misdemeanor and is punishable as aforesaid. (Ord. 807 § 1, 1-1-1965)