San Juan Capistrano Municipal Code Art. 6 Transient Occupancy Taxes

For the purposes of this article, unless otherwise apparent from the context, certain words and phrases used in this article 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, including 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 or 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 be considered to be compliance by both.

"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.

"Transient"

shall mean 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 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 longer period of occupancy.

(§ 1, Ord. 483, eff. June 1, 1983)

The City Manager or his designee shall administer the provisions of this article.

(§ 1, Ord. 483, eff. June 1, 1983)

For the 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. The transient shall pay 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.

(§ 1, Ord. 483, eff. June 1, 1983, as amended by § 1, Ord. 553, eff. October 31, 1985, and § 1, Ord. 721)

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 provided in this article.

(§ 1, Ord. 483, eff. June 1, 1983)

On or before July 1, 1983, or within 30 days after the commencement of business, whichever date shall first occur, each operator of any hotel renting an occupancy to transients shall register such hotel with the city and obtain a “Transient Occupancy Registration Certificate” which shall be at all times posted in a conspicuous place on the premises. Such certificate, among other things, shall state the following:

(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 Transient Occupancy Tax Law by registering with the City for the purpose of collecting from transients the Transient Occupancy Tax and remitting said tax to the City. 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.”

(§ 1, Ord. 483, eff. June 1, 1983)

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 City Manager or his designee, shall make a return to the City, on forms provided by the City, 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 City. The City Manager may establish shorter reporting periods for any certificate holder if the City Manager deems it necessary in order to insure the collection of the tax, and he may require further information in the return. Returns and payments shall be due immediately upon the cessation of business for any reason. All taxes collected by operators pursuant to this article shall be held in trust for the account of the City until payment thereof is made to the City.

(§ 1, Ord. 483, eff. June 1, 1983)

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

(b) Continued delinquencies. Any operator who fails to remit any delinquent remittance on or before a period of 30 days following the date on which the remittance first became delinquent shall pay a second delinquency penalty of 10% of the amount of the tax in addition to the amount of the tax and the 10% penalty first imposed.

(c) Fraud. If the City Manager determines that the nonpayment of any remittance due under this article 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 fails to remit any tax imposed by this article 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.

(e) Penalties merged with tax. Every penalty imposed and such interest as accrues under the provisions of this section shall become a part of the tax required to be paid.

(§ 1, Ord. 483, eff. June 1, 1983)

If any operator shall fail or refuse to collect the tax imposed by this article and to make, within the time provided in this article, any report and remittance of such tax, or any portion thereof, the City shall proceed in such manner as deemed best to obtain the facts and information on which to base the estimate of the tax due. As soon as the City shall procure such facts and information as it 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 tax and to make such report and remittance, the City 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 City Manager 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, within 10 days after the serving or mailing of such notice, may make an application in writing to the City Manager for a hearing on the amount assessed. If the application by the operator for a hearing is not made within the time prescribed, the tax, interest, and penalties, if any, determined by the City shall become final and conclusive and immediately due and payable. If such application is made, the City Manager 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 such 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 City Manager 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 3-3.609 of this article.

(§ 1, Ord. 483, eff. June 1, 1983)

Any operator aggrieved by any decision of the City Manager with respect to the amount of tax, interest, and penalties under this article, if any, may appeal to the Council by filing a notice of appeal with the City Clerk within 15 days after the serving 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 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 article for service of the notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of such notice.

(§ 1, Ord. 483 eff. June 1, 1983)

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 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 City Manager shall have the right to inspect at all reasonable times.

(§ 1, Ord. 483, eff. June 1, 1983)

A credit against the amount of tax due will be allowed for credit card company charges. A schedule will be attached to the quarterly reporting form to substantiate the amount claimed for credit.

(§ 1, Ord. 483, eff. June 1, 1983)

(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, the 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 City Manager within one year after the date of payment.

(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 City Manager 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 when the transient having paid the tax to the operator establishes to the satisfaction of the City Manager 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.

(§ 1, Ord. 483, eff. June 1, 1983)

Funds derived through the levying of the transient occupancy tax shall be deposited in the General Fund of the City to be used for general governmental purposes, including the maintenance, improvement, or acquisition of public facilities which the Council may determine are of a direct benefit to the City.

(§ 1, Ord. 483, eff. June 1 1983)

Any tax required to be paid by any transient under the provisions of this article 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 under the provisions of this article shall be liable to any action brought in the name of the City for the recovery of such amount.

(§ 1, Ord. 483, eff. June 1, 1983)

No person shall fail or refuse to register as required in this article, or fail or refuse to furnish any return required to be made, or fail or refuse to furnish a supplemental return or other data required by the City, or render a false or fraudulent return or claim. No person required to make, render, sign, or verify any report or claim shall make 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.

(§ 1, Ord. 483, eff. June 1, 1983)