Tiburon Municipal Code Ch. 7 Transient Occupancy Tax

For the purposes of this chapter, the following words and phrases shall have the meanings respectively ascribed to them by this section:

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, including any hotel, inn, hostelry, 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. The use or possession, or the right to the use or possession of any room or portion thereof in any hotel for dwelling, for 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 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 be considered to be compliance by both.

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.

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 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.

(Ord. No. 42, § 1)

For the privilege of providing occupancy to transients within the town, a tax is imposed on the operator of any hotel at the rate of up to ten percent of the total amount of rent collected by such operator for the providing of such occupancy.

(Ord. No. 42, § 2; Ord. No. 18, N.S., § 1; Ord. No. 150 N.S., § 1; Ord. No. 275 N.S., § 1; Ord. No. 349 N.S., § 1)

The tax imposed by this chapter shall be collected by the operator from the transient, insofar as it can be done.

(Ord. No. 42, § 3)

It is unlawful for any operator to advertise or hold out or state to the public or any transient, 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 room rental, or that, if added, it or any part thereof will be refunded.

(Ord. No. 42, § 4)

Within thirty days after commencing business, each operator of a hotel shall file with the town clerk an application for a permit for each hostelry from which rooms are to be rented, or lodgings furnished to transients. Every application shall be made upon a form to be prescribed by the town clerk, and shall set forth the name under which the operator intends to operate his hotel, the location of the hotel, including all portions of lots and blocks in the town occupied by the same, and such other information as the town clerk may require. The operator shall sign the application; and, if the operator is a corporation, such application shall be signed by an executive officer or some person specifically authorized by the corporation to sign the application, to which shall be attached the written evidence of this authority.

(Ord. No. 42, § 5)

After compliance with section 7-5 by the operator, the town clerk shall grant and issue to each operator a separate permit for each separate hotel from which rooms or lodgings will be furnished. A permit is not assignable and is valid only for the operator in whose name it is issued, and for the operation of a hotel at the place designated therein. The permit shall at all times be conspicuously displayed at the place for which issued.

(Ord. No. 42, § 6)

The taxes imposed by this chapter are due and payable to the town clerk on or before the last day of the month following the close of each calendar quarter. Payments are due immediately upon cessation of business for any reason.

(Ord. No. 42, § 7)

On or before the last day of the month following the close of each calendar quarter, a return for such calendar quarter period shall be filed with the town clerk, in such form as he shall require, by each operator collecting rent during such period, such report to show the total amount of rent collected by such operator for such period. The town clerk may require returns to show the total rents or other gross receipts of the operator at the location of the hotel, and an explanation in detail of any discrepancy, if any. Returns are due immediately upon cessation of business for any reason.

(Ord. No. 42, § 8)

The town clerk shall have power, for good cause, to extend for a period of not to exceed thirty days the time for making any return or paying any amount required to be paid under this chapter, when requested so to do, in writing, before the same becomes delinquent. The town clerk may, with the written approval of the town attorney, waive or compromise any penalty or interest that would otherwise accrue under the provisions of this chapter. The town clerk shall make and transmit to the town council quarterly a detailed report of any sums so waived or compromised with the reasons therefor.

(Ord. No. 42, §9)

(a) Recomputation of tax; basis of recomputation. If the town clerk is not satisfied with the return or returns of the tax or the amount of tax required to be paid to the town by any operator, he may compute and determine the amount required to be paid upon the basis of the facts contained in the return or returns 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 one or for more than one period.

(b) Interest on deficiency. The amount of the determination, exclusive of penalties, shall bear interest at the rate of one-half of one percent per month, or fraction thereof, from the fifteenth day after the close of the quarterly period for which the amount or any portion thereof should have been returned until the date of payment.

(c) Penalties. Every operator shall pay a delinquency penalty of ten percent of the amount of the deficiency determination in addition to the amount of the determination. Every operator shall pay a second delinquency penalty of ten percent of the amount of the deficiency determination in addition to the amount of the determination and the ten percent penalty first imposed, in the event that the deficiency determination is not paid on or before a period of thirty days following the service of notice, as provided by subsection (e) of this section.

(d) Penalty for fraud or intent to evade. If any part of the deficiency for which a deficiency determination is made is due to fraud or an intent to evade this chapter or authorized rules and regulations, a penalty of twenty-five percent of the amount of the determination shall be added thereto.

(e) Service of notice of town clerk's determination. The town clerk shall give to the operator written notice of his determination. The notice may be served personally or by mail; if by mail, service shall be made pursuant to section 1013 of the Code of Civil Procedure of the state, and shall be addressed to the operator at his address as it appears in the records of the town clerk. In case of service by mail of any notice required by this chapter, the service is complete at the time of deposit in the United States Post Office.

(f) Time within which notice of deficiency determination to be mailed. Except in the case of fraud, intent to evade this chapter or authorized rules and regulations, or failure to make a return every notice of a deficiency determination shall be mailed within three years after the fifteenth day of the calendar month following the quarterly period for which the amount is proposed to be determined, or within three years after the return is filed whichever period expires the later.

The limitation specified in this section does not apply in case of a tax proposed to be determined with respects to occupancies of which notice of a deficiency determination has been or is given.

(Ord. No. 42, § 10)

(a) Estimate of gross receipts; computation of tax penalty. If any operator fails to make a return, the town clerk shall make an estimate of the amount of the gross receipts of the operation, or, as the case may be, of the amount of the total rentals in this town which are subject to the tax. The estimate shall be made for the period in respect to which the operator failed to make a return and shall be based upon any information which is in the town clerk's possession or may come into his possession. Upon the basis of this estimate the town clerk shall compute and determine the amount required to be paid to the town, adding to the sum thus arrived at a penalty equal to ten percent thereof. One or more determinations may be made for one or for more than one period. A second penalty of ten percent of such amount is due and payable by the operator if such amount is not paid on or before a period of thirty days following the service of notice, as provided by subsection (d) of this section.

(b) Interest on amount found due. The amount of the determinations, exclusive of penalties, shall bear interest at the rate of one-half of one percent per month, or fraction thereof, from the fifteenth day of the month following the close of the quarterly period for which the amount or any portion thereof should have been returned until the date of payment.

(c) Penalty for fraud or intent to evade. If the failure of any operator to file a return is due to fraud or an intent to evade this chapter or rules and regulations, a penalty of twenty-five percent of the amount required to be paid by the person, exclusive of penalties, shall be added thereto in addition to the ten percent penalty provided in subsection (a) of this section.

(d) Giving of notice; manner of service. Promptly after making his determination, the town clerk shall give to the operator written notice of the estimate, determination and penalty, the notice to be served personally or by mail in the manner prescribed for service of notice of a deficiency determination.

(Ord. No. 42,§ 11)

(a) Right to petition for; time to file petition. Any operator against whom a determination is made under this chapter or any operator directly interested may file a written petition for a redetermination within thirty days after service upon the operator of notice thereof. If a petition for redetermination is not filed within the thirty day period, the determination becomes final at the expiration of the period.

(b) Grant of oral hearing; notice; continuances. If a petition for redetermination is filed within the thirty day period, the town clerk shall reconsider the determination, and if the person has so requested in his petition, shall grant the operator an oral hearing and shall give him ten days' notice of the time and place of the hearing. The town clerk may continue the hearing from time to time as may be necessary.

(c) Alteration of determination; limitation on right to increase amount. The town clerk may decrease or increase the amount of the determination before it becomes final, but the amount may be increased only if a claim for the increase is asserted by the town clerk at or before the hearing.

(d) Finality of order on petition. The order or decision of the town clerk upon a petition for rede-termination becomes final upon service of notice of the order or decision upon the petitioner, unless written appeal of such order or decision is filed with the town council within fifteen days after service of such notice.

(e) Right of appeal to council. If appeal of such order is filed with the town council within fifteen days of service of such notice, the town council shall grant a hearing to such operator so appealing and shall set the time of such hearing within thirty days after receipt of the written appeal. The town council at such hearing shall have full power to review the determination of the town clerk and may modify the determination of tax due. The decision of the town council after such hearing shall be a final determination in the matter.

(f) Penalty and interest to be part of tax. Every penalty imposed and such interest as accrues under the provisions of sections 7-11 and 7-12 shall become a part of the tax herein required to be paid.

(g) Manner of serving notices. Any notice relating to redetermination proceedings shall be served personally or by mail in the manner prescribed for service of notice of a deficiency determination.

(Ord. No. 42, § 12)

Unless otherwise provided in this chapter, every operator who fails to pay any tax to the town, within the time required, shall pay a penalty of ten percent of the tax or amount of the tax, in addition to the tax or amount of tax, plus interest at the rate of one-half of one percent per month, or fraction thereof, from the date on which the tax or the amount of tax required to be collected became due and payable to the town until the date of payment.

(Ord. No. 42, § 13)

All taxes levied by this chapter shall be payable to the town clerk, and any civil suit for the collection thereof may be filed in any court of competent jurisdiction in the state, and the town attorney shall prosecute the action. (Ord No. 42, § 14)

(a) Duty of successors or assignees of operator to withhold tax from purchase money. If any operator liable for any amount under this chapter sells out his business or quits the business, his successors or assignees shall withhold sufficient of the purchase price to cover such amount until the former owner produces a receipt from the town clerk showing that he has been paid or a certificate stating that no amount is due.

(b) Liability for failure to withhold; certificate of notice of amount due; time to enforce successor's liability. If the purchaser of a business fails to withhold the purchase price as required, he becomes personally liable for the payment of the amount required to be withheld by him to the extent of the purchase price, valued in money. Within thirty days after receiving a written request from the purchaser for a certificate, the town clerk shall either issue the certificate or mail a notice to the purchaser at his address as it appears on the records of the town clerk of the amount that must be paid as a condition of issuance of the certificate. Failure of the town clerk to mail the notice will release the purchaser from any further obligation to withhold the purchase price as above provided. The time within which the obligation of a successor may be enforced shall start to run at the time the operator sells out his business or at the time that the determination against the operator becomes final, whichever event occurs the later.

(Ord. No. 42, § 15)

(a) Records, etc., required from operators. Every operator shall keep such records, receipts, invoices and other pertinent papers in such form as the town clerk may require, for a period of three years.

(b) Examination of records; investigations. The town clerk or any person authorized in writing by him may examine the books, papers, records and equipment of any person renting lodging space and any operator liable for the tax and may investigate the character of the business of the person in order to verify the accuracy of any return made, or, if no return is made by the person, to ascertain and determine the amount required to be paid.

(c) Authority to require reports; contents. In administration of the tax the town clerk may require the filing of reports by any person or class of persons having in their possession or custody information relating to rentals which are subject to the tax. The reports shall be filed when the town clerk requires and shall set forth the rental charged for each occupancy, the date or dates of occupancy and such other information as the town clerk may require.

(d) Disclosure of business of operators, etc.; limitations on rule. It is unlawful for the town clerk or any person having an administrative duty under this chapter to make known in any manner whatever the business affairs, operations or information obtained by an investigation of records and equipment of any operator or any other person visited or examined in the discharge of official duty, or the amount or source of income, profits, losses, expenditures or any particular thereof, set forth or disclosed in any return, or to permit any return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person. Successors, receivers, trustees, executors, administrators, assignees, guarantors and town officials, if directly interested, may be given information as to the items included in the measure and amount of any unpaid tax or amounts of tax required to be collected, interest and penalties.

(Ord. No. 42, § 16)

Any operator or other person who fails or refuses to register as required in this chapter, 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 town clerk, or who renders a false or fraudulent return, is guilty of a violation of this Code. Any operator required to make, render, sign or verify any report, who makes any false or fraudulent report with intent to defeat or evade the determination of an amount due required by this chapter to be made, is guilty of a violation of this Code.

(Ord. No. 42, § 18)