Tracy Municipal Code Art. 3 Transient Occupancy Tax

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

(Prior code § 8-2.301)

Except where the context otherwise requires, the definitions herein given shall govern the construction of this article.

(Prior code § 8-2.302)

"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.

(Prior code § 8-2.303)

"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.

(Prior code § 8-2.304)

"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.

(Prior code § 8-2.305)

"Transient" shall mean any occupant of a room without regard to the person who pays the rent, 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 the provisions of this article may be considered.

(Prior code § 8-2.306)

"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.

(Prior code § 8-2.307)

"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 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.

(Prior code § 8-2.308)

"Tax Administrator" shall mean the City's Finance Director.

(Prior code § 8-2.309)

For the privilege of occupancy in any hotel, each transient or person paying the rent for a transient, shall be subject to and shall pay a tax in the amount of ten (10%) percent 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 or person paying the rent for a 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 occupant 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 shall be paid directly to the Tax Administrator.

(Prior code § 8-2.310)

Each operator shall collect the tax imposed by the provisions of this article to the same extent and at the same time as the rent is collected from every transient or person paying the rent for a transient. The amount of tax shall be separately stated from the amount of the rent charged, and each transient or person paying the rent for a transient shall receive a receipt of 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.

(Prior code § 8-2.312)

On or before October 3, 1964, or within thirty (30) days after commencing business, whichever is later, each operator of any hotel renting an occupancy to transients shall register such hotel with the Tax Administrator and obtain from him a "Transient Occupancy Registration Certificate" which shall at all times be posted in a conspicuous place on the premises. Such certificate shall, among other things, 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 shall 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 shall not constitute a permit."

(Prior code § 8-2.313)

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 insure collection of the tax, and he may require further information in the return. Returns and payments shall be due immediately upon cessation of business for any reason. All taxes collected by operators pursuant to the provisions of this article shall be held in trust for the account of the City until payment thereof is made to the Tax Administrator.

(Prior code § 8-2.314)

(a) An operator who is transferring, selling, or terminating its business shall notify the Tax Administrator in writing at least thirty (30) days in advance of the date of transfer, sale, or termination. If the decision to sell, transfer, or terminate the business is made fewer than thirty (30) days before the transfer, sale, or termination occurs, the operator shall notify the Tax Administrator immediately upon making that decision and in no event later than the date of transfer, sale, or termination. The operator shall at the same time notify in writing any purchaser or transferee of its hotel of the purchaser's or transferee's potential responsibility for unpaid collected taxes if any, as set forth in this article and in Revenue and Taxation Code section 7283.5.

(b) Upon cessation of business, whether by sale, transfer, or termination, an operator shall, on or before the same day of the next month following the cessation of business, or on the last day of that month if no corresponding day exists, make a return to the Tax Administrator on approved forms of the total taxable rents charged, the amount of tax collected for the reporting period ending on the cessation date, remittances made, if any, and the balance of the tax due. The balance of tax due, if any, shall be remitted to the Tax Administrator at the time the final return is filed. After filing the final return and remitting the balance due, the operator shall make its records of account available for a closeout audit by the Tax Administrator or his or her designee. Returns filed and taxes remitted and actually received by the Tax Administrator on or before the same day of the next month following cessation of business, or on the last day of that month if no corresponding day exists, shall be timely filed and remitted; otherwise, the taxes are delinquent and subject to the penalties imposed by this article.

(c) Any person purchasing an ongoing hotel business may apply to the Tax Administrator for a tax clearance certificate showing the tax due, if any, from the selling operator as of a date specified in the tax clearance certificate request. For purposes of this section, successive hotel businesses conducted without substantial interruption at the same hotel shall constitute an ongoing hotel business.

(1) The issuance and effect of such certificates shall be as set forth in Revenue and Taxation Code section 7283.5.

(2) Before requesting records and conducting the audit permitted by subdivision (b) of Revenue and Taxation Code section 7283.5, the Tax Administrator shall proceed in such manner as he or she may deem best to obtain facts and information on which to base an estimate of the tax due. The Tax Administrator shall notify the selling operator of this estimate when requesting records for audit. If the selling operator fails to provide records in response to the request within thirty (30) days after the serving or mailing of the estimate and record request, the Tax Administrator may issue a tax certificate in the amount of the estimate.

(3) By resolution, the City may set an administrative fee for issuance of any such certificate.

(Ord. 1081 § 1, 2005)

(a) Original delinquency. Any operator who shall fail to remit any tax imposed by the provisions of this article within the time required shall pay a penalty in the amount of ten (10%) percent 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 a period of thirty (30) days following the date on which the remittance first became delinquent shall pay a second delinquency penalty in the amount of ten (10%) percent of the tax in addition to the amount of the tax and the ten (10%) percent penalty first imposed.

(c) Fraud. If the Tax Administrator shall determine that the nonpayment of any remittance due pursuant to the provisions of this article is due to fraud, a penalty in the amount of twenty-five (25%) percent 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 article shall pay interest at the rate of one-half 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, pursuant to the provisions of this section shall become a part of the tax required to be paid by the provisions of this article.

(Prior code § 8-2.315)

If any operator shall fail or refuse to collect such tax and to make, within the time provided in this article, any report and remittance of such tax, or any portion thereof, required by the provisions of this article, the Tax Administrator shall proceed in such manner as he may deem best to obtain the 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 such tax imposed 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 article. In the event such determination is made, the Tax Administrator shall give 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 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 (5) 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 shall 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 fifteen (15) days unless an appeal is filed as provided in Section 8.08.290 of this article.

(Prior code § 8-2.316)

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 Manager by filing a notice of appeal with the City Clerk under section 1.12.010. Any amount found to be due shall be immediately due and payable upon the service of notice.

(Ord. 1111 § 4 Exh. A (part), 2007: prior code § 8-2.317)

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 article to keep and preserve, for a period of four (4) 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. 1081 § 2, 2005: prior code § 8-2.318)

(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, such amount may be refunded as provided in subsections (b) and (c) of this section provided a claim in writing, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the Tax Administrator in accordance with chapter 1.24 of the Tracy Municipal Code and on a form furnished by the Tax Administrator.

(b) Any 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 person paying the rent for a transient or credited to rent subsequently payable by the transient or person paying the rent for a transient to the operator.

(c) A transient or person paying the rent for a transient may obtain a refund of taxes overpaid, paid more than once, or erroneously or illegally collected or received by filing a claim in the manner provided in subsection (a) of this section but only when the tax was paid by the transient or person paying the rent for a transient directly to the Tax Administrator or when the transient or person paying the rent for a 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 right thereto by written records showing entitlement thereto.

(Ord. 1030 § 1, 2001; prior code § 8-2.319)

Any tax required to be paid by any transient or person paying the rent for a transient pursuant to the provisions of this article shall be deemed a debt owed by the transient or person paying the rent for a 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 article shall be liable to an action brought in the name of the City for the recovery of such amount.

(Prior code § 8-2.320)

An 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 date required by the Tax Administrator, or who renders a false or fraudulent return or claim, is guilty of a misdemeanor, punishable as provided in section 1.04.030. A person required to make, render, sign, or verify any report or claim and who makes any false of fraudulent report of claim with intent to defeat or evade the determination of any amount due required by the provisions of this article to be made is guilty of a misdemeanor, punishable as provided in section 1.04.030.

(Ord. 1040 § 5 Exh. E (part), 2002: prior code § 8-2.321)