Chapter 5.68 — TRANSIENT OCCUPANCY TAX

Section 5.68.010 Title. 5.68.020 Definitions.

5.68.030 Amount of tax—Prepayment by transient. 5.68.040 Exemptions. 5.68.050 Duties of operator. 5.68.060 Registration of operators. 5.68.070 Reporting and remitting. 5.68.080 Remittance by mail. 5.68.090 Penalties and interest—Original delinquency. 5.68.100 Continued delinquency. 5.68.110 Fraud. 5.68.120 Interest. 5.68.130 Penalties and interest merge with tax. 5.68.140 Failure to collect and report tax. 5.68.150 Deficiency determinations. 5.68.160 Refunds. 5.68.170 Appeals. 5.68.180 Records. 5.68.190 Actions to collect. 5.68.200 Violations.

This chapter shall be known as the “Transient Occupancy Tax Law of the City of Tulare”. (1995 Code, § 5.68.010)

Except where the context otherwise requires, the following definitions shall govern the construction of this chapter. 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 proposes, 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, or other similar structure or portion thereof. HOTEL also includes a “mobile home”, as defined in Cal. Health and Safety Code § 18008, which is located outside a mobile home park when the tenant is not an employee of the owner or operator of the mobile home. 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 the facilities and does so only occasionally and incidentally to his or her 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 the proprietor of the hotel, whether in the capacity of owner, lessee, subleasee, mortgagee in possession, licensee or any other capacity. If the operator performs his or her 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 or her principal. Compliance with provisions of this chapter be either the principal or the managing agent shall, however, 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. TAX COLLECTOR. The Tax Collector of the City of Tulare. 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 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. In determining whether a person is a transient, uninterrupted periods of time extending both prior and subsequent to the effective date of this chapter may be considered.

(1995 Code, § 5.68.020)

For the privilege of occupancy in any hotel on and after July 1, 1994, each transient is subject to and shall pay a tax in the amount of 10% of the rent charged by the operator. The tax constitutes a debt owed by the transient to the city which is extinguished only by payment to the operator or to the city. The 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 when the transient ceases to occupy space in the hotel. If the tax due is not paid to the operator, the tax shall be paid directly to the Tax Collector. (1995 Code, § 5.68.030)

No tax shall be imposed upon the following persons: (A) Any person as to whom, or any occupancy as to which, it is beyond the power of the city to impose 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; and (C) Any occupant whose rent is less than $2 a day. No exemption shall be granted under divisions (A), (B) or (C) 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. (1995 Code, § 5.68.060)

Each operator shall collect the tax imposed by this chapter 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 of the tax 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 therefor 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 chapter. (1995 Code, § 5.68.050)

Every person engaging or about to engage in business as an operator of a hotel in the city shall register with the Tax Collector on a form provided by him or her. Persons engaged in such business must so register not later than January 1, 1965, or within 30 days after commencing business whichever is later, but the privilege of registration after the date of imposition of the tax shall not relieve any person from the obligation of collection and payment of tax on and after the date of imposition thereof, regardless of registration. The registration form shall set forth the name under which the person transact or intends to transact business, the location of his or her place or places of business and such other information to facilitate the collection of the tax as the Tax Collector 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 Collector shall, within ten days after receiving the registration form, issue without charge a certificate of authority to each registrant to collect the tax from transients, together with a duplicate thereof for each additional place of business of the registrant. The certificates shall be nonassignable and nontransferable and shall be surrendered immediately to the Tax Collector upon the cessation of business at the location named or upon sale or transfer of the hotel. Each certificate shall be prominently displayed in the hotel so as to be seen and come to the notice readily of all occupants and persons seeking occupancy. The certificate 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 Transient Occupancy Tax Law of the City by registering with the Tax Collector for the purpose of collecting from transients the Transient Occupancy Tax and remitting said tax to the Tax Collector. 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) Such additional information as may be required by the Tax Collector.

(1995 Code, § 5.68.060)

Each operator shall, on or before the last day of the calendar month following the close of each calendar quarter, or at the close of any shorter reporting period which may be established by the Tax Collector, make a return to the Tax Collector, on forms provided by him or her, of the total rents charged and received and the amount of tax collected from transient occupancies. At the time the return is filed, the full amount of the tax collected shall be remitted to the Tax Collector. The Tax Collector may establish shorter reporting periods for any operator if he or she deems it necessary in order to insure collection of the tax and he or she may require additional 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 chapter shall be held in trust for the account of the city until payment thereof is made to the Tax Collector. (1995 Code, § 5.68.070)

If a remittance to cover a payment required by this chapter to be made to the Tax Collector 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 Collector 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 Collector establishes that the mailing occurred on an earlier date. Nothing in this section shall be construed as constituting payment of any remittance required, unless the remittance is actually received by the Tax Collector. (1995 Code, § 5.68.080)

Any operator who fails to remit any tax imposed by this chapter within the time required by § 5.68.070 of this chapter shall pay a penalty of 10% of the amount of the tax in addition to the amount of the tax. (1995 Code, § 5.68.090)

Any operator who fails to remit any delinquent remittance on or before the last day of the second calendar month following the close of each calendar quarter 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. (1995 Code, § 5.68.100)

If the Tax Collector determines that the nonpayment of any remittance due under this chapter is due to fraud, a penalty of 25% of the amount of the tax shall be added thereto in additional to the penalties stated in §§ 5.68.090 and 5.68.100 of this chapter. (1995 Code, § 5.68.110)

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 0.5% per month or any fraction thereof on the amount of the tax, exclusive of penalties, from the date on which the remittance first became delinquent until paid. (1995 Code, § 5.68.120)

Every penalty imposed and such interest as accrues under the provisions of §§ 5.68.090 through 5.68.120 of this chapter shall become a part of the tax herein required to be paid. (1995 Code, § 5.68.130)

If any operator shall fail or refuse to collect the tax and to make, within the time provide in this chapter, any report and remittance of the tax or any portion thereof required by this chapter, the Tax Collector shall proceed in such manner as he or she may deem best to obtain facts and information on which to base his or her estimate of the tax due. As soon as the Tax

Collector secures such facts and information as he or she is able to obtain upon which to base the assessment of any operator who has failed or refused to collect the same and to make the report and remittance, he or she shall proceed to determine and assess against the operator the tax, interest and penalties provided for by this chapter. When the determination has been made, the Tax Collector 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 this last known address. The operator may, within ten days after the serving or mailing of the notice, make application in writing to the Tax Collector for a hearing on the amount assessed. If application by the operator for a hearing is not made within the ten-day period, the tax, interest and penalties determined by the Tax Collector shall become final and conclusive and immediately due and payable. If such application is made, the Tax Collector shall give not less than five-days’ written notice to the operator, in the manner prescribed above, to show cause at a time and place fixed in said notice why the amount specified therein should not be so fixed. After the hearing, the Tax Collector shall determine the proper tax to be remitted and shall thereafter give written notice to the operator in the manner prescribed above of the determination and the amount of the tax, interest and penalties. The amount determined to be due shall be payable 15 days after the serving or mailing of the notice unless an appeal is taken as provided in § 5.68.170 of this chapter. (1995 Code, § 5.68.140)

If the Tax Collector 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 or she 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 or her possession or that may come into his or her possession. One or more deficiency determinations may be made of the amount due for any period. The Tax Collector shall give to the operator written notice of his or her determination in the same manner as provided in § 5.68.140 of this chapter. The operator shall be entitled to apply for a hearing on the amount assessed to him or her pursuant to the procedure set forth in § 5.68.140 of this chapter and shall thereafter be entitled to appeal to the City Council in accordance with the provisions of § 5.68.170 of this chapter. The penalties and interest provided by §§ 5.68.090 through 5.68.120 of this chapter shall be applicable to the amount of deficiency established pursuant to this section. (1995 Code, § 5.68.150)

Whenever the amount of any tax, penalty or interest has been paid more than once or has been erroneously or illegally collected or received by the Tax Collector under this chapter, it may be refunded provided a verified claim in writing therefor, stating the specific ground upon which the claim is founded, is filed with the Tax Collector within three years from the date of payment. The claim shall be made on forms provided by the Tax Collector. If the claim is approved by the Tax Collector, the excess amount collected or paid may be refunded or may be credited on any amount then due and payable from the person from whom it was collected or by whom paid and the balance my be refunded to such person, his or her administrators or executors. (1995 Code, § 5.68.160)

Any operator aggrieved by any decision of the Tax Collector may appeal to the City Council by filing a notice of appeal with the City Clerk within 15 days after the serving or mailing of the notice of the decision. The City Council shall fix a time and place for a hearing the appeal and the City Clerk shall give notice in writing to the operator at his or her last known address. The decision 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 the notice. (1995 Code, § 5.68.170)

Every operator liable for the collection and payment to the city of any tax 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 he or she may have been liable for the collection of and payment to the city. The Tax Collector shall have the right to inspect the records at all reasonable times. (1995 Code, § 5.68.180)

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 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 chapter shall be liable to an action brought in the name of the city for the recovery of the amount.

(1995 Code, § 5.68.190)

It shall be unlawful for any operator or other person required to do so to fail or refuse to register as required herein, or to furnish any return required to be made, or to furnish a supplemental return or other data required by the Tax Collector, or to render a false or fraudulent return or claim. It shall also be unlawful for any person required to make, render, sign or verify any report or return to make any false or fraudulent report or return with intent to defeat or evade the determination of any amount due required by this chapter to be made. (1995 Code, § 5.68.200)