Tuolumne County Municipal Code Ch. 3.32 Transient Occupancy Tax

Sections:

• 3.32.010

• Citation.

• 3.32.020

• Definitions.

• 3.32.030

• Amount of tax.

• 3.32.040

• Exemptions.

• 3.32.050

• Operator's duties.

• 3.32.060

• Registration of hotel.

• 3.32.070

• Reporting and remitting tax.

• 3.32.080

• Reporting period.

• 3.32.090

• Penalty for original delinquency.

• 3.32.100

• Penalty for continued delinquency.

• 3.32.110

• Penalty for fraud.

• 3.32.120

• Interest on delinquent tax.

• 3.32.130

• Penalties merged with tax.

• 3.32.140

• Failure to collect and report tax-Determination of tax.

• 3.32.150

• Appeals to decision of tax collector.

• 3.32.160

• Records required.

• 3.32.170

• Confidentiality of tax returns and information.

• 3.32.180

• Refund-Claim.

• 3.32.190

• Refund-Establishment of nontransient status.

• 3.32.200

• Refund-to transient.

• 3.32.210

• Refund-Written records required.

• 3.32.220

• Tax a debt owned by transient.

• 3.32.230

• Nonpayment-Action to file for records.

• 3.32.240

• Order of satisfying payments.

• 3.32.250

• Warrant for enforcement of liens.

• 3.32.260

• Manner of collecting delinquent taxes.

• 3.32.270

• Sale of business-Liability for amount of tax due.

• 3.32.280

• Misdemeanor for failure to register.

chapter shall be known as the "Uniform Transient Occupancy Tax Ordinance of the County." (Ord. 431 § 1, 1964).

otherwise requires, the definitions given in this section govern the construction of this Chapter:

A. "Hotel" means 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, but is not limited to, any hotel, inn, tourist home or house, motel, studio hotel, lodging house, rooming house, apartment house, dormitory, public or private club, camping site, mobilehome which is located outside of a mobile home park and which is not occupied by a tenant who is an employee of the owner or operator of the mobilehome, or other similar structure or portion thereof. “Hotel” also includes other lodging.

B. "Other lodging" includes, but is not limited to, a camping site or a space at a campground or recreational vehicle park, but does not include any of the following:

(1) Any facilities operated by a local government entity;

(2) Any lodging excluded pursuant to Revenue and Taxation Code Section 7280(b); and

(3) Any campsite in a unit of the state park system.

C. "Occupancy" means the use or possession, or the right to the use or possession, of one or more rooms, sites, or spaces, or portions thereof, in any hotel or other lodging for dwelling, lodging, or sleeping purposes.

D. "Operator" means the person who is proprietor of the hotel or other lodging whether in the capacity of owner, lessee, sublessee, mortgagee in possession, licensee, concessionaire or any other capacity. Where the operator performs his/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/her principal.

Compliance with the provisions of this Chapter by either the principal or the managing agent shall, however, be considered to be compliance by both.

E. "Persons" means 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.

F. "Rent" means the consideration charged, whether or not received, for the occupancy of space in a hotel or other lodging 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; provided, however, that "rent" does not include lodging furnished in kind to an employee by an employer solely for the convenience of the employer.

G. "Transient" means 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 or other lodging 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. In determining whether a person is a transient, uninterrupted periods of time extending both prior and subsequent to the effective date of the ordinance codified in this Chapter may be considered. (Ord. 3380 § 1, 2020; Ord. 1 073 § 1, 1980; Ord. 495 § 1, 1967; Ord. 431 § 2, 1964; prior code § 8-2.0).

occupancy in any hotel or other lodging within the unincorporated area of the county, each transient is subject to and shall pay a tax in the amount of twelve percent (12%) of the rent charged by the operator. The tax constitutes a debt owed by the transient to the county which is extinguished only by payment to the operator or to the county. The transient shall pay the tax to the operator of the hotel or other lodging at the time the rent is paid. If the rent is paid in installments, a proportionate share of the tax shall be due upon the transient’s ceasing to occupy space in the hotel or other lodging. If for any reason the tax due is not paid to the operator of the hotel or other lodging, the tax collector may require that such tax shall be paid directly to the tax collector. (Ord. 3380 § 2, 2020; Ord. 3106 § 1, 2010; Ord. 1276 § 1, 1983; Ord. 1073 § 2, 1980; Ord. 958 § 1, 1978; Ord. 955 § 1, 1978; Ord. 735 § 1, 1973; Ord. 495 § 2, 1967; Ord. 431 § 3, 1964; prior code § 8-2.1).

A. No tax shall be imposed upon any officer or employee of a foreign government who is exempt by reason of express provision of federal law or international treaty.

B. No exemption shall be granted except upon a claim therefor made at the time rent is collected and under penalty of perjury upon a form prescribed by the tax collector. (Ord. 459 § 1 1965; Ord. 431 § 4, 1964; prior code § 8-2.2).

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 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. 431 § 5, 1964; prior code § 8-2.3).

after the effective date of the ordinance codified in this chapter, or within thirty days after commencing business, whichever is later, each operator of any hotel renting occupancy to transients shall register the hotel with the tax collector and obtain from him/her a transient occupancy registration certificate to be at all times posted in a conspicuous place on the premises. The certificate shall, among other things, state the following:

A. The name of the operator;

B. The address of the hotel;

C. The date upon which the certificate was issued;

D. That this "Transient Occupancy Registration Certificate" signifies that the person named on the face hereof has fulfilled the requirements of the Uniform Transient Occupancy Tax Ordinance 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 county.

This certificate does not constitute a permit. (Ord. 431 § 6, 1964; prior code § 8-2.4).

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 collector, make a return to the tax collector on forms provided by him/her, 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 collector. The tax collector may establish shorter reporting periods for any certificate holder if he/she deems it necessary in order to insure collection of the tax and he/she 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 chapter shall be held in trust for the account of the county until payment thereof is made to the tax collector. The funds derived from the taxes herein imposed shall be deposited in the general fund of the county. (Ord. 1683 § 1, 1989; Ord. 431 § 7 (part), 1964; prior code § 8-2.5 (part)).

establish longer reporting periods, not to exceed one year, for any public agency owning or operating a recreational facility which is subject to the provisions of this chapter. (Ord. 518 § 1, 1968; Ord. 431 § 7 (part), 1964; prior code § 8-2.5 (part)).

operator who fails to remit any tax imposed by this chapter within the time required shall pay a penalty of ten percent of the amount of the tax in addition to the amount of the tax. (Ord. 431 § 8(a), 1964; prior code § 8-2.6(a)).

Any operator who fails to remit any delinquent remittance on or before a period of thirty days following the date on which the remittance first became delinquent shall pay a second delinquency penalty of ten percent of the amount of the tax in addition to the amount of the tax and the ten percent penalty first imposed. (Ord. 431 § 8(b), 1964; prior code § 8-2.6(b)).

determines that the nonpayment of any remittance due under this chapter is due to fraud, a penalty of twenty-five percent of the amount of the tax shall be added thereto in addition to the penalties stated in Sections 3.32.090 and 3.32.100. (Ord. 431 § 8(c), 1964; prior code § 8-2.6(c)).

to the penalties imposed, any operator who fails to remit any tax imposed by this chapter 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. (Ord. 431 § 8(d), 1964; prior code § 8-2.6(d)).

penalty imposed, and such interest as accrues under the provisions of Sections 3.32.090 through 3.32. 120, shall become a part of the tax herein required to be paid. (Ord. 431 § 8(e), 1964; prior code § 8-2.6(e)).

Determination of tax. If any operator fails or refuses to collect the tax, and to make, within the time provided 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/she may deem best to obtain facts and information on which to base his/her estimate of the tax due. As soon as the tax collector procures such facts and information as he/she is able to obtain upon which , to base the assessment of any tax imposed by this chapter and payable by any operator who has failed or refused to collect the same and to make such report and remittance, h/she shall proceed to determine and assess against such operator the tax, interest, and penalties provided for by this chapter. In case such determination is 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 his/her last known place of address.
Such operator may within ten days after the serving or mailing of such notice make application in writing to the tax collector for a hearing on the amount assessed. If application by the operator for hearing is not made within the time prescribed, the tax interest, and penalties, if any, 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 in the manner prescribed herein to the operator to show cause at a time and place fixed in the 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 should not be so fixed. After

such hearing the tax collector 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 days unless an appeal is taken as provided in Section 3.32.150. (Ord. 431 § 9, 1964; prior code § 8-2.7).

Any operator aggrieved by any decision of the tax collector with respect to the ai-amount of such tax, interest, and penalties, if any, may appeal to the board of supervisors by filing a notice of appeal with the county clerk within fifteen days of the serving or mailing of the determination of tax due. The board of supervisors shall fix a time and place for hearing such appeal. and the county clerk shall give notice in writing to such operator at his/her last known place of address. The finding of the board of supervisors 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. 431 § 10, 1964; prior code § 8-2.8).

every operator liable for the collection and payment to the county of any tax imposed by this chapter 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/she may have been liable for the collection of and payment to the county, which records the tax collector shall have the right to inspect at all reasonable times. (Ord. 431 § 11 (part), 1964; prior code § 8-2.9 (part)).

information. All tax returns and information furnished by any operator pursuant to this chapter shall be confidential and shall not be open to public inspection nor the specific contents thereof disclosed by any officer or employee except as necessary in the performance of official duty pursuant to this chapter, or in the course of any proceedings, hearing or litigation involving the existence or amount of the tax liability of such operator, or with the written consent of the operator or his/her authorized representative. (Ord. 518 § 2, 1968; Ord. 431 § 11 (part), 1964; prior code 8-2.9 (part)).

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 county under this chapter, it may be refunded as provided in Sections 3.32.190 and 3.32.200, provided a claim in writing therefor, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the tax collector within three years of the date of payment. The claim shall be on forms finished by the tax collector. (Ord. 431 § 12(a), 1964; prior code § 8-2.10(a)).

nontransient status. An operator may claim a refund or take as credit against taxes to be 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 collector 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. (Ord. 431 § 12(b), 1964; prior code § 8-2.10(b)).

obtain a refund of taxes overpaid, or paid more than once, or erroneously or illegally collected or received by the County by filing a claim in the manner provided in Section 3.32.180, but only when the tax was paid by the transient directly to the tax collector, or when the transient, having paid the tax to the operator, establishes to the satisfaction of the tax collector that the transient has been unable to obtain a refund from the operator who collected the tax. (Ord. 431 § 12(c), 1964; prior code § 8-2.1 0(c)).

refund shall be paid under the provisions of Sections 3.32.180 through 3.32.200 unless the claimant establishes his/her right thereto by written records showing entitlement thereto. (Ord. 431 § 12(d), 1964; prior code § 8-2.10(d)).

required to be paid by any transient under the provisions of this chapter shall be a debt owed by the transient to the County. Any such tax collected by an operator which has not been paid to the county shall be a debt owed by the operator to the county. Any person owing money to the county under the provisions of this chapter shall be liable to an action brought in the name of the county for the recovery of such amount. (Ord. 518 § 3 (part), 1968; Ord. 431 § 1 3(a), 1964; prior code § 8- 2.11(a)).

records. If any amount required to be paid to the county under this chapter is not paid when due, the tax collector may, within three years after the amount is due, file for record in the office of the county recorder a certificate specifying the amount of tax, penalties and interest due, the name and address as it appears on the records of the tax collector of the operator liable for the same and the fact that the tax collector has complied with all provisions of this chapter in the determination of the amount required to be paid. From the time of the filing for record, the amount required to be paid together with penalties and interest constitutes a lien upon all real property in the county owned by the operator or afterwards and before the lien expires acquired by him/her. The lien has the force, effect and priority of a judgment lien and shall continue for ten years from the time of filing of the certificate unless sooner released or otherwise discharged. (Ord. 518 § 3 (part), 1968; Ord. 431 § 13(b), 1964; prior code § 8-2.11(b)).

A. The amounts required to be paid by any operator under this chapter with penalties and interest shall be satisfied first in any of the following cases:

1. Whenever the person is insolvent;

2. Whenever the person makes a voluntary assignment of his/her assets;

3. Whenever the estate of the person in the hands of executors. administrators, or heirs is insufficient to pay all the debts due from the deceased;

4. Whenever the estate and effects of an absconding, concealed or absent person required to pay any amount under this chapter are levied upon by process law. This chapter does not give the county a preference over any recorded lien which attached prior to the date when the amounts required to be paid become a lien.

B. The preference given to the county by this section shall be subordinate to the preferences given to claims for personal services by Sections 1204 and 1206 of the Code of Civil Procedure. (Ord. 518 § 3 (part), 1968; Ord. 431 § 13(c), 1964; prior code § 8-2.11(c)).

any time within three years after any operator is delinquent in the payment of any amount herein required to be paid or within three years after the last recording of a certificate of lien under Section 3.32.230, the tax collector may issue a warrant for the enforcement of any liens and for the collection of any amount required to be paid to the county under this chapter. The warrant shall be directed to any sheriff, marshal or constable and shall have the same effect as a writ of execution. The warrant shall be levied and sale made pursuant to it in the same manner and with the same effect as a levy of and a sale pursuant to a writ of execution. The tax collector may pay or advance to the sheriff, marshal or constable, the same fees, commissions and expenses for his/her services as are provided by law for similar services pursuant to a writ of execution. The tax collector, and not the court, shall approve the fees for publication in a newspaper. (Ord. 518 § 3 (part), 1968; Ord. 431 § 13(d), 1964; prior code § 8-2.11(d)).

At any time within three years after any operator is delinquent in the payment of any amount, the tax collector may forthwith collect the amount in the following manner: The tax collector shall seize any property, real or personal, of the operator and sell the property, or a sufficient part of it, at public auction to pay the amount due together with any penalties and interest imposed for the delinquency and any costs incurred on account of the seizure and sale. Any seizure made to collect occupancy taxes due shall be only of property of the operator not exempt from execution under the provisions of the Code of Civil Procedure. (Ord. 5 18 § 3 (part), 1968; Ord. 431 § 13(e), 1964; prior code § 8- 2.11(e)).

of tax due.

A. If any operator liable for any amount under this chapter sells out his/her business or quits the business, his/her successor or assignee shall withhold sufficient of the purchase price to cover such amount until the former owner produces a receipt from the tax collector showing that it has been paid or a certificate stating that no amount is due.

B. If the purchaser of a hotel fails to withhold purchase price as required, he/she shall become personally liable for the payment of the amount required to be withheld by him/her to the extent of the purchase price, valued in money. Within sixty days after receiving a written request from the purchaser for a certificate, or within sixty days from the date the former owner's records are made available for audit, whichever period expires later, but in any event not later than ninety days after receiving the request, the tax collector shall either issue the certificate or mail notice to the purchaser at his/her address as it appears on the records of the tax collector of the amount that must be paid as a condition of issuing the certificate. Failure of the

tax collector to mail the notice will release the purchaser from any father obligation to withhold purchase price as provided above. The time within which the obligation of the successor may be enforced shall start to run at the time the operator sells his/her business or at the time that the determination against the operator becomes final, whichever event occurs later. (Ord. 518 § (part). 1968; Ord. 431 § 13(f), 1964; prior code § 8- 2.11(f)).

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 supplemental return or other data required by the tax collector, or who renders a false or fraudulent return or claim, is guilty of a misdemeanor. 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 chapter to be made, is guilty of a misdemeanor. (Ord. 431 § 14 (part), 1964)