Vallejo Municipal Code Ch. 3.19 Transient Occupancy Tax

This chapter shall be known and may be cited as the "Transient Occupancy Tax Ordinance of the City of Vallejo."

(Ord. 1437 N.C. (2d) § 1 (part), 2000.)

A. Except as used in subsection E hereof, "person" 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.

B. "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 any hotel, inn, bed and breakfast; tourist home or house, motel, studio hotel, bachelor hotel, lodging-house, or other similar structure or portion thereof.

C. "Hotel" does not mean any of the following: any hospital, sanitarium, medical clinic, convalescent home, rest home, home for aged people, foster home or other similar facility operated for the care or treatment of human beings; any asylum, jail, prison, orphanage or other facility in which human beings are detained and housed under legal restraint; any housing owned or controlled by any educational institution and used exclusively to house students, faculty or other employees, and any fraternity or sorority house or similar facility occupied exclusively by students and employees of such educational institution, and officially recognized or approved by it; any housing operated or used exclusively for religious, charitable or educational purposes by any organization having qualifications, for exemption from property taxes under the laws of the state of California; any housing owned by a governmental agency and used to house its employees or for governmental purposes; any camp as defined in the California Labor Code or other housing furnished by an employer exclusively for employees.

D. "Occupancy" means 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.

E. "Transient" means any individual who exercises occupancy or is entitled to occupancy of a specific room by reason of concession, permit, right of access, license or other agreement for a period of thirty consecutive days or less, counting portions of calendar days as full days. Any such individual 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 providing for a longer period of occupancy of the room as provided in Section 5.19.040C. 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.

F. "Rent" means 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. The value of complimentary meals or other similar services or inducements shall not be deducted. In the event of dispute the tax administrator shall determine the proper rent.

G. "Operator" means 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 of any type or character is 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, however, be considered to be compliance by both.

H. "Tax administrator" means the director of finance for the city or his/her designated representative.

(Ord. 1437 N.C. (2d) § 1 (part), 2000.)

For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of eleven percent of the rent charged by the operator. Said 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 upon the transient's 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.

(Ord. 1437 N.C. (2d) § 1 (part), 2000.)

No tax shall be imposed upon:

A. Any person as to whom, or any occupancy as to which it is beyond the power of the city to impose this tax; provided, employees of the federal government are exempt only if they are' on official business for their employing agency.

B. Any properly credentialed officer or employee of a foreign government who is exempt by reason of express provision of federal law or international treaty.

C. When there is an agreement in writing at the time of first occupancy that the stay is for a period longer than thirty consecutive days occupied by the same person. If the person shall leave prior to expiry of the first thirty days, he/she shall be charged the tax from the first day of occupation to the day of leaving.

(Ord. 1437 N.C. (2d) § 1 (part), 2000.)

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 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 chapter.

A. No more than five days after commencing business or after a change in operator, each operator of any hotel renting occupancy to transients shall register said hotel with the tax administrator by filing application for a transient occupancy registration permit on a prescribed form: The application form shall set forth the name under which the applicant transacts or intends to transact business, the location of his/her place of business and such other information as the tax administrator may require. The application shall be signed by the owner if a natural person; a member or partner, if an association or partnership; by an executive officer or some person specifically authorized by the corporation to sign the application in the case of corporation. After filing such application, the operator must obtain from the tax administrator a transient occupancy registration permit to be at all times posted in a conspicuous place on the premises. Said permit(s) shall, among other things, state the following:

1. The name of the operator;

2. The name of the hotel;

3. The street address of the hotel;

4. The date upon which the permit was issued;

5. The following statement: "This Transient Occupancy Registration Permit signifies that the person named on the face hereof has fulfilled the requirements of the Transient Occupancy Tax Ordinance by registering with the Tax Administrator for the purpose of collecting from transients the Transient Occupancy Tax and remitting said tax to the Tax Administrator. This Permit 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 applicable local laws, including, but not limited to, those requiring a permit from any board, commission, department or office of this City."

B. At the time of making an application for a transient occupancy tax permit, the applicant shall pay a registration fee of five dollars for each permit issued.

(Ord. 1437 N.C. (2d) § 1 (part), 2000.)

Each operator shall, on or before the last day of each month, make a report to the tax administrator on forms provided by the administrator, of the total rents charged and the amount of tax calculated for transient occupancies for that month. The report and amount become delinquent twenty days after they are due. The full amount of the tax calculated shall be remitted to the tax administrator at the time the return is filed. The tax administrator may establish shorter reporting or remitting periods for any operator and may require additional information in any return.

Returns and payments are due immediately upon cessation of business for any reason.

Each return shall contain a declaration under penalty of perjury, executed by the operator or its authorized agent, that, to the best of the declarant's knowledge, the statements in the return are true, correct and complete. Items claimed as exempt from tax under this chapter shall be itemized fully and explained on supporting schedules of the report.

The tax administrator may establish other reporting periods and require a cash deposit with the city or in a separate bank trust account for the benefit of the city. The tax administrator alternatively may require posting of a surety bond for any operator when the administrator deems it necessary to ensure collection of the tax. The tax administrator also may require further information in the return.

The above actions by the tax administrator may be appealed under Section 3.19.110.

(Ord. 1467 N.C.(2d) § 1, 2001.)

Each operator shall notify the tax administrator in writing, ten days prior to the sale or cessation of business for any reason and return any remittances that are due immediately on sale or cessation of business.

(Ord. 1437 N.C. (2d) § 1 (part), 2000.)

A. Original Delinquency. Any 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.

B. Continued Delinquency. Any operator who fails to remit any delinquent remittance on or before the 15th day of the month following date of the first penalty shall pay a second delinquency penalty of ten percent of the amount of the tax in addition to the amount of tax and ten percent penalty first imposed.

C. Fraud. If the tax administrator 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 subsections A and B hereof.

D. Interest. 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 one percent per month or fraction thereof on the amount of 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 by this chapter.

(Ord. 1467 N.C.(2d) § 2, 2001: Ord. 1437 N.C. (2d) § 1 (part), 2000.)

If any operator shall fail or refuse to collect said tax and to make, within the time provided in this chapter, any report and remittance of said tax or any portion thereof required by this chapter, the tax administrator shall proceed to obtain facts and information on which to base his/her estimate of the tax due. The tax administrator shall procure such facts and information 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, and shall proceed to determine and assess against such operator the tax, interest and penalties provided for by this chapter. Assessment costs may include the expenses incurred for any necessary audits or investigations. In case such determination is made, the tax administrator 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 administrator for a hearing on the amount assessed. If 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 application is made, the tax administrator 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 said notice why said amount specified therein should not be assessed 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 assessed. After such hearing, the tax administrator shall determine the proper tax to be remitted and shall thereafter given written notice to the operator 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 within fifteen days unless an appeal is taken as provided in Section 3.19.110.

(Ord. 1437 N.C. (2d) § 1 (part), 2000.)

A. Any person aggrieved by any administrative action under any provision of this chapter may appeal such action by filing a notice of appeal with the city clerk within fifteen days of the date of the action. If the date for filing the appeal falls on a weekend or city holiday, then the time for filing shall be extended until the next regular business day of the city. As a condition of filing the appeal, the person aggrieved shall deposit with the city the amount of tax, penalties and interest determined to be due by the tax administrator under Section 3.19.100. The appeal shall be heard by a hearing officer appointed by the city manager.

B. A notice of appeal form shall be obtained from the city clerk. The form shall be signed under the penalty of perjury. It shall include a section requiring a brief statement outlining the grounds for the appeal and for the provision of a mailing address at which notice of any additional proceeding, correspondence or the decision of the hearing officer may be received. The city clerk shall set the date, time and place for the hearing. The hearing shall be set for a date not less than fifteen days nor more than sixty days after the city clerk received the notice of appeal. The city clerk shall give notice in writing of the time and place of the appeal hearing, at least ten days prior to the date of the hearing, by serving it personally or by depositing it in the United States mail, first class mail and certified mail, return receipt requested, addressed to the person requesting the appeal at the address provided on the notice of appeal form. Service shall become effective on the date of first class mailing.

Each party may request one continuance, but in no event may the hearing be continued more than thirty days after the date of the originally scheduled hearing unless the hearing officer finds circumstances warrant a longer continuance not to exceed ninety days after the date of the originally scheduled hearing.

Any documentation submitted to the hearing officer by either party shall be served on the other party at least five days before the hearing.

The failure of any person to file a notice of appeal in accordance with the provisions of this section shall be deemed a waiver of the right to an appeal hearing.

C. Appeal hearings shall be informal, and formal rules of evidence and discovery do not apply. Each party shall be given the opportunity to testify and present evidence only on those matters set forth as the grounds for the appeal in the notice of appeal form. The person requesting the appeal may represent him or herself or be represented by any person of his or her choice.

The hearing officer may continue the hearing and request additional information from any party prior to concluding the hearing and issuing a written decision.

The failure of the person requesting the appeal to appear at the appeal hearing shall be deemed a waiver of the right to an appeal hearing.

After considering all of the testimony and evidence submitted at the hearing, the hearing officer shall issue a written decision within ten days of the conclusion of the hearing stating the reasons for that decision and the right to judicial review of the decision. The hearing officer's decision shall be final and conclusive and shall be served upon the person requesting the appeal in the manner prescribed above for service of notice of hearing. No decision shall conflict with any substantive provision of this chapter.

D. Any person aggrieved by the decision of the hearing officer may seek judicial review of the decision 3 by filing a petition with a court of competent jurisdiction pursuant to Section 1094.5 and 1094.6 of the California Code of Civil Procedure.

E. The amount of any tax finally determined as provided in this section shall be due and payable as of the date the original tax was due and payable, together with interest and any penalties that may be due thereon.

(Ord. 1437 N.C. (2d) § 1 (part), 2000.)

A. It shall be the duty of every operator liable for the collection and payment to the city of any tax imposed by this chapter to keep and preserve, for a period of three years after the date any such tax is due and payable, all records as may be necessary to determine the amount of such tax liability for the collection of and payment to the city, which records the tax administrator shall have the right to inspect at all reasonable times. Such records shall be maintained at the operator's premises or shall be available for delivery to the tax administrator within one week after written request. Such records shall be so maintained for at least six months after a change of operator. The records shall include at least the following:

1. Daily summaries of room occupancies;

2. A record of each occupancy charge for which an exemption is claimed, including the name of the individual occupying the room, dates of occupancy and reasons for exemption;

3. Lists of bad debts claimed for exemption, including names and addresses of debtor and amount of room rent unpaid.

B. Where required by state or federal law, a subpoena shall be obtained prior to an inspection conducted pursuant to this chapter, unless written consent to conduct such inspection is granted by the operator. If the inspection is interfered with by the operator or a third party, the tax administrator shall have recourse to every remedy provided by law to perform the inspection authorized by this chapter.

(Ord. 1437 N.C. (2d) § 1 (part), 2000.)

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 chapter, it may be refunded as provided in subsections B and C hereof 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 administrator within three years of the date of payment or the date the tax was due, whichever was earlier. The claim shall be presented in a form approved by the tax administrator.

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 tax administrator 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.

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 hereof, but only when the tax was paid by the transient directly to the tax administrator, or when the 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 under the provisions of this section unless the claimant establishes his/her right thereto by written records showing entitlement thereto.

(Ord. 1437 N.C. (2d) § 1 (part), 2000.)

A. Actions to collect. 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 collectible by any 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 a court of competent jurisdiction, in the name of the city for the recovery of such amount.

B. Recording Certificate; Lien. If any amount required to be paid to the city under this chapter is not paid when due, the tax administrator may within three years after the amount is due file for record in the office of the Solano 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 administrator of the operator liable for the same and the fact that the tax administrator 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 of tax constitutes a lien upon any real property in the county owned by the operator or acquired by him/her afterwards and before the lien expires. 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, or renewed for subsequent period(s) of time in the manner prescribed by law.

C. Priority and Lien of Tax. 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 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; or

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

D. Successor's Liability; Withholding by Purchaser. If any operator liable for any amount under this chapter sells out his business or quits the business, his successor assignee shall withhold sufficient funds from the purchase price to cover such amount until the former owner produces a receipt from the tax administrator showing that it has been paid or a certificate stating that no amount is due.

E. Liability of Purchaser; Release. If the purchaser of a hotel fails to withhold funds for delinquent tax liability from the purchase price as required, he/she shall become personally liable for the payment of the amount required to be withheld up to the extent of the purchase price, valued in money. Within sixty days after receiving a written request from the purchaser for a permit, or within sixty days from the date the former owner's records are made available for audit, whichever period expires the later, but in any event, not later than ninety days after receiving the request, the tax administrator shall either issue the permit or mail notice to the purchaser at his address as it appears on the records of the tax administrator of the amount that must be paid as a condition of issuing the permit. Failure of the tax administrator to mail the notice shall release the purchaser from any further obligation to withhold funds for delinquent tax liability from the purchase price as above provided. The time within which the obligation of the successor may be enforced shall start to run at the time the operator sells his business or at the time that the determination against the operator becomes final, whichever event occurs the later.

F. Continuing Obligation to Pay. Sale of a hotel, dismissal of the operator or other termination of his/her rights to operate the facility shall not relieve hiker from liability for taxes and penalties and interest, if any, due or owing under this chapter.

(Ord. 1437 N.C. (2d) § 1 (part), 2000.)

Whenever any operator fails to comply with any provisions of this chapter relating to occupancy tax or any rule or regulation of the tax administrator relating to the transient occupancy tax described and adopted under this chapter, the tax administrator upon scheduling a hearing, after giving the operator ten days' notice in writing specifying the time and place of hearing and requiring him to show cause why his/her permit or permits should not be revoked, may suspend or revoke any or more of the permits held by the operator. The tax administrator shall give to the operator written notice of the suspension or revocation of any of his/her permits. The notice required in this chapter may be served personally or by mail in the manner prescribed for service of notice of a deficiency determination, as set forth in Section 3.19.100. The tax administrator shall not issue a new permit after the revocation of a permit unless he/she is satisfied that the former holder of the permit will comply with the provisions of this ordinance relating to the occupancy tax and any rules and regulations of the tax administrator.

(Ord. 1437 N.C. (2d) § 1 (part), 2000.)

During any period of time during which a permit has not been issued, or is suspended, revoked or otherwise not validly in effect, the tax administrator may require that the hotel be closed by seeking injunctive and/or other appropriate relief from a court of competent jurisdiction.

(Ord. 1437 N.C. (2d) § 1 (part), 2000.)

A. Any person violating any of the provisions of this chapter shall be guilty of an infraction and shall be punishable therefor by a fine of not more than five hundred dollars.

B. Any operator or other person who fails or refuses to obtain a transient occupancy registration permit as required herein, 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 tax administrator is guilty of an infraction, and is punishable as provided in subsection A hereof.

C. Any operator or other person required to make, render, sign or verify any report or claim who makes or renders 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 an infraction, and is punishable as provided in subsection A hereof.

D. For second, third and subsequent violations of this chapter, the provisions of Section 1.12.010, subsections B and C, of this code shall be applicable.

(Ord. 1437 N.C. (2d) § 1 (part), 2000.)