Chapter 3.32 — TRANSIENT OCCUPANCY TAX

This chapter shall be known as the "Uniform Transient Occupancy Tax Ordinance" of the City of West Hollywood.

(Prior code § 6500; Ord. 85-38 § l, 1985)

Except where the context otherwise requires, the definitions given in this section shall govern the construction of this chapter.

"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 includes any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodging house, rooming house, apartment house, rental unit, dormitory, public or private club, mobile home or house trailer at a fixed location, or other similar structure or portion thereof.

"Occupancy" shall mean 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" shall mean the person who is a 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 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 the provisions of this chapter by either the principal or the managing agent shall, however, be considered to be compliance by both.

"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, any other group or combination acting as a unit.

"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 and property and services of any kind or nature, without any deduction therefrom whatsoever.

"Tax Administrator" shall mean the City Manager or designee.

"Transient" shall mean any person who exercises occupancy or is entitled to occupancy or any natural person who actually exercises occupancy or is entitled to occupancy for a period of thirty consecutive calendar days or less, counting portions of calendar days as full days. Any such person shall be deemed to be a transient until the period of thirty days has expired. In the event that any person rents or leases a hotel room(s) for more than thirty consecutive calendar days, the determination of transiency for purposes of applying this chapter shall be based on the time period of actual occupancy of the room by a natural person or persons and not the duration of the room(s) reservation, lease or rental agreement. 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.

(Prior code § 6501; Ord. 85-38 § l, 1985; Ord. 85-65 § 1, 1985; Ord. 87-144 § 1, 1987; Ord. 91-304 § 2, 1991; Ord. 93-379 § 1, 1993)

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City of West Hollywood, CA § 3.32.030

WEST HOLLYWOOD CODE

§ 3.32.060

For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of twelve and one-half percent of the rent charged by the operator. The tax constitutes a debt owed by the transient to the city that is extinguished only by payment to the operator at the time the rent is paid 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, the Tax Administrator may require that it be paid directly to the city.

(Prior code § 6502; Ord. 85-38 § l, 1985; Ord. 03-653 § 1, 2003)

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 the tax herein provided.

• b. Any federal or State of California officer or employee when on official business.

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

• d. 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 Administrator.

• (Prior code § 6503; Ord. 85-38 § l, 1985; Ord. 87-144 § 1, 1987)

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 win 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. The funds collected by the operator shall be deposited and handled as provided in Section 3.32.070.

(Prior code § 6504; Ord. 85-38 § l, 1985)

Within thirty days 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 Administrator and obtain 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.

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City of West Hollywood, CA

REVENUE AND FINANCE

§ 3.32.060

§ 3.32.080

• d. The following statement:

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 of the City of West Hollywood 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 certificate does not authorize any person to conduct any unlawful business or to conduct any lawful business in any unlawful manner, nor to operate a hotel without strictly complying with all 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. (Prior code § 6505; Ord. 85-38 § l, 1985)

Each operator shall, on or before the last day of the month following the close of each calendar quarter or of such different reporting period as may be established by the Tax Administrator, make a return to the Tax Administrator, on forms provided by the Tax Administrator, of the total rents charged and received, the amount of tax collected for transient occupancies, and such other information as may be reasonably required. 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 either shorter or longer reporting periods for any individual certificate holder or category of certificate holders if the Tax Administrator deems it necessary or desirable in order to insure collection of the tax or to increase the efficiency of its administration. In the event that an operator fails to remit any tax due under this chapter within the required time, a weekly reporting and remittance period is automatically established without any action on the part of the city. This requirement can be subsequently modified by the Tax Administrator as circumstances so warrant. 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 city until payment thereof is made to the Tax Administrator. In the event that an operator fails to remit any tax due under this chapter within the required time, the operator shall immediately segregate all taxes collected under this chapter and hold them in a separate account specifically labeled "West Hollywood Transient Occupancy Tax Account" in trust for the city until payment thereof is made to the Tax Administrator.

(Prior code § 6506; Ord. 85-38 § l, 1985; Ord. 87-144 § 1, 1987)

• 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 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.

• 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) of this section.

• d. Interest. In addition to the penalties imposed, any operator who fails to remit any tax

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City of West Hollywood, CA § 3.32.080

WEST HOLLYWOOD CODE

§ 3.32.090

imposed by this chapter shall pay interest at the rate of one-half of one percent per month for each month or portion of a month that the tax shall be delinquent on the amount of the tax, exclusive of penalties, from the date on which the tax first became delinquent until paid. The interest shall be computed on a monthly basis and shall not be subject to proration for any portion of a month.

• e. Actual Pecuniary Loss. Any penalties or interest imposed herein are to compensate the city for actual pecuniary loss.

• f. 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 herein required to be paid, except that in the event of delinquencies in the remittance of taxes, for accounting purposes the city shall maintain separate balances owing for delinquent tax liability, penalties imposed and interest accrued on the unpaid tax liability and penalties, and any payments on account by the operator shall be applied as follows:

  1. First, to satisfy unpaid tax liability, commencing with the tax liability due and owing for the reporting period most recently completed prior to payment and then for each prior reporting period in reverse chronological order, until the amount of tax due and owing is completely liquidated;

  2. Second, to satisfy penalties assessed against unpaid tax liability, commencing with the reporting period most recently completed prior to payment and then for each prior reporting period in reverse chronological order, until the mount of penalties is completely liquidated; and

  3. Third, to satisfy interest assessed against unpaid tax liability and penalties, commencing with the reporting period most recently completed prior to payment and then for each prior reporting period in reverse chronological order, until the amount of interest is completely liquidated.

(Prior code § 6507; Ord. 85-38 § l, 1985; Ord. 87-144 § 1, 1987)

If any operator shall fail or refuse 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 Administrator shall proceed in such manner as the Tax Administrator may deem best to obtain facts and information on which to base an estimate of the tax due. As soon as the Tax Administrator shall procure such facts and information as the Tax Administrator 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, the Tax Administrator shall proceed to determine and assess against such operator the tax, interest, and penalties provided for by this chapter. In the event 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 or her last known 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

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City of West Hollywood, CA

REVENUE AND FINANCE

§ 3.32.090

§ 3.32.115

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 fixed 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 Administrator 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 3.32.100. (Prior code § 6508; Ord. 85-38 § l, 1985)

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 Council by filing a notice of appeal with the City Clerk within fifteen days of the serving or mailing of the determination of tax due. The Council shall fix a time and place for hearing such appeal, and the City Clerk shall give notice in writing to such operator at his or her last known place of address. The findings of the 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 notice.

(Prior code § 6509; Ord. 85-38 § l, 1985)

No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action or proceeding in any court against the city or an officer thereof to prevent or enjoin the collection of taxes sought to be collected pursuant to this chapter, and payment of all tax, interest and penalties shall be required as a condition precedent to seeking judicial review of any tax liability. (Ord. 09-825 § 1, 2009)

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, all records as may be necessary to determine the amount of such tax as it may have been liable for the collection and payment of to the city, which records the Tax Administrator shall have the right to inspect at all reasonable times.

(Prior code § 6510; Ord. 85-38 § l, 1985)

• a. Pursuant to Revenue and Taxation Code Section 7283.5, and as that section may from time to time be amended, a purchaser, transferee, or other person attempting to obtain ownership of a transient occupancy facility, may request in writing from the Tax Administrator the issuance of a tax clearance certificate stating the amount of tax and any accrued penalties and interest due and owing, if any.

• b. The Tax Administrator shall, within ninety days of the receipt of the written request for a tax clearance certificate issue the tax clearance certificate, or may conduct an audit of the subject transient occupancy facility. Any such audit must be completed within ninety days after the date the records of the subject transient occupancy facility have been made

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City of West Hollywood, CA § 3.32.115

WEST HOLLYWOOD CODE

§ 3.32.120

available to the Tax Administrator and a tax clearance certificate issued within thirty days of the completion of the audit.

• c. If following an audit the Tax Administrator determines that the current operator's records are insufficient to assess the amount of tax due and owing, the Tax Administrator shall, within thirty days of making that determination, notify the prospective purchaser, transferee or other person that a tax clearance certificate will not be issued.

• d. If the Tax Administrator does not comply with the request for a tax clearance certificate, the purchaser, transferee or other person that obtains ownership of the transient occupancy facility shall not be liable for any transient occupancy tax obligation incurred prior to the date of the purchase or transfer of the property.

• e. The tax clearance certificate shall state the following:

  1. The amount of tax, interest and penalties then due and owing;

  2. The period of time for which the tax clearance certificate is valid; and

  3. That the purchaser, transferee, or other person may rely upon the tax clearance certificate as conclusive evidence of the tax liability associated with the property as of the date specified on the certificate.

• f. Any purchaser, transferee, or other person who does not obtain a tax clearance certificate under this section, or who obtains a tax clearance certificate that indicates that tax is due and owing and fails to withhold, for the benefit of the county, sufficient funds in the escrow account for the purchase of the property to satisfy the transient tax liability, shall be held liable for the amount of tax due and owing.

• (Ord. 06-739 § 2, 2006)

• a. Claim Required. 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) of this section; provided, that 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. The claim shall be made on forms furnished by the Tax Administrator.

• b. Claim by Operator. 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. Claim by Transient. 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) of this section, 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

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City of West Hollywood, CA

REVENUE AND FINANCE

§ 3.32.120

§ 3.32.140

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. Evidence. No refund shall be paid under the provisions of this chapter unless the claimant establishes his or her right thereto by written records showing entitlement thereto.

• (Prior code § 6511; Ord. 85-38 § l, 1985)

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 of West Hollywood for the recovery of such amount. (Prior code § 6512; Ord. 85-38 § l, 1985)

Any operator or other person who fails or refuses to register 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, or who renders a false or fraudulent return or claim, is guilty of a misdemeanor, and is punishable as provided in Section 1.08.010 of this code. 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, or who collects the tax due pursuant to this chapter from any transient and fails to pay the same to the city, or violates in any way any provision of this chapter is guilty of a misdemeanor and is punishable as aforesaid.

(Prior code § 6513; Ord. 85-38 § l, 1985)

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City of West Hollywood, CA

REVENUE AND FINANCE

§ 3.36.010

§ 3.36.030