Chapter 3.20
TRANSIENT OCCUPANCY TAX
Sections:
3.20.070 Reporting and remitting.
3.20.080 Penalties and interest.
3.20.090 Failure to collect and/or report tax (determination by finance director).
3.20.010 Title and purpose.
The ordinance codified in this chapter shall be known as the transient occupancy tax ordinance. The intent and purpose is to impose a tax upon transient occupancy in any hotel within the borough and to provide a means for the collection thereof. (Ord. 93-6 §1, 1993).
3.20.020 Definitions.
Except where the context otherwise requires, the definitions given in this section govern the construction of this chapter:
"Guest-night" for purposes of a rent package plan or tour package plan means one guest who rents or occupies an overnight accommodation for one night. In other words one guest who rents an overnight accommodation for three nights equals three guest-nights; four guests who rent an overnight accommodation for one night equals four guest-nights; six guests who occupy an overnight accommodation for ten nights equals sixty guest-nights; and so on.
"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, motel, inn, tourist home or house, house, lodge, rooming house, dormitory, public or private club, mobile home or house trailer at a fixed location, bed and breakfast, or other similar structure or portion thereof.
"Occupancy" means the use or possession, or the right to use or possession of any room or rooms or portion thereof, in any hotel for dwelling, lodging or sleeping purposes.
"Operator" means the person who is proprietor of the hotel, whether in the capacity of owner, lessee, sublessee, mortgagee in possession, license, 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 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. "Operator" also includes, but is not limited to, an officer or employee of a corporation or a member or employee of a partnership, limited partnership or a limited liability company who, as an officer, employee or member, is under a duty to collect and/or pay the tax that is required by this chapter.
"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.
"Rent" means the consideration charged, whether or not received, for the occupancy of space in a hotel valued in money, whether received in money, goods, labor or otherwise, including all receipts, cash, credits and property and service of any kind or nature, without any deduction therefrom whatsoever.
"Rent package plan" or "tour package plan" means the consideration charged for food, drinks, rent, guided tours, guided hunting or fishing, air taxis, and other services provided by the operator either directly or indirectly where a single rate is made and charged for the combination of all services.
"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 shall be deemed to be 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, or the occupant has paid in advance for over thirty days 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. 2012-04 §1, 2012; Ord. 2005-05 (part), 2005; Ord. 93-12 §1, 1993; Ord. 93-6 §2, 1993).
3.20.030 Tax imposed.
A. For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of ten percent of the rent charged by the operator. Said tax constitutes a debt owed by the transient to the borough which is extinguished by payment to the operator. 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. The operator shall be responsible for, and pay to the borough, the tax obligated to be collected under this chapter whether or not the operator collects such tax.
B. When a transient pays for occupancy in a hotel as part of a rent or tour package plan, the amount applicable and apportioned to the room rent for purposes of this chapter shall be the same charge made for rent when rent is not part of a package plan or, in other words, the established or published rate a room would rent for absent a package plan, but in no case shall the rent be less than the minimum rent required in subsection C of this section.
C. The minimum amount of tax paid for a rent package plan or tour shall not be less than fifteen dollars per person, per night (room rental per person equivalent at ten percent of one hundred fifty dollars). The tax remitted shall be either ten percent of the amount apportioned to room rental rate if that rate is used as part of the package price, or the minimum rate described herein, whichever is greater. (Ord. 2012-04 §2 (part), 2012).
3.20.040 Exemptions.
No tax shall be imposed upon:
A. Any person as to who, or any occupancy as to which, it is beyond the power of the borough to impose the tax herein provided;
B. Any federal or state 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. Any seasonal employee while being regularly employed by an operator of a hotel and occupying space therein under the terms defined in Section 3.20.020 of this chapter.
No exception 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 finance director. (Ord. 2021-10, 2021; Ord. 93-12 §2, 1993; Ord. 93-6 §4, 1993).
3.20.050 Operator’s duties.
Each operator shall collect the tax imposed by this chapter at the same time as the rent is collected from each transient. The amount of the tax shall be separately stated from the amount of the rent charged, and each transient shall receive a receipt for payment from the operator. (Ord. 2012-04 §2 (part), 2012).
3.20.060 Registration.
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 said hotel with the finance director and obtain from him a transient occupancy registration certificate, to be at all times posted in a conspicuous place on the premises. Said 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. This Transient Occupancy Registration Certificate signifies that the person named on the face hereof has fulfilled the requirements of the Transient Occupancy Tax Ordinance by registering with the Finance Director for the purpose of collecting from transients the Transient Occupancy Tax and remitting said tax to the Finance Director. 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 Borough. This certificate does not constitute a permit.
(Ord. 93-6 §6, 1993).
3.20.070 Reporting and remitting.
A. Each operator shall, on or before the last day of the month following the close of each calendar quarter, make a return to the finance director, on forms provided by him, of the total rents charged and received and the amount of tax due for transient occupancies. At the time the return is filed, the full amount of the tax due shall be remitted to the finance director. 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 borough until payment thereof is made to the finance director. The taxes collected or which should have been collected are not subject to garnishment or attachment, and in the event of lien, judgment or bankruptcy proceedings are not considered assets of the operator.
B. All operators rendering transient occupancy tax returns to the borough shall be allowed to compensate themselves for costs incurred in the collection, recordkeeping, remittance and accounting for the tax imposed by taking a one percent tax collection discount in the form of a deduction from the amount of tax due for any quarterly reporting period; provided, however, that such operator’s discount shall not exceed three hundred dollars for any quarterly reporting period and that such discount shall not be taken, nor permitted, whenever the tax is delinquent at the time of payment or when there is a manifest failure on the part of the operator to maintain proper accounting records and returns of the tax due. (Ord. 2005-05 (part), 2005; Ord. 93-12 §3, 1993; Ord. 93-6 §7 1993).
3.20.080 Penalties and interest.
A. Original Delinquency. Any operator who fails to remit any tax imposed by this chapter within the time required shall pay a penalty of eight 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 eight percent penalty first imposed.
C. Fraud. If the nonpayment of any remittance due under this ordinance 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 imposed by this chapter shall pay interest at a rate of fifteen percent per annum 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 under the provisions of this section shall become a part of the tax herein required to be paid. (Ord. 93-6 §8, 1993).
3.20.090 Failure to collect and/or report tax (determination by finance director).
If any operator shall fail or refuse to collect the full amount of tax obligated to be collected under this chapter, or to make, within the time provided in this chapter, any report, or remit said tax or any portion thereof required by this chapter, the finance director shall proceed in such a manner as he may deem best to obtain facts and information on which to base his estimate of the proposed amount of tax due. As soon as the finance director shall procure such facts and information as he 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, or to make such report, or remit such tax, he 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 finance director 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 address. Such operator may within ten days after the serving or mailing of such notice make application in writing to the finance director 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 finance director shall become final and conclusive and immediately due and payable. If such application is made, the finance director shall give not less than five days’ written notice in the manner prescribed herein to the operator to show cause at a hearing at a time and place fixed in said notice why said amount specified there 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 finance director 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 3.20.100 of this chapter. (Ord. 2012-04 §3, 2012).
3.20.100 Appeal.
Any operator aggrieved by any decision of the finance director with respect to the amount of such tax, interest and penalties, if any, may appeal to the borough assembly by filing a notice of appeal with the borough clerk within fifteen days of the serving or mailing of the determination of tax due. The assembly shall fix a time and place and hearing such appeal, and the borough clerk shall give notice in writing to such operator at his last known place of address. The findings of the assembly 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. 93-6 §10, 1993).
3.20.110 Records.
It shall be the duty of every operator liable for the collection of any payment to the borough of any tax imposed by this chapter to keep and preserve, for a period of six years, all records as may be necessary to determine the amount of such tax as such operator may have been liable for the collection of and payment to the borough. The borough finance director shall have the right to inspect, at all reasonable times, any and all records of the operator. (Ord. 2012-04 §4, 2012).
3.20.120 Refunds.
A. Whenever the amount of any tax, interest and penalty has been overpaid or paid more than once or has been erroneously or illegally collected or received by the borough under this chapter, it may be refunded as provided in subsections B and C of this section, provided a claim in writing therefor, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the finance director within two years of the date of payment. The claim shall be on forms furnished by the finance director.
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 finance director 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 borough by filing a claim in the manner provided in subsection A of this section, but only when the transient having paid the tax to the operator, establishes to the satisfaction of the finance director 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 right thereto by written records showing entitlement thereto. (Ord. 93-6 §12, 1993).
3.20.130 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 borough. Any such tax collected by an operator which has not been paid to the borough shall be deemed a debt owed by the operator to the borough. Any person owing money to the borough under the provisions of this chapter shall be liable in an action brought in the name of the borough for the recovery of such amount. (Ord. 93-6 §13, 1993).
3.20.140 Violation--Penalty.
Any person, firm or corporation violating any provision of this chapter shall be fined not less than fifty dollars nor more than three hundred dollars for each offence; and a separate offence shall be deemed committed on each day during or on which a violation occurs or continues. (Ord. 93-6 §14, 1993).
3.20.150 Lien created.
The tax, as imposed by this chapter, together with all penalties and interest, and the administrative and legal costs incurred, shall constitute a lien in favor of the borough upon all of the operator’s real and personal property. The lien arises upon delinquency, and continues until the lien is satisfied or the property is sold at foreclosure sale. The lien has a priority as allowed by A.S. 29.45.650 (e). The lien is effective upon recordation in the office of the recorder for the district in which the property is located. (Ord. 93-6 §15, 1993).