Chapter 3.32
TRANSIENT OCCUPANCY TAX*
Sections:
3.32.060 Reporting and Remitting.
3.32.070 Penalties and Interest.
3.32.080 Failure to Collect and Report Tax – Determination of Tax by Assistant City Administrator.
3.32.130 Disposition of Proceeds.
3.32.140 Disclosure of Business of Operators – Limitation on Rule.
* For statutory provisions authorizing local transient occupancy taxes, see Revenue and Taxation Code §§ 7280 and 7281.
3.32.010 Definitions.
Except where the context otherwise requires, the definitions given in this section govern the construction of this chapter:
A. “Hostelry” 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, tourist home or house, motel, studio hotel, bachelor hotel, lodginghouse, roominghouse, apartment house, dormitory, public or private club, mobile home or house trailer at a fixed location; provided, the mobile home or house trailer is not located within a mobile home park and the tenant is not an employee of the owner or operator of the mobile home or house trailer, or other similar structure or portion thereof.
B. “Occupancy” means the use or possession, or the right to the use or possession of any room or rooms or portion thereof, in any hostelry for dwelling, lodging or sleeping purposes.
C. “Operator” means the person who is proprietor of the hostelry, whether in the capacity of owner, lessee, sublessee, mortgagee in possession, licensee, or any other capacity. Where the operator performs her/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 purpose of this chapter and shall have the same duties and liabilities as her/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.
D. “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.
E. “Rent” means the consideration charged, whether or not received, for the occupancy of space in a hostelry 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.
F. “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 30 consecutive calendar days or less, counting portions of calendar days as full days. Any such person so occupying space in a hostelry 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 the ordinance codified in this chapter may be considered. (Ord. 79-21 § 7, 1979; Ord. 95 C.S. § 1, 1964; Code 1975 § 450).
3.32.020 Tax Imposed.
A. For the privilege of occupancy in any hostelry, each transient is subject to and shall pay a tax in the amount of 10 percent 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.
B. The transient shall pay the tax to the operator of the hostelry 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 hostelry. If for any reason the tax due is not paid to the operator of the hostelry, the City Clerk may require that such tax shall be paid directly to the City Clerk. (Ord. 98-1 § 1, 1998; Ord. 95-2 § 1, 1995; Ord. 83-22 § 1, 1983; Ord. 78-13 § 1, 1978; Ord. 95 C.S. § 1, 1964; Code 1975 § 451).
3.32.030 Exemptions.
A. No tax shall be imposed upon the following:
1. Any person as to whom, or any occupancy as to which, it is beyond the power of the City to impose the tax provided in this chapter;
2. Any Federal or State of California officer or employee when on official business;
3. 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 Assistant City Administrator. (Ord. 94-8 § 1, 1994; Ord. 95 C.S. § 1, 1964; Code 1975 § 452).
3.32.040 Duties of Operator.
Each operator shall collect the tax imposed by this chapter to the same extent and at the same time 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 hostelry 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. (Ord. 95 C.S. § 1, 1964; Code 1975 § 453).
3.32.050 Registration.
Within 30 days after the effective date of the ordinance codified in this chapter, or within 30 days after commencing business, whichever is later, each operator of any hostelry renting occupancy to transients shall register the hostelry with the Department of Administrative Services and obtain from it 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 hostelry;
C. The date on 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 Uniform Transient Occupancy Tax Ordinance by registering with the Department of Administrative Services for the purpose of collecting from transients the Transient Occupancy Tax and remitting said tax to the Department of Administrative Services. 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 hostelry 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.” (Ord. 94-8 § 1, 1994; Ord. 95 C.S. § 1, 1964; Code 1975 § 454).
3.32.060 Reporting and Remitting.
Each operator shall, on or before the last day of the month following the close of every other month (bi-monthly), or at the close of any shorter reporting period which may be established by the City Administrator make a return to the City of Carmel-by-the-Sea on forms provided by the Department of Administrative Services of the total rents charged and received and the amount of tax owed to the City for transient occupancies. At the time the return is filed, the full amount of tax owed to the City shall be remitted to the Department of Administrative Services. The City Administrator may establish shorter reporting periods for any certificate holder if s/he deems it necessary in order to ensure collection of the tax and s/he may require further information in the return. Returns and payments are due immediately upon cessation of business for any reason. All taxes owed to the City by operators pursuant to this chapter shall be held in trust for the account of the City until payment thereof is made to the Department of Administrative Services. (Ord. 2007-11 § 1, 2007; Ord. 94-8 § 1, 1994; Ord. 95 C.S. § 1, 1964; Code 1975 § 455).
3.32.070 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 10 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 30 days following the date on which the remittance first became delinquent shall pay a second delinquency penalty of 10 percent of the amount of the tax in addition to the amount of the tax and the 10 percent penalty first imposed.
C. Fraud. If the Assistant City Administrator determines that the nonpayment of any remittance due under this chapter is due to fraud, a penalty of 25 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 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.
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 in this chapter.
F. Monthly Payments. Any operator who fails to remit the full amount of quarterly tax due by the required deadline shall thereafter be obligated to remit monthly revenue statements and taxes owed. Such monthly remittance shall continue for a period of six consecutive months following the operator’s most recent infraction. Nonpayment of a monthly remittance will cause the operator to be subject to penalties and interest described within this section. Monthly revenue statements and taxes owed are due on or before the tenth calendar day of every month for the preceding month. (Ord. 94-8 § 1, 1994; Ord. 95 C.S. § 1, 1964; Code 1975 § 456).
3.32.080 Failure to Collect and Report Tax – Determination of Tax by Assistant City Administrator.
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 Assistant City Administrator shall proceed in such manner as may be deemed best to obtain facts and information on which to base an estimate of the tax due. As soon as the Assistant City Administrator shall procure such facts and information as s/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 and to make such report and remittance, s/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 Assistant City 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 the operator’s last known place of address. Such operator may, within 10 days after the serving or mailing of such notice, make application in writing to the Assistant City 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 Assistant City Administrator shall become final and conclusive and immediately due and payable. If such application is made, the Assistant City Administrator shall give not less than five days’ written notice, in the manner prescribed in this chapter, 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 Assistant City Administrator shall determine the proper tax to be remitted and shall thereafter give written notice to the person in the manner prescribed in this chapter of such determination and the amount of such tax, interest and penalties. The amount determined to be due shall be payable after 15 days unless an appeal is taken as provided in CMC 3.32.090. (Ord. 94-8 § 1, 1994; Ord. 95 C.S. § 1, 1964; Code 1975 § 457).
3.32.090 Appeal.
Any operator aggrieved by any decision of the Assistant City Administrator with respect to the amount of such tax, interest and penalties, if any, may appeal to the City Council by filing a notice of appeal with the City Clerk within 15 days of the serving or mailing of the determination of tax due. The City Council shall fix a time and place for hearing such appeal, and the City Clerk shall give notice in writing to such operator at the operator’s last known place of address. The findings 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 notice. (Ord. 94-8 § 1, 1994; Ord. 95 C.S. § 1, 1964; Code 1975 § 458).
3.32.100 Records.
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 the operator may have been liable for the collection and payment to the City, which records the Assistant City Administrator shall have the right to inspect at all reasonable times. (Ord. 94-8 § 1, 1994; Ord. 95 C.S. § 1, 1964; Code 1975 § 459).
3.32.110 Refunds.
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) 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 Assistant City Administrator within three years of the date of payment. The claim shall be on forms furnished by the Assistant City 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 Assistant City 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) of this section, but only when the tax was paid by the transient directly to the Assistant City Administrator, or when the transient, having paid the tax to the operator, establishes to the satisfaction of the Assistant City 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 a right thereto by written records showing entitlement thereto. (Ord. 94-8 § 1, 1994; Ord. 95 C.S. § 1, 1964; Code 1975 § 460).
3.32.120 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 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 such amount. (Ord. 95 C.S. § 1, 1964; Code 1975 § 461).
3.32.130 Disposition of Proceeds.
All moneys collected under and pursuant to the provisions of this chapter shall be deposited in the hostelry tax fund of this City and shall be distributed within the fund as follows:
A. The first six percent to the extent needed:
1. That amount necessary to fund the portion of the municipal budget covering community and cultural and recreation activities including but not limited to Sunset Center and the Forest Theater, parks, public facilities and municipal structures, and parking lots;
2. The remainder to be distributed to fund such acquisition and improvement of parks, recreation land and other municipal purposes as determined from time to time by the City Council; provided, that all such uses shall be in accordance with the General Plan of the City, as it is now or may be hereafter constituted;
B. The remainder of the first six percent, the additional two percent added by Ordinance No. 78-13, and the additional two percent added by Ordinance No. 83-22 shall be added to the General Fund for usual and current expenses. (Ord. 98-1 § 2, 1998; Ord. 95-2 § 2, 1995; Ord. 94-8 § 1, 1994; Ord. 83-22 § 2, 1983; Ord. 78-13 § 2, 1978; Ord. 267 C.S. § 1, 1972; Ord. 240 C.S. § 1, 1971; Ord. 217 C.S. § 1, 1970; Ord. 199 C.S. § 1, 1969; Ord. 95 C.S. § 1, 1964; Code 1975 § 462).
3.32.140 Disclosure of Business of Operators – Limitation on Rule.
It is unlawful for any City official or any person having an administrative duty under this chapter to make known in any manner whatever the business affairs, operations, or information obtained by an investigation of records and equipment of any operator or any other person visited or examined in the discharge of official duty, or the amount or source of income, profits, losses, expenditures, or any particular thereof, set forth or disclosed in any return or to permit any return or copy thereof to be seen or examined by any person. Successors, receivers, trustees, executors, administrators, assignees and guarantors, if directly interested, may be given information as to the items included in the measure and amount of any unpaid tax or amounts of tax required to be collected, interest and penalties. (Ord. 94-8 § 1, 1994; Ord. 95 C.S. § 1, 1964; Code 1975 § 463).
3.32.150 Violation – Penalty.
A. Any person violating any of the provisions of this chapter shall be guilty of a misdemeanor.
B. 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 a supplemental return or other data required by the Assistant City Administrator 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. 94-8 § 1, 1994; Ord. 95 C.S. § 1, 1964; Code 1975 § 464).