Chapter 3.16
TRANSIENT OCCUPANCY TAX
Sections:
3.16.030 Occupant registration required.
3.16.040 False registration prohibited.
3.16.090 Reporting and remitting.
3.16.095 Cessation of business and duty of successors or assignees.
3.16.100 Penalties and interest.
3.16.110 Failure to collect and report tax – Determination of tax by tax administrator.
3.16.145 No enjoining action – Payment of assessed taxes required prior to legal action.
3.16.150 Violations of provisions.
3.16.010 Title.
This chapter shall be known as the “uniform transient occupancy tax law” of the city. (Prior code § 8-5.01)
3.16.020 Definitions.
Except where the context otherwise requires, the definitions given in this section govern the construction of this chapter:
“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 shall include 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, or other similar structure, or portion thereof.
“Occupancy” means the use or possession, or the right to the use or possession, of any room, or portion thereof, in any hotel for dwelling, lodging, or sleeping purposes.
“Operator” means the person who is the 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 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.
“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 to be received in money, goods, labor, or otherwise, including all receipts, cash, credits, property and services of any kind or nature, without any deduction therefrom whatsoever.
“Tax administrator” means the license collector of the city.
“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 a transient for the period of the first thirty days of occupancy unless there is an agreement in writing entered into prior to commencing occupancy between the operator and 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 provisions of this chapter may be considered. (Measure L § 2, 2002; prior code § 8-5.02)
3.16.030 Occupant registration required.
A. Every operator of any hotel, as defined in Section 3.16.020, or of any other place intended or designed for occupancy by or for a consideration, whether such consideration is paid in money, goods, labor or otherwise, shall keep a register wherein he shall require all occupants, guests, roomers or lodgers, including transients, as defined in Section 3.16.020, to inscribe their names upon their procuring lodging or a room or accommodations. Such register shall also show the day of the month and year when such name was inscribed and the room occupied or to be occupied by such occupant, lodger, roomer, guest, or transient in such hotel or other place intended or designed for occupancy by guests for a consideration. Such register shall be kept in a conspicuous place in such hotel or other place, as hereinabove described and shall at all times be open to inspection by the occupants, lodgers, roomers, guests or transients of such hotel or other place intended or designed for occupancy by such guests for a consideration and the chief of police or any regular policeman or police detective.
B. Before furnishing and lodging for hire to any person in any lodginghouse, or before renting any room to any person in any roominghouse, or before furnishing any accommodations to any guest at any hotel, the operator thereof shall require the person to whom such lodgings are furnished, or room is rented, or accommodations furnished to inscribe his name in such register kept for that purpose, as hereinbefore provided and shall set opposite such name the time when such name was so inscribed and the room occupied by such occupant, lodger, roomer, guest or transient. (Prior code § 8-5.02.1)
3.16.040 False registration prohibited.
It is unlawful for any person to register at any hotel or at any other place intended or designed for occupancy by guests for a consideration, in the city under the name of any other person or of a fictitious person, or to give, sign, or cause to be signed upon the register of any such hotel or any other place intended or designed for occupancy by guests for a consideration, any assumed, false or fictitious name or any name other than the true and correct name of the person so registering, or so giving, signing or causing his or her name to be signed. (Prior code § 8-5.02.2)
3.16.050 Tax imposed.
A. For the privilege of occupancy in any hotel, each transient shall be subject to and shall pay a tax in the amount of eleven percent (11%) of the rent charged by the operator. Such tax shall constitute a debt owed by the transient to the city, which shall be 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 such tax to be paid directly to the tax administrator.
B. For purposes of this Section, unless there is an agreement in writing entered into prior to commencing occupancy between the operator and occupant providing for a period of occupancy longer than thirty days, this tax shall be imposed upon, owed by and collected from the transient for the first thirty days of occupancy, regardless of whether the transient continues occupancy beyond thirty days. (Measure L § 1, 2002; prior code § 8-5.03)
3.16.060 Exemptions.
A. No tax shall be imposed upon:
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 for in this chapter;
2. Any federal or state officer or employee when on official business; or
3. Any officer or employee of a foreign government who is exempt by reason of express provisions of federal law or international treaty.
B. No exemption shall be granted except upon a claim therefor made at the time the rent is collected and under penalty of perjury upon a form prescribed by the tax administrator. (Prior code § 8-5.04)
3.16.070 Operator’s duties.
Each operator shall collect the tax imposed by the provisions of 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. (Prior code § 8-5.05)
3.16.080 Registration.
On or before November 7, 1964, or within thirty days after commencing business, whichever is later, each operator of any hotel renting an occupancy to transients shall register such hotel with the tax administrator and obtain from him a “Transient Occupancy Registration Certificate” which shall at all times be posted in a conspicuous place on the premises. Such certificate shall, among other things, set forth the following information:
A. The name of the operator;
B. The address of the hotel;
C. The date upon which the certificate was issued; and
D. A statement as follows: “This Transient Occupancy Registration Certificate signifies that the person named on the face hereof has fulfilled the requirements of the Uniform Transient Occupancy Tax Law by registering with the Tax Administrator for the purpose of collecting from transients the Transient Occupancy Tax and remitting such tax to the Tax Administrator. This certificate shall 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 City. This certificate shall not constitute a permit.” (Prior code § 8-5.06)
3.16.090 Reporting and remitting.
Each 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 administrator, make a return to the tax administrator, on forms provided by him, 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 administrator. The tax administrator may establish shorter reporting periods for any certificate holder if he deems it necessary in order to insure collection of the tax and he may require further information in the return. Returns and payments shall be due immediately upon cessation of business for any reason. All taxes collected by operators pursuant to the provisions of this chapter shall be held in trust for the account of the city until payment thereof is made to the tax administrator. (Prior code § 8-5.07)
3.16.095 Cessation of business and duty of successors or assignees.
A. Returns and payments shall be due immediately upon cessation of business for any reason.
B. If any operator liable for any amount of tax, interest or penalty under this chapter sells out or quits the business, the successors or assigns of such operator shall withhold sufficient funds from the purchase price to cover such amount until the former operator produces either a receipt from the city reflecting full payment or a certificate from the city stating that no amount is due. If the successor or assign fails to withhold from the purchase price as required, he or she shall be personally liable for the payment of the amount required to be withheld from the purchase price. (Ord. 1716 § 1, 2010)
3.16.100 Penalties and interest.
A. Original Delinquency. Any operator who fails to remit any tax imposed by the provisions of this chapter within the time required shall pay a penalty in the amount of ten percent 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 in the amount of ten percent 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 pursuant to the provisions of this chapter is due to fraud, a penalty in the amount of twenty-five percent of the amount of the tax shall be added thereto in addition to the penalties set forth 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 the provisions of 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, pursuant to the provisions of this section shall become a part of the tax required to be paid by the provisions of this chapter. (Prior code § 8-5.08)
3.16.110 Failure to collect and report tax – Determination of tax by tax administrator.
If any operator fails or refuses to collect such tax and to make, within the time provided in this chapter, any report and remittance of such tax, or any portion thereof, required by the provisions of this chapter, the tax administrator shall proceed in such manner as he may deem best to obtain the facts and information on which to base his estimate of the tax due. As soon as the tax administrator procures such facts and information as he is able to obtain upon which to base the assessment of any tax imposed by the provisions of 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 the provisions of this chapter. In the event such determination is made, the tax administrator 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 place of address. Such operator may, within ten days after the service or mailing of such notice, make an application in writing to the tax administrator for a hearing in the amount assessed. If an 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 an application is made, the tax administrator shall give not less than five days’ written notice in the manner prescribed in this section to the operator to show cause at a time and place fixed in such 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 administrator shall determine the proper tax to be remitted and shall thereafter give written notice to the person in the manner prescribed in this section 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 filed. (Prior code § 8-5.09)
3.16.120 Records.
It shall be the duty of every operator liable for the collection and payment to the city of any tax imposed by the provisions of this chapter to keep and preserve, for a period of four years, all records as may be necessary to determine the amount of such tax as he may have been liable for the collection of and payment to the city, which records the tax administrator shall have the right to inspect at all reasonable times. (Ord. 1716 § 2, 2010: prior code § 8-5.11)
3.16.130 Refunds.
A. Whenever the amount of any tax, interest or penalty has been overpaid, paid more than once, or has been erroneously or illegally collected or received by the city, such amount may be refunded as provided in accordance with the procedures set forth in Chapter 3.24 of the Gardena Municipal Code with the added provision that any claim filed thereunder shall be under penalty of perjury.
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, 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, 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 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 pursuant to the provisions of this section unless the claimant establishes his right thereto by written records showing entitlement thereto.
E. It is the intent of the city that the one year written claim requirement established by Section 3.24.010 of the Gardena Municipal Code, which incorporates the California Tort Claims Act by reference, be given retroactive effect; provided, however, that any claims which arose prior to the commencement of the one year claims period, and which are not otherwise barred by a then-applicable statute of limitations or claims procedure, must be filed within ninety (90) days following the effective date of this ordinance. (Ord. 1618 § 4, 2001; prior code § 8-5.12)
3.16.140 Actions to collect.
Any tax required to be paid by any transient pursuant to 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 pursuant to the provisions of this chapter shall be liable to an action brought in the name of the city for the recovery of such amount. (Prior code § 8-5.13)
3.16.145 No enjoining action – Payment of assessed taxes required prior to legal action.
A. 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.
B. Payment of all tax, interest and penalties shall be required as a condition precedent to seeking judicial review of any tax liability.
C. No suit or proceeding shall be maintained in any court for recovery of any amount alleged to have been erroneously or illegally determined or collected unless a claim for each refund or credit has been filed pursuant to Section 3.16.130. (Ord. 1716 § 3, 2010)
3.16.150 Violations of provisions.
Any operator or other person who fails or refuses to register as required, 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 shall be guilty of a misdemeanor and shall be punishable as set forth in Chapter 1.16 of this code. Any person required to make, render, sign or verify any report or claim and 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 shall be guilty of a misdemeanor and punishable as aforesaid. (Prior code § 8-5.14)