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 report.
3.20.110 Records – Inspection by tax inspector.
3.20.140 Repealed.
3.20.010 Title for citation.
This chapter is known as the uniform transient occupancy tax of the city. (Ord. 9 § 1, 1987)
3.20.020 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 includes any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodging house, rooming house, apartment house, dormitory, public or private club, mobilehome 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 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, licensee, or any other occupancy. Where the operator performs his functions through a managing agent of any type or character other than an employee, the managing agent also is an operator for the purposes of this chapter and has the same duties and liabilities as his principal. Compliance with the provisions of this chapter by either the principal or the managing agent is, however, 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 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” means the city manager.
“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 hotel is 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 this chapter may be considered. (Ord. 9 § 2, 1987)
3.20.030 Rate of tax.
A. For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of seven percent of the rent charged by the operator. This tax constitutes a debt owed by the transient to the city which is extinguished only by payment to the operator of the hotel at the time the rent is paid.
B. If the rent is paid with each installment, the unpaid tax is 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 be paid directly to the tax administrator. (Ord. 177 § 4, 1994; Ord. 9 § 3, 1987)
3.20.040 Exemptions.
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 provided in this chapter;
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.
No exemption is 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. (Ord. 9 § 4, 1987)
3.20.050 Operator’s duties.
A. Each operator collects 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 is separately stated from the amount of the rent charged, and each transient receives a receipt for payment from the operator.
B. 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 hereinafter provided. (Ord. 9 § 5, 1987)
3.20.060 Registration.
Within 30 days after commencing business, each operator of any hotel renting occupancy to transients registers the hotel with the tax administrator and obtains from him a “transient occupancy registration certificate” to be at all times posted in a conspicuous place on the premises. This certificate states, among other things, 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 fulfilled the requirements of the Uniform Transient Occupancy Tax 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 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 does not constitute a permit.” (Ord. 9 § 6, 1987)
3.20.070 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 is remitted to the tax administrator. The tax administrator may establish shorter reporting periods for any certificate holder if he deems necessary in order to ensure collection of the tax and he may require further information in the return. Returns and payments are due immediately upon cessation of business for any reason. All taxes collected by operators pursuant to this chapter are held in trust for the account of the city until payment thereof is made to the tax administrator. (Ord. 9 § 7, 1987)
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 pays 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 becomes delinquent pays a second delinquency penalty of 10 percent of the amount of the tax in addition to the amount of tax and the 10 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 25 percent of the amount of the tax is 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 pays 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 become a part of the tax herein required to be paid. (Ord. 9 § 8, 1987)
3.20.090 Failure to collect and report.
A. If any operator fails or refuses 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 proceeds in such manner as he deems best to obtain facts and information on which to base his estimate of the tax due.
B. 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 this chapter and payable by any operator who has failed or refused to collect the same and to make such report and remittance, he proceeds to determine and assess against such operator the tax, interest and penalties provided for by this chapter. In case such determination is made, the tax administrator gives 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 last known place of address. Such operator may within 10 days after the serving or mailing of such make application in writing to the tax administrator for a hearing on the amount assessed.
C. 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 becomes 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 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.
D. After such hearing the tax administrator determines the proper tax to be remitted and thereafter gives 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 15 days unless an appeal is taken as provided in HMC 3.20.100. (Ord. 9 § 9, 1987)
3.20.100 Appeal.
A. 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 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 fixes a time and place for hearing such appeal, and the city clerk gives notice in writing to such operator at his last known place of address.
B. The findings of the city council are final and conclusive and are served upon the appellant in the manner prescribed above for service of notice of hearing. Any amount found to be due is immediately due and payable upon service of notice. (Ord. 9 § 10, 1987)
3.20.110 Records – Inspection by tax inspector.
It is 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 he may have been liable for the collection of and payment to the city, which records the tax administrator has the right to inspect at all reasonable times. (Ord. 9 § 11, 1987)
3.20.120 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 tax administrator within three years of the date of payment. The claim is to be on forms furnished 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 is 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 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 right thereto by written records showing entitlement thereto. (Ord. 9 § 12, 1987)
3.20.130 Actions to collect.
Any tax required to be paid by any transient under the provisions of this chapter is a debt owed by the transient to the city. Any such tax collected by an operator which has not been paid to the city is a debt owed by the operator to the city. Any person owing money to the city under the provisions of this chapter is liable to an action brought in the name of the city for the recovery of such amount. (Ord. 9 § 13, 1987)
3.20.140 Violations designated – Misdemeanor.
Repealed by Ord. 370. (Ord. 177 § 4, 1994; Ord. 9 § 14, 1987)