Chapter 3.12
HOTEL TRANSIENT OCCUPANCY TAX
Sections:
3.12.010 Statutory authority.
3.12.020 Definitions.
3.12.030 Amount of tax imposed.
3.12.040 Exemptions.
3.12.050 Operator’s duties.
3.12.060 Registration of hotels.
3.12.070 Reporting and remitting tax.
3.12.080 Records to be kept.
3.12.090 Delinquent payment – Penalties and interest.
3.12.100 Failure to collect and report – Determination of tax by Director of Administrative Services.
3.12.110 Actions to collect.
3.12.120 Refunds.
3.12.130 Appeal procedure.
3.12.140 Effective date.
3.12.010 Statutory authority.
This chapter is adopted pursuant to the authorization contained in Chapter 6, Part 1, Division 1 of Title 5 of the Government Code of the state. (Ord. 1975 § 1 (Exh. A), 2013; 1960 code § 21.83)
3.12.020 Definitions.
Except where the context otherwise requires, the definitions given in this section govern the construction of this chapter:
A. “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, mobile home or house trailer at a fixed location, 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 hotel for dwelling, lodging or sleeping purposes.
C. “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 capacity. Where the operator performs his function 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.
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 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.
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 hotel 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. 1975 § 1 (Exh. A), 2013; 1960 code § 21.84)
3.12.030 Amount of tax imposed.
For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of eight percent of the rent charged by the operator. Said tax constitutes a debt owed by the transient to the City, which is 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 Director of Administrative Services may require that such tax shall be paid directly to the Director of Administrative Services. (Ord. 2065 § 1(A), 2018; Ord. 1975 § 1 (Exh. A), 2013; Ord. 1895 § 5, 2010; Ord. 1143 § 1, 1983; 1960 code § 21.85)
3.12.040 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 in this chapter;
2. 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 Director of Administrative Services. (Ord. 2065 § 1(A), 2018; Ord. 1975 § 1 (Exh. A), 2013; Ord. 1908 § 12, 2010; 1960 code § 21.86)
3.12.050 Operator’s duties.
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 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. 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. 1975 § 1 (Exh. A), 2013; 1960 code § 21.87)
3.12.060 Registration of hotels.
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 hotel renting occupancy to transients shall register the hotel with the Administrative Services Director and obtain from him a “Transient Occupancy Registration Certificate,” to be at all times posted in a conspicuous place on the premises. Such 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 Uniform Transient Occupancy Tax Ordinance by registering with the Administrative Services Director for the purpose of collecting from transients the Transient Occupancy Tax and remitting said tax to the Administrative Services Director. This certificate does not authorize any person to conduct any unlawful business or to conduct any lawful business in an unlawful manner, not 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. 2065 § 1(A), 2018; Ord. 1975 § 1 (Exh. A), 2013; Ord. 1908 § 13, 2010; 1960 code § 21.88)
3.12.070 Reporting and remitting tax.
A. 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 Director of Administrative Services, make a return to the Director of Administrative Services, on forms provided by the City, of the total rents charged and received, and the amount of tax collected from transient occupancies. At the time the return is filed, the full amount of the tax collected shall be remitted to the Director of Administrative Services. The Director of Administrative Services may establish shorter reporting periods for any certificate holder if the Director of Administrative Services deems it necessary in order to ensure collection of the tax, and 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 shall be held in trust for the City until payment thereof is made to the Director of Administrative Services.
B. In addition to the return provided to the Director of Administrative Services, each operator shall also provide documentation that shall include, but not be limited to, the following:
1. The percentage of reservations made directly through the operator including through the operator’s own website.
2. The percentage of reservations made through a third-party intermediary such as a travel agent or online travel company website. (Ord. 2065 § 1(A), 2018; Ord. 1975 § 1 (Exh. A), 2013; Ord. 1908 § 14, 2010; 1960 code § 21.89)
3.12.080 Records to be kept.
A. 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 he may have been liable for the collection of and payment to the City, which records the Administrative Services Director shall have the right to inspect at all reasonable times.
B. All tax returns and information furnished by any operator pursuant to this chapter shall be confidential and shall not be open to public inspection, nor the specific contents thereof disclosed by any officer or employee except as necessary in the performance of official duty pursuant to this chapter, or in the course of any proceedings, hearing or litigation involving the existence or amount of the tax liability of such operator, or with the written consent of the operator or his authorized representative. (Ord. 2065 § 1(A), 2018; Ord. 1975 § 1 (Exh. A), 2013; Ord. 1908 § 15, 2010; 1960 code § 21.93)
3.12.090 Delinquent payment – 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 Director of Administrative Services 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 herein required to be paid. (Ord. 2065 § 1(A), 2018; Ord. 1975 § 1 (Exh. A), 2013; Ord. 1908 § 16, 2010; 1960 code § 21.90)
3.12.100 Failure to collect and report – Determination of tax by Director of Administrative Services.
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 Administrative Services Director shall proceed in such manner as he may deem best to obtain facts and information on which to base his estimate of the tax due. As soon as the Director of Administrative Services 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 and to make such report and remittance, he shall proceed to determine and assess against such operator the tax, interest and penalties provided for by this chapter.
B. In case such determination is made, the Administrative Services Director 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 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 Administrative Services Director 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 Director of Administrative Services shall become final and conclusive and immediately due and payable. If such application is made, the Administrative Services Director 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 specified therein should not be fixed for such tax, interest and penalties.
D. 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 Director of Administrative Services 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 15 days unless an appeal is taken as provided in LMC 3.12.130. (Ord. 2065 § 1(A), 2018; Ord. 1975 § 1 (Exh. A), 2013; Ord. 1908 § 17, 2010; 1960 code § 21.91)
3.12.110 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 of Livermore for the recovery of such amount. (Ord. 2065 § 1(A), 2018; Ord. 1975 § 1 (Exh. A), 2013; 1960 code § 21.95)
3.12.120 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 Director of Administrative Services within three years of the date of payment. The claim shall be on forms furnished by the Director of Administrative Services.
B. An operator may claim a refund, or take as credit against taxes collected but unremitted, the amount overpaid, paid more than once, or erroneously or illegally collected or received when it is established in a manner prescribed by the Director of Administrative Services 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 Director of Administrative Services, or when the transient, having paid the tax to the operator, establishes to the satisfaction of the Administrative Services 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. 2065 § 1(A), 2018; Ord. 1975 § 1 (Exh. A), 2013; Ord. 1908 § 18, 2010; 1960 code § 21.94)
3.12.130 Appeal procedure.
Any operator aggrieved by the decision of the Director of Administrative Services with respect to the amount of such tax, interest, and penalties, if any, may file an appeal in accordance with the provisions of Chapter 1.22 LMC. The operator must first pay in full the total amount of tax, interest, and penalties due, unless the operator can demonstrate payment of the amount would impose a hardship as determined by the Director of Administrative Services. Any amount found to be due following the appeal shall be retained from the payment made by the operator. Any remaining funds shall be returned to the operator within 30 days of the final decision rendered pursuant to the appeal. (Ord. 2065 § 1(A), 2018; Ord. 2052 § 1(D), 2017; Ord. 1975 § 1 (Exh. A), 2013; Ord. 1908 § 19, 2010; 1960 code § 21.92)
3.12.140 Effective date.
This chapter shall be effective 30 days from and after the date of the passage of the ordinance codified herein, except that the tax imposed by the foregoing chapter shall become operative and be imposed on the first day of October 1983, and shall not apply prior to that date. (Ord. 1975 § 1 (Exh. A), 2013; Ord. 1143 § 2, 1983; 1960 code § 21.96)