Chapter 3.16
TRANSIENT OCCUPANCY TAX
Sections:
3.16.031 Additional tax imposed.
3.16.070 Reporting and remitting.
3.16.080 Penalties and interest.
3.16.090 Failure to collect and report tax – Determination of tax by City Treasurer.
3.16.010 Title.
This chapter shall be known as the “uniform tourist ordinance of the City.” (Ord. 29 § 1, 1981; CC § 22.201)
3.16.020 Definitions.
Except where the content 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, 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. Hotel does not mean any of the following: any hospital, convalescent home, sanitarium, medical clinic, rest home, home for aged people, foster home, or other similar facility operated for the care or treatment of human beings; any asylum, jail, prison, orphanage or other facility in which human beings are detained and housed under legal restraint; any housing owned or controlled by any educational institution and used exclusively to house students, faculty or other employees, and any fraternity or sorority house or similar facility occupied exclusively by students and employees of such educational institutions, and officially recognized or approved by it; any housing operated or used exclusively for religious, charitable or educational purposes by any organization having qualifications for exemption from property taxes under the laws of the State; any housing owned by a governmental agency and used to house its employees or for governmental purposes; any camp as defined in the Labor Code or other housing furnished by an employer exclusively for employees, any camp as defined in the Insurance Code, whether profit or nonprofit, offering recreational activities and operated exclusively for minors under the age of 16.
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 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 by 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, religious group, or any 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 dedication 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 person who in fact exercises occupancy or in fact is entitled to occupancy for a period of 31 days or more, counting portions of calendar days as full days, shall be deemed not to have been a transient with respect to the first 30 days of occupancy or entitlement to occupancy.
G. “Treasurer” means the City Treasurer of the City. (Ord. 29 § 1, 1981; CC § 22.202)
3.16.030 Tax imposed.
For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of six 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 of 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 City Treasurer may require that such tax shall be paid directly to the City Treasurer. (Ord. 29 § 1, 1981; CC § 22.203)
3.16.031 Additional tax imposed.
In addition to the tax imposed by PMC 3.16.030 for the privilege of occupancy in any hotel, each transient is subject to and shall pay an additional tax in the amount of four 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 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 City Treasurer may require that such tax shall be paid directly to the City Treasurer. (Ord. 559 § 2, 2002; Ord. 431 § 1, 1994)
3.16.040 Exemptions.
No tax shall be imposed:
A. Upon 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. Upon any Federal or State officer or employee when on official business;
C. Upon any officer or employee of a foreign government who is exempt by reason of express provisions of Federal law or international treaty;
D. Where the rent is at the rate of $4.00 per day or less;
E. Upon any person who receives a free or complimentary room where the only consideration provided within the definition of rent in PMC 3.16.020(E) is publicity value for the hotel. (Ord. 29 § 1, 1981; CC § 22.204)
3.16.050 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 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. (Ord. 29 § 1, 1981; CC § 22.205)
3.16.060 Registration.
A. 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 said hotel with the City Treasurer 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:
1. The name of the operator;
2. The address of the hotel;
3. The date upon which the certificate was issued;
4. The following:
This Transient Occupancy Registration Certificate signifies that the person named on the face hereof has fulfilled the requirements of the Uniform Tourist Tax Ordinance by registering with the City Treasurer for the purpose of collecting from transients the Tourist Tax and remitting said tax to the City Treasurer. 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. 29 § 1, 1981; CC § 22.206)
3.16.070 Reporting and remitting.
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 City Treasurer, make a return to the City Treasurer, 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 City Treasurer.
B. Returns filed or taxes remitted and actually received by the City Treasurer on or before the last day of the month following the close of each calendar quarter shall be deemed timely filed or remitted. Returns filed or taxes remitted by mail shall be deemed timely filed only if the envelope or similar container enclosing the returns or taxes is addressed to the City Treasurer, has sufficient postage and bears a United States postmark or a postage meter imprint prior to midnight on the last day for reporting or remitting without penalty. If such envelope or the container bears a postage meter imprint as well as a United States post office cancellation mark, the latter shall govern in determining whether the filing or remittance is timely. The City Treasurer may establish shorter reporting periods for any certificate holder if he deems it 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 shall be held in trust for the account of the City until payment thereof is made to the City Treasurer. (Ord. 29 § 1, 1981; CC § 22.207)
3.16.080 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 five 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 the first day of the next calendar month following the date on which the remittance first became delinquent shall pay a second delinquency penalty of five percent of the amount of the tax in addition to the amount of the tax and the five percent penalty first imposed.
C. Fraud. If the City Treasurer 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 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 in this chapter to be paid.
F. Audit Deficiency. If, upon audit by the City, an operator is found to be deficient in his return or his remittance or both, the City Treasurer shall immediately notify the operator of the net deficiency and any delinquency penalties if applicable. If the operator fails or refuses to pay the deficient amount and applicable penalties within 14 days after the date of the City Treasurer’s notice, the penalties prescribed in subsection B of this section shall apply, using the fifteenth day after the date of the City Treasurer’s notice as the date when the continued delinquency penalty first applies. (Ord. 29 § 1, 1981; CC § 22.208)
3.16.090 Failure to collect and report tax – Determination of tax by City Treasurer.
A. If any operator fails or refuses to collect said tax and to make, within the time provided in this chapter, any report and remittance of said tax or any portion thereof required by this chapter or if such operator maintains records which are inadequate to show the amount of tax due, the City Treasurer 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.
B. As soon as the City Treasurer 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 shall proceed to determine and assess against such operator the tax, interest and penalties provided for by this chapter.
C. In case such determination is made, the City Treasurer 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.
D. Such operator may within 14 days after the serving or mailing of such notice make application in writing to the City Treasurer 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 City Treasurer shall become final and conclusive and immediately due and payable. If such application is made, the City Treasurer shall give not less than five days’ notice written in the manner prescribed in this chapter to the operator to show cause at a time and place fixed in said notice why said amount specified therein should not be fixed for such tax, interest and penalties.
E. At such hearing, the operator may appear and offer evidence why such specified tax, interest and penalties should not be so fixed.
F. After such hearing the City Treasurer 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.
G. The amount determined to be due shall be payable after 14 days unless an appeal is taken as provided in PMC 3.16.100. (Ord. 29 § 1, 1981; CC § 22.209)
3.16.110 Records.
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 including but not limited to all business records, bank statements and copies of Federal and State income tax returns filed by the operator with the State or the United States, which records the Auditor and City Treasurer shall have the right to inspect at all reasonable times.
B. All returns and payments submitted by each operator shall be treated as confidential by the City Treasurer and shall not be released by him except upon order of a court of competent jurisdiction or to an officer or agent of the United States, the State, the County or any city in the County for official use only. (Ord. 29 § 1, 1981; CC § 22.111)
3.16.120 Refunds.
A. Erroneously or Illegally Collected. 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 in accordance with Chapter 1.18 PMC.
B. Credit Against Taxes. An operator may claim a refund or take a 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 City Treasurer 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 person from whom the tax was collected or credited to rent subsequently payable by that person to the operator.
C. Repayment to Transient. 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 City Treasurer, or when the transient having paid the tax to the operator, establishes to the satisfaction of the City Treasurer that the transient has been unable to obtain a refund from the operator who collected the tax.
D. Records Required. 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. 548 § 3, 2001; Ord. 29 § 1, 1981; CC § 22.212)
3.16.130 Actions to collect.
A. Responsibility. 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 Poway for the recovery of such amount.
B. Recording Certificate – Lien. If any amount required to be paid to the City under this chapter is not paid when due, the City Treasurer may, within three years after the amount is due, file for record in the office of the County Recorder a certificate specifying the amount of tax, penalties and interest due, the name and address as it appears on the records of the City Treasurer of the operator liable for the same and the fact that the City Treasurer has complied with all provisions of this chapter in the determination of the amount required to be paid. From the time of the filing for record, the amount required to be paid together with penalties and interest constitutes a lien upon all real property in the City owned by the operator or afterwards and before the lien expires acquired by him. The lien has the force, effect and priority of a judgment lien and shall continue for 10 years from the time of filing of the certificate unless sooner released or otherwise discharged.
C. Priority and Lien of Tax. The amounts required to be paid by any operator under this chapter with penalties and interest shall be satisfied first in any of the following cases:
1. Whenever the person is insolvent;
2. Whenever the person makes a voluntary assignment of his assets;
3. Whenever the estate of the person in the hands of executors, administrators, or heirs is insufficient to pay all debts due from the deceased;
4. Whenever the estate and effects of an absconding, concealed or absent person required to pay any amount under this chapter are levied upon by process of law. This chapter does not give the City a preference over any recorded lien which attached prior to the date when the amounts required to be paid became a lien.
The preference given to the City by this section shall be subordinate to the preference given to claims for personal services by Sections 1204 and 1206 of the Code of Civil Procedure.
D. Warrant for Collection of Tax. At any time within three years after any operator is delinquent in the payment of any amount required in this chapter to be paid or within three years after the last recording of a certificate of lien under subsection B of this section, the City Treasurer may issue a warrant for the enforcement of any liens and for the collection of any amount required to be paid to the City under this chapter. The warrant shall be directed to any Chief of Police, Marshal or Constable and shall have the same effect as a writ of execution. The warrant shall be levied and sale made pursuant to it in the same manner and with the same effect as a levy of and a sale pursuant to a writ of execution. The City Treasurer may pay or advance to the Chief of Police, Marshal or Constable, the same fees, commissions and expenses for his services as are provided by law for similar services pursuant to a writ of execution. The City Treasurer, and not the court, shall approve the fees for publication in a newspaper.
E. Seizure and Sale. At any time within three years after any operator is delinquent in the payment of any amount, the City Treasurer may forthwith collect the amount in the following manner: The City Treasurer shall seize any property, real or personal, of the operator and sell the property, or a sufficient part of it, at public auction to pay the amount due together with any penalties and interest imposed for the delinquency and any costs incurred on account of the seizure and sale. Any seizure made to collect taxes due shall be only of property of the operator not exempt from execution under the provisions of the Code of Civil Procedure.
F. Successor’s Liability – Withholding by Purchaser. If any operator liable for any amount under this chapter sells out his business or quits the business, his successor or assignee shall withhold sufficient of the purchase price to cover such amount until the former owner produces a receipt from the City Treasurer showing that it has been paid or a certificate stating that no amount is due.
G. Liability of Purchaser – Release. If the purchaser of a hotel fails to withhold from the purchase price as required, he shall become personally liable for the payment of the amount required to be withheld by him to the extent of the purchase price, valued in money. Within 30 days after receiving a written request from the purchaser for a certificate, or within 30 days from the date the former owner’s records are made available for audit, whichever period expires the later, but in any event not later than 60 days after receiving the request, the City Treasurer shall either issue the certificate or mail notice to the purchaser at his address as it appears on the records of the City Treasurer of the amount that must be paid as a condition of issuing the certificate. Failure of the City Treasurer to mail the notice will release the purchaser from any further obligation to withhold from the purchase price as above provided. The time within which the obligation of the successor may be enforced shall start to run at the time the operator sells his business or at the time that the determination against the operator becomes final, whichever event occurs later. (Ord. 29 § 1, 1981; CC § 22.213)
3.16.140 Violation – Penalty.
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 City Treasurer, or who renders a false or fraudulent return or claim, is guilty of an infraction, and is punishable as aforesaid. Any person required to make, render, sign or verify any report or claim who makes 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 an infraction and is punishable as aforesaid. (Ord. 29 § 1, 1981; CC § 22.215)