Chapter 3.24
TRANSIENT OCCUPANCY TAX
Sections:
3.24.050 Registration of hotels – Issuance of certificate.
3.24.060 Reporting and remitting.
3.24.070 Penalties and interest.
3.24.080 Failure to collect and report tax – Determination of tax by tax administrator.
3.24.121 Affordable housing and neighborhood improvement.
3.24.130 Violations – Misdemeanor.
3.24.010 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, lodginghouse, roominghouse, apartment house, dormitory, public or private club 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, sub-lessee, 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, and property and services of any kind or nature, without any deduction therefrom whatsoever.
“Short-term rental” means a dwelling unit where the owner with the majority interest in the residential property, or an owner holding an equal shared interest if no other owner owns a greater interest, allows for a habitable portion thereof in part or as a whole for the transient use occupancy by visitors the same as for a hotel.
“Tax administrator” shall be appointed by 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 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 until the period of thirty 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. 1054 § 6, 2018; Ord. 1042 § 2 (Att. B), 2017; Ord. 601 § II(4), 1982; Ord. 589 § II(9), 1981; Ord. 284, 1964; prior code § 3-601)
3.24.020 Imposition.
For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of twelve 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. 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 administration may require that such tax shall be paid directly to the tax administrator. (Ord. 795 § 1, 1991; Ord. 644, 1983; Ord. 601 § II(4), 1982; Ord. 514 § 1, 1978; Ord. 412 § 1, 1972; Ord. 335, 1968; Ord. 284, 1964; prior code § 3-602)
3.24.030 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 as herein provided;
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 tax administrator. (Ord. 601 § II(4), 1982; Ord. 284, 1964; prior code § 3-603)
3.24.040 Operator’s duties.
Each operator shall collect the tax imposed by this chapter 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 upon request 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 SMC 3.24.110. (Ord. 601 § II(4), 1982; Ord. 284, 1964; prior code § 3-604)
3.24.050 Registration of hotels – Issuance of certificate.
Within thirty days after the effective date of the ordinance codified in this section, or within thirty days after commencing business, whichever is later, each operator of any hotel renting occupancy to transients shall register the hotel with the tax administrator and obtain from him 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 hotel;
C. The date upon which the certificate was issued; and
D. The following statement:
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 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. 601 § II(4), 1982; Ord. 284, 1964; prior code § 3-605)
3.24.060 Reporting and remitting.
Each operator shall, on or before the last day of the month following the close of each calendar month, 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 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 tax administrator. (Ord. 644, 1983; Ord. 601 § II(4), 1982; Ord. 284, 1964; prior code § 3-606)
3.24.070 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 ten percent of the amount of 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 of ten percent of the amount 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 under this chapter is due to fraud, a penalty of twenty-five 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 by this chapter. (Ord. 601 § II(4), 1982; Ord. 284, 1964; prior code § 3-607)
3.24.080 Failure to collect and report tax – Determination of tax by tax administrator.
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 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 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 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 tax 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 his last known place of address. Such operator may within ten days after the serving or mailing of such notice make application in writing to the tax 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 tax administrator shall become 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 section 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 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 taken. (Ord. 601 § II(4), 1982; Ord. 284, 1964; prior code § 3-608)
3.24.090 Appeal procedure.
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 council by filing a notice of appeal with the city clerk within fifteen days of the serving or mailing of the determination of tax due. The council shall fix a time and place for hearing such appeal, and the city clerk shall give notice in writing to such operator at his last known place of address. The findings of the council shall be final and conclusive and shall be served upon the appellant in the manner prescribed in SMC 3.24.080 for service of notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of notice. (Ord. 601 § II(4), 1982; Ord. 284, 1964; prior code § 3-609)
3.24.100 Recordkeeping.
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 tax administrator shall have the right to inspect at all reasonable times. Such information shall be confidential and not made public by the city, except as an incident to a prosecution under this chapter. (Ord. 601 § II(4), 1982; Ord. 284, 1964; prior code § 3-610)
3.24.110 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 tax administrator within three years of the date of payment. The claim shall 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 had 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 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. 601 § II(4), 1982; Ord. 284, 1964; prior code § 3-611)
3.24.120 Collection of tax.
A. 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.
B. Recording Certificate – Lien. If any amount required to be paid to the city under the ordinance codified in this chapter is not paid when due, the administrator may within three years after the amount is due file for record in the office of the Monterey 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 tax administrator of the operator liable for the same and the fact that the tax administrator 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 a real property in the county owned by the operator or acquired by him afterwards and before the lien expires. The lien has the force, effect and priority of a judgment lien and shall continue for ten years from the time of filing of the certificate unless sooner released or otherwise discharged.
C. Priority and Lien of Tax. The amount 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 the debts due from the deceased; or
4. Whenever the estate and effects of an absconding, concealed or absent person required to pay any amount under this chapter is 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.
D. Warrant for Collection of Tax. At any time within three years after any operator is delinquent in the payment of any amount herein required to be paid off within ten years after the last recording of a certificate of lien under subsection B of this section, the tax administrator 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 sheriff, 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 tax administrator may pay or advance to the sheriff, 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.
E. Seizure and Sale. At any time within three years after any operator is delinquent in the payment of any amount, the tax administrator may forthwith collect the amount in the following manner: The tax administrator 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 occupancy 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 assignee shall withhold sufficient of the purchase price to cover such amount until the former owner produces a receipt from the tax administrator 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 funds 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 sixty days after receiving a written request from the purchaser for a certificate, or within sixty 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 ninety days after receiving the request, the tax administrator shall either issue the certificate or mail notice to the purchaser at his address as it appears on the records of the tax administrator of the amount that must be paid as a condition of issuing the certificate. Failure of the tax administrator to mail the notice shall release the purchaser from any further obligation to withhold 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 the later.
H. Sale of a hotel, dismissal of the operator or other termination of his rights to operate the facility shall not relieve him from liability for taxes due or owing under this chapter. (Ord. 805 § 1 (Exh. A), 1992; Ord. 601 § II(4), 1982; Ord. 284, 1964; prior code § 3-612)
3.24.121 Affordable housing and neighborhood improvement.
Annually, ten percent of transient occupancy taxes collected can be used for short-term rental program costs and the remaining net funds shall be allocated after the close of the current fiscal year shared. Fifty percent of the net transient occupancy tax collected from short-term rentals shall be set aside in the city of Seaside housing fund to be used to assist with affordable housing projects/activities in accordance with the direction of the city council and fifty percent of the net transient occupancy tax shall be directed toward community and neighborhood park improvements, with recommendations to the city council by the neighborhood improvement commission. (Ord. 1084 § 4, 2020; Ord. 1054 § 6, 2018)
3.24.130 Violations – Misdemeanor.
In addition to any other state or city penalties or enforcement procedures, violation of any of the provisions of this chapter may be prosecuted as a misdemeanor.
Any operator or other person who fails or refuses to register as required herein, 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, 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, in addition to any other remedies provided by law. (Ord. 1042 §§ 2, 2 (Att. B), 2017; Ord. 805 § 2 (Exh. A), 1992)