Chapter 3.20
LODGERS’ TAX
Sections:
3.20.010 Title, purpose and authority.
3.20.030 Limitations on the use of proceeds.
3.20.040 Eligible uses of tax proceeds.
3.20.050 Contracting for services.
3.20.100 Collection of the tax – Reporting procedures.
3.20.120 Advisory board created – Duties.
3.20.160 Failure to pay tax – Failure to make return – Computation, penalty, notice.
3.20.170 Lien for occupancy tax, payment, certificate of liens.
3.20.010 Title, purpose and authority.
A. Title. This chapter may be cited as the “lodgers’ tax chapter.”
B. Purpose. The purpose of this chapter is to impose a tax which will be borne by persons using commercial lodging accommodations within the town of Mesilla and which will provide revenues for the purpose of advertising, publicizing and promoting tourist-related attractions, facilities and events, and acquiring, establishing and operating tourist-related facilities, attractions or transportation systems, as authorized in MTC 3.20.040.
C. Authority. This chapter is adopted pursuant to the provisions set forth in the New Mexico State Statutes 1978, Sections 3-38-13 through 3-38-23, as amended. The provisions of this chapter are adopted in acceptance of and in accordance with said statutes. [Ord. 2001-02 § 2; prior code § 7-9-1]
3.20.020 Definitions.
The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
A. “Board of trustees” means the governing body of the town of Mesilla;
B. “Gross taxable rent” means the total amount of rent paid for lodging, not including the state gross receipts tax or local sales taxes;
C. “Lodging” means the transaction of furnishing rooms or other accommodations by a vendor to a vendee who for rent uses, possesses or has the right to use or possess any room or rooms or other units of accommodations in or at a taxable premises;
D. “Lodgings” means the rooms or other accommodations furnished by vendor to a vendee by a taxable service of lodgings;
E. “Occupancy tax” means the tax on lodging authorized by this chapter;
F. “Person” means a corporation, firm, other body corporate, partnership, association or individual. “Person” includes an executor, administrator, trustee, receiver or other representative appointed according to law and acting in a representative capacity. “Person” does not include the United States of America, the state of New Mexico, any corporation, department, instrumentality or agency of the federal government or the state government, or any political subdivision of the state;
G. “Rent” means the consideration received by a vendor in money, credits, property or other consideration valued in money for lodgings subject to an occupancy tax authorized in this chapter;
H. “Taxable premises” means a hotel, apartment, apartment hotel, apartment house, lodge, lodging house, rooming house, motor hotel, guest house, guest ranch, ranch resort, guest resort, mobile home, motor court, auto court, auto camp, trailer court, trailer camp, trailer park, tourist camp, cabin or other premises used for lodging;
I. “Town” means the town of Mesilla, New Mexico;
J. “Town clerk-treasurer” means the town clerk-treasurer or his/her designated representative;
K. “Tourist” means a person who travels for the purpose of business, pleasure or culture to a municipality or county imposing an occupancy tax;
L. “Tourist-related events” mean events that are planned for, promoted to and attended by tourists;
M. “Tourist-related facilities and attractions” means facilities and attractions that are intended to be used by or visited by tourists;
N. “Tourist-related transportation systems” mean transportation systems that provide transportation for tourists to and from tourist-related facilities, attractions and events;
O. “Vendee” means a natural person to whom lodgings are furnished in the exercise of the taxable service of lodging;
P. “Vendor” means a person furnishing lodgings in the exercise of the taxable service of lodging. [Ord. 2001-02 § 2; prior code § 7-9-2]
3.20.030 Limitations on the use of proceeds.
A. The occupancy tax shall not exceed five percent of the gross taxable rent.
B. Every vendor who is furnishing any lodgings within the town is exercising a taxable privilege.
C. Not less than one-half of the proceeds derived from the tax shall be used for advertising, publicizing and promoting tourist-related attractions, facilities and events.
D. The proceeds from the occupancy tax in excess of the amount required to be used for advertising, publicizing and promoting tourist-related attractions, facilities and events may be used for any purpose authorized in MTC 3.20.040.
E. The proceeds from the occupancy tax that are required to be used to advertise, publicize and promote tourist-related attractions, facilities and events shall be used within two years of the close of the fiscal year in which they were collected and shall not be accumulated beyond that date or used for any other purpose. [Ord. 2001-02 § 2; prior code § 7-9-3]
3.20.040 Eligible uses of tax proceeds.
Subject to the limitations contained in MTC 3.20.030, the town may use the proceeds from the lodgers’ tax to defray the costs of:
A. Collecting and otherwise administering the tax, including the performance of audits required by MTC 3.20.100, pursuant to guidelines issued by the Department of Finance and Administration;
B. Establishing, operating, purchasing, constructing or otherwise acquiring, reconstructing, extending, improving, equipping, furnishing or acquiring real property or any interest in real property for the site or grounds for tourist-related facilities, attractions or transportation systems of the municipality or of the county in which the municipality is located;
C. The principal of and interest on any prior redemption premiums due in connection with and any other charges pertaining to revenue bonds authorized by Section 3-38-23 or 3-38-24 NMSA 1978;
D. Advertising, publicizing and promoting tourist-related attractions, facilities and events of the town and tourist facilities or attractions within Dona Ana County;
E. Providing police and fire protection and sanitation service for tourist-related events, facilities and attractions located in the town or Dona Ana County; or
F. Any combination of the foregoing purposes or transactions stated in this section, but for no other town or county purpose. [Ord. 2001-02 § 2; prior code § 7-9-4]
3.20.050 Contracting for services.
A. The board of trustees may contract for the management of programs and activities funded with revenue from the occupancy tax. The board of trustees shall require periodic reports to the board, at least quarterly, listing the expenditures for those periods. Within 10 days of receiving the reports, the board shall furnish copies of them to the advisory board. Funds provided to the contracting person or governmental agency shall be maintained in a separate account established for that purpose and shall not be commingled with any other money.
B. A person or governmental agency with whom the town contracts under this section to conduct an activity authorized by MTC 3.20.040 shall maintain complete and accurate financial records of each expenditure of the tax revenue made and upon request of the board shall make such records available for inspection.
C. The occupancy tax revenue spent for a purpose authorized by this chapter may be spent for day-to-day operations, supplies, salaries, office rental, travel expenses and other administrative costs only if those administrative costs are incurred directly for that purpose.
D. A person or governmental agency with whom the board of trustees contracts under this section may subcontract with the approval of the board of trustees. A subcontractor shall be subject to the same terms and conditions as the contractor regarding separate financial accounts, periodic reports and inspection of records. [Ord. 2001-02 § 2; prior code § 7-9-5]
3.20.060 Administration.
The board of trustees or their delegated representative shall administer the lodgers’ tax moneys collected. The duties assigned to the town clerk-treasurer in this chapter may, from time to time, be reassigned to other departments or officials in whole or part as determined by the town clerk-treasurer. [Ord. 2001-02 § 2; prior code § 7-9-6]
3.20.070 Imposition of tax.
There is hereby imposed an occupancy tax of revenues of five percent of the gross taxable rent for lodging within the town of Mesilla paid to vendors from and after July 1, 1998. [Ord. 2001-02 § 2; prior code § 7-9-7]
3.20.080 Exemptions.
The occupancy tax shall not apply:
A. If a vendee:
1. Has been a permanent resident of the taxable premises for a period of at least 30 consecutive days; or
2. Enters into or has entered into a written agreement for lodgings at the taxable premises for a period of at least 30 consecutive days;
B. If the rent paid by a vendee is less than $2.00 a day;
C. To lodging accommodations at institutions of the federal government, the state or any political subdivision thereof;
D. To lodging accommodations at religious, charitable, educational or philanthropic institutions, including without limitation such accommodations at summer camps operated by such institutions;
E. To clinics, hospitals or other medical facilities;
F. To privately owned and operated convalescent homes or homes for the aged, infirm, indigent or chronically ill; or
G. If the taxable premises does not have at least three rooms or three other units of accommodation for lodging. [Ord. 2001-02 § 2; prior code § 7-9-8]
3.20.090 Licensing.
A. No vendor shall engage in the business of providing lodging in the town of Mesilla who has not first obtained a license as provided in this section.
B. Applicants for a vendor’s license shall submit an application to the town clerk-treasurer stating:
1. The name of the vendor, including identification of any person, as defined in this chapter, who owns or operates or both owns and operates a place of lodging and the name or trade names under which the vendor proposes to do business and the post office address therefor;
2. A description of the facilities, including the number of rooms and the usual schedule of rates therefor;
3. A description of other facilities provided by the vendor or others to users of the lodgings such as a restaurant, bar, cleaning, laundry, courtesy car, stenographic, tailor or others, and a statement identifying the license issued, to whom issued, the authority issuing and the period for which issued, if applicable, and the identification number provided by the Department of Taxation and Revenue of the State of New Mexico;
4. The nature of the business practices of the vendor and to what extent, if any, the business is exempt from the lodgers’ tax;
5. Other information reasonably necessary to effect a determination of eligibility for such license.
C. The town clerk-treasurer shall review applications for licenses within 10 days of receipt thereof and grant the license in due course if the clerk-treasurer finds the applicant is doing business subject to the occupancy tax.
If the town clerk-treasurer finds that the applicant is not qualified to do business subject to the occupancy tax, the clerk-treasurer shall, not more than 10 days after receipt of the application, advise the applicant of this decision and give the reasons therefor. The notice of such action shall be sent by certified mail addressed to the applicant at the address given on the application.
D. If the town clerk-treasurer finds the applicant not exempt under the terms of this chapter, the clerk-treasurer, shall, not more than 10 days after receipt of the application, advise the applicant of this decision and give the reasons therefor. The notice of such action shall be sent by certified mail addressed to the applicant at the address given on the application.
E. An applicant who is dissatisfied with the decision of the town clerk-treasurer may appeal the decision to the board of trustees by written notice to the town clerk-treasurer of such appeal to be made within 15 days of the date of the decision made by the town clerk-treasurer regarding the application. The matter shall be referred to the board of trustees for hearing at their next regularly scheduled meeting in the usual course of business.
The decision of the board of trustees made thereof shall be expressed in writing and notice of such decision shall be sent by certified mail addressed to the applicant at the address given on the application not more than 10 days following the meeting at which the decision was made. The action of the board of trustees shall be final.
F. If the board of trustees finds for the applicant, the town clerk-treasurer shall issue the appropriate license or other notice conforming to the decision made by the board of trustees. [Ord. 2001-02 § 2; prior code § 7-9-9]
3.20.100 Collection of the tax – Reporting procedures.
A. Every vendor providing lodgings in the town of Mesilla shall collect the tax thereon on behalf of the town and shall act as a trustee therefor.
B. The tax shall be collected from vendees in accordance with this chapter and shall be charged separately from the rent fixed by the vendor for the lodgings.
C. On and after July 1, 1998, each vendor licensed under the provisions of this chapter shall be liable to the town for the tax provided herein on the rent paid for lodging at the vendor’s respective place of business.
D. Each vendor shall prepare a monthly report on forms provided by the town clerk-treasurer of the receipts for lodging paid to him in the preceding calendar month and shall submit the report and payment of the amounts due to the town by the twenty-fifth day of each month. The report shall include sufficient information to enable the town to audit the report and shall be verified on oath by the vendor. [Ord. 2001-02 § 2; prior code § 7-9-10]
3.20.110 Audit of vendors.
The board of trustees of the town shall have random audits conducted every third year to verify full payment of occupancy tax receipts.
A. The board of trustees shall determine the number of vendors within the municipality to audit.
B. The audit(s) may be performed by the town clerk-treasurer or by any other designee of the board of trustees. A copy of the completed audit(s) shall be filed annually with the Local Government Division of the Department of Finance and Administration. [Ord. 2007-05 § 1; Ord. 2001-02 § 2; prior code § 7-9-11]
3.20.120 Advisory board created – Duties.
A. The mayor shall appoint a five-member advisory board that consists of two members who are owners or operators of lodgings subject to the occupancy tax within the municipality, two members who are owners or operators of industries located within the municipality that primarily provide services or products to tourists and one member who is a resident of the municipality and represents the general public.
B. Members of the advisory board created under subsection (A) of this section shall serve at the pleasure of the board of trustees. The terms of appointment shall be for two years and shall be staggered.
C. The advisory board shall submit to the mayor and board of trustees recommendations for the expenditures of funds authorized by MTC 3.20.040(B) for advertising, publicizing and promoting tourist-related attractions, facilities and events in the town and surrounding area of Dona Ana County. [Ord. 2001-02 § 2; prior code § 7-9-12]
3.20.130 Financial reporting.
A. The board of trustees shall furnish to the advisory board that portion of any proposed budget, report or audit filed or received by the governing body pursuant to either Chapter 6, Article 6 NMSA 1978 or the Audit Act that relates to the expenditure of occupancy tax funds within 10 days of the filing or receipt of such proposed budget, report or audit by the board of trustees.
B. The board of trustees shall report to the Local Government Division of the Department of Finance and Administration on a quarterly basis any expenditure of occupancy tax funds pursuant to Sections 3-38-15 and 3-38-21 NMSA 1978, and shall furnish a copy of this report to the advisory board when it is filed with the Division. [Ord. 2001-02 § 2; prior code § 7-9-13]
3.20.140 Enforcement.
A. An action to enforce the Lodgers’ Tax Act may be brought by:
1. The attorney general or the district attorney in the county of jurisdiction; or
2. A vendor who is collecting the proceeds of an occupancy tax in the county of jurisdiction.
B. A district court may issue a writ of mandamus or order an injunction or other appropriate remedy to enforce the provisions of the Lodgers’ Tax Act.
C. The court shall award costs and reasonable attorneys’ fees to the prevailing party in a court action to enforce the provisions of the Lodgers’ Tax Act. [Ord. 2001-02 § 2; prior code § 7-9-14]
3.20.150 Duty of vendor.
Vendors shall maintain adequate records of facilities subject to the occupancy tax and of proceeds received for the use thereof. Such records shall be maintained in the town of Mesilla and shall be open to the inspection of the municipality during reasonable hours and shall be retained for three years. [Ord. 2001-02 § 2; prior code § 7-9-15]
3.20.160 Failure to pay tax – Failure to make return – Computation, penalty, notice.
A. Every vendor is liable for the payment of the proceeds of any occupancy tax that the vendor failed to remit to the town, whether due to his failure to collect the tax or otherwise.
B. If any vendor makes a return as required by this chapter without paying the tax then due, the vendor shall be liable for the tax and a penalty equal to 10 percent of the amount not remitted but not less than $100.00 without notice from the town with regard thereto. Promptly thereafter, the town clerk-treasurer shall give the delinquent vendor written notice of such estimated tax, penalty and interest, which notice shall be served personally or by certified mail.
C. If any vendor neglects or refuses to make a return and pay the tax as required by this chapter, the town clerk-treasurer may make an estimate based upon any information in the clerk-treasurer’s possession, or that may come into the clerk-treasurer’s possession, of the amount of the rent of the delinquent vendor for the period with respect to which the vendor has failed to make a return, and upon the basis of the estimated amount the clerk-treasurer shall compute and assess the tax payable by the delinquent vendor, adding to the sum thus arrived at a penalty equal to 10 percent thereof, but not less than $100.00. Promptly thereafter, the town clerk-treasurer shall give the delinquent vendor written notice of such estimated tax, penalty and interest, which notice shall be served personally or by certified mail.
D. If a vendor shall fail to make payment of the tax when due, the vendor shall be liable for the tax and a penalty equal to 10 percent thereof but not less than $100.00 in addition to the tax and interest on such amounts of one percent per month.
E. If payments are not made by the vendor within 15 days of written notice, the town clerk-treasurer shall bring an action in law or equity in the magistrate or district court for the collection of any amounts due, including without limitation penalties thereon, interest on the unpaid principal at a rate not exceeding one percent per month and the costs of collection and reasonable attorney’s fee incurred in connection therewith. [Ord. 2001-02 § 2; prior code § 7-9-16]
3.20.170 Lien for occupancy tax, payment, certificate of liens.
A. The occupancy tax imposed by the town constitutes a lien in favor of the town upon the personal and real property of the vendor providing lodgings in the town of Mesilla. The lien may be enforced as provided in Sections 3-36-1 through 3-36-7 NMSA 1978. Priority of the lien shall be determined from the date of filing.
B. Under process or order of court, no person shall sell the property of any vendor without first ascertaining from the town clerk-treasurer the amount of any occupancy tax due the town. Any occupancy tax due the town shall be paid from the proceeds of the sale before payment is made to the judgment creditor or any other person with a claim on the sale proceeds.
C. The town clerk-treasurer shall furnish to any person applying for such a certificate a certificate showing the amount of all liens in the records of the town against any vendor pursuant to Chapter 3, Article 38, NMSA 1978. [Ord. 2001-02 § 2; prior code § 7-9-17]
3.20.180 Penalty.
Any person who violates the provisions of this chapter by failure to pay the tax, to remit the proceeds thereof to the town, or to account properly for any lodging and tax proceeds pertaining thereto, shall be charged with a petty misdemeanor and upon conviction shall be punished by a fine of not more than $500.00 or imprisonment for not more than 90 days or by both such fine and imprisonment as provided for in MTC 1.05.080. [Ord. 2001-02 § 2; prior code § 7-9-18]