Chapter 3.10
TRANSIENT ROOM TAX
Sections:
3.10.070 Registration of operator – Form and contents – Execution – Certification of authority.
3.10.080 Due date – Returns and payments.
3.10.090 Penalties and interest.
3.10.100 Deficiency determinations – Fraud, evasion, operator delay.
3.10.120 Security for collection of tax.
3.10.130 Lien and foreclosure.
3.10.160 Appeals to city council.
3.10.010 Title.
This chapter shall be known as the transient room tax chapter of the city of Burns. [Ord. 763 § 1, 2004]
3.10.020 Definitions.
Except where the context otherwise requires, the following terms and phrases have the meanings assigned to them below:
(1) “Accrual accounting” means the operator enters the rent due from a transient on the operator’s records when the rent is earned whether or not it is paid.
(2) “Booking service(s)” means any reservation and/or payment service provided by a person or entity that facilitates a short-term rental transaction between a host (operator) and a prospective transient, and for which the person or entity collects or receives, directly or indirectly through an agent or intermediary, a fee in connection with the reservation and/or payment services provided for the short-term rental transaction. For purposes of this chapter, “booking service(s)” includes, without limitation, directly or indirectly accepting, receiving, and/or facilitating payment, whether or not the person or entity is the ultimate recipient of the payment, including through application programming interfaces (APIs) or other computerized devices where third-party providers receive information about a transaction and collect funds for the transient lodging or hotel occupancy from a transient.
(3) “Cash accounting” means the operator does not enter the rent due from a transient on the operator’s records until rent is paid.
(4) “City council” means the city council of city of Burns, Oregon.
(5) “Hosting platform(s)” means a person or entity that participates in the short-term rental business by collecting or receiving a fee for booking services through which a host (operator) may offer a short-term rental. For purposes of this definition, a “hosting platform” may provide booking services through an online platform that (a) allows a host (operator) to advertise the short-term rental through a website provided by the hosting platform, and (b) provides a means for the hosting platform to conduct a transaction by which prospective occupants arrange transient lodging and payment of rent directly to the host or to the hosting platform.
(6) “Hotel” means transient lodging, transient lodging facilities, short-term rentals, and/or any structure, or any portion of any structure, which is occupied, used, intended, and/or designed for transient occupancy for 30 days or less, for dwelling, lodging, or sleeping purposes, including, without limitation, any hotel, inn, tourist home, motel, studio, lodging house, rooming house, apartment house, public or private dormitory, fraternity, sorority, public or private club, and/or space(s) for overnight parking of recreational vehicles and/or placement of tents during periods of human occupancy, provided such occupancy is for less than a 30-day period.
(7) “Local tax trustee” or “trustee” means the operator, hosting platform, and/or a designee thereof that accepts, receives, and/or facilitates the payment of rent from the transient, regardless if the operator or hosting platform is the ultimate recipient of the payment.
(8) “Occupancy” means the use and/or possession, or the right to the use and/or possession, of any room or rooms in a hotel, or space(s) in a mobile home or trailer park or portion thereof, for lodging or sleeping purposes.
(9) “Operator” means any of the following:
(a) Any person (or his or her designee) who provides and/or furnishes transient lodging (i.e., space in a hotel) for occupancy to the general public for compensation.
(b) Any person who facilitates the reservations of hotel occupancy and collects the payment for the hotel reservation from a transient.
(c) Any transient lodging provider, transient lodging intermediary, and/or transient lodging tax collector as defined in ORS 320.300.
(10) “Person” means any individual, firm, partnership, joint venture, association, social club, fraternal organization, fraternity, sorority, public or private dormitory, joint stock company, corporation, estate, trust, business trust, receiver, trustee, syndicate, or other group or combination acting as a unit.
(11) “Rent” means the consideration charged, whether or not received by the operator, for the occupancy of space in a hotel valued in money, goods, labor, credits, property, or other consideration valued in money, without any deduction.
(12) “Rent package plan” means the consideration charged for both food and rent, such as a “bed and breakfast” where a single charge is made for the total of both.
(13) “Short-term rental” means a house, duplex, multiplex, apartment, cabin, condominium, houseboat, trailer, or other residential dwelling unit where a person rents guest bedroom(s) or the entire residential dwelling unit for transient lodging occupancy, regardless if the short-term rental is zoned residential or has a building occupancy that only allows for residential use.
(14) “Tax” means either the tax payable by the transient, or the aggregate amount of taxes due from an operator during the period for which the operator is required to report the operator’s collections.
(15) “Tax administrator” means the city manager of city of Burns, Oregon.
(16) “Transient” means any individual who exercises occupancy and/or is entitled to occupancy in a hotel for a period of 30 consecutive calendar days or less, counting portions of calendar days as full days. The day a transient checks out of the hotel will not be included in determining the 30-day period if the transient is not charged rent for that day by the operator. Any such individual so occupying space in a hotel is 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. [Ord. 19-866 § 3, 2019; Ord. 763 § 2, 2004]
3.10.030 Tax imposed.
(1) Each transient will pay a tax in the amount of nine 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 local tax trustee or the city. Each transient will pay the tax contemporaneously with the rent to the local tax trustee. Tax amounts will be rounded down to the nearest cent. Notwithstanding anything contained in this chapter to the contrary, the local tax trustee will maintain records of all rent charged and tax payment received. If rent is paid in installments, a proportionate share of the tax will be paid by the transient to the local tax trustee with each installment unless the transient pays the entire rent amount with the first installment.
(2) The local tax trustee will enter the tax on the trustee’s records when rent is collected if the trustee maintains records on the cash accounting basis and when earned if the trustee maintains records on the accrual accounting basis. If rent is paid in installments, a proportionate share of the tax will be paid by the transient to the trustee with each installment. If for any reason the tax due is not paid to the operator of the hotel, the tax administrator may require that such tax must be paid directly to the city. In all cases, the rent paid or charged for occupancy will exclude the sale of any goods, services, and commodities other than the furnishing of rooms, accommodations, and parking space in mobile home parks or trailer parks. [Ord. 19-866 § 4, 2019; Ord. 763 § 3, 2004]
3.10.040 Collection of tax.
(1) Every local tax trustee will collect the tax at the time rent is paid, unless an exemption applies under BMC 3.10.060. For purposes of this section, if payment is by credit card, payment is made at the time credit card information is provided to local tax trustee, not when the local tax trustee ultimately receives credit for the transaction. While holding the payment in trust for the city, a local tax trustee may commingle the tax proceeds with the local tax trustee’s funds, but the local tax trustee is not the owner of tax proceeds, except that, when a return is filed, the local tax trustee becomes the owner of the administrative fee authorized to be retained. Local tax trustees may choose to file returns and remit payment based on amounts accrued but not yet collected. The local tax trustee is liable for any tax that should have been collected from the occupant, except in cases of nonpayment of rent by the transient.
(2) The tax administrator will enforce provisions of this chapter and will have the power to adopt rules and regulations not inconsistent with this chapter as may be necessary to aid in the enforcement.
(3) A hosting platform for short-term rentals may collect a fee for booking services in connection with short-term rentals only when those short-term rentals are lawfully registered as operators with the city and possess a certificate of authority at the time the short-term rental is occupied. Operators who receive any portion of the rent and hosting platforms that provide booking services are jointly and severally liable for the tax. [Ord. 19-866 § 5, 2019; Ord. 763 § 4, 2004]
3.10.050 Operator’s duties.
Bills, receipts, and/or invoices provided to transients will list the city tax separately and must accurately state the amount of tax. All amounts listed as tax on invoices, bills, or receipts must be reported as tax and, after collection, must be turned over to the city, less the six percent administrative charge described in BMC 3.10.150(4). No operator will advertise that the tax and/or any part of the tax will be assumed or absorbed by the operator, or that it will not be added to the rent, or that, when added, any part will be refunded, except as provided otherwise in this chapter. [Ord. 19-866 § 6, 2019; Ord. 763 § 5, 2004]
3.10.060 Exemptions.
No tax will be imposed upon the transient occupancy of any of the following:
(1) A dwelling unit in a hospital, health care facility, long-term care facility, and/or any other residential facility that is licensed, registered or certified by the Oregon Department of Human Services or the Oregon Health Authority;
(2) A dwelling unit in a facility providing treatment for drug and/or alcohol abuse and/or providing mental health treatment;
(3) A dwelling unit if the consideration for occupancy in the dwelling unit is funded through a contract with a government agency and the purpose of which is to provide emergency or temporary shelter;
(4) A dwelling unit at a nonprofit youth or church camp, nonprofit conference center, or other nonprofit facility; or
(5) A dwelling unit that is leased or otherwise occupied by the same person for a consecutive period of 30 days or more during the year. The requirements of this subsection are satisfied even if the physical dwelling unit changes during the consecutive period, if: (a) all dwelling units occupied are within the same facility; and (b) the person paying consideration for the transient lodging is the same person throughout the consecutive period. [Ord. 19-866 § 7, 2019; Ord. 763 § 6, 2004]
3.10.070 Registration of operator – Form and contents – Execution – Certification of authority.
Every person engaging or about to engage in business as an operator of a hotel in this city shall register with the tax administrator on a form provided by him. Operators engaged in business at the time the ordinance codified in this chapter is adopted must register not later than 30 calendar days after January 14, 2004. Operators starting business after the ordinance codified in this chapter is adopted must register within 15 calendar days after commencing business. The privilege of registration after the date of imposition of such tax shall not relieve any person from the obligation of payment of collection of tax regardless of registration. Registration shall set forth the name under which an operator transacts or intends to transact business, the location of his place or places of business and such other information to facilitate the collection of the tax as the tax administrator may require. The registration shall be signed by the operator. The tax administrator shall, within 10 days after registration, issue without charge a certificate of authority to each registrant to collect the tax from the occupant, together with a duplicate thereof for each additional place of business for each registrant.
Certificates shall be nonassignable and nontransferable, and shall be surrendered immediately to the tax administrator upon the cessation of business at the location named or upon its sale or transfer. Each certificate and duplicate shall state the place of business to which it is applicable and shall be prominently displayed therein so as to be seen and come to the notice readily of all occupants and persons seeking occupancy. 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 Transient Room Tax Ordinance of the City of Burns by registration with the Tax Administrator for the purpose of collecting from transients the room tax imposed by said city 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, or 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 the City of Burns. This certificate does not constitute a permit.
[Ord. 763 § 7, 2004]
3.10.080 Due date – Returns and payments.
(1) The tax imposed by this chapter shall be paid by the transient to the operator at the time that rent is paid. All amounts of such taxes collected by any operator are due and payable to the tax administrator on a monthly basis on the fifteenth day of the month for the preceding month; and are delinquent on the last day of the month in which they are due.
(2) On or before the fifteenth day of the month following each month of collection, a return for the preceding month’s tax collections shall be filed with the tax administrator. The return shall be filed in such form as the tax administrator may prescribe by every operator liable for payment of tax.
(3) Returns shall show the amount of tax collected or otherwise due for the related periods. The tax administrator may require returns to show the total rentals upon which tax was collected or otherwise due, gross receipts of the operator for such period and an explanation in detail of any discrepancy between such amounts, and the amount of rents exempt, if any.
(4) The person required to file the return shall deliver the return, together with the remittance of the amount of the tax due, to the tax administrator at his office either by personal delivery or by mail. If the return is mailed, the postmark shall be considered the date of delivery for determining delinquencies.
(5) For good cause, the tax administrator may extend, but not to exceed one month, the time for making any return or payment of tax. No further extension shall be granted, except by the city council. Any operator to whom an extension is granted shall pay interest at the rate of one percent per month on the amount of tax due without proration for a fraction of a month. If a return is not filed, and the tax and interest due are not paid by the end of the extension granted, then the interest shall become a part of the tax for computation of penalties described elsewhere in this chapter.
(6) The tax administrator, if he deems it necessary in order to ensure payment or facilitate collection by the city of the amount of taxes in any individual case, may require returns and payment of the amount of taxes for other than monthly periods. [Ord. 763 § 8, 2004]
3.10.090 Penalties and interest.
(1) Original Delinquency. Any operator who has not been granted an extension of time for remittance of tax due and who fails to remit any tax imposed by this chapter prior to delinquency shall pay a penalty of 10 percent of the amount of the tax due in addition to the amount of the tax.
(2) Continued Delinquency. Any operator who has not been granted an extension of time for remittance of tax due, and who failed to pay 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 15 percent of the amount of the tax due plus the amount of the tax and the 10 percent penalty first imposed.
(3) Fraud. If the tax administrator determines that the nonpayment of any remittance due under this chapter is due to fraud or intent to evade the provisions thereof, a penalty of 25 percent of the amount of the tax shall be added thereto in addition to the penalties stated in subsections (1) and (2) of this section.
(4) 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 without proration for portions of a month, on the amount of the tax due, exclusive of penalties, from the date on which the remittance first became delinquent until paid.
(5) Penalties Merged with Tax. Every penalty imposed and such interest as accrues under the provisions of this section shall be merged with and become a part of the tax herein required to be paid.
(6) Petition for Waiver. Any operator who fails to remit the tax herein levied within the time herein stated shall pay the penalties herein stated; provided, however, the operator may petition the city council for waiver and refund of the penalty or any portion thereof and the city council may, if a good and sufficient reason is shown, waive and direct a refund of the penalty or any portion thereof. [Ord. 763 § 9, 2004]
3.10.100 Deficiency determinations – Fraud, evasion, operator delay.
(1) Deficiency Determination. If the tax administrator determines based upon a reasonable degree of probability that the returns are incorrect, he may compute and determine the amount required to be paid upon the basis of the facts contained in the return or returns or upon the basis of any reasonably reliable information within his possession or that may come into his possession. One or more deficiency determinations may be made of the amount due for one, or more than one period, and the amount so determined shall be due and payable immediately upon service of notice as herein provided after which the amount determined is delinquent. Penalties on deficiencies shall be applied as set forth in BMC 3.10.090.
(a) In making a determination the tax administrator may offset overpayments, if any, which may have been previously made for a period or periods, against any underpayment for a subsequent period or periods, or against penalties, and interest, on the underpayments. The interest on underpayments shall be computed in the manner set forth in BMC 3.10.090.
(b) The tax administrator shall give to the operator or occupant a written notice of his determination. The notice may be served personally or by mail; if by mail, the notice shall be addressed to the operator at his address as it appears in the records of the tax administrator. In case of service by mail or any notice required by this chapter the service is complete at the time of deposit in the United States Post Office, postage prepaid and properly addressed.
(c) Except in the case of fraud, intent to evade this chapter or authorized rules and regulations, every deficiency determination shall be made and notice thereof mailed within three years after the last day of the month following the close of the monthly period for which the amount is proposed to be determined or within three years after the return is filed, whichever period expires the later.
(d) Any determination shall become due and payable immediately upon receipt of notice and shall become final within 10 days after the tax administrator has given notice thereof; provided, however, the operator may petition redemption and refund if the petition is filed before the determination becomes final as herein provided.
(2) Fraud, Refusal to Collect, Evasion. If any operator shall fail or refuse to collect said tax or 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 makes a fraudulent return or otherwise wilfully attempts to evade this chapter, the tax administrator shall proceed in such manner as he may deem best to obtain facts and information on which to base an estimate of the tax due. As soon as the tax administrator has determined the tax due that is imposed by this chapter from any operator who has failed or refused to collect the same and to report and remit said tax, 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 in the manner aforesaid of the amount so assessed. Such determination and notice shall be made and mailed within three years after discovery by the tax administrator of any fraud, intent to evade or failure or refusal to collect said tax, or failure to file return. Any determination shall become due and payable immediately upon receipt of notice and shall become final within 10 days after the tax administrator has given notice thereof; provided, however, the operator may petition for redemption and refund if the petition is filed before the determination becomes final as herein provided.
(3) Operator Delay. If the tax administrator believes that the collection of any tax or any amount of tax required to be collected and paid to the city will be jeopardized by delay, or if any determination will be jeopardized by delay, he shall thereupon make a determination of the tax or amount of tax required to be collected, noting the fact upon the determination. The amount so determined as herein provided shall be immediately due and payable, and the operator shall immediately pay same determination to the tax administrator after service of notice thereof; provided, however, the operator may petition, after payment has been made, for redemption and refund of such determination, if the petition is filed within 10 days from the date of service of notice by the tax administrator. [Ord. 763 § 10, 2004]
3.10.110 Redeterminations.
(1) Any person against whom a determination is made under BMC 3.10.100 or any person directly interested may petition for a redetermination and redemption and refund within the time required in BMC 3.10.100. If a petition for redetermination and refund is not filed within the time required in BMC 3.10.100, the determination becomes final at the expiration of the allowable time.
(2) If a petition for redetermination and refund is filed within the allowable period, the tax administrator shall reconsider the determination, and if the person has so requested in his petition, shall grant the person an oral hearing and shall give him 10 days’ notice of the time and place of the hearing. The tax administrator may continue the hearing from time to time as may be necessary.
(3) The tax administrator may decrease or increase the amount of the determination as a result of the hearing and if an increase is determined such increase shall be payable immediately after the hearing.
(4) The order or decision of the tax administrator upon a petition for redetermination of redemption and refund becomes final 10 days after service upon the petitioner of notice thereof unless appeal of such order of a decision is filed with the city council within the 10 days after service of such notice.
(5) No petition for redetermination of redemption and refund or appeal therefrom shall be effective for any purpose unless the operator has first complied with the payment provisions hereof. [Ord. 763 § 11, 2004]
3.10.120 Security for collection of tax.
(1) The tax administrator, whenever he deems it necessary to ensure compliance with this chapter, may require any operator subject thereto to deposit with him such security in the form of cash, bond, or other security as the tax administrator may determine. The amount of the security shall be fixed by the tax administrator but shall not be greater than twice the operator’s estimated average monthly liability for the period for which he files returns, determined in such manner as the tax administrator deems proper, or $5,000, whichever amount is the lesser. The amount of the security may be increased or decreased by the tax administrator subject to the limitations herein provided.
(2) At any time within three years after any tax or any amount of tax required to be collected becomes due and payable or at any time within three years after any determination becomes final, the tax administrator may bring an action in the courts of this state, or any other state, or of the United States in the name of the city to collect the amount delinquent together with penalties and interest. [Ord. 763 § 12, 2004]
3.10.130 Lien and foreclosure.
The tax imposed by this chapter, together with the interest and penalties herein provided and any filing fees paid to the clerk of Harney County, Oregon, and advertising costs which may be incurred when same becomes delinquent as set forth in this chapter, shall be collectible and, until paid, all such amounts remain a lien from the date of their recording with the clerk of Harney County, Oregon. Such liens shall be superior to all subsequent recorded liens, whether or not recorded on all tangible or intangible personal property used in the hotel of an operator within Burns and may be foreclosed by sale not less than 10 days after public notice by advertisement thereof is given; provided, that the claim of lien setting forth the basis and amount thereof has been recorded. Notice of lien may be issued by the tax administrator or his agent or subordinate whenever the operator is in default in the payment of said tax. The amount, basis, interest and any penalty shall be recorded, and a copy thereof sent to the delinquent operator. The personal property subject to such lien may thereafter be seized by any deputy or employee of the tax administrator and thereafter sold by the department seizing the same at public auction after 10 days’ notice. Mailing of the notice of lien to the address of the responsible party not less than 10 days before foreclosure sale, postage prepaid, certified or registered, receipt requested, together with publication of such notice not less than once in a weekly newspaper of general circulation published in the county of Harney, shall satisfy the requirement of advertisement and public notice thereof prior to sale. [Ord. 763 § 13, 2004]
3.10.140 Refunds.
(1) Refunds to Operators. Whenever the amount of any tax, penalty, or interest has been paid more than once or has been erroneously or illegally collected or received by the tax administrator under this chapter, it may be refunded, provided a verified claim in writing therefor, stating the specific basis upon which the claim is founded, is filed with the tax administrator within three years from the date of payment. The claim shall be made on forms provided by the tax administrator. If the claim is approved by the tax administrator, the excess amount collected or paid may be refunded or may be credited on any amounts then due and payable from the operator from whom it was collected or by whom paid and the balance may be refunded to each operator, his estate administrators, executors or assignees, or in case of an entity, its successor in interest.
(2) Transient Refunds. Whenever the tax required by this chapter has been collected by the operator, and deposited by the operator with the tax administrator, and it is later determined that the tax was erroneously or illegally collected or received by the tax administrator, it may be refunded to the transient, provided a verified claim is made in writing therefor, stating the specific basis on which the claim is founded, and is filed with the tax administrator within three years from the date of payment. [Ord. 763 § 14, 2004]
3.10.150 Administration.
(1) Records Required from Operators, Etc. – Form. Every operator shall keep guest records of room sales and accounting books and records of the room sales. All records shall be retained by the operator for a period of three years and six months after they come into being.
(2) Examination of Records – Investigations. The tax administrator or any person authorized in writing by him may examine, during normal business hours, the books, papers, and accounting records relating to room sales of any operator after notification to the operator liable for the tax and may investigate the business of the operator in order to verify the accuracy of any return made, or if no return is made by the operator, to ascertain and determine the amount required to be paid.
(3) Confidential Character of Information Obtained – Disclosure Unlawful. It shall be unlawful for the tax administrator or any person having an administrative or clerical duty under the provisions of this chapter to make known in any manner whatever the business affairs, operations, or information obtained by an investigation of records and equipment of any person required to obtain a transient occupancy registration certificate, or pay a transient occupancy tax, or any other person visited or examined in the discharge of official duty, or the amount of source of income, profits, losses, expenditures, or any particular thereof, set forth in any statement or application, or to permit any statement or application, or copy of either, or any book containing any abstract or particulars thereof to be seen or examined by any person; provided, that nothing in this subsection shall be construed to prevent:
(a) The disclosure to or the examination of records and equipment by another city of Burns official, employee, or agent for collection of taxes for the sole purpose of administering or enforcing any provision of this chapter; or collecting taxes imposed hereunder.
(b) The disclosure after the filing of a written request to that effect, to the taxpayer himself, receivers, trustees, executors, administrators, assignees, and guarantors, if directly interested, of information as to any paid tax, any unpaid tax or amount of tax required to be collected, or interest, and penalties; further provided, however, that the city attorney approves each such disclosure and that the tax administrator may refuse to make any disclosure referred to in this subsection when in his opinion the public interest would suffer thereby.
(c) The disclosure of the names and addresses of any persons to whom transient occupancy registration certificates have been issued.
(d) The disclosure of general statistics regarding taxes collected or business done in the city.
(4) Percentage to Go to Motel/Hotel Operator. Six percent of the total tax collected shall be retained by the motel/hotel operator for costs of administration; the remaining 94 percent of the total tax collected by each operator shall be paid to the city recorder as otherwise provided in this chapter. [Ord. 763 § 15, 2004]
3.10.160 Appeals to city council.
Any person aggrieved by any action of the tax administrator may appeal to the city council of the city of Burns by filing a notice of appeal with the tax administrator within 10 days of the administrator’s decision. The tax administrator shall transmit said notice of appeal, together with the file of said appealed matter to, the city council who shall fix a time and place for hearing such appeal. The council shall give the appellant not less than 10 days’ written notice of the time and place of hearing of said appealed matters. [Ord. 763 § 16, 2004]
3.10.170 Violations.
It is unlawful for any operator or other person so required to fail or refuse to register as required herein, or to furnish any return required to be made, or fail or refuse to furnish a supplemental return or other data required by the tax administrator or to render a false or fraudulent return. No person required to make, render, sign, or verify any report shall make any false or fraudulent report, with intent to defeat or evade the determination of any amount due required by this chapter. [Ord. 763 § 18, 2004]
3.10.180 Violation – Penalty.
Violation of this chapter is punishable by a fine not to exceed $500.00. [Ord. 763 § 19, 2004]