Chapter 3.05
HOTEL AND MOTEL TAX
Sections:
3.05.030 Collection of tax by operator.
3.05.040 Responsibility of hotel operator.
3.05.060 Registration of operator, form and certification.
3.05.070 Due date – Returns and payments.
3.05.080 Penalties and interest.
3.05.090 Deficiency determinations – Fraud, evasion, operator delay.
3.05.110 Security for collection of tax.
3.05.140 Appeals from city recorder determination.
3.05.150 Appeal to city council.
3.05.170 Grammatical interpretation.
3.05.010 Definitions.
As used in this chapter, the following definitions shall apply:
A. “Hotel” means any structure, or any portion of any structure, which is occupied or intended or designed for transient occupancy for 30 days or less for dwelling, lodging, or sleeping purposes, and includes but is not limited to any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodging house, rooming house, public or private dormitory, public or private club or fraternal organization, and space in RV parks, trailer parks or similar structure(s) or spaces or portions thereof so occupied.
B. “Council” means the city council of Fairview, Oregon.
C. “Occupancy” means the use or possession, or the right to the use or possession for lodging or sleeping purposes of any room or rooms in a hotel, or space in a mobile home park, trailer park or RV park or portion thereof.
D. “Operator” means the person who is proprietor of the hotel in any 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 be considered to be compliance by both.
E. “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 any other group or combination acting as a unit.
F. “Cash accounting” means the operator does not enter the rent due from a transient on his records until the rent is paid.
G. “Accrual accounting” means the operator enters the rent due from a transient on his records when rent is earned, whether or not it is paid.
H. “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.
I. “Rent package plan” means the consideration charged for both food and rent where a single rate is made for the total of both. The amount applicable to rent for determination of transient room tax under this chapter shall be the same charge made for rent when not a part of a package plan.
J. “Tax” means either the tax payable by the transient or the aggregate amount of taxes due from an operator during the period for which he is required to report his collections.
K. “City recorder” means the city recorder of the city of Fairview, or duly appointed deputy.
L. “Transient” means any individual who exercises occupancy 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, except persons occupying a space in an RV park. An individual occupying a space in an RV park shall be deemed a transient for purposes of the tax imposed by this chapter for whatever period of time they occupy a space in an RV park. The day a transient (including an individual occupying a space in an RV park) checks out of the hotel shall not be included in determining occupancy if the transient is not charged rent for that day by the operator. (Ord. 7-2000 § 1; Ord. 1-1990 § 1; Ord. 5-1986 § 1)
3.05.020 Tax imposed.
A. For the privilege of occupancy in any hotel (except an RV park which is covered by the terms of subsection (C) of this section) in the city of Fairview, Oregon, each transient 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 by the operator to the city. The transient shall pay the tax to the operator of the hotel at the time the rent is paid. The operator shall enter the tax on his records when rent is collected if the operator keeps his records on the cash accounting basis and when earned if the operator keeps his records on the accrual accounting basis. If rent is paid in installments, a proportionate share of the tax shall be paid by the transient to the operator with each installment. In all cases “rent” shall exclude the sale of any goods, services and commodities, other than the furnishing of rooms and accommodations.
B. In order to defray the costs associated with the duties imposed by the terms of this chapter on him or her, an operator may add to the tax imposed on each transient, a charge or fee of not more than 10 percent of the tax collected by the operator.
C. For the privilege of occupancy in any RV park in the city of Fairview, Oregon each transient shall pay a tax in the amount of six percent of the rent charged by the operator for the first 30 days of said occupancy. In the event the occupancy extends beyond 30 days, then each transient shall pay a tax in the amount of 1.8 percent of the rent charged for that period beyond the 30 days. The transient shall pay the tax to the operator at the time rent is paid. The operator shall enter the tax on his records when rent is collected if the operator keeps his records on the cash accounting basis and when earned if the operator keeps his records on the accrual accounting basis. If rent is paid in installments, a proportionate share of the tax shall be paid by the transient to the operator with each installment. In all cases, “rent” excludes the sale of any goods, services and commodities, other than the furnishing of space occupancy in mobile home parks, RV parks and trailer parks. (Ord. 7-2000 § 2; Ord. 5-1986 § 2)
3.05.030 Collection of tax by operator.
A. Every operator renting rooms or space for lodging or sleeping purposes in the city of Fairview, the occupancy of which is not exempted under the terms of this chapter, shall collect a tax from the occupant. The tax collected or accrued by the operator constitutes a debt owing by the operator to the city.
B. In all cases of credit or deferred payment of rent, the payment of tax to the operator may be deferred until the rent is paid, and the operator shall not be liable for the tax until credits are paid or deferred payments are made. Adjustments may be made for uncollectibles.
C. The city recorder shall enforce provisions of this chapter and shall have the power to adopt rules and regulations not inconsistent with this chapter as may be necessary to aid in the enforcement.
D. For rent collected on portions of a dollar, fractions of a penny of tax shall not be remitted. (Ord. 5-1986 § 3)
3.05.040 Responsibility of hotel operator.
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 upon the operator’s records, and any receipt rendered by the operator. No operator of a hotel shall advertise that the tax 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 in the manner provided by this chapter. (Ord. 5-1986 § 4)
3.05.050 Exemptions.
No tax imposed under this chapter shall be imposed upon:
A. Except for occupants of RV parks, any occupant for more than 30 days;
B. Except for occupants of RV parks, any occupant whose rent is of value less than $2.00 per day;
C. Any person who rents a private home, vacation cabin, or like facility from any owner who rents such facilities incidentally to his own use thereof. (Ord. 7-2000 § 3; Ord. 1-1990 § 1; Ord. 5-1986 § 5)
3.05.060 Registration of operator, form and certification.
Every person engaging or about to engage in business as an operator of a hotel in the city of Fairview shall register with the city recorder 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 20 calendar days after passage of the ordinance codified in this chapter. 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 or 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 city recorder may require. The registration shall be signed by the operator. The city recorder 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 of each registrant. Certificates shall be nonassignable and nontransferable and shall be surrendered immediately to the city recorder 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:
A. The name of the operator;
B. The address of the hotel;
C. The date upon which the certificate was issued;
D. The following statement:
This TRANSIENT OCCUPANCY REGISTRATION CERTIFICATE signifies that the person named on the face hereof has fulfilled the requirements of the TRANSIENT LODGINGS TAX ORDINANCE OF THE CITY OF FAIRVIEW, OREGON, by registration with the City Recorder for the purpose of collecting from transients the lodgings tax imposed by said City and remitting said tax to the City Recorder. 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. This certificate does not constitute a permit.
(Ord. 5-1986 § 6)
3.05.070 Due date – Returns and payments.
A. 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 city recorder on a quarterly basis on the fifteenth day of the following month for the preceding three months, and are delinquent on the last day of the month in which they are due. The city recorder has authority to classify the operators for determination of applicable tax periods, and shall notify each operator of the due and delinquent dates for the operator’s returns. The initial return under this chapter may be for less than the three months preceding the due date; thereafter, returns shall be made for the applicable quarterly period.
B. On or before the fifteenth day of the month following each quarter of collection, a return for the preceding quarter’s tax collections shall be filed with the city recorder. The return shall be filed in such form as the city recorder may prescribe by every operator liable for payment of tax.
C. Returns shall show the amount of tax collected or otherwise due for the related period. The city recorder may require returns to show the total rentals upon which tax was collected or otherwise due, gross receipts of operator for such period and an explanation in detail of any discrepancy between such amounts, and the amount of rents exempt, if any.
D. The person required to file the return shall deliver the return, together with the remittance of the amount of the tax due, to the city recorder 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.
E. For good cause, the city recorder may extend for 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 is 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.
F. The city recorder, if he deems it necessary in order to insure 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 quarterly periods. (Ord. 5-1986 § 7)
3.05.080 Penalties and interest.
A. 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.
B. 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.
C. Fraud. If the city recorder 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 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 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.
E. 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.
F. 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. 5-1986 § 8)
3.05.090 Deficiency determinations – Fraud, evasion, operator delay.
A. Deficiency Determinations. If the city recorder determines 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 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 FMC 3.05.080.
1. In making a determination the city recorder 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 FMC 3.05.080.
2. The city recorder 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 on the records of the city recorder. 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.
3. Except in the case of fraud or 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 quarterly period for which the amount is proposed to be determined or within three years after the return is filed, whichever period expires the later.
4. Any determination shall become due and payable immediately upon receipt of notice and shall become final within 10 days after the city recorder 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.
B. 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 make a fraudulent return or otherwise wilfully attempt to evade this chapter, the city recorder 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 city recorder 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 city recorder 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 city recorder 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 city recorder 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.
C. Operator Delay. If the city recorder 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 such determination to the city recorder 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 city recorder. (Ord. 5-1986 § 9)
3.05.100 Redeterminations.
A. Any person against whom a determination is made under FMC 3.05.090 or any person directly interested may petition for a redetermination and redemption and refund within the time required in FMC 3.05.090. If a petition for redetermination and refund is not filed within the time required in FMC 3.05.090, the determination becomes final at the expiration of the allowable time.
B. If a petition for redetermination and refund is filed within the allowable period, the city recorder 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 city recorder may continue the hearing from time to time as may be necessary.
C. The city recorder 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.
D. The order or decision of the city recorder 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 or decision is filed with the city council within the 10 days after service of such notice.
E. 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. 5-1986 § 10)
3.05.110 Security for collection of tax.
A. The city recorder, whenever he deems it necessary to insure 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 city recorder may determine. The amount of the security shall be fixed by the city recorder but shall not be greater than twice the operator’s estimated average quarterly liability for the period for which he files returns, determined in such manner as the city recorder deems proper, or $5,000, whichever amount is the lesser. The amount of the security may be increased or decreased by the city recorder subject to the limitations herein provided.
B. 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 city recorder 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 of Fairview to collect the amount delinquent together with penalties and interest. (Ord. 5-1986 § 11)
3.05.120 Refunds.
A. Refunds by City to Operator. 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 city recorder under this chapter, it may be refunded, provided a verified claim in writing therefor, stating the specific reason upon which the claim is founded, is filed with the city recorder within three years from the date of payment. The claim shall be made on forms provided by the city recorder. If the claim is approved by the city recorder, 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 such operator, his administrators, executors or assigns.
B. Refunds by City to Transient. Whenever the tax required by this chapter has been collected by the operator, and deposited by the operator with the city recorder, and it is later determined that the tax was erroneously or illegally collected or received by the city recorder, it may be refunded by the city recorder to the transient, provided a verified claim in writing therefor, stating the specific reason on which the claim is founded, is filed with the city recorder within three years from the date of payment.
C. Refunds by Operator to Tenant. Whenever the tax required by this chapter has been collected by the operator and it is later determined that the tenant (other than one occupying a space in an RV park), occupies the hotel for a period exceeding 30 days without interruption, the operator shall refund to such tenant the tax previously collected by the operator from that tenant as a transient. The operator shall account for such collection and refund to the city recorder. If the operator has remitted the tax prior to refund or credit to the tenant, he shall be entitled to a corresponding refund under this section. (Ord. 7-2000 § 4; Ord. 5-1986 § 12)
3.05.130 Administration.
A. 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.
B. Examination of Records – Investigations. The city recorder, 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.
C. Confidential Character of Information Obtained – Disclosure Unlawful. It shall be unlawful for the city recorder 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 or 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:
1. The disclosure to, or the examination of records and equipment to another city official, employee or agent for collection of taxes for the sole purpose of administering or enforcing any provisions of this chapter, or collecting taxes imposed hereunder.
2. 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 city recorder may refuse to make any disclosure referred to in this paragraph when in his opinion the public interest would suffer thereby.
3. The disclosure of the names and addresses of any persons to whom transient occupancy registration certificates have been issued.
4. The disclosure of general statistics regarding taxes collected or business done in the city. (Ord. 5-1986 § 13)
3.05.140 Appeals from city recorder determination.
A. The city council of the city of Fairview is hereby designated as a committee to hear and determine appeals of orders or decisions of the city recorder made upon petitions for redetermination of tax or other pertinent matters for which the city recorder is herein designated or directed to perform. The city council, in such capacity, shall act as a committee to hear and determine such appeals and may affirm, modify or reverse such orders or decisions or dismiss the appeals therefrom, as may be just, and shall prescribe such forms, rules and regulations relating to appeals as it may deem necessary. In the review of the city recorder’s decision or order, the council committee may take such evidence and make such investigation as it may deem necessary. It shall give notice of its determinations in the manner prescribed for service of notice of the city recorder’s decision and shall file a copy of each such determination with the city recorder with certification thereon of the date of service thereof. Such determination shall become final 10 days thereafter and shall thereupon become due and payable, subject to interest and penalties, and enforceable by the city recorder in like manner as an order or decision of the city recorder.
B. The city council, sitting as a committee as hereinabove provided, shall have the authority:
1. To approve, modify, or disapprove all forms, rules and regulations prescribed by the city recorder in the administration and enforcement of this chapter.
2. To hear and determine in such manner as shall be just, any protest which may be made by any person who may be interested, to any form, rule or regulation.
3. To grant for good cause, applications for extensions of time in excess of one month, for making any return or payment of tax, and to prescribe rules therefor.
4. To make such investigations as it deems advisable regarding the imposition and administration of the transient lodgings tax and to propose the adoption, amendment or repeal of legislation pertaining thereto. With respect to this function, the city council may appoint a separate committee not composed of council members to advise and report such findings and recommendations to the council. (Ord. 5-1986 § 14)
3.05.150 Appeal to city council.
Any person aggrieved by any decision of the city recorder may appeal to the city council by filing a notice of appeal with the city recorder within 10 days of the serving or mailing of the notice of a decision given by the city recorder. The city recorder shall fix a time and place for hearing such appeal as prescribed by the city council in its rules and regulations and shall give the appellant 10 days’ written notice of the time and place of hearing. (Ord. 5-1986 § 15)
3.05.160 Violations.
Any operator or other person who shall fail or refuse to register as required herein, or who shall fail or refuse to furnish any return, supplemental return or other data required herein or by the city recorder, or, with intent to defeat or evade the determination of any amount due hereunder, shall make, render, sign or verify any false or fraudulent report, commits an offense which constitutes a violation of this chapter punishable by fine in an amount to be fixed by the cognizant court, not exceeding $250.00. (Ord. 5-1986 § 16)
3.05.170 Grammatical interpretation.
In construing this chapter, if the context so requires, the singular pronoun shall be taken to mean and include the plural, the masculine to mean and include the feminine and the neuter and that generally all grammatical changes shall be made, assumed and implied to make the provisions hereof apply equally to all individuals, corporations or associations. (Ord. 5-1986 § 17)