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HomeMy WebLinkAbout2632 Amend Transient TaxORD:I:N~CE NO. AN ORDINANCE AMENDING CHAPTER 4.24 OF THE ASHLAND MUNICIPAL CODE RELATIVE TO TRANSIENT OCCUPANCY TAX. NOW THEREFORE THE CITY OF ASHLAND DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Chapter 4.24 of the Ashland Municipal Code is hereby amended in its entirety and shall read as follows: Chapter 4.24 TRANSIENT OCCUPANCY TAX Sections: 4.24.010 4.24.020 4.24.030 4.24.040 4.24.050 4.24.060 4.24.070 4.24.080 4.24.090 4.24.100 4.24.110 4.24.120 4.24.130 4.24.140 4.24.150 Definitions Tax Imposed Exemptions Operation's Duties Registration Reporting and Remitting Penalties and Interest Failure to Collect and Report Tax -- Determination of tax by Tax Administrator Appeal Records Refunds Actions to Collect Violations--Misdemeanor Confidentiality Examining Books, Records 4.24.010 Definitions. Except where the context otherwise requires, the definitions contained in this section shall govern the construction of this chapter: A. Person shall mean 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. B. Hotel shall mean 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, lodging house, rooming house, apartment house, dormitory, public or private club, mobile home or house trailer at a fixed location, or other similar structure or portion thereof. C. Occupancy shall mean the use or possession, or the right to the use or possession of any room or rooms or portion thereof, in any hotel or recreational vehicle/camping park for dwelling, lodging or sleeping purposes. 6/7/9~ 0RD2632. i D. Transient shall mean any person who exercises occupancy or is entitled to occupancy in a hotel or recreational vehicle/camping park by reason of concession, permit, right of access, license or other agreement for a period of thirty (30) consecutive calendar days or less, counting portions of calendar days as full days. Any such person so occupying space in a hotel or recreational vehicle/camping park shall be deemed to be a transient until the period of thirty (30) 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 expending both prior and subsequent to the effective date of this chapter may be considered. E. Rent shall mean the consideration charged, whether or not received by the operator, for the occupancy of space in a hotel or recreational vehicle/camping park 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. Rent is the total consideration paid by a transient for occupancy of a room or space. In addition to amount charged for room, rent includes charges by operator for meals, parking, telephone, and other items unless such items are separately incurred and specifically itemized on a duplicate customer pre- numbered receipt. Rent is the total consideration paid by a transient. F. Operator shall mean the person who is proprietor of the hotel or recreational vehicle/camping park, whether in the capacity of owner, lessee, sublessee, mortgagee in possession, licensee or any other capacity. Where the operator performs any functions of charging or receiving rent through an agent of any type or character other than an employee, the agent shall also be deemed an operator for the purposes of this chapter and shall share the duties and liabilities as the principal. Where the operator is a corporation, the term operator shall also include each and every member of the Board of Directors of such corporation for the time involved. Compliance with the provisions of this chapter by either the principal or the agent shall, however, be considered to be compliance by both. G. Tax Administrator shall mean the Director of Finance of the City of Ashland, or designee. H. Recreational Vehicle/CampinG Park shall mean a development designed principally for the transient housing of travel trailers, mobile homes, tent trailers, motor homes, and for tent camping. (Ord. 1907, 1977; 0rd. 1975, 1978) I. Accrual accounting. A system of accounting in which the operator enters the rent due from a transient into the record when the rent is earned, whether or not it is paid. J. Cash accounting. A system of accounting in which the operator records the rent due from a transient when it is paid, regardless of when the person occupies the room. 6/7/9~ ORD2632. 2 K. Full breakfast. A complete meal served to occupant of the room consisting of a minimum of three prepared items plus beverage. The full breakfast must be served on dinnerware and presented in a common area furnished with table(s) and seating, not in a restaurant open to the public. 4.24.020 Tax Imposed. For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of six (6%) percent of the rent charged by the operator. Said tax constitutes a debt owed by the transient to the City which is extinguished only by payment to the operator of the hotel at the time the rent is paid. The operator shall collect and record the tax into the record when rent is collected, if the operator keeps records on the cash basis of accounting, and when earned, if the operator keeps records on the accrual accounting basis. 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 Administrator may require that such tax shall be paid directly to the Tax Administrator. (Ord. 1907, 1977; Ord. 2024,1, 1979) 4.24.030 Exemptions. No tax shall be imposed upon: A. Any person as to whom, or any occupancy as to which, it is beyond the power of the City to impose the tax herein as provided; B. Any occupant whose rent is of a value of $6.00 or less per day. This amount shall be adjusted on July 1 of each year based on the change in the Portland consumer Price Index. (Ord. 2216, 1982) C. Any officer or employee of a foreign government who is exempt by reason of express provision of federal law of international treaty. D. The amount attributable to one full breakfast per day for a transient at a Bed and Breakfast establishment. However, in no case shall the exemption exceed the greater of 10% of the total amount charged per transient or $10.00 per day. This amount shall be adjusted on July 1 of each year based on the change in the Portland consumer Price Index. F. Any room donated to a non profit organization claiming exemption under IRS code 501. No exemption shall be granted except upon a written claim therefor made at the time rent is collected and under penalty of perjury upon a form prescribed by the Tax Administrator. (Ord. 1907, 1977) 4.24.040 Operator's Duties. Each operator shall collect the tax imposed by this chapter, to the same extent and at the same time as the rent is collected from every transient. The amount of tax shall be separately stated from the amount of the rent charged, and each transient shall upon demand receive a receipt 6/7/91 ORD2632. 3 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 hereafter provided. Every operator required to collect the tax imposed herein shall be entitled to retain five percent (5%) of all taxes collected to defray the costs of collections and remittance. (Ord. 1907, 1977) 4.24.050 Reqistration. Within thirty (30) days after the date of adoption of this chapter or within thirty (30) days after commencing business, whichever is later, each operator of any hotel or recreational vehicle/camping park renting occupancy to transients shall register said hotel or recreational vehicle/camping park 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. Said certificate shall, among other things, state the following: (1) The name of the operator; (2) The address of the hotel or recreational vehicle/camping park; (3) The date upon which the certificate was issued; and (4) The following statement: "This Transient Occupancy Registration Certificate signifies that the person named on the face hereof has fulfilled the requirements of this part 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 or recreational vehicle/camping park without strictly complying with all local applicable laws, including commission, department or office of this City. This certificate does not constitute a permit." (Ord. 1907, 1977; Ord. 1975 s3, 1978) 4.24.060 Reporting and Remitting. Each operator shall, on or before the 25th day of the month following the end of each calendar quarter (in the months of April, July, October and January), make a return to the Tax Administrator, on forms provided by the City, 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 or earned during the quarter, shall be remitted to the Tax Administrator. The Tax Administrator may establish shorter reporting periods for any certificate holder if deemed necessary in order to insure collection of the tax and the Administrator may require further information in the return relevant to payment of the liability. Returns and payments are due immediately upon cessation of business for any reason. All taxes collected by 6/7/91 0RD2632. 4 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. 1907, 1977) 4.24.070 Penalties and Interest. A. Original Delinquency. Any operator who fails to remit any portion of any tax imposed by this chapter, within the time required, shall pay a penalty of ten percent (10%) of the amount of the tax, in addition to the amount of the tax. B. Continued Delinquency. Any operator who fails to remit any delinquent remittance on or before a period of thirty (30) days following the date on which the remittance first became delinquent, shall pay a second delinquency penalty of ten percent (10%) of the amount of the tax in addition to the amount of the tax and the ten percent (10%) 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 25 percent of the amount of the tax shall be added thereto in addition to the penalties stated in subparagraphs (A) and (B) of this section. D. Interest. In addition to the penalties imposed, any operator who fails to remit any tax imposed by this chapter shall pay interest at the rate of one percent (1%) 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 accrued under the provisions of this section shall become a part of the tax herein required to be paid. 4.24.080 Failure to Collect and Report Tax -- Determination of Tax by Tax Administrator. If any operator should fail to keep adequate records 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, the Tax Administrator shall proceed in such manner as deemed best to obtain facts and information on which to base the estimate of the tax due. As soon as the Tax Administrator shall procure such facts and information as is able to be obtained 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, the administrator 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 having it served personally or by depositing it in the United States mail, postage prepaid, addressed to the operator so assessed at the last known place of address. Such operator may, within ten (10) days after the delivery or mailing of such notice, make an appeal of such determination as provided in Section 4.24.090 of this chapter. 6/7/9~ 0RD2632. 5 If no appeal is taken, the Administrator's determination is final and the amount thereby is immediately due and payable. 4.24.090 Appeal. 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 City Council by filing a notice of appeal with the City Administrator within fifteen (15) 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 Administrator shall give five (5) days written notice of the time and place of hearing to such operator at the last known place of address. The Council shall hear and consider any records and evidence presented bearing upon the Administrator's determination of amount due, make findings affirming, reversing or modifying the determination. The findings of the Council shall be final and conclusive and shall be served upon the appellant in the manner prescribed above for service of notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of notice. 4.24.100 Records. 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 (3) years, all such records as may be necessary to determine the amount of such tax. The Tax Administrator shall have the right to inspect all records at all reasonable times. Every operator shall, at a minimum, maintain guest records of room rents, accounting books and records of income. The operators shall, at a minimum, include in these records a daily room rental register, a cash receipts and deposit journal. These records and books shall reconcile to the transient room tax reports and be auditable. They shall also reconcile to the operator's income tax reports. If the Tax Administrator finds the books and records of the operator deficient, in that they do not provide adequate support for transient room tax reports filed, or the operator's accounting system is non-auditable, it shall be the responsibility of the operator to improve their accounting system to the satisfaction of the Tax Administrator. 4.24.110 Refunds. A. Whenever the amount of any tax, interest or Denalty 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 subparagraphs (B) and (C) of this section, provided a claim in writing therefor, stating under penalty or perjury the specific grounds upon which the claim is founded, is filed with the Tax Administrator within three (3) 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 6/7/9~ 0RD2632. 6 when it is established in a manner prescribed by the Tax Administrator that the person from whom the tax has been collected was not a transient; provided, however, that neither a refund nor a credit shall be allowed unless the amount of the tax so collected has either been refunded to the 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 subparagraph (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, established 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 that right hereto by written records showing entitlement thereto. 4.24.120 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 ordinance shall be liable to an action brought in the name of the City of Ashland for the recovery of such amount. 4.24.130 Violations - Infractions. Any operator or other person who fails or refuses to register as required herein, or to furnish any return required to be made, or 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, or who fails, refuses or neglects to remit the tax to the City by the due date, is guilty of an infraction and shall be punished as set forth in Section 1.08.020. (Ord. 1907, 1977; Ord. 2382 ,1, 1986).1 4.24.140 Confidentiality. Except as otherwise required by law, it shall be unlawful for the City, any officer, employee or agent to divulge, release or make known in any manner any financial information submitted or disclosed to the city under the terms of this Ordinance. Nothing in this section shall prohibit: (1) The disclosure of the names and addresses of any persons who are operating; or (2) The disclosure of general statistics in a form which would prevent the identification of financial information regarding an individual operator; or (3) Presentation of evidence to the court, or other tribunal having jurisdiction in the prosecution of a claim by the 6/7/9~. ORD2632. 7 Administrator or an appeal from the Administrator for amount due the City under this chapter. 4.24.150 Examininq Books, Records or Persons. The City, for the purpose of determining the correctness of any transient occupancy tax return, or for the purpose of an estimate of taxes due, may examine or may cause to be examined by an agent or representative designed by it for that purpose, any books, papers, records, or memoranda, including copies of operator's state and federal income tax returns, bearing upon the matter of the transient occupancy tax return. The foregoing ordinance was first read by title only in accordance with Article X. Section 2 (c) of the City Charter on the 21st day of May 1991, and duly PASSED and ADOPTED this 4th day of June, 1991. Nan E. ~ranklin City Recorder SIGNED and APPROVED this ~ day of June, 1991. Catherine M. Golden Mayor 6/7/91 ORD2632. 8