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HomeMy WebLinkAbout3089 Amending 4.24 TOT ORDINANCE NO.3,Q AN ORDINANCE AMENDING AMC CHAPTER 4.24 TRANSIENT OCCUPANCY TAX Annotated to show deletions and additions to the code sections being modified. Deletions are bold lined through and additions are bold underlined. WHEREAS, Article 2. Section 1 of the Ashland City Charter provides: Powers of the City. The City shall have all powers which the constitutions, statutes, and common law of the United States and of this State expressly or impliedly grant or allow municipalities, as fully as though this Charter specifically enumerated each of those powers, as well as all powers not inconsistent with the foregoing; and, in addition thereto, shall possess all powers hereinafter specifically granted. All the authority thereof shall have perpetual succession. WHEREAS, the applicability of the State and City Transient Occupancy Tax to short term home rentals has been unclear heretofore. THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS: SECTION 1. Chapter 4.24 Transient Occupancy Tax is hereby amended to read as follows: SECTION 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-means any individual, firm, partnership, joint venture, association, social club, fraternal organization, joint stock company, corporation, estate trust, business trust, receiver, trustee, syndicate, or any other group or combination acting as a unit. B. Hotel shall menn any ) or- any portion of any ) whieh is ) or- intended or- designed for oeeupfiney by transient for dwelling, lodging or- sleepin purposes, and ineludes a hotel, inn, t.,. rist home or house, motel,studio hotel, bnehelor- hotel, lodging house, roorning house, apai4aient house, dormitory, publie ate elub, mobile 1 ome as ~,.use trailer at a r°ad loent:...., or- other- '1 m Transient Lodging means property which is used or designed for occupancy by transients for dwelling, lodging or,isleeping purposes and which is rented or intended for rent on a daily or weekly basis to transients for a charge or fee paid or to be paid for rental or use of facilities. C. Occupancy shall means the use or possession, or the right to the use or possession of any room or rooms or portion thereof, in any hater ransient lodgings or reereational vehiele/eamping par-k for dwelling, lodging or- sleep.*-- Ordinance No. Page 1 of 9 D. Transient shail-means any person who exercises occupancy or is entitled to occupancy in a hotel transient lodging or reer-eatio nal ehiele/eamping ark by reason of concession, permit, right of access, license or other agreement for a period of less than thirty (30) consecutive calendar days ee less, counting portions of calendar days as full days. Any such person so occupying space in a transient lodgin" hole' reerea`i vehiele/eamping pa-k shall be deemed to be a transient until the period of thirty (30) consecutive days transpires has extired unless there is an agreement in writing between the operator and the occupant providing for a longer period of occupancy. In deter-mining whether- a per-son is a transient, uninterrupted periods of tifa-e expending both prior- and subsequent to the effeetive date of this ehapter may eonsidered. E. Rent sh*Wmeans the total consideration valued in money eharged paid by a transient for booking, reservations, and occupancy of space in a transient lodging, whether such consideration is received in money, goods, labor or otherwise, including all receipts, cash, credits and property and services of any kind or nature, without a deduction therefrom whatsoever and whether or not such consideration is received by the operator„ money, whether- to be r-eeeived in money, goods, labor- or- , uuvu, u uuu u....vu .uu. ea. v.u whatsoever-. Rent is the total eonsider-ation paid by a transient for oeetipaney of a room or spaee. In addition to the amount charged for booking, reservations and room lodging, rent includes charges by operator for meals, parking, telephone, and other items unless such items-charges by operator are separately incurred and specifically itemized on a duplicate customer pre-numbered receipt. transient. Rent is the totni eonsider-ation paid by a F. Operator shall-means the person who is proprietor of the transient lodging, hotel er whether in the capacity of owner, lessee, sublessee, mortgagee in possession, licensee or any other capacity. Where-If the operator performs any functions or eharging-charges or reeeivin--receives 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 have the same d*ties-obligations and liabilities as the principal. Where the operator is a corporation, the term operator shall also includes each and every member of the Board of Directors of such corporation for the time involved. Where the operator is a partnership or limited liability company, the term operator also includes each and every member thereof 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-means the Director of Finance of the City of Ashland, or designee. H. Recreational Vehicle/Camping Park sh*Wmeans a development designed principally for, the transient housing of travel trailers, mobile homes, tent trailers, motor homes, and for tent camping. (Ord. 1907, 1977; Ord. 1975, 1978) 1. 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. Ordinance No. _ Page 2 of 9 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. (Ord. 2632, 1991) SECTION 4.24.020 Tax Imposed. For the privilege of occupancy in any hotel transient lodeine, each transient is subject to and shalt-must pay a tax in the amount of nine (9%) percent of the rent eharged by the operato total rent paid by a transient, as defined in Section 4.24.010E. Said tax constitutes a debt owed by the transient to the City which is extinguished only by payment to the operator of the hotel- transient lodeine at the time the rent is paid. The operator shall must 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 basesbasis. If the rent is paid in installments, a proportionate share of the tax shall must be paid with each installment. The unpaid tax shall is be-due upon the transient's ceasing to occupy space in the transient lodeine hotel. If for any reason the tax due is not paid to the operator of the hotel transient lodeine, the Tax Administrator may require that such tax shall be paid directly to the Tax Administrator. (Ord 1907, 1977; Ord 2024 S1, 1979; Ord 2632, 1991; Ord 2674; 1992; 2960, amended, 10/01/2008) SECTION 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 provided; B. Any occupant whose rent is of a value of $15.00 or less per day. This amount shall will be adjusted on July 1 of each year based on the change in the Portland Consumer Price Index. (Ord. 2216, 1982; Ord. 2745, 1994) 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. E. Any room donated to a non-profit organization claiming exemption under IRS code 501. F. Any room rented by the Ashland Interfaith Care Community, or such other organization specifically recognized by the City Council for providing services to the homeless, for occupancy by a homeless person or persons. (Ord. 2692, 1992) G. Any hostel, as defined in AMC 18.08.315. H. Any home occasionally exchanged with a home outside the City without payment of rent. No exemption shall be granted except upon 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; Ord. 2632, 1991) Ordinance No. Page 3 of 9 SECTION 4.24.040 Operator's Duties. Each operator shall must 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 must be .separately stated from the amount of the rent charged, and each transient shall-must, upon demand, receive a receipt for payment from the operator. NW-The operator of a transient lodging hotel shall must not 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; Ord. 2632, 1991) SECTION 4.24.050 Registration. 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 transient lodging or must shall register said hotel-transient lodging with the Tax Administrator and obtain from him/her 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: A. The name of the operator; B. The address of the hotel transient lodging park; C. The date upon which the certificate was issued; and D. The following statement: "This Transient Occupancy Registration Certificate signifies that the person named on the face hereof has fulfilled the requirements of 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 hetel transient lodging without strictly complying with all local applicable laws, including but not limited to those requiring a permit from any board, commission, department or office of this City. This certificate does not constitute a permit." (Ord. 1907, 1977; Ord. 1975 S3, 1978; Ord. 2632, 1991) SECTION 4.24.060 Reporting and Remitting. Each operator must 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 must sh*Wbe remitted to the Tax Administrator. The Tax Administrator may establish shorter reporting periods for any certificate holder if he/she deems it 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 operators pursuant to this chapter Ordinance No. Page 4 of 9 shalEwill be held in trust for the account of the City until payment thereof is made to the Tax Administrator. (Ord. 1907, 1977; Ord. 2632, 1991) SECTION 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, must 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, must shall pay a second delinquency penalty of ten (10%) percent of the amount of the tax in addition to the amount of the tax and the ten (10%) percent penalty first imposed. C. Fraud. If the Tax Administrator determines that the nonpayment of any remittance due under this chapter is due to fraud, a penalty of twenty-five (25%) percent of the amount of the tax sh*Wwill 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 must sh*Wpay 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 accrues under the provisions of this section shall become a part of the tax herein required to be paid. F. Waiver of Penalties. Penalties and interest for certain late tax payments may be waived pursuant to AMC 2.28.045D. (Ord 2983, amended, 05/05/2009) SECTION 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-procures 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 serving or mailing of such notice make an appeal of such determination as provided in Section 4.24.090 of this chapter. If no appeal is filed, the Tax Administrator's determination is final and the amount thereby is immediately due and payable. (Ord. 2632, 1991) I Ordinance No. Page 5 of 9 SECTION 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 the decision to the City Counefl-RMELtLant to AMC 2.30. by filing a notiee of appeal with the City Ad i 1 '4' ithin fifteen (15) days of the serving or- mailing of the deter-m Of t-Ax due. The Couneil shall fix a time an' plaee for- hearing sueh appeal, and the City Administrator- shall give five (5) days wri notiee of the tome and plaee of hearing to such operator at the last known plaee of address. The Council shall hear- and eonsider any records and evidenee presented hearing upon th Tax Administrator's determination of amount due, and make findings affirming, rever-siog or- modifying the deter-mination. The Findings of the C-&~Hearings Officer 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. (Ord. 2632, 1991) SECTION 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 must shah, at a minimum, maintain guest records of room rents, accounting books and records of income. The operators must shah, at a minimum, include n these records a daily room rental register, a cash receipts and deposit journal. These records and books must shall-reconcile to the transient room tax reports and be auditable. They must 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 be the -esp___: -:K of the operator to improve their must modify the transient lodging's accounting system to the... tisfaetion meet the requirements of the Tax Administrator. SECTION 4.24.110 Refunds. A. Whenever the amount of any tax, interest or penalty has been overpaid or paid more than once, or has been erroneously or illegally collected or received by the City under this chapter, it may be refunded as provided in subparagraphs (B) and (C) of this section, provided a claim in writing therefore, stating under penalty of 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 must shall be on forms furnished by the Tax Administrator. B. An operator may claim a refund, or take as credit against taxes collected and remitted, the amount overpaid, paid more than once or erroneously or illegally collected or received when it is established in a manner prescribed by the Tax Administrator that the person from whom the tax 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 Cam, by filing a claim in the manner Ordinance No. Page 6 of 9 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. SECTION 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 eity Cam. 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. In lieu of filing an action for the recovery, the City of Ashland, when taxes due are more than 30 days delinquent, can submit any outstanding tax to a collection agency. So long as the City of Ashland has complied with the provisions set forth in ORS 697.105, in the event the City turns over a delinquent tax account to a collection agency, it may add to the amount owing an amount equal to the collection agency fees, not to exceed the greater of fifty dollars or fifty percent of the outstanding tax, penalties and interest owning. (Ord 2931, Amended, 09/19/2006) SECTION 4.24.130 Violations. All vViolations of this chapter are punishable as set forth in AMC 1.08.020. It is a violation of this chapter for any operator or other person to: A. Fail or refuse to comply as required herein; B. Fail or refuse to register as required herein; C. Fail or refuse to furnish any return required to be made; D. Fail or refuse to permit inspection of records; E. Fail or refuse to furnish a supplemental return or other data required by the Tax Administrator; F. Render a false or fraudulent return or claim; G. Fail, refuse or neglect to remit the tax to the eity City by the due date. Violation of subsections A-E and G above shall be considered a Class I violation. Filing a false or fraudulent return shall be considered a Class C misdemeanor, subject to AMC 1.08. The remedies provided by this section are not exclusive and shall not prevent the City from exercising any other remedy available under the law, nor shall the provisions of this ordinance prohibit or restrict the City or other appropriate prosecutor from pursuing criminal charges under state law or city City ordinance. (Ord-3023, amended, 08/03/2010) Ordinance No. _ Page 7 of 9 SECTION 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: A. The disclosure of the names and addresses of any person who are operating a hotel er r-eer-entional,.,ehiele/eiimping park-;- transient lodeina: or B. The disclosure of general statistics in a form which would prevent the identification of financial information regarding an individual operator; or C. Presentation of evidence to the court, or other tribunal having jurisdiction in the prosecution of any criminal or civil claim for amount due the City under this chapter; or D: The disclosure of information when such disclosure of conditionally exempt information is ordered under public records law procedures; or E. The disclosure of records related to a business's failure to report and remit the tax when the report or tax is in arrears for over six months or the tax arrearage exceeds $5,000.00. The City Council expressly finds and determines that the public interest in disclosure of such records clearly outweighs the interest in confidentiality under ORS 192.501(5). (Ord 3023, amended, 08/03/2010) SECTION 4.24.150 Examining 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. (Ord. 2632, 1991) SECTION 2. Severability. The sections, subsections, paragraphs and clauses of this ordinance are severable. The invalidity of one section, subsection, paragraph, or clause shall not affect the validity of the remaining sections, subsections, paragraphs and clauses. SECTION 3. Codification. Provisions of this Ordinance shall be incorporated in the City Code, and the word "ordinance" may be changed to "code", "article", "section", or another word, and the sections of this Ordinance may be renumbered or re-lettered, provided however, that any Whereas clauses and boilerplate provisions (i.e., Sections Nos. 2-3) need not be codified, and the City Recorder is authorized to correct any cross-references and any typographical errors. The foregoing ordinance was first read by title only in accordance with Article X, Section 2(C) of the City Charter on the Zday of 6e/'" 2013, /du ASSED and ADOPTED this day of 2013. Barbara M. Christensen, City Recorder Ordinance No. Page 8 of 9 SIGNED and APPROVED this day of ©C/L! 2013. Mike Morris, Council Chair Review d as to form: David H. Lo man, City Attorney Ordinance No. Page 9 of 9