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HomeMy WebLinkAbout1964-07-21; City Council; 1087; Transient occupancy tax (TOT) & collection27 28 29 30 31 32 ORDINANCE NO. 1087 AN ORDINANCE OF THE CITY OF CAFiLSBm ME PRIVILEGE OF TWSIENT 0cGUF”CY AND PROVIDING FOR TH?E COLLECTION THEREOF, The City Council of the City of Carlsbad does ordain as follows: SECTION 1. TITLE. This ordinance shall be known as the hiform Transient Occupancy Tax Ordinance of the City of iarlsbad. SECXLQN 2. DEFINITIONS, Except where the context otherwise :equires, the definition given in this section govern the :onstruction of this ordinance: (a) Person. ttPersontl means any individualt firm, part- ?ership, joint venture, association, social club, fraternal organization, joint stock company, oorporation, estate, trust, Pusiness trust, receiver, trustee, syndicate, or any other loup or combination acting as a unit. (b) Hotel. Wotelt’ means any structure, or any portion ’ any structure, which is occupied or intended or designed >r occupancy by transients for dwelling, lodging or sleep- ig purposes, and includes any hotel, inn, tourist home or ]use, motel, studio hotel, bachelor hotel, lodging house, Doming house, Fpaktment house, dormitory, public or private lub, mobilehome or house trailer at a fixed location, or ther similar structure or portion thereof. (6) Occupancy, tlOccupancytt means the use or possession, T the right to the use or possession of any room or rooms or ortion thereof, in any hotel for dwelling, lodging or sleep- .ng purposes. xcupancy or is entitles for a period of thirty (30) consecu- (d) Transient, ttTransientfi means any person who exercises 8 d I t i # t I IC 11 12 12 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2% 29 30 31 32 e e tive calendar days or less, counting portions of calander days as full days. Any such person so occupying space in a hotel shall be deemed to be a transient until the period of thirty (30) days has expired un-less there is an agree- ment in writing between the operator and the occupant pro- viding for a longer period of occupancy, whether a person is a transient, uninterrupted periods of time extending both prior and subsequent to the effective date of this ordinance may be considered, In determining (e) Rent, "Rentrf means the consideration charged, whether or not received, for the occupancy of space in a hotel 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, (f) Operator. lWperatorlt means the person who is pro- prietor of the hotel, whether in the capacity of owner, I lessee, sublessee, mortgagee in possession, licensee, or any other capacity, tions through a managing agent of any type or character other than an employee, the managing agent shall also be deemed an operator for the purpose of this ordinance and shall have the same duties and liabilities as his princi- pal, Compliance with the provisions of this ordinance by either the principal or the managing agent shall, however be considered to be compliance by both, 1. City Treasure of the City of Carlsbad, Where the operator performs his func- - fg) .Tan :&dmirhstrator, "Tax Administrator** means the SECTIQN 3. TAX IMPOSED. For the privilege of oceup- ancy in any hotel, each transient is subject to and shall pay a tax in the amount of four per cent (4%) of the rent charged by the operator, Said tax constitutes a debt owed 40 3.3. 12 13 14 15 96 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 by the transient to the city which is extinguished only by payment to the operator or to the city, shall pay the tax to the operator of the hotel at the time The transient the rent is paid. a proportionate share of the tax shall be paid with each installment, The unpaid tax shall be due upon the tran- sient's ceasing to occupy space in the hotel. 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 the the Tax Administrator. If the rent is paid in installments, If for any SECTION 4. EXEMPTIONS. No tax shall be imposed upon: (a) Any person as to whom, or any occupancy as to which, it is beyond the power herein provided; (b) Any federal or State employee when on official bus of the city to impose the tax of California officer or ness; (c) Any officer or employee of a foreign government who is exempt by reason of express provision of federal law or international treaty, No exemption shall be granted except upon a claim , therefor made at the time rent is collected and under penalty of perjury upon a form prescribed by the Tax Ad- ministrator. SECTION 5, OPERATOR'S BWIES. Each operator shall col- lect the tax imposed by this ordinance to the same extent and at the same time as the rent is collected from every transient, The amount of tax shall be sepaxately stated from the amount of the rent charged, and each transient shall receive a receipt for payment from the operator. No operator of a hotel shall advertise or state in any man- ner, whether directly or indirectly, that the tax or any part thereof will be assumed or absorbed by the operator, -3- or that it will not be added to the rent, or that, if added, any part will be refunded except in the manner hereinafter provided. SECTION 6, REGISTRATION. Within thirty (30) days after the effective date of this ordinance, or within thirty (30) days after commencing business, whichever is later, each operator of any hotel renting occupancy to transients shall register said hotel with the Tax Administrator and obtain from him a "Transient Occupancy Registration Certificate** e at all times posted in a conspicuous place on the premises, state the following: Said certificate shall, among other things, (1) The name if the operator; (2) The address of the hotel; (3) The date upon which the certificate was issued; (4) !'This Transient Occupancy Registration Certif i- cate signifies that the person named on the face hereof has fulfilled the requirements of the Uniform Transient Occupancy Tax Ordinance by registering with the Tax Ad- ministrator for the purpose of collecting from transients the Transient Occupancy Tax and remitting said tax to the Tax Administrator. any person to conduct any unlawful business or to conduct any lawful business in an unlawful manner, nor to operate a hotel without strictly complying with all local appli- cable 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.'8 This certificate does not authorize SECTION 7, REPORTING AND WITTING. Each operator shall, on or before the last day of the month following the close of each calendar quarter, or at the close of any shorter reporting period which may be established by -4- 1 4 I 4 r I t d IC 3-1 12 33 3.4 15 16 17 18 3.9 20 21 22 23 24 25 26 27 28 29 30 31 32 e the Tax Admin tor, on forms provided by him, o€ the total rents charged and received and the amount of tax collected for transient occupancies, At the time the return is filed, the full a- mount of the tax collected shall be remitted to the Tax Administratorr reporting periods for any certificate holder if he deems it necessary in order to insure collection of the tax and he may require further information in the return, and payments are due immediately upon cessation of business for any reason, All taxes collected by operators pursu- ant to this ordinance shall be held in trust for the ac- count of the city until payment thereof is made to the T ax Admini s tr at or. The Tax Administrator may establish shorter Returns SECTION 8, PEWZTIES AND INTEREST. (a) Oriqinal Delinquency, Any operator who fails to remit any tax imposed by this ordinance within the time required shall pay a penalty of 20% of the amount of the tax in addition to the amount of the tax. (b) Continued Delinquency. Any operator who fails to remit any dekihquent :remittance on or before a period of thirty (30) days following the date on which the remit- tance first became delinquent shall pay a second dehin- quency penalty of 10% of the amount of the tax in addi- tion to the amount of the tax and the 10% penalty first imp0 sed , (c) Fraud. If the Tax Administrator determines that the non-payment of any remittance due under this ordinance is due to fraud, a penalty of 25% of the amount of the tan 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, -5- c f 1: 1; 32 14 1f 1E l'i 1E 19 20 21 22 23 24 25 26 27 28 29 30 31 32 0 any operator who fails to remit any tax imposed by this ordinance shall pay interest at the rate of one-half of J.% per.month or fraction thereof on the amount of the tax, exclusive of penalties, from the date on which the remit- tance first became delinquent until paid. (e) Penalties Merqed 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. SECTION 9. FAILURE TO COLLECT AND REPORT TAX. DE3ER- MINATION OF TAX BY TAX ADMINISTRATOR. If any operator shall fail or refuse to collect said tax and to make, within the time provided in this ordinance, any report and remit- tance of said tax or any portion thereof required by this ordinance, the Tax Administrator shall proceed in such a manner as he may deem best to obtain facts and information on which to base his estimate of the tax due. As soon as the Tax Administrator shall procure such facts and infor- mation as he is able to obtain upon which to base the as- sessment of any tax imposed by this ordinance and payable by any operator who has failed or refused to collect the same and to make such report and remittance, he shall pro- ceed to determine and assess against such operator the tax, interest and penalties provided for by this ordin- ance, In case such determination is made, the Tax Ad- ministrator shall give a notice of the amount so as- sessed by serving it personally or by depositing it in the United States mail, postage prepaid, addressed to the operator so assessed at his last known place of address, Such operator may within ten (LO) days after the serving or mailing of such notice make application in writing to the Tax Administrator for a hearing on the -6- I I 1 ! 1( 2.1 9: 9: 14 1E 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3Q 31 32 e 0 amount assessed, hearing is not made within the time prescribed, the tax, interest and penalties, if any, determined by the Tax Administrator shall become final and conclusive and im- mediately due and payable. the Tax Administrator shall give not less than five (5) days written notice in the manner prescribed herein to the operator to show cause at a time and place fixed in said notice why said amount specified therein should not be fixed for such tax, interest and penalties. At such hearing, the operator may appear and offer evidence why such specified tax, interest and penalties should not be so fixed, determine the proper tax to be remitted and shall there- after give written notice to the person in the manner pre- scribed herein of such determination and the amount of such tax, interest and penalties. due shall be payable after fifteen (15) days unless an appeal is taken as provided in Section 10. If application by the operator for a If such application is made, After such hearing the Tax Administrator shall The amount determined to be SECfION 10. 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 Council by filing a notice of appeal with the City Clerk within fifteen (15) days of the serving or mailing of the determination of tax due. shall. fix a time and place for hearing such appeal, and the City Clerk shall give notice in writing to such oper- ator at his Past known place of address. The findings of the Council shall be final for service of notice of hear- ing. Any amount found to be due shall be immediately due and payable upon the service of notice. The Council SECXIQN 11, RECORDS. It shall be the duty of every -7- .! . P 2. 1 1: 14 11 It 1: It 1E 2c 21 22 22 24 25 26 27 28 29 30 32 32 operator liable for the collection and payment to the city of any tax imposed by this ordinance to keep and preserve, for a period of three years, all records as may be neces- sary to determine the amount of been liable for the collection and p?ymeht 0.' theckity, which reCQrds the Tax Administrator shall have the right to inspect at all reasonable times, SECTION 12, REFUNDS. (a) Whenever the amount of any tax, interest or penalty has been overpaid or paid more than once or has been er- roneously or illegally collected or received by the city under this ordinance it may be refunded as provided in subparagraphs (b) and (c) of this section provided a claim in writing thereof, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the Tax Administrator within three years of the date of payment, The claim shall be on forms furnished by the T ax 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 refund- ed 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 collect- ed or received by the city by filing a claim in the manner provided in subpatagraph (a) of this section, but only * 4 C E P 1 E s 12 52 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2'4 28 29 30 31 32 when the tax was paid by the transient directly to the Tax Administrator, or when the transient having paid the tax to the operator, establishes 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 his right thereto by written records showing entitlement thereto, SECTION 3.3, ACTIONS TO COLLECX. My tax required to be paid by any transient under the provisions of this ordinance shall be deenes a debt owed by the transient to the city. Any such tax collected by an operator which has nohbeen paid to the city shall be deemes a debt owed by the opera- tor 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 Carlsbad for the recovery of such amount, SECTION 14, VIOLATIONS; MISDEMEANOR. Any person vio- lating any of the provisions of this ordinance shall be guilty of a misdemeanor and shall be punishable therefor by a fine of not more than five hundred dollars ($500,00) or by imprisonment for a period of not more than six months or by both such fine and imprisonment, Any operator or other person who fails or refuses to register as required herein, or to furnish any return re- quired to be made, or who fails or refuses to furnish a supplemental return or other data required by the Tax Ad- ministrator, or who renders a false or fraudulent return or claim, is guilty of a misdemeanor, and is punishable as iifblresaid, Any person required to make, render, sign or vertify any report or claim with intent to defeat cr evade the determination of any amount due required by this -9- -9- ordinance to be made, is guilty of a misdmeanor and is punishable as aforesaid, SECTION 15, SWILITY, If qny section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance or any part thereof is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions of this ordinance or any part thereof, it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of the fact that any one OF more sections, subsections, sub- divisions, paragraphs, sentences, clauses or phrases be declared unconstitutional, The City Council hereby declares that SECTION 16. UTILIZATION OF REVENUE. It is the inten- tion of the City Council of the City of Carlsbad that all (net) revenue from this tax (after actual collection costs have been deducted) be used exclusively for park and re- creation capital acquisitions, or in the event the revenue is too limited to allow such capital acquisitions, for pay- ment of wages of a City employee whose duties relate direct- ly to park and mxreation activities, objective be accomplished, each fiscal yearfs revenue from this tax will be deposited in the General Fund ol the City of Carlsbad and in each final budget for the City of Carls- bad there shall be appropriated in said General Fund for expenditures for the above mentioned purpose or purposes, an amount not less than the total revenue from this tax €or the preceding fiscal year, In order that this SECTION 17. WFECJTIVE DATE. This ordinance shall be effective thirty (30)..days from $nd after the date of its passage except that the tax imposed by this ordinance shall 4 not apply prior to said date. SECTION 18. PU3LICATIQN. The City Clerk of the City of Carlsbad is hereby directed to cause this ordinance to be published once in the Carlsbad Journal, a newspaper published and of general circulation in said City of Carls- bad. First read at a regular meeting of the City Counail held on the - 7th day of July , 1964, and finally passed, approved and adopted at a regular meeting held on the 21st day of July 1964, by the following vote, to wit: - AYES: Councilmen Dunne, Neiswender, Jardine and Hughes. NOES: None ABSENT: None ABSTAINED: Councilman Atkinson or ATTEST :