Chapter 3.12
TRANSIENT OCCUPANCY TAX

Sections:

3.12.010    Title.

3.12.020    Definitions.

3.12.030    Tax imposed.

3.12.040    Exemptions.

3.12.050    Operator’s duties.

3.12.060    Registration.

3.12.070    Reporting and remitting.

3.12.080    Penalties and interest.

3.12.090    Failure to collect and report tax—Determination of tax by tax administrator.

3.12.100    Appeal.

3.12.110    Records.

3.12.120    Refunds.

3.12.130    Actions to collect.

3.12.010 Title.

This chapter may be known as the “uniform transient occupancy tax ordinance of the city of Marina.” (Ord. 76-7 § 1, 1976)

3.12.020 Definitions.

Except where the context otherwise requires, the definitions given in this section govern the construction of this chapter:

“Hotel” means any structure or lodging, or any portion of any structure or lodging, which is occupied or intended or designed for use or occupancy by transients, including but not limited to 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, time-share project or facility, dormitory, public or private club, mobile home or house trailer at a fixed location, or other similar structure or lodging or portion thereof; and shall further include any space, lot, area, site or portion of any real property which is occupied or intended or designed for occupancy by transients for dwelling, lodging, or sleeping purposes and includes any recreational vehicle, trailer and tent park and campground. The burden of establishing that the housing or facility is not a hotel as defined herein shall be upon the owner or operator thereof, who shall file with the tax administrator such information as the tax administrator may require, to establish and maintain such status.

“Occupancy” means the use or possession, or the right or entitlement to the use or possession, of any hotel, room, rooms or any portion thereof offered for rent or used or occupied for dwelling, lodging or sleeping purposes regardless of the purpose for which such rooms are rented or provided.

“Operator” means the person who is proprietor of the hotel, whether in the capacity of owner, lessee, sublessee, mortgagee in possession, licensee, time-share project or facility manager or operator, or any other capacity. Where the operator performs his or its functions through a managing agent of any type or character, the managing agent shall also be deemed an operator for the purpose of this chapter, and shall have jointly and severally the same duties and liabilities as the principal. Compliance with the provisions of this chapter by either the principal or the managing agent shall, however, be considered to be compliance by both.

“Person” 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.

“Rent” means the amount of the consideration charged or chargeable to the tenant or person entitled to occupancy, for the occupancy of space, valued in money whether received in money, goods, labor or otherwise, including the full value of receipts, cash, credits, property or services of any kind or nature, without any deduction whatsoever. “Rent” may have been, or may be, payable or paid prior to or following (in whole or in part) the occupancy to which it is attributable, and may have been paid in whole or in part in advance on a long-term basis, such as in a time-share project or similar arrangement. It is not the intent of this subsection to make the operator liable for the tax on uncollected rent. However, uncollected rent must be reported.

“Tax administrator” means the city manager or his designated agent.

“Time-share occupancy” means occupancy related to the situation wherein a purchaser receives the right or entitlement in perpetuity, for life, or for a term of years or other extended term, to the recurrent, exclusive use or occupancy of a lot, parcel, unit, room(s), hotel or portion thereof, or segment of real property, annually or on some other seasonal or periodic basis, for a period of time that has been or will be allotted from the use or occupancy periods into which the time-share project which is involved has been divided. The said right or entitlement to occupancy may attach in advance to a specific lot, parcel, unit, room(s), or portion of a hotel, or segment of real property, or may involve designation or selection of the same at a future time or times.

“Transient” means any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, time-share arrangement or ownership or agreement, or other agreement of whatever nature, for a period of twenty-nine consecutive calendar days or less, counting portions of calendar days as full days. Any person so occupying space in a hotel shall be deemed to be a transient if his actual total period of occupancy does not exceed twenty-nine days. Unless days of occupancy or entitlement to occupancy by one person are consecutive without any break, then prior or subsequent periods of such occupancy or entitlement to occupancy shall not be counted when determining whether a period exceeds the stated twenty-nine calendar days. (Ord. 91-4 § 1, 1991; Ord. 83-9 § 1, 1983: Ord. 76-7 § 2, 1976)

3.12.030 Tax imposed.

For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of twelve percent of the rent charged by the operator or otherwise payable by the transient. Insofar as the transient is concerned, said tax constitutes a debt owed by the transient to the city which is extinguished only by payment to the operator or to the city. The transient shall pay the tax to the operator of the hotel at the time the rent is paid. For purposes of this section, the rent deemed payable on account of time-share occupancy by a transient shall be the rental value of the unit or room(s) which accommodated such occupancy, which rental value shall be computed by determining the pro rata share of the total actual purchase price of the time-share right or entitlement (whether or not involving any estate or any ownership in real property), or if the unit has not yet been sold at the time of rental, then the pro rata share of the current listed sales price or the comparable price if not listed for sale, which share is allocable to the period of transient occupancy currently involved, and adding thereto the total applicable operating costs including, but not limited to, the applicable real and personal property taxes, plus the total amount of any and all fees, assessments, charges and expenses (not including the previously referred to taxes) charged by the operator as attributable to the time-share occupancy of the transient by whatever name such fees, assessments, charges or expenses may be denominated, whether “occupying fee,” “maintenance or operations charge,” “per diem fee,” “management fee” or like name or otherwise. In making the computation referred to above of the pro rata share of the total purchase price or other applicable price, in any case wherein the time-share right or entitlement is in perpetuity or for life or otherwise not for a definite or ascertainable term, such proration shall be made upon an assumed term of thirty years. (Ord. 2014-06 § 2, 2014; Ord. 87-3 § 1, 1987; Ord. 83-9 § 2, 1983: Ord. 82-10 § 1, 1982; Ord. 76-7 § 3, 1976)

3.12.040 Exemptions.

A.    No tax shall be imposed upon:

1.    Any person as to whom, or any occupancy as to which, it is beyond the power of the city to impose the tax provided in this chapter;

2.    Any officer or employee of a foreign government who is exempt by reason of express provision of federal law or international treaty.

B.    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 administrator. (Ord. 76-7 § 4, 1976)

3.12.050 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 receive a receipt 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 hereinafter provided. (Ord. 76-7 § 5, 1976)

3.12.060 Registration.

Within thirty days after the effective date of the ordinance codified in this chapter, or within thirty days after commencing business, whichever is later, each operator of any hotel renting occupancy to transients shall register the hotel 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. The 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.    “This Transient Occupancy Registration Certificate 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 administrator for the purpose of collecting from transients the transient occupancy tax and remitting the tax to the tax administrator. This certificate does not authorize a person to conduct unlawful business or to conduct a lawful business in an unlawful manner, nor 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 this city. This certificate does not constitute a permit.” (Ord. 76-7 § 6, 1976)

3.12.070 Reporting and remitting.

Each operator shall, on or before the last day of the month following the close of each calendar month, or at the close of any shorter reporting period which may be established by the tax administrator, make a return to the tax administrator, on forms provided by the administrator, 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 shall be remitted to the tax administrator. Any return, including the amount of tax collected, not received by the city treasurer by the end of the last day of the month following the month for which said return is due shall be considered delinquent and shall be subject to penalties and interest pursuant to Section 3.12.080, i.e., August tax due by September 30th, and is delinquent on October 1st. The tax administrator may establish shorter reporting periods for any certificate holder if the administrator deems it necessary in order to insure collection of the tax and the administrator may require further information in the return. Returns and payments are due immediately upon cessation of business for any reason. All taxes collected by 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. 2014-02 § 1, 2014: Ord. 2003-11 § 1, 2003: Ord. 76-7 § 7, 1976)

3.12.080 Penalties and interest.

A.    Original Delinquency. An operator who fails to remit any tax imposed by this chapter within the time required shall pay a penalty of ten percent of the amount of the tax in addition to the amount of the tax.

B.    Continued Delinquency. An operator who fails to remit a delinquent remittance on or before a period of thirty days following the date on which the remittance first becomes delinquent shall pay a second delinquency penalty of ten percent of the amount of the tax in addition to the amount of the tax and the ten 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 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 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 required to be paid. (Ord. 76-7 § 8, 1976)

3.12.090 Failure to collect and report tax—Determination of tax by tax administrator.

If any operator fails or refuses to collect said tax and 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 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 procures such facts and information as he is able to obtain 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, he shall proceed to determine and assess against such operator the tax, interest and penalties provided for by this chapter. In case such determination is made, the tax administrator shall give a notice of the amount so assessed 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 days after the serving or mailing of such notice make application in writing to the tax administrator for a hearing on the amount assessed. If application by the operator for a 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 immediately due and payable. If such application is made, the tax administrator shall give not less than five 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 fixed. After such hearing, the tax administrator shall determine the proper tax to be remitted and shall thereafter give written notice to the person in the manner prescribed herein of such determination and the amount of such tax, interest and penalties. The amount determined to be due shall be payable after fifteen days unless an appeal is taken as provided in Section 3.12.100. (Ord. 76-7 § 9, 1976)

3.12.100 Appeal.

An 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 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 clerk shall give notice in writing to the operator at his last known place of address. The findings of the council shall be final and conclusive and shall be served upon the appellant in the manner prescribed in Section 3.12.090 for service of notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of notice. (Ord. 76-7 § 10, 1976)

3.12.110 Records.

Every operator liable for the collection and payment to the city of any tax imposed by this chapter shall keep and preserve, for a period of three years, all records as may be necessary to determine the amount of such tax as he may have been liable for the collection of and payment to the city, which records the tax administrator shall have the right to inspect at all reasonable times. (Ord. 76-7 § 11, 1976)

3.12.120 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 subsections B and C of this section, provided a claim in writing therefor, 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 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 by filing a claim in the manner provided in subsection 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, 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. (Ord. 76-7 § 12, 1976)

3.12.130 Actions to collect.

A.    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 funds held in trust for the account of the city which are due and payable by the operator to the city pursuant to the provisions of this chapter. Any person, including an operator, owing money to the city under the provisions of this chapter shall be liable to an action brought in the name of the city within three years after any tax or any amount of tax required to be collected becomes due and payable for the recovery of such amount, including applicable penalties and interest.

B.    In an action authorized by this section, the prevailing party shall recover court costs, attorney’s fees, personnel costs, and auditor’s fees to be added to the judgment and set by the court. These fees are recoverable at all levels of trial and appeal.

C.    If any amount required to be paid to the city under this chapter is not paid when due, the tax administrator may within three years after the date on which the tax was required to be paid, file for recording in the office of the Monterey County recorder, or of such counties as the tax administrator may determine, a certificate of lien which specifies the amount of tax and penalties and interest due and the name and address of the operator as it appears on the city records. The lien shall also specify that the tax administrator has complied with all provisions of this chapter in the determination of the amount required to be paid and provide a legal description of the real property owned by the operator. From the time of the filing for record of the certificate, the amount required to be paid, together with penalties and interest and all amounts coming due thereafter unless paid, constitutes a lien upon all real property owned or thereafter acquired by the operator before the tax lien expires. The tax lien has the force, effect, and priority of a judgment lien and shall continue for ten years from date of filing of the certificate unless sooner released or otherwise discharged.

D.    The remedies identified herein shall be nonexclusive with respect to any other remedy, whether provided by law, equity or statute that the city may wish to pursue. (Ord. 2013-04 § 1, 2013)