Chapter 3.24 TRANSIENT OCCUPANCY TAX

A. “Hotel” means 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, lodginghouse, roominghouse, apartment house, dormitory, public or private club, mobile home or house trailer at a fixed location, or other similar structure or portion thereof.

B. “Occupancy” means the use or possession, or the right to the use or possession, of any room or rooms, or portion thereof, in any hotel for dwelling, lodging, or sleeping purposes.

C. “Operator” means the person who is proprietor of the hotel, whether in the capacity of owner, lessee, sublessee, mortgagee in possession, licensee, or any other 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. However, compliance with the provisions of this chapter by either the principal or the managing agent shall be considered to be compliance by both.

D. “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.

E. “Rent” 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. “Tax administrator” means the city clerk of the city.

G. “Transient” means any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license or other agreement for a period of 30 consecutive calendar days or less, counting portions of calendar days as full days. Any person occupying space in a hotel for in excess of 30 days shall be deemed to be a transient until the period of 30 days has expired unless there is a written agreement between the operator and occupant providing for a longer period of occupancy, in which case the occupant shall be treated as a nontransient from the later of the dates on which the written agreement was signed or the date on which the occupancy was commenced. Nothing contained in this definition is intended to make lawful any occupancy by a nontransient which is proscribed by Section 94.12 of the Bell Gardens Zoning Code. (Ord. 538 § 1, 1987; prior code § 6801).

3.24.030 Tax imposed – Payment.

For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of eight percent of the rent charged by the operator. This 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. 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 be paid directly to the tax administrator. (Ord. 465 § 39, 1983; prior code § 6802).

3.24.040 Effective date.

The increased payments due under this chapter shall be collected and paid for the quarter commencing October 1, 1983. (Ord. 465 § 40, 1983; prior code Art. VI Ch. 3).

3.24.050 Exemptions.

A. No tax shall be imposed upon:

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

2. Any federal or state officer or employee when on official business;

3. Any officer or employee of 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. (Prior code § 6803).

3.24.060 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 provided in this chapter. (Prior code § 6804).

3.24.065 Keeping registers required.

A. Every operator of any hotel in the city shall keep a register wherein he shall require all persons obtaining occupancy in the hotel to inscribe their names upon their procuring a room or accommodations in such hotel. The register shall also show the day, month and year when the name was inscribed, and the room occupied or to be occupied by the person obtaining occupancy in the hotel, and the rate charged for the room. The register shall be kept in a conspicuous place in the hotel and shall at all times be open to inspection by the persons in occupancy and to any police officer or tax administrator of the city.

B. Before furnishing any accommodations to any person at a hotel in the city, the operator thereof shall require the person to whom the accommodations are furnished to inscribe his name in such register kept for that purpose and shall set opposite his name the time when his name was so inscribed, the room occupied by such person and the room rate. (Ord. 538 § 3, 1987).

3.24.070 Registration – Certificate – Contents.

Within 30 days after the effective date of the ordinance codified in this chapter, or within 30 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 posted in a conspicuous place on the premises at all times. 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. “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 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 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.” (Prior code § 6805).

3.24.080 Reporting and remitting.

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 the tax administrator, make a return to the tax administrator, on forms provided by him, 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. The tax administrator may establish shorter reporting periods for any certificate holder if he deems it necessary in order to ensure collection of the tax, and he 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. (Prior code § 6806).

3.24.090 Nonpayment – Penalty – Original delinquency.

Any operator who fails to remit any tax imposed by this chapter within the time required shall pay a penalty of 10 percent of the amount of the tax in addition to the amount of the tax. (Prior code § 6807(a)).

3.24.100 Nonpayment – Penalty – Continued delinquency.

Any operator who fails to remit 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 10 percent of the amount of the tax in addition to the amount of the tax and the 10 percent penalty first imposed. (Prior code § 6807(b)).

3.24.110 Nonpayment – Penalty – 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 BGMC 3.24.090 and 3.24.100. (Prior code § 6807(c)).

3.24.120 Nonpayment – 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 it is paid. (Prior code § 6807(d)).

3.24.130 Nonpayment – Penalty – Merged with tax.

Every penalty imposed, and such interest as accrues under the provisions of this chapter, shall become a part of the tax required to be paid by this chapter. (Prior code § 6807(e)).

3.24.140 Failure to collect tax – Determination of amount by tax administrator – Notice – Hearing – Appeal.

A. If any operator shall fail or refuse to collect the 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 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.

B. 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 10 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 in this section, to the operator to show cause, at a time and place fixed in said notice, why the amount specified in the notice should not be fixed for such tax, interest, and penalties.

C. At the hearing, the operator may appear and offer evidence why such specified tax, interest and penalties should not be so 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 in this section, of such determination and the amount of such tax, interest, and penalties. The amount determined to be due shall be payable after 15 days unless an appeal is taken as provided in BGMC 3.24.150. (Prior code § 6808).

3.24.150 Failure to collect tax – Determination of amount by tax administrator – Appeal – Findings.

Any operator aggrieved by any decision of the tax administrator with respect to the amount of tax, interest, and penalties, if any, assessed according to BGMC 3.24.140 may appeal to the council by filing a notice of appeal with the city clerk within 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 clerk shall give notice in writing to such 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 BGMC 3.24.140 for service of notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of notice. (Prior code § 6809).

3.24.160 Records – Operator responsibility – Right to inspect.

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 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. (Prior code § 6810).

3.24.170 Overpayment – Refund procedure – Submission of claim.

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 BGMC 3.24.180 and 3.24.190, 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. (Prior code § 6811(a)).

3.24.180 Overpayment – Refund procedure – Grounds for claim – Restriction.

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. (Prior code § 6811(b)).

3.24.190 Overpayment – Refund to transient from city – Restrictions.

A transient may obtain a refund of taxes overpaid, paid more than once, or erroneously or illegally collected or received by the city by filing a claim in the manner provided in BGMC 3.24.170, 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. (Prior code § 6811(c)).

3.24.200 Overpayment – Refund procedure – Written records required.

No refund shall be paid under the provisions of BGMC 3.24.170 through 3.24.190 unless the claimant establishes his right thereto by written records showing entitlement thereto. (Prior code § 6811(d)).

3.24.210 Liability for payment or court action.

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 chapter shall be liable to an action brought in the name of the city for the recovery of such amount. (Prior code § 6812).

3.24.220 Violations – Penalty.

A. Any person violating any of the provisions of this chapter shall be guilty of a misdemeanor and shall be punishable therefor by a fine of not more than $500.00, or by imprisonment for a period of not more than six months, or by both such fine and imprisonment.

B. Any operator or other person who fails or refuses to register as required in this chapter, or to furnish any return required to be made, or who 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 is guilty of a misdemeanor, and is punishable as stated in subsection (A) of this section. Any person required to make, render, sign, or verify any report or claim who makes any false or fraudulent report or claim with intent to defeat or evade the determination of any amount due required to be made by this chapter is guilty of a misdemeanor and is punishable as stated in subsection (A) of this section. (Prior code § 6813).