Chapter 3.16
TRANSIENT OCCUPANCY TAX
Sections:
3.16.060 Reporting and remitting.
3.16.070 Failure to remit tax or return – Penalties and interest.
3.16.080 Failure to collect and report tax – Determination of tax by tax administrator.
3.16.010 Definitions.
Except where the context otherwise requires, the definitions set forth in this section govern the construction of this chapter.
A. “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, bed and breakfast, tourist home or house, motel, studio hotel, bachelor hotel, lodginghouse, roominghouse, apartment house, public or private dormitory, and public or private club, and public or private campground. A mobile home shall be included only if it is located outside a mobile home park and is occupied by one not an employee of the owner or operator of the mobile home park. Occupancy of a timeshare unit shall be included unless occupancy is by an owner of or the guest of an owner of a timeshare estate in a room or rooms in a timeshare project.
B. “Occupancy” shall mean the use or possession, or the right to the use or possession of any room or rooms or other living space or portion thereof, in any hotel for dwelling, lodging or sleeping purposes.
C. “Operator” shall mean 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 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 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.
D. “Rent” shall mean 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 service of any kind or nature, without any deduction therefrom whatsoever.
E. “Tax administrator” shall mean the Director of Finance.
F. “Transient” shall mean 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 such person so occupying space in a hotel shall be deemed to be a transient until the period of 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 extending both prior and subsequent to the effective date of the ordinance codified in this chapter may be considered.
G. “Timeshare estate” shall mean a timeshare estate, as defined in Section 11003.5 of the Business and Professions Code. (Ord. 496, 1993; Ord. 360 § 2, 1980; Ord. 250 § 1, 1965).
3.16.020 Imposition of tax.
A. For the privilege of occupancy in any hotel, as defined in this chapter, each transient is subject to and shall pay a tax in the amount of 13 percent of the rent charged by the operator including meals and amenities if included in the charge for occupancy. 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.
B. 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 cessation of occupancy.
C. 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.
D. Of the 13 percent tax imposed in subsection (A) of this section, 12 percent is a general purpose tax, the revenues of which may be used for any lawful municipal purpose, and one percent is a special purpose tax, the revenues of which are dedicated solely for affordable and workforce housing programs and services up to and including, without limitation, land acquisition, land donation, building acquisition, building rehabilitation, building demolition, housing construction, maintaining the community’s supply of mobile homes, providing housing subsidies to lower income residents, and/or preserving existing public subsidies for developments facing conversion to market rates and shall be deposited in a separate account. An annual report shall be filed by the City Manager or designee to the City Council in compliance with Government Code Section 50075.3 for the special purpose tax revenues collected and expended. (Ord. 741 § 1, 2018; Ord. 377, 1982; Ord. 327 § 1, 1976; Ord. 317 § 1, 1975; Ord. 314 § 1, 1974; Ord. 250 § 1, 1965).
3.16.030 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 on; or
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. 250 § 1, 1965).
3.16.040 Operator’s duties.
A. 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.
B. 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.
C. 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 refunded except in the manner provided in CMC 3.16.120. (Ord. 250 § 1, 1965).
3.16.050 Registration.
A. 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 said hotel with the tax administrator and obtain a transient occupancy registration certificate to be at all times posted in a conspicuous place on the premises.
B. Said certificate shall, among other things, state the following:
1. The name of the operator;
2. The address of the hotel;
3. The date upon which the certificate was issued;
4. “This Transient Occupancy Registration Certificate signifies that the person named on the face hereof has fulfilled the requirements of the Uniform Transient Occupancy Tax Regulation of the City of Calistoga 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.” (Ord. 250 § 1, 1965).
3.16.060 Reporting and remitting.
A. Each operator shall, on or before the last day of the month following the close of each 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 tax administrator, of the total rents charged and received and the amount of tax collected for transient occupancies.
B. At the time the return is filed, the full amount of the tax collected shall be remitted to the tax administrator. A credit shall be allowed on the return for sales tax paid to the State Board of Equalization on the imputed value of meals included in room rate if the return and payment are paid timely. A copy of the sales tax return must accompany the return if the credit is claimed.
C. The tax administrator may require further information in the return. If remittance is not paid when due, the tax administrator shall require that remittance be paid weekly or daily.
D. Returns and payments are due immediately upon cessation of business for any reason.
E. 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. 250 § 1, 1965).
3.16.070 Failure to remit tax or return – Penalties and interest.
A. 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. Any operator who fails to submit a return required under this section shall pay $20.00 for each month said return is late up to a maximum of $100.00.
B. 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.
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 subsections (A) and (B) of this section. Inasmuch as refusal to pay over public money received under a duty to pay it over is a felony (California Penal Code Section 424) the tax administrator shall notify the District Attorney of any operator withholding remittance over three months.
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 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 in this chapter. (Ord. 250 § 1, 1965).
3.16.080 Failure to collect and report tax – Determination of tax by tax administrator.
A. 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 to obtain facts and information on which to base an estimate of the tax due.
B. As soon as the tax administrator procures such facts and information as are 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 tax administrator shall proceed to determine and assess against such operator the tax, interest and penalties provided by this chapter.
C. 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 the operator’s last known place of address.
D. 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.
E. If such application is made, the tax administrator shall give not less than five days’ written notice in the manner prescribed in this subsection 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.
F. At such hearing, the operator may appear and offer evidence why such specified tax, interest and penalties should not be so fixed.
G. 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 subsection of such determination and the amount of such tax, interest and penalties.
H. The amount determined to be due shall be payable after 15 days unless an appeal is taken. (Ord. 250 § 1, 1965).
3.16.090 Records.
A. 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 the operator may have been liable for the collection of and payment to the City, which records the tax administrator or the tax administrator’s representative shall have the right to inspect at all reasonable times.
B. Records shall be sufficient to assure that records are complete and all occupancies have been reported by such means as a sign-in guest ledger, cash register and prenumbered registration forms. Records shall be sufficient to assure that rents are properly recorded. If the records are deemed to be inadequate by the tax administrator or through inspection or audit, the operator shall have 60 days to install adequate recordkeeping procedures.
C. In the event records or recordkeeping procedures are not improved sufficiently to be audited successfully, the operator shall be liable to the City for the cost of all subsequent audits of the hotel by the City or its representatives until the records and recordkeeping are sufficient to be audited in accordance with generally accepted auditing practices. (Ord. 496, 1993; Ord. 250 § 1, 1965).
3.16.100 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 had 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 tax 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 paid the tax to the operator and 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 a right thereto by written records showing entitlement thereto. (Ord. 545 § 1, 1998; Ord. 520, 1996; Ord. 250 § 1, 1965).
3.16.110 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.
B. 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.
C. 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. (Ord. 250 § 1, 1965).
3.16.120 Prohibited acts.
It is unlawful for any operator or other person to fail or refuse to furnish a supplemental return or other data required by the tax administrator, or to render a false or fraudulent return or claim. It is unlawful for any person required to make, render, sign or verify any report or claim to make any false or fraudulent report or claim with intent to defeat or evade the determination of any amount due required by this chapter. (Ord. 250 § 1, 1965).