Chapter 3.04
TRANSIENT ROOM TAX

Sections:

3.04.010    Definitions.

3.04.020    Tax imposed by Charter.

3.04.030    Collection of tax by operator – Rules for collection.

3.04.040    Operator’s duties.

3.04.050    Exemptions.

3.04.060    Registration of operator.

3.04.070    Payment of tax.

3.04.080    Delinquency.

3.04.090    Deficiency determinations.

3.04.100    Fraud, refusal to collect or evasion.

3.04.110    Operator delay.

3.04.120    Redeterminations.

3.04.130    Security for collection of tax.

3.04.140    Lien.

3.04.150    Refunds.

3.04.160    Collection fee.

3.04.170    Administration.

3.04.180    Recodified.

3.04.190    Recodified.

3.04.200    Repealed.

3.04.210    Repealed.

3.04.220    Appeals.

3.04.230    Appeals to city council.

3.04.240    Violation.

3.04.250    Violations – Penalty.

3.04.010 Definitions.

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

“Accrual accounting” means the operator enters the rent due from a transient on his records when the rent is earned, whether or not it is paid.

“Cash accounting” means the operator does not enter the rent due from a transient on his records until rent is paid.

“City council” means the city council of the city of Lincoln City, Oregon.

“Furnishings of rooms” means articles of furniture for the interior of the building and moveable articles used in preparing an area for occupancy or use, including cribs and rollaway beds, but excluding items such as VCRs, video tape players or movie rentals.

“Hotel” means any structure or any portion of any structure which is occupied or intended or designed for transient occupancy for 30 days or less for dwelling, lodging, or sleeping purposes, and includes any hotel, motel, inn, condominium, tourist home or house, vacation rental dwelling, studio hotel, bachelor hotel, lodging house, rooming house, apartment house, public or private dormitory, fraternity, sorority, public or private club, and also means space in a mobile home, manufactured home, trailer or recreational vehicle park or similar structure or space or portions thereof so occupied, provided such occupancy is for less than a 30-day period.

“Occupancy” means the use or possession, or the right to the use or possession, for lodging or sleeping purposes of any room or rooms in a hotel, or space in a campground or trailer or recreational vehicle park or portion thereof.

“Operator” means the person who is the proprietor of the hotel in any 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. Compliance with the provisions of this chapter by either the principal or the managing agent shall be considered to be compliance by both.

“Person” means any individual, firm, partnership, joint venture, association, social club, fraternal organization, fraternity, sorority, public or private dormitory, joint stock company, corporation, estate, trust, business trust, receiver, trustee, syndicate, governmental body, or any other group or combination acting as a unit.

“Rent” means the consideration charged, whether or not received by the operator, for the occupancy of space in a hotel, valued in money, goods, labor, credits, property or other consideration valued in money, without any deduction. Extra person charges, cleaning fees, charges for pets and charges for additional items of room furnishings shall be considered rent. The acceptance of donations by the operators where no fixed rental fee is charged shall be deemed “consideration

charged.” The portion of any advance deposit that is returned due to nonoccupancy of space shall not be deemed rent, but the amount of any advance deposit that is forfeited or applied against rent shall be deemed rent at the time of forfeiture or at the time of crediting against rent. As regards transient lodging intermediaries, such as online travel companies, rent shall be the retail sale price of the rooms to the purchaser and not the discounted price which the company has paid for the room. The effect of this definition is that the tax must be computed on the total retail price, including all charges other than taxes, paid by a person for occupancy of the transient lodging.

“Rent package plan” means a rent plan under which the space may be rented separately and not included in a package plan, but the transient has elected to pay a single rate under a plan in which the consideration charged is for both space and other items such as, but not limited to, food. For a rent package plan, the amount applicable to rent for determination of transient room tax under this chapter shall be the charge for rent when the space is rented separately and not included in a rent package plan.

“Tax” means either the tax payable by the transient or the aggregate amount of taxes due from an operator during the period for which he is required to report his collections.

“Tax administrator” means the finance director of the city of Lincoln City, Oregon.

“Transient” means any individual who exercises occupancy or is entitled to occupancy in a hotel for a period of 30 consecutive calendar days or less, counting portions of calendar days as full days. The day a transient checks out of the hotel shall not be included in determining the 30-day period if the transient is not charged rent for that day by the operator. Any such individual 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, or the tenancy actually extends more than 30 consecutive days. 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. A person who pays for lodging on a monthly basis, irrespective of the number of days in such month, shall not be deemed a transient; but an individual who exercises occupancy or is entitled to occupancy for a period of 30 calendar days or less shall be deemed a transient notwithstanding that another person not exercising or entitled to exercise occupancy pays or is responsible for paying rent monthly or for a period of more than 30 days.

“Transient lodgings tax review committee” means a committee composed of a business person, an operator and three lay members appointed by the council of the city.

“Vacation rental dwelling” means a dwelling which is rented, or is available for rent, on a daily or weekly basis or is advertised or is listed with an agent as a vacation rental. (Ord. 2014-09 § 1; Ord. 2008-12 § 1; Ord. 2000-01 § 1; Ord. 97-4 §§ 1, 2; Ord. 96-4 §§ 1 – 4; Ord. 93-4 §§ 1, 2; Ord. 89-8 § 1)

3.04.020 Tax imposed by Charter.

As required in the Lincoln City Charter, for the privilege of occupancy in any hotel, each transient shall pay a tax in the amount of nine and one-half percent of the rent charged by the operator. The amendment of this code section shall not affect the validity or enforcement of the transient room tax in effect prior to this amendment. The tax constitutes a debt owed by the transient to the city which is extinguished only by payment by the operator to the city. The transient shall pay the tax to the operator of the hotel at the same time the rent is paid. The operator shall enter the tax on the operator’s records when rent is collected, if the operator keeps records on the cash accounting basis, and when earned, if the operator keeps records on the accrual accounting basis. If rent is paid in installments, a proportionate share of the tax shall be paid by the transient to the operator with each installment. In all cases, the rent paid or charged for occupancy shall exclude the sale of any goods, services and commodities, other than the furnishing of rooms, accommodations, pet accommodations, and space occupancy in campgrounds or trailer or recreational vehicle parks. (Ord. 2008-12 § 1; Ord. 2002-08 § 1; Ord. 97-4 § 3; Ord. 96-4 § 5; Ord. 92-1 § 1; Ord. 89-8 § 2)

3.04.030 Collection of tax by operator – Rules for collection.

A. Every operator renting rooms or space for lodging or sleeping purposes in this city, the occupancy of which is not exempted under the terms of this chapter, shall collect a tax from the occupant. The tax collected or accrued by the operator constitutes a debt owing by the operator to the city.

B. In all cases of credit or deferred payment of rent, the payment of tax to the operator may be deferred until the rent is paid, and the operator shall not be liable for the tax until credits are paid or deferred payments are made. Adjustments may be made for uncollectables.

C. The tax administrator shall enforce provisions of this chapter and shall have the power to adopt rules and regulations not inconsistent with this chapter as may be necessary to aid in the enforcement.

D. For rent collected on portions of $1.00, fractions of a penny of tax shall not be remitted. (Ord. 89-8 § 3)

3.04.040 Operator’s duties.

Each operator shall collect the tax imposed by this chapter at the same time as the rent is collected from every transient. The amount of tax shall be separately stated upon the operator’s records, and any receipt that the tax or any part of the tax will be assumed or absorbed by the operator, or that it will not be added to the rent, or that, when added, any part will be refunded, except in the manner provided by this chapter. (Ord. 89-8 § 4)

3.04.050 Exemptions.

The tax shall not be imposed on the following, which shall be the only exemptions permitted:

A. Any occupant for more than 30 successive calendar days (a person who pays for lodging on a monthly basis, irrespective of the number of days in such month, shall not be deemed a transient);

B. Any occupant whose rent is of a value less than $2.00 per day;

C. Any person who rents a private home, vacation cabin, or like facility from any owner who rents such facilities for a total of less than 15 days per year who does not advertise the dwelling for rent or list it with an agent as a vacation rental;

D. Any occupant whose rent is paid for a hospital room or to a medical clinic, convalescent home or home for aged people, or to a public institution owned and operated by a unit of government;

E. Any nonprofit tax-exempt charitable, fraternal or religious organizations owning or operating shelters or temporary lodging for victims of domestic violence, women and families, homeless persons, and similar low-income housing facilities in furtherance of their charitable, fraternal or religious purposes;

F. A donation by an owner or operator of the full cost of transient lodging to a nonprofit tax-exempt charitable, fraternal or religious organization, whether used by the organization or auctioned as a fundraiser;

G. State and federal employees on government business, where payment for the rooms is made by the government directly to the operator;

H. Any occupant whose rent is paid by the city. (Ord. 2014-09 § 2; Ord. 91-16 § 1; Ord. 89-8 § 5)

3.04.060 Registration of operator.

A. Every person engaging or about to engage in business as an operator of a hotel in this city shall register with the tax administrator on a form provided by him. Owners of vacation rental dwellings and other operators engaged in business at the time the ordinance codified in this chapter is adopted must register not later than 30 calendar days after passage of the ordinance codified in this chapter. Owners of vacation rental dwellings and other operators starting business after the ordinance codified in this chapter is adopted must register within 15 days after commencing business. The privilege of registration after the date of imposition of such tax shall not relieve any person from the obligation of payment or collection of tax regardless of registration. Registration shall set forth the name under which the operator transacts or intends to transact business, the location of his place or places of business and such other information to facilitate the collection of the tax as the tax administrator may require. The registration shall be signed by the operator. The tax administrator shall, within 10 days after registration, issue without charge a certificate of authority to each registrant to collect the tax from the occupant, together with a duplicate thereof for each additional place of business of each registrant. Certificates shall be nonassignable and nontransferable and shall be surrendered immediately to the tax administrator upon the cessation of business at the location named or upon its sale or transfer. Each certificate and duplicate shall state the place of business to which it is applicable and shall be prominently displayed therein so as to be seen and come to the notice readily of all occupants and persons seeking occupancy.

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 Transient Lodgings Tax Ordinance of the City of Lincoln City by registration with the tax administrator for the purpose of collecting from transients the lodgings tax imposed by said city and emitting 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, or 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 the City of Lincoln City. This certificate does not constitute a permit.” (Ord. 89-8 § 6)

3.04.070 Payment of tax.

A. The tax imposed by this chapter shall be paid by the transient to the operator at the time that rent is paid. All amounts of such taxes collected by any operator are due and payable to the tax administrator on a quarterly basis on the fifteenth day of the following month for the preceding three months, and are delinquent on the last day of the month in which they are due, even if city offices and post offices are closed on that day. The tax administrator has authority to classify the operators for determination of applicable tax periods, and shall notify each operator of the due and delinquent dates for the operator’s returns. The quarters are:

First Quarter: January, February, March;

Second Quarter: April, May, June;

Third Quarter: July, August, September;

Fourth Quarter: October, November, December.

The initial return for operators newly commencing business shall be for the portion of the quarter in which they were first in business; thereafter returns shall be made for the applicable quarterly period.

B. On or before the fifteenth day of the month following each quarter of collection, a return for the preceding quarter’s tax collections shall be filed with the tax administrator. The return shall be filed in such form as the tax administrator may prescribe by every operator liable for payment of tax.

C. Returns shall show the amount of tax collected or otherwise due for the related period. The tax administrator may require returns to show the total rentals upon which tax was collected or otherwise due, gross receipts of the operator for such period and an explanation in detail of any discrepancy between such amounts, and the amount of rents exempt, if any.

D. The person required to file the return shall deliver the return, together with the remittance of the amount of the tax due, to the tax administrator at his office, either by personal delivery or by mail. If the return is mailed, the postmark shall be considered the date of delivery for determining delinquencies.

E. For good cause, the tax administrator may extend, for not to exceed one month, the time for making any return or payment of tax. No further extension shall be granted, except by the transient lodging tax committee. Any operator to whom an extension is granted shall pay interest at the rate of one and one-half percent per month on the amount of tax due without proration for a fraction of a month. If a return is not filed, and the tax and interest due is not paid by the end of the extension granted, then the interest shall become a part of the tax for computation of penalties described elsewhere in this chapter.

F. The tax administrator, if he deems it necessary in order to ensure payment or facilitate collection by the city of the amount of taxes, in any individual case may require returns and payment of the amount of taxes for other than quarterly periods. (Ord. 2000-01 § 2; Ord. 89-8 § 7)

3.04.080 Delinquency.

A. Original Delinquency. Any operator who has not been granted an extension of time for remittance of tax due and who fails to remit any tax imposed by this chapter prior to delinquency shall pay 10 percent of the amount of the tax due in addition to the amount of the tax.

B. Continued Delinquency. Any operator who has not been granted an extension of time for remittance of tax due, and who failed to pay 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 15 percent of the amount of the tax due plus 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 or intent to evade the provisions hereof, 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.

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 and one-half percent per month or fraction thereof, without proration for portions of a month, on the amount of the tax due, 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 be merged with and become a part of the tax herein required to be paid.

F. Petition for Waiver. Any operator who fails to remit the tax herein levied within the time herein stated shall pay the penalties herein stated, provided, however, the operator may petition the transient lodgings tax review committee for waiver and refund of the penalty or any portion thereof and the transient lodgings tax review committee may, if a good and sufficient reason is shown, waive and direct a refund of the penalty or any portion thereof. (Ord. 89-8 § 8)

3.04.090 Deficiency determinations.

If the tax administrator determines that the returns are incorrect, he may compute and determine the amount required to be paid upon the basis of the facts contained in the return or returns, or upon the basis of any information within his possession or that may come into his possession. One or more deficiency determination may be made of the amount due for one, or more than one, period, and the amount so determined shall be due and payable immediately upon service of notice as herein provided after which the amount determined is delinquent. Penalties on deficiencies shall be applied as set forth in LCMC 3.04.080.

A. In making a determination the tax administrator may offset overpayments, if any, which may have been previously made for a period or periods, against any underpayment for a subsequent period or periods, or against penalties and interest on the underpayments. The interest on underpayments shall be computed in the manner set forth in LCMC 3.04.080.

B. The tax administrator shall give to the operator or occupant a written notice of his determination. The notice may be served personally or by mail. If by mail the notice shall be addressed to the operator at his address as it appears on the records of the tax administrator.

In case of service by mail or any notice required by this chapter, and shall be served by mailing such notice by certified mail, postage prepaid, return receipt requested.

C. Except in the case of fraud or intent to evade this chapter or authorized rules and regulations, every deficiency determination shall be made and notice thereof mailed within five years after the last day of the month following the close of the quarterly period for which the amount is proposed to be determined or within five years after the return is filed, whichever period expires last.

D. Any determination shall become due and payable immediately upon receipt of notice and shall become final within 20 days after the tax administrator has given notice thereof, provided, however, the operator may petition redemption and refund if the petition is filed before the determination becomes final as herein provided. (Ord. 91-16 § 2; Ord. 89-8 § 9(a))

3.04.100 Fraud, refusal to collect or evasion.

If any operator shall fail or refuse to collect said tax or to make within the time provided in this chapter any report or remittance of said tax or any portion thereof required by this chapter, or makes a fraudulent return or otherwise wilfully attempts to evade this chapter, the tax administrator shall proceed in such manner as he may deem best to obtain the facts and information on which to base an estimate of the tax due. As soon as the tax administrator has determined the tax due that is imposed by this chapter from any operator who has failed or refused to collect the same and to report and remit said tax, 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 in the manner aforesaid of the amounts so assessed. Such determination and notice shall be made and mailed within five years of the discovery by the tax administrator of any fraud, intent to evade or failure or refusal to collect said tax, or failure to file return. Any determination shall become due and payable upon receipt of notice and shall become final within 20 days after the tax administrator has given notice thereof, provided, however, the operator may petition for redemption and refund if the petition is filed before the determination becomes final as herein provided. (Ord. 91-16 § 3; Ord. 89-8 § 9(b))

3.04.110 Operator delay.

If the tax administrator believes that the collection of any tax or any amount of tax required to be collected and paid to the city will be jeopardized by delay, or if any determination will be jeopardized by delay, he shall thereupon make a determination of the tax or amount of tax required to be collected, noting the fact upon the determination. The amount so determined as herein provided shall be immediately due and payable, and the operator shall immediately pay such determination to the tax administrator after service of notice thereof; provided, however, the operator may petition, after payment has been made, for redemption and refund of such determination, if the petition is filed within 20 days from the date of service of notice by the tax administrator. (Ord. 89-8 § 9(c))

3.04.120 Redeterminations.

A. Any person against whom a determination is made under LCMC 3.04.090 through 3.04.110 or any person directly interested may petition for a redetermination and redemption and refund within the time required in LCMC 3.04.090 through 3.04.110. If a petition for redetermination and refund is not filed within the time required in LCMC 3.04.090 through 3.04.110, the determination becomes final at the expiration of the allowable time.

B. If a petition for redetermination and refund is filed within the allowable period, the tax administrator shall reconsider the determination, and, if the person has so requested in his petition, shall grant the person an oral hearing and shall give him 20 days’ notice of the time and place of the hearing. The tax administrator may continue the hearing from time to time as may be necessary.

C. The tax administrator may decrease or increase the amount of the determination as a result of the hearing and if an increase is determined such increase shall be payable immediately after the hearing.

D. The order or decision of the tax administrator upon a petition for redetermination and redemption and refund becomes final 20 days after service upon the petitioner of notice thereof, unless appeal of such order or decision is filed with the transient lodgings tax review committee within the 20 days after the service of such notice.

E. No petition for redetermination and redemption and refund or appeal therefrom shall be effective for any purpose unless the operator has first complied with the payment provisions hereof. (Ord. 89-8 § 10)

3.04.130 Security for collection of tax.

A. The tax administrator, whenever he deems it necessary to ensure compliance with this chapter, may require the operator subject thereto to deposit with him such security in the form of cash, bond or other security as the tax administrator may determine. The amount of the security shall be fixed by the tax administrator but shall not be greater than twice the operator’s estimated average quarterly liability for the period for which he files returns, determined in such a manner as the tax administrator deems proper, or $5,000, whichever amount is lesser. The amount of security may be increased or decreased by the tax administrator subject to limitations herein provided. The operator has a right to appeal to the transient lodging tax review committee any decision of the tax administrator made pursuant to this section. The operator’s right to appeal is pursuant to LCMC 3.04.220.

B. At any time within five years after any tax or any amount of tax required to be collected becomes due and payable or at any time within five years after any determination becomes final, the tax administrator may bring any action in the courts of this state, or any other state, or of the United States in the name of the city to collect the amount delinquent together with penalties and interest. (Ord. 91-16 § 4; Ord. 89-8 § 11)

3.04.140 Lien.

A. The tax imposed by this chapter together with the interest, administrative costs, attorney fees and penalties herein provided and the filing fees paid to the county clerk of Lincoln County, Oregon, and advertising costs which may be incurred when same becomes delinquent as set forth in this chapter shall be and, until paid, remain a lien from the date of its recording with the department of records, Lincoln County, Oregon, and superior to all subsequent recorded liens on all tangible personal property used in the hotel of an operator within the city and may be foreclosed on and sold as may be necessary to discharge said lien, if the lien has been recorded electronically as provided in ORS 93.643 or with the department of records in Lincoln County, Oregon. Notice of the lien may be issued by the tax administrator or his deputy whenever the operator is in default in the payment of said tax, interest and penalty, shall be recorded with the department of records of Lincoln County, Oregon, and a copy sent to the delinquent operator. The personal property subject to such lien seized by any deputy or employee of the tax administrator may be sold by the department seizing same at public auction after 10 days’ notice, which means one publication in a newspaper published in the city. Any lien for taxes shown on the records of the proper county official shall, upon payment of all taxes, penalties, and interest thereon, be paid to the city and the operator or person making such payment shall have a receipt therefor stating the full amount of taxes, penalties and interest thereon have been paid and that the lien is hereby released and the record of lien is satisfied.

B. Lien on Real Property. The tax imposed by this chapter together with the interest, administrative costs, attorney fees and penalties herein provided and the filing fees paid to the electronic lien service provider or the county clerk of Lincoln County, Oregon, and advertising costs which may be incurred when same becomes delinquent as set forth in this chapter shall become a lien on real property 30 days after notification of payment due. The lien hereby created may be foreclosed in any manner provided by law or city ordinance.

C. Attorney Fees. In the event of litigation, the prevailing party shall be entitled to recover reasonable attorney fees and other costs and disbursements provided by law. (Ord. 2014-09 § 3; Ord. 89-8 § 12)

3.04.150 Refunds.

A. Refunds by the City to the Operator. Whenever the amount of any tax, penalty, or interest has been paid more than once or has been erroneously or illegally collected or received by the tax administrator under this chapter, it may be refunded, provided a verified claim in writing therefor, stating the specific reason upon which the claim is founded, is filed with the tax administrator within three years from the date of payment. The claim shall be made on forms provided by the tax administrator. If the claim is approved by the tax administrator, the excess amount collected or paid may be refunded or may be credited on any amount then due and payable from the operator from whom it was collected or by whom paid and the balance may be refunded to such operator, his administrators, executors or assignees.

B. Refunds by City to Transient. Whenever the tax required by this chapter has been collected by an operator, and deposited by operator with the tax administrator, and it is later determined that the tax was erroneously or illegally collected or received by the tax administrator, it may be refunded by the tax administrator to the transient, provided a verified claim in writing therefor, stating the specific reason on which the claim is founded, is filed with the tax administrator within three years from the date of payment.

C. Refunds by Operator to Tenant. Whenever the tax required by this chapter has been collected by the operator and it is later determined that the tenant occupies the hotel for a period exceeding 30 days without interruption, the operator shall refund to such tenant the tax previously collected by the operator from that tenant as a transient. The operator shall account for such collection and refund to the tax administrator. If the operator has remitted the tax prior to the refund or credit to the tenant, he shall be entitled to a corresponding refund under this section. (Ord. 89-8 § 13)

3.04.160 Collection fee.

Every operator liable for collection and remittance of the tax imposed by this chapter may withhold five percent of the net tax herein collected, to cover the operator’s expense in collection and remittance of said tax. (Ord. 89-8 § 14)

3.04.170 Administration.

A. Special Fund. The tax administrator shall deposit all money collected pursuant to this chapter to the credit of the transient room tax fund.

B. Records Required from Operators. Every operator shall keep an adequate system of accounting records of room sales sufficient to allow performance of a compliance review to verify accuracy. All records shall be retained by the operator for a period of five years and six months after they come into being. An adequate system of accounting records of room sales should typically include:

1. Registration cards;

2. Daily and/or monthly deposit and room rental summaries;

3. Adjustment to summaries, including, but not limited to, refunds, exempt rent and monthly rent;

4. Worksheets, showing computations for quarterly reports; and

5. General ledger records relating to gross and net rental receipts.

C. Failure to Maintain Records. Any operator who fails to maintain records adequate to allow performance of a compliance review to verify accuracy shall pay a penalty in the amount of up to $1.00 per room per day for each day the records of the hotel are found to be inadequate by the tax administrator. The penalty imposed by the tax administrator may be appealed to the transient lodgings tax review committee by filing notice of appeal within 20 days after the serving or the mailing of the notice of the imposition of penalty.

D. Examination of Records – Investigations. The tax administrator, or any person authorized in writing by him, may examine during normal business hours the books, papers and accounting records relating to room sales of any operator, after notification to the operator liable for the tax, and may investigate the business of the operator in order to verify the accuracy of any return made, or, if no return is made by the operator, to ascertain and determine the amount required to be paid.

E. Disclosure of Confidential Information Prohibited.

1. Disclosure by Administrative Staff. It is unlawful for the tax administrator or any person having an administrative or clerical duty under the provisions of this chapter to make known in any manner whatever the business affairs, operations or information obtained by an investigation of records and equipment of any person required to obtain a transient occupancy registration certificate, or pay a transient occupancy tax, or any other person visited or examined in the discharge of official duty, or the amount or source of income, profits, losses, expenditures, or any particular thereof, set forth in any statement or application, or to permit any statement or application, or copy of either, or any book containing any abstract or particulars thereof to be seen or examined by any person; provided, that nothing in this subsection shall be construed to prevent:

a. The disclosure to, or the examination of records and equipment by, a federal, state or local official, employee or agent, or to, or by, an administrative body or a court of competent jurisdiction, for tax collection purposes, or for any other regulatory purpose or use in any enforcement proceeding, including but not limited to administering or enforcing any provisions of this chapter, or collecting taxes imposed hereunder, or collecting city business license fees;

b. The disclosure, after the filing of a written request to that effect, to the taxpayer or to receivers, trustees, executors, administrators, assignees and guarantors of the taxpayer, if directly interested, of information as to any paid tax, any unpaid tax or amount of tax required to be collected, or interest and penalties; further provided, however, that the city attorney approves each such disclosure and that the tax administrator may refuse to make any disclosure referred to in this subsection (E)(1)(b) when in his opinion the public interest would suffer thereby;

c. The disclosure of the names and addresses of any persons to whom transient occupancy registration certificates have been issued;

d. The disclosure of general statistics regarding taxes collected or business done in the city;

e. In relation to any hotel on land as to which the city has been informed that a federally recognized Indian tribe is seeking to acquire the land, the disclosure of such information as the city, in its discretion, believes is necessary or appropriate in order to evaluate and provide information about potential losses of transient room tax revenues in the event of the tribe’s acquisition of the land and subsequent transfer of the land in trust to the federal government.

2. Disclosure by Transient Lodgings Tax Review Committee. It is unlawful for the transient lodgings tax review committee to make known in any manner whatever the content of exempt records or matters or information considered during an executive session pursuant to LCMC 3.04.220, or to make known any confidential information involving trade secrets or business records where the transient lodgings tax review committee has issued a protective order to protect the confidentiality of such records.

F. Use of Transient Room Tax Funds Collected. After payment of the cost associated with administering the transient room tax fund, including but not limited to audit fees, legal services, materials and services, and less a five percent fee to reimburse the general fund of the city for the administrative personnel services applicable to collection and enforcement of the collection of transient room tax funds, the net transient room tax funds collected shall be distributed by the tax administrator quarterly as provided in the Lincoln City Charter. (Ord. 2014-24 § 1; Ord. 2004-09 § 1; Ord. 97-4 § 4; Ord. 96-4 § 6; Ord. 92-1 § 2; Ord. 91-16 §§ 5, 6; Ord. 89-8 § 15)

3.04.180 Transient lodgings tax review committee – Procedure.

Recodified as LCMC 2.68.010. (Ord. 2002-13 § 1; Ord. 92-11 § 1; Ord. 91-16 § 7; Ord. 89-8 § 16)

3.04.190 Transient lodgings tax review committee – Powers and duties.

Recodified as LCMC 2.68.020. (Ord. 91-16 § 8; Ord. 89-8 § 16(a))

3.04.200 Transient lodgings tax review committee – Vacancies.

Repealed by Ord. 2017-05. (Ord. 89-8 § 16(b))

3.04.210 Transient lodgings tax review committee – Frequency of meetings.

Repealed by Ord. 2017-05. (Ord. 89-8 § 16(c))

3.04.220 Appeals.

A. Notice of Appeal. Any person aggrieved by any decision of the tax administrator may appeal to the transient lodgings tax review committee by filing notice of appeal with the tax administrator within 20 days of the serving or mailing of the notice of a decision given by the tax administrator. The notice of appeal shall state facts relied upon for relief, a statement or proposition of law or ordinance relied upon, the relief requested and shall bear the signature of the appellant or authorized representative of the appellant.

B. Appeals to Be De Novo. All proceedings before the transient lodgings tax review committee shall be original and independent proceedings and shall be heard without a jury and de novo. The tax administrator shall fix a time and place for hearing such appeal as prescribed by the transient lodgings tax review committee and shall give the appellant 20 days’ written notice of the time and place of hearing.

C. Burden of Proof. In appeals to the transient lodgings review committee, a preponderance of the evidence shall be required to sustain the burden of proof. The burden of proof shall fall upon the appellant seeking relief from a determination of the tax administrator.

D. Hearings Open to the Public. An appeal hearing before the transient lodgings tax review committee shall be open to the public and minutes shall be kept regarding such proceeding. In any case regarding confidential information involving trade secrets or other confidential business records, upon motion of the appellant, the transient lodgings tax review committee may make such protective orders as may be necessary to protect the confidentiality of such records. In determining whether such protective order should be issued, the transient lodgings tax review committee shall weigh the harm that might be suffered by the appellant against any benefit received by the public as the result of disclosure.

E. Executive Session. After closing the appeal hearing, the transient lodgings tax review committee may continue its meeting in executive session to consider records that are exempt by law from public inspection or to consult with counsel regarding current litigation or litigation likely to be filed in the matter on appeal.

F. Decision of the Transient Lodgings Tax Review Committee. The transient lodgings tax review committee shall render its decision at an open meeting in writing, including therein a concise statement of the facts found by the transient lodgings tax review committee and the conclusions and findings reached by the committee. The committee may affirm, reverse, modify or remand any order or determination of the tax administrator and shall grant such other relief as shall be appropriate. The written decision shall be incorporated in the minutes of the committee. (Ord. 96-4 § 7; Ord. 91-16 § 9; Ord. 89-8 § 17)

3.04.230 Appeals to city council.

Any person aggrieved by any decision of the transient lodgings tax review committee may appeal to the city council by filing notice of appeal with the tax administrator within 20 days of the serving or the mailing of the notice of the decision given by the transient lodgings tax review committee. The tax administrator shall transmit said notice of appeal together with the file of said appealed matter to the council, who shall fix a time and place for hearing such appeal from the decision of the transient lodging tax review committee. The council shall give the appellant not less than 20 days’ written notice of the time and place of hearing of said appealed matter. The appeal proceedings before the council shall be conducted in accordance with the procedures utilized in an appeal to the transient lodgings tax review committee as specified in LCMC 3.04.220. (Ord. 96-4 § 8; Ord. 89-8 § 18)

3.04.240 Violation.

Violation of any provisions of this chapter constitutes a Class B violation and shall be dealt with according to the procedures established in Chapter 1.16 LCMC and shall be subject to the penalties stated therein. (Ord. 2015-10 §§ 5, 6; Ord. 89-8 § 21)

3.04.250 Violations – Penalty.

It is unlawful for any operator or other person so required to fail or refuse to register as required herein, or to furnish any return required to be made, or fail or refuse to furnish a supplemental return or other data required by the tax administrator or to render a false or fraudulent return. No person required to make, render, sign or verify any report shall make any false or fraudulent report with intent to defeat or evade the determination of any amount due required by this chapter. (Ord. 89-8 § 20)