Chapter 5.50 TRANSIENT LODGING

“Accrual accounting” means the operator enters the rent due from a transient on the operator’s 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 its records when the rent is earned, but rather when it is paid.

“City Council” means the City Council of the City of Monmouth, Oregon.

“Collection reimbursement charge” means the amount a transient lodging operator may retain as reimbursement for the costs incurred by the provider in collecting and reporting the transient lodging tax and in maintaining transient lodging tax records.

“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 transient lodging.

“Operator” means the person who is the proprietor of a transient lodging in any capacity. Where the operator performs his or her functions through a managing agent 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 its principal. Compliance with the provisions of this chapter by either the principal or the managing agent shall be considered to be compliance by both. “Operator” also includes a transient lodging intermediary.

“Person” means any individual, corporation, partnership, joint venture, association, social club, fraternal organization, public or private dormitory, joint stock company, corporation, estate, trust, receiver, trustee, syndicate 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 transient lodging valued in money, goods, labor, credits, property or other consideration valued in money, without any deduction; but shall not include charges to a condominium unit owner which are solely for cleaning or maintenance of the unit or personal use or occupancy by the owner, so long as the charges are made in connection therewith for space occupancy.

“Rent package plan” means the consideration charged for both food and rent where a single rate is made for the total of both. The amount applicable to rent for determination of the transient room tax under this chapter shall be the same as the charge made for rent when food consideration is not a part of the package plan. The amount applicable for rent for determination of the transient room tax under this chapter shall be the amount allocated to space rent, taking into consideration a reasonable value of other items in the rent package and the charge for rent when the space is rented separately and not included in a package plan.

“Tax” means the tax payable by the transient or the aggregate amount of taxes due from an operator during the period for which collections are required to be reported.

“Tax Administrator” means the Finance Director of the City, or the Finance Director’s designee.

“Transient” means any individual who exercised occupancy or is entitled to occupancy in a transient lodging 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 transient lodging shall not be included in determining the 30-day period if the transient is not charged rent for that day by the operator. Any individual so occupying space in a transient lodging 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 this chapter may be considered. A person who pays for lodging on a monthly basis, irrespective of the number of days in the month, shall not be deemed a transient.

“Transient lodging” means:

(a) Transient lodging, motel and inn dwelling units that are used for temporary overnight human occupancy;

(b) Spaces used for parking recreational vehicles or erecting tents during periods of human occupancy;

(c) Houses, cabins, condominiums, apartment units or other dwelling units, or portions of any of such dwelling units, that are used for temporary human occupancy.

“Transient lodging intermediary” means a person other than a transient lodging provider that facilitates the retail sale of transient lodging and:

(a) Charges for occupancy of the transient lodging;

(b) Collects the consideration charged for occupancy of the transient lodging; or

(c) Receives a fee or commission and requires the transient lodging provider to use a specified third-party entity to collect the consideration charged for occupancy of the transient lodging.

“Transient lodging provider” means person that furnishes transient lodging. (Ord. 1245, Jan. 2, 2007; amended by Ord. 1381, § 1, June 5, 2018. Code 1983 § 69A.100.)

5.50.020 Tax imposed.

For the privilege of occupancy in any transient lodging, on and after the first day of April 2007, the operator shall collect from and each transient shall pay a tax to the City of Monmouth in the amount of nine percent of the total retail price, including all charges other than taxes, paid by a person for occupancy of the transient lodging. For a recreational vehicle, tent trailer and tent camping with self-pay slots, the tax shall be increased and assessed to the closest $0.25 interval. The tax constitutes a debt owed by the transient to the City, and by the operator to the City, which is extinguished only by payment by the operator to the City, and is in addition to any other tax levied by any other governmental jurisdiction.

(1) For rent collected on portions of a dollar, fractions of a penny of tax shall not be remitted.

(2) The operator shall be entitled to retain a collection reimbursement charge in the amount of five percent of the taxes collected pursuant to this chapter. (Ord. 1245, Jan. 2, 2007; amended by Ord. 1381, § 2, June 5, 2018. Code 1983 § 69A.120.)

5.50.030 Time of payment by transient.

The transient shall pay the tax to the operator of the transient lodging at the time when the 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, the transient shall pay a proportionate share of the tax 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. 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. (Ord. 1245, Jan. 2, 2007; amended by Ord. 1381, § 3, June 5, 2018. Code 1983 § 69A.130.)

5.50.040 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 rendered by the operator. No operator of a transient lodging shall advertise that the tax or any part of the tax will be assumed or absorbed by the operator or that the tax 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. 1245, Jan. 2, 2007; amended by Ord. 1381, § 4, June 5, 2018. Code 1983 § 69A.140.)

5.50.050 Exemptions.

No tax under this chapter shall be imposed upon:

(1) Any occupant for more than 30 successive calendar days with respect to any rent imposed for the period commencing after the first 30 days of successive occupancy;

(2) Any occupant whose rent is of a value less than $2.00 per day;

(3) Any person who rents a private home, vacation cabin or like facility from any owner who rents the facilities incidental to his or her own use thereof for periods greater than 30 days; or

(4) Any occupant of a hospital room, medical clinic, convalescent home or home for aged people or of a public institution owned and operated by a unit of the government and not operating under the veil of private sector competition. (Ord. 1245, Jan. 2, 2007. Code 1983 § 69A.150.)

5.50.060 Registration of operator.

(1) Every person engaging or about to engage in business as an operator of a transient lodging in this City shall register with the Tax Administrator on a form provided by the City within 15 days after commencing business. The privilege of registration after the date of imposition of the tax shall not relieve any person from the obligation of payment or collection of the tax regardless of registration.

(2) Registration shall set forth the name under which the operator transacts or intends to transact business, the location of place or places of business and other information to facilitate collection of the tax as the City Manager may require. The operator shall sign the registration.

(3) The Tax Administrator shall, within 10 days after registration, issue, without charge, a certificate of authority for each registrant to collect the tax from occupants, 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. Except as provided in subsection (4) of this section, 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 recognized by all occupants and persons seeking occupancy. The certificate shall, among other things, contain the following:

(a) The name of the operator;

(b) The address of the transient lodging;

(d) A statement that this transient occupancy registration certificate signifies that the person named on the face hereof has fulfilled the requirements of the transient lodging tax chapter of the MCC by registration with the Tax Administrator for the purpose of collecting the transient lodging tax imposed by the City and remitting that 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 transient lodging 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. This certificate does not constitute a permit.

(4) Transient intermediaries shall not be required to display the notice provided in this section. (Ord. 1245, Jan. 2, 2007; amended by Ord. 1381, § 5, June 5, 2018. Code 1983 § 69A.160.)

5.50.070 Due date of operator payments.

All taxes collected by any operator, less the five percent collection reimbursement charge, are due and payable to the Tax Administrator on a calendar quarter basis on the fifteenth day of the first month following the end of the preceding calendar quarter (April 15th, July 15th, October 15th and January 15th) and are delinquent on the last day of the month in which they are due. The Tax Administrator has authority to classify and/or district the operators by zones for determination of applicable tax periods and shall notify each operator of the due and delinquent dates for the operator’s returns. (Ord. 1245, Jan. 2, 2007; amended by Ord. 1381, § 6, June 5, 2018. Code 1983 § 69A.170.)

5.50.080 Returns.

On or before the fifteenth day of the month following each month of collection, a return for the preceding month’s tax collections shall be filed by each operator 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.

(1) 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 those amounts and the amount of the rents exempt, if any.

(2) The operator shall deliver the return, together with the remittance of the amount of the tax due, to the Tax Administrator, either by personal delivery or by mail.

(3) The return shall be signed by the operator and certified as being true and accurate. (Ord. 1245, Jan. 2, 2007. Code 1983 § 69A.180.)

5.50.090 Payment extension.

For good cause, the City Manager 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 City Council. Any operator to whom an extension is granted by the City shall pay interest at a rate of one percent per month, or portion thereof, from the original due date, until paid. 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 interest and further penalties described elsewhere in this chapter. (Ord. 1245, Jan. 2, 2007. Code 1983 § 69A.190.)

5.50.100 Penalties and interest.

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

(2) Continued Delinquency. Any operator who has not been granted an extension of time for remittance of tax due and fails 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.

(3) Fraud. If the City Manager determines that the nonpayment of any remittance due under this chapter was due to fraud or was done with the intent to evade the provisions of this chapter, a penalty of 25 percent of the amount of the tax shall be added thereto in addition to the penalties stated in subsections (1) and (2) of this section.

(4) Interest. In addition to penalties imposed, any operator who fails to remit any tax imposed by this chapter shall pay interest on delinquent taxes at the rate of one percent per month, or fraction thereof, without prorating 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.

(5) Penalties Merged with Tax. Every penalty imposed and any interest accrued under the provisions of this section shall be merged with and become a part of the tax herein required to be paid.

(6) Petition for Waiver. Any operator who fails to remit the tax herein levied within the time stated shall pay the penalties herein stated; provided, however, that the operator may petition the City Manager for waiver and refund of the penalty, or any portion thereof, and the City Manager may, in the City Manager’s sole discretion, and if a good and sufficient reason is shown, waive and direct a refund of the penalty or any portion thereof. (Ord. 1245, Jan. 2, 2007. Code 1983 § 69A.200.)

5.50.110 Deficiency determination.

If the Tax Administrator determines that a return is incorrect, the Administrator shall 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 submitted to the City or additional information provided or obtained for Tax Administrator review. One or more deficiency determinations may be made of the amount due for one or more than one reporting 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 and interest on deficiencies shall be charged as set forth in MCC 5.50.100.

(1) In making a determination, the Tax Administrator may offset tax overpayments, if any, which may have been previously made for a reporting period or periods or against penalties and interest on underpayments. Penalties and interest on underpayments shall be computed in the manner set forth in MCC 5.50.100.

(2) The Tax Administrator shall give the operator a written notice of a deficiency determination. The notice may be served personally or by mail. If by mail, the notice shall be addressed to the operator at the address as it appears on the records of the City.

(3) Except in the case of fraud or intent to evade the provisions of this chapter, or rules and regulations authorized hereunder, every deficiency determination shall be made and notice thereof mailed within three years after the last day of the month following the close of the monthly period for which the return was filed, or due to be filed, or within three years after the return is filed, whichever period expires later.

(4) Any deficiency 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 for redemption and refund if the petition is filed before the determination becomes final as herein provided.

(5) If any operator shall fail or refuse to collect the tax or to make, within the time provided in this chapter, any return, or remittance of the tax, or any portion thereof, required by this chapter, or makes a fraudulent return, or otherwise willfully attempts to evade the provisions of this chapter, the Tax Administrator shall proceed in the manner as may be deemed 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 from any operator who has failed or refused to collect the same and to report and remit the tax, the Tax Administrator shall proceed to determine and assess against that operator the tax, interest and penalties provided for by this chapter. This determination and notice shall be made and mailed within three years of the discovery by the Tax Administrator of any fraud, intent to evade or failure or refusal to collect the tax or failure to file a return. Any determination shall become due and payable upon receipt of notice and shall be final 20 days after the Tax Administrator has given notice thereof; provided, however, the operator may petition the City Manager for redemption or refund if the petition is filed before the determination becomes final as herein provided. (Ord. 1245, Jan. 2, 2007. Code 1983 § 69A.210.)

5.50.120 Payment in jeopardy.

If the Tax Administrator believes that the collection of any tax, or any portion thereof, required to be collected and paid to the City will be jeopardized by delay, or if any determination will be jeopardized by delay, the Administrator shall make a determination of the tax, penalties and interest required to be collected. The amount so determined shall be immediately due and payable and the operator shall immediately pay the tax 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 the determination, if the petition is filed with the Tax Administrator within 20 days from the date of service of notice by the Tax Administrator. (Ord. 1245, Jan. 2, 2007. Code 1983 § 69A.220.)

5.50.130 Redeterminations.

Any person against whom a deficiency determination is made may petition for a redetermination and redemption and refund within the time required in MCC 5.50.110. If a petition for redetermination and refund is not filed within the time required in MCC 5.50.110, the determination becomes final at the expiration of the allowable time.

(1) If a petition for redetermination and refund is filed with the Tax Administrator within the allowable period, the Tax Administrator shall reconsider the determination and if the operator has so requested by petition, the City Manager shall grant the operator an oral hearing and the Tax Administrator shall give a 20-day notice of the time and place of the hearing to the operator. The City Manager may continue the hearing from time to time as may be necessary.

(2) The Tax Administrator and/or the City Manager may decrease or increase the amount of the determination. If an increase is determined, the increase shall be payable immediately.

(3) The decision of the City Manager upon a petition for redetermination or redemption and refund is final 20 days after service upon the petitioner of notice thereof, unless appeal of the decision to the City Council is filed with the City Recorder within 20 days after the service of the notice. No petition for determination or redemption and refund or appeal therefrom shall be effective for any purpose unless the operator has first complied with the payment provisions hereof. (Ord. 1245, Jan. 2, 2007. Code 1983 § 69A.230.)

5.50.140 Security for collection of tax.

The Tax Administrator, when the Administrator deems it necessary to insure compliance with this chapter, may require the operator to deposit with the City, 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 monthly tax liability, determined in any manner the Tax Administrator deems proper, or $5,000, whichever amount is less. The operator may appeal any decision of the Tax Administrator made pursuant to this section to the City Manager, pursuant to MCC 5.50.130(3). (Ord. 1245, Jan. 2, 2007. Code 1983 § 69A.240.)

5.50.150 Collection by City Attorney.

At any time within three years after any tax or any amount of tax required to be collected becomes due and payable or at any time within three years after any deficiency determination becomes final, the City Attorney 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. 1245, Jan. 2, 2007. Code 1983 § 69A.250.)

5.50.160 Lien for amounts owed.

The tax imposed by this chapter, together with the interest and penalties herein provided, and all other amounts owing to the City under this chapter, shall be and, until paid, remain a lien from the date of its recording with the County Clerk of Polk County, Oregon, on all tangible personal property used in the transient lodging, and may be foreclosed in the same manner as other municipal liens. The lien shall be satisfied upon payment of the full amount secured by the lien. (Ord. 1245, Jan. 2, 2007; amended by Ord. 1381, § 7, June 5, 2018. Code 1983 § 69A.260.)

5.50.170 Refunds to operator or transient.

Whenever the amount of any tax, penalty or interest has been paid more than once or has been erroneously collected or received by the Tax Administrator under this chapter, it may be refunded provided a written claim therefor stating the specific reason upon which the claim is founded is filed with the Tax Administrator by the operator or the transient, whichever actually suffered the loss, within three years from the date of the alleged overpayment. (Ord. 1245, Jan. 2, 2007. Code 1983 § 69A.270.)

5.50.180 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 occupied the transient lodging for a period exceeding 30 days without interruption, the operator shall refund to that tenant the tax previously collected by the operator. The operator shall account for this collection and refund to the Tax Administrator. If the operator has remitted the tax prior to the refund or credit to the tenant, the operator shall be entitled to a corresponding refund from the City. (Ord. 1245, Jan. 2, 2007; amended by Ord. 1381, § 8, June 5, 2018. Code 1983 § 69A.280.)

5.50.190 Operator records.

Every operator shall keep guest records of room sales and accounting books and records of the room sales. The operator shall retain all records for a period of three years and six months after they come into being.

(1) The City Manager, or the City Manager’s designee, may examine during normal business hours the books, papers and accounting records relating to room sales of any operator liable or potentially 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.

(2) It shall be unlawful for the City Manager, 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 an operator or 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 any book containing any abstract or particulars thereof to be seen or examined by any person; provided, that nothing in this section shall be so construed to prevent:

(a) The disclosure to or the examination of records and equipment by another City official, employee or agent for collection of taxes or otherwise administering or enforcing any provisions of this chapter;

(b) The disclosure, after the filing of a written request, by the taxpayer and/or the taxpayer’s receivers, trustees, executors, administrators, assignees and guarantors, or information as to any paid tax, any unpaid tax or amount of tax required to be collected or interest and penalties; provided, however, that the City Attorney approves each disclosure. The City Manager may refuse to make any disclosure referred to herein when, in the Man-

ager’s opinion, the public interest would suffer thereby;

(c) The disclosure of the names and addresses of any person to whom transient occupancy registration certificates have been issued;

(d) The disclosure of general statistics regarding taxes collected in the City; and

(e) Any disclosure required by law. (Ord. 1245, Jan. 2, 2007. Code 1983 § 69A.290.)

5.50.200 Use of transient room tax proceeds.

The City shall dedicate not less than 70 percent of the transient room tax collections each year to fund tourism promotion or tourism-related facilities, and not more than 30 percent of the transient room tax collections each year to fund City services. (Ord. 1245, Jan. 2, 2007. Code 1983 § 69A.300.)

5.50.210 Appeals to the City Council.

Any person aggrieved by any decision of the City Manager may appeal to the City Council by filing notice of appeal with the City Recorder within 20 days of the personal service or mailing of notice of the decision. The City Council shall give the appellant not less than a 20-day advance written notice of the time and place of the hearing. (Ord. 1245, Jan. 2, 2007. Code 1983 § 69A.310.)

5.50.220 Attorney’s fees.

If suit or action is instituted for any cause arising out of or in any way connected with this chapter, the prevailing party in the trial court and on any appeal shall recover reasonable attorney’s fees awarded by the trial and appellate court.

The City shall also be entitled to recover from the operator reasonable attorney’s fees incurred in requiring the operator to comply with the terms of this chapter, even though no suit or action be instituted. (Ord. 1245, Jan. 2, 2007. Code 1983 § 69A.320.)

5.50.230 Severability.

If any section, division, sentence, clause or phrase of this chapter or any part thereof is for any reason held to be unconstitutional or otherwise invalid, that decision shall not affect the validity of the remaining portions of this chapter. (Ord. 1245, Jan. 2, 2007. Code 1983 § 69A.330.)

5.50.240 Notice.

Whenever a filing is required/allowed by mail, that filing shall be considered to have been received two business days after the filing was placed in the U.S. mail, addressed to the intended recipient, by certified mail, return receipt requested, and postage prepaid. (Ord. 1245, Jan. 2, 2007. Code 1983 § 69A.340.)

5.50.250 Violations.

It is unlawful for any operator, or other person so required, to: fail or refuse to register as required herein; fail or refuse to furnish any return required to be made; 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 return shall make any false or fraudulent report, with intent to defeat or evade the determination of any amount due or required by this chapter. (Ord. 1245, Jan. 2, 2007. Code 1983 § 69A.350.)

5.50.260 Penalty.

Violation of this chapter shall constitute a violation. Each day a violation continues shall be a separate offense. (Ord. 1245, Jan. 2, 2007. Code 1983 § 69A.360.)

5.50.270 Enforcement.

The City Manager 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 enforcement. (Ord. 1245, Jan. 2, 2007. Code 1983 § 69A.370.)