[HISTORY: Adopted by the Town Board of the Town of Woodbury 2-16-2017 by L.L. No. 1-2017. Amendments noted where applicable.]
GENERAL REFERENCES
Taxation — See Ch. 277.
This chapter shall be known as the "Town of Woodbury hotel room
occupancy Tax Law."
For purposes of this chapter, the following definitions shall
apply:
The date on which this chapter is filed with the Secretary
of State.
Any facility consisting of rentable units and providing lodging
on an overnight basis and shall include those facilities designated
and commonly known as "bed-and-breakfast" and "tourist" facilities.
The use or possession, or the right to the use or possession,
of any room in a hotel.
A natural person who, for a consideration, uses, possesses
or has the right to use or possess any room in a hotel under any lease,
concession, permit, right of access, license to use or other agreement
or otherwise.
Any person operating a hotel or motel in the Town of Woodbury,
including, but not limited to, an owner or proprietor of such premises,
lessee, sublessee, mortgagee in possession, licensee or any other
person otherwise operating such hotel or motel.
Any natural person occupying any room or rooms in a hotel
for at least 90 consecutive days shall be considered a "Permanent
Resident" with regard to the period of such occupancy.
An individual, partnership, society, association, joint-stock
company, corporation, estate, receiver, trustee, assignee, referee
or any other person acting in a fiduciary or representative capacity,
whether appointed by a court or otherwise, or any combination of the
foregoing.
The per diem rental rate received for occupancy of each room,
valued in money, whether received in money or otherwise, for the occupancy
of a room in a hotel for any period of time.
Any return filed or required to be filed as herein provided.
Any room or rooms of any kind in any part or portion of a
hotel, which is available for or let out for any purpose other than
a place of assembly.
The Town Supervisor of the Town of Woodbury.
On or after the effective date of this chapter, there is hereby
imposed and there shall be paid a tax of 5% upon the rent for every
occupancy of a room or rooms in a hotel or motel in this Town, except
that the tax shall not be imposed upon a permanent resident, or as
otherwise provided herein.
Except as otherwise provided in this section, any use or occupancy
by any of the following shall not be subject to the tax imposed by
this chapter:
A.
The state of New York, or any public corporation (including a public
corporation created pursuant to agreement or compact with another
state or the Dominion of Canada), improvement district or other political
subdivision of the state;
B.
The United States of America, insofar as it is immune from taxation;
C.
Any corporation or association, or trust, or community chest, fund
or foundation organized and operated exclusively for religious, charitable
or educational purposes, or for the prevention of cruelty to children
or animals, and no part of the net earnings of which inures to the
benefit of any private shareholder or individual and no substantial
part of the activities of which is carrying on propaganda or otherwise
attempting to influence legislation; provided, however, that nothing
in this paragraph shall include an organization operated for the primary
purpose of carrying on a trade or business for profit, whether or
not all of its profits are payable to one or more organizations described
in this section;
D.
A permanent resident of a hotel or motel.
The tax imposed by this chapter shall apply only within the
territorial limits of the Town of Woodbury.
A.
Within 10 days after the effective date of this chapter or, in the
case of operators commencing business after such effective date, within
three days after such commencement or opening, every operator shall
file with the Supervisor a certificate of registration in a form prescribed
by the Town Board.
B.
The Supervisor shall, within five days after such registration, issue
without charge to each operator a certificate of authority empowering
such operator to collect the tax from the occupant and a duplicate
thereof for each additional hotel of such operator. Each certificate
or duplicate shall state the hotel to which it is applicable. Such
certificate of authority shall be prominently displayed by the operator
in such manner that it may be seen and come to the notice of all occupants
and persons seeking occupancy. Such certificate shall be nonassignable
and nontransferable and shall be surrendered immediately to the Supervisor
upon the cessation of business at the hotel named or upon its sale
or transfer.
A.
The tax imposed by this chapter shall be administered and collected
by the Supervisor, or such other Town employee as he/she may designate,
by such means and in such manner as are other taxes which are now
collected and administered or as otherwise provided by this chapter.
B.
The tax to be collected shall be stated and charged separately from
the rent and shown separately on any record thereof, at the time when
the occupancy is arranged or contracted for and charged for, and upon
every evidence of occupancy or any bill or statement of charges made
for said occupancy issued or delivered by the operator, and the tax
shall be paid by the occupant to the operator as trustee for and on
account of the Town, and the operator shall be liable for the collection
thereof and for the tax. The operator and any officer of any corporate
operator shall be personally liable for the tax collected or required
to be collected under this chapter, and the operator shall have the
same right in respect to collecting the tax from the occupant, or
in respect to nonpayment of the tax by the occupant, as if the tax
were part of the rent for the occupancy payable at the time such tax
shall become due and owing, including all rights of eviction, dispossession,
repossession and enforcement of any innkeeper's lien that he/she
may have in the event of nonpayment of the rent by the occupant; provided,
however, that the Supervisor or employees or agents duly designated
by him/her shall be joined as a party in any action or proceeding
brought by the operator to collect or enforce collection of the tax.
C.
The Supervisor may, whenever he/she deems it necessary for the proper
enforcement of this chapter, provide by regulation that the occupant
shall file returns and pay directly to the Supervisor the tax imposed
at such times as returns are required to be filed and payment made
over by the operator.
D.
The tax imposed by this chapter shall be paid upon any occupancy on and after the effective date of this chapter, although such occupancy is had pursuant to a contract, lease or other arrangement made prior to such date. Where rent is paid or charged or billed or falls due on either a weekly, monthly or other term basis, the rent so paid, charged, billed or falling due shall be subject to the tax herein imposed to the extent that it covers any portion of the period on and after the effective date of this chapter. Where any tax has been paid hereunder upon any rent which has been ascertained to be worthless, the Supervisor may, by regulation, provide for credit and/or refund of the amount of such tax upon application therefor as provided in § 279-13 of this chapter.
E.
For the purpose of the proper administration of this chapter and to prevent evasion of the tax hereby imposed, it shall be presumed that all rents are subject to tax until the contrary is established, and the burden of proving that a rent for occupancy is not taxable hereunder shall be upon the operator or occupant. Where an occupant claims exemption from the tax under the provisions of § 279-4 of this chapter, the rent shall be deemed taxable hereunder unless:
(1)
The operator shall receive from the occupant claiming such exemption
a copy of a New York State sales tax exemption certificate; or
(2)
Unless the operator shall receive from the occupant claiming such
exemption a certificate duly executed by an exempt corporation or
association certifying that the occupant is its agent, representative,
or employee, together with a certificate executed by the occupant
that the occupancy is paid or to be paid by such exempt corporation
or association, and is necessary or required in the course of or in
connection with the occupant's duties as a representative of
such corporation or association.
Every operator shall keep records of every occupancy and of
all rent paid, charged or due thereon and of the tax payable thereon,
in such form as the Supervisor may by regulation require. Such records
shall be available for inspection and examination at any time upon
demand by the Supervisor or his/her duly authorized agent or employee
and shall be preserved for a period of three years, except that the
Supervisor may consent to their destruction within that period or
may require that they be kept together.
A.
Every operator shall file with the Supervisor a return of occupancy
and of rents and of the taxes payable thereon for the three-month
periods ending the last day of March, June, September and December
on and after the effective date of this chapter. Such returns shall
be filed within 20 days from the expiration of the period covered
thereby. The Town Board may permit or require returns to be made for
other periods upon such dates as it may specify. If the Town Board
deems it necessary in order to ensure the payment of the tax imposed
by this chapter, it may require returns to be made for shorter periods
than those prescribed pursuant to the foregoing provisions of this
section and upon such dates as it may specify.
B.
The forms of return shall be prescribed by the Town Board and shall
contain such information as it may deem necessary for the proper administration
of this chapter. The Supervisor may require amended returns to be
filed within 20 days after notice and to contain the information specified
in the notice.
C.
If a return required by this chapter is not filed, or if a return
is incorrectly filed or is insufficient on its face, the Supervisor
shall take such steps as he/she deems necessary to enforce the filing
of such return or of a corrected return.
At the time of filing a return of occupancy and of rents, each
operator shall pay to the Supervisor the taxes imposed by this chapter
upon the rents required to be included in such return, as well as
all other moneys collected by the operator acting or purporting to
act under the provisions of this chapter; even though it be judicially
determined that the tax collected is invalidly required to be filed,
it shall be due from the operator and payable to the Supervisor on
the date prescribed herein for the filing of the return for such period,
without regard to whether a return is filed or whether the return
which is filed correctly shows the amount of rents and taxes due thereon.
Where the Supervisor in his/her discretion deems it necessary to protect
revenues to be obtained under this chapter, he/she may require any
operator required to collect the tax imposed by this chapter to file
with him/her a bond, issued by a surety company authorized to transact
business in this state and approved by the Superintendent of Insurance
of this state as to solvency and responsibility, in such amount as
the Supervisor may find to secure the payment of any tax and/or penalties
and interest due or which may become due from such operator. In the
event that the Supervisor determines that an operator is to file such
bonds, he/she shall give notice to such operator to that effect, specifying
the amount of the bond required. The operator shall file such bond
within five days after the giving of such notice unless, within such
five days, the operator shall request, in writing, a hearing before
the Supervisor at which the necessity, propriety and amount of the
bond shall be determined by the Supervisor. Such determination shall
be final and shall be complied with within 15 days after the giving
of notices thereof. In lieu of such bond, securities approved by the
Supervisor or cash in such amount as he/she may prescribe may be deposited
with him/her, which shall be kept in the custody of the Supervisor,
who may at any time, without notice of the depositor, apply them to
any tax and/or interest or penalties due, and for that purpose the
securities may be sold by him/her at public or private sale without
notice to the depositor thereof.
Any final determination of the amount of any tax payable hereunder
shall be reviewable for error, illegality or unconstitutionality or
any other reason whatsoever by a proceeding under Article 78 of the
Civil Practice Law and Rules if application therefor is made to the
Supreme Court within thirty days after the giving of the notice of
such final determination; provided, however, that any such proceeding
under Article 78 of the Civil Practice Law and Rules shall not be
instituted unless:
A.
The amount of any tax sought to be reviewed, with such interest and
penalties thereon as may be provided for by local law shall be first
deposited and there is filed an undertaking, issued by a surety company
authorized to transact business in this state and approved by the
Superintendent of Insurance of this State as to solvency and responsibility,
in such amount as a Justice of the Supreme Court shall approve to
the effect that if such proceeding be dismissed or the tax confirmed,
the petitioner will pay all costs and charges which may accrue in
the prosecution of such proceeding; or
B.
At the option of the petitioner, such undertaking may be in a sum
sufficient to cover the taxes, interests and penalties stated in such
determination plus the costs and charges which may accrue against
it in the prosecution of the proceeding, in which event the petitioner
shall not be required to pay such taxes, interest or penalties as
a condition precedent to the application.
All revenue resulting from the imposition of the tax under this
chapter shall be paid into the treasury of the Town and shall be credited
to and deposited in the general fund of the Town. Such revenues may
be used for any lawful purpose.
A.
In the manner provided in this section, the Supervisor shall refund
or credit, without interest, any tax penalty or interest erroneously,
illegally or unconstitutionally collected or paid if application to
the Supervisor for such refund shall be made within one year from
the payment thereof. Whenever a refund is made by the Supervisor,
he/she shall state his/her reason therefor, in writing. Such application
may be made by the occupant, operator or other person who has actually
paid the tax. Such application may also be made by an operator who
has collected and paid over such tax to the Supervisor, provided that
the application is made within one year of the payment to the operator,
but no actual refund of moneys shall be made to such operator until
it shall first establish to the satisfaction of the Supervisor, under
such regulations as the Supervisor may prescribe, that it has repaid
to the occupant, or other person who has actually paid the tax, the
amount for which the application for refund is made. The Supervisor
may, in lieu of any refund required to be made, allow credit therefor
on payments due or to become due from the applicant.
B.
Where any tax imposed hereunder shall have been erroneously, illegally
or unconstitutionally collected and application for the refund thereof
duly made to the Supervisor, and such Supervisor shall have made a
determination denying such refund, such determination shall be reviewable
by a proceeding under Article 78 of the Civil Practice Law and Rules;
provided, however, that such proceeding is instituted within thirty
days after the giving of the notice of such denial, that a final determination
of tax due was not previously made, and that an undertaking is filed
with the Supervisor in such amount and with such sureties as a Justice
of the Supreme Court shall approve to the effect that if such proceeding
be dismissed or the tax confirmed, the petitioner will pay all costs
and charges which may accrue in the prosecution of such proceeding.
C.
A person shall not be entitled to a revision, refund or credit of a tax, interest or penalty which had been determined to be due pursuant to the provisions of § 279-16 of this chapter where it has had a hearing or an opportunity for a hearing, as provided in said section, or has failed to avail itself of the remedies therein provided. No refund or credit shall be made of a tax, interest or penalty paid after a determination by the Supervisor made pursuant to § 279-16 of this chapter unless it be found that such determination was erroneous, illegal or unconstitutional or otherwise improper by the Supervisor after a hearing or on his/her own motion or in a proceeding under Article 78 of the Civil Practice Law and Rules, pursuant to the provisions of said section, in which event refund or credit without interest shall be made of the tax, interest or penalty found to have been overpaid.
In cases where the occupant or operator has applied for a refund
and has instituted a proceeding under Article 78 of the Civil Practice
Law and Rules to review a determination adverse to him/her on his/her
application for refund, the Supervisor shall have the option of crediting
future tax payments to meet the cost of any settlements or judgments
or, at his/her option, may, in the first instance, set up appropriate
reserves to meet any decision adverse to the Town.
The remedies provided by § 279-11 and § 279-13 of this chapter shall be the exclusive remedies available to any person for the review of tax liability imposed by this chapter, and no determination or proposed determination of tax or determination on any application for refund shall be enjoined or reviewed by an action for declaratory judgment, an action for money had and received or by any action or proceeding other than a proceeding in a nature of a certiorari proceeding under Article 78 of the Civil Practice Law and Rules; provided, however, that a taxpayer may proceed by declaratory judgment if he/she institutes suit within 30 days after a deficiency assessment is made and pays the amount of the deficiency assessment to the Supervisor prior to the institution of such suit and posts a bond for costs as provided in § 279-10 of this chapter.
A.
Any person failing to file a return or to pay or pay over any tax
to the Supervisor within the time required by this chapter shall be
subject to a penalty of 5% of the amount of tax due plus interest
at the rate of 1% of such tax for each month of delay excepting the
first month after such return was required to be filed or such tax
became due. Such penalties and interest shall be paid and disposed
of in the same manner as other revenues from this chapter. Unpaid
penalties and interest may be enforced in the same manner as the tax
imposed by this chapter.
B.
Any operator or occupant and any officer of an operator or occupant failing to file a return required by this chapter, or filing or causing to be filed or making or causing to be made or giving or causing to be given any return, certificate, affidavit, representation, information, testimony or statement required or authorized by this chapter which is willfully false, and any operator and any officer of a corporate operator willfully failing to file a bond required to be filed pursuant to § 279-10 of this chapter, or failing to file a registration certificate and such data in connection therewith as the Supervisor may by regulation or otherwise require, or failing to display or surrender the certificate of authority as required by this chapter or assigning or transferring such certificate of authority; and any operator or any officer of a corporate operator willfully failing to charge separately from the rent the tax herein imposed or willfully failing to state such tax separately on any evidence of occupancy and on any bill or statement or receipt of rent issued or employed by the operator or willfully failing or refusing to collect such tax from the occupant; any operator or any officer of a corporate operator who shall refer or cause reference to be made to this tax in a form or manner other than that required by this chapter, and any such person or operator failing to keep records required by this chapter, shall, in addition to the penalties herein or elsewhere prescribed, be guilty of a misdemeanor, punishable by a fine of up to $1,000, imprisonment for not more than one year, or both such fine and imprisonment. Officers of a corporate operator shall be personally liable for the tax collected or required to be collected by such corporation under this chapter and penalties and interest thereon and subject to the fines and imprisonment herein authorized.
C.
The certificate of the Supervisor to the effect that a tax has not
been paid, that a return, bond or registration certificate has not
been filed or that information has not been supplied pursuant to the
provisions of this chapter shall be presumptive evidence thereof.
It shall be unlawful, except in accordance with proper judicial
order or as otherwise provided to the fullest extent permitted by
law, for the Supervisor or employee or designee of the Supervisor
to divulge or make known in any manner the rents or other information
relating to the business of a taxpayer contained in any return required
under this chapter. The officers charged with the custody of such
returns shall not be required to produce any of them or evidence of
anything contained in them in any action or proceeding in any court,
except on behalf of the Supervisor in an action or proceeding under
the provisions of this chapter or on behalf of any party to any action
or proceeding under the provisions of this chapter when the returns
or facts shown thereby are directly involved in such action or proceeding,
in either of which events the court may require the production of,
and may admit in evidence, so much of said returns or of the facts
shown thereby as are pertinent to the action or proceeding and no
more. Nothing herein shall be construed to prohibit the delivery to
a taxpayer or his/her duly authorized representative of a certified
copy of any return filed in connection with his/her tax nor to prohibit
the publication of statistics so classified to prevent the identification
of particular returns and items thereof or the inspection by the Town
Attorney or other legal representatives of the Town or by the District
Attorney of any county of the return of any taxpayer who shall bring
action to set aside or review the tax based thereon, or against whom
an action or proceeding has been instituted for the collection of
a tax or penalty. Returns shall be preserved for three years and thereafter,
until the Supervisor permits them to be destroyed.
A.
Any notice authorized or required under the provisions of this chapter
may be given to the person to whom it is intended in a postpaid envelope
addressed to such person at the address given in the last return filed
by him/her pursuant to the provisions of this chapter or in any application
made by him/her or, if no return has been filed or application made,
then to such address as may be obtainable. The mailing of such notice
shall be presumptive evidence of the receipt of the same by the person
to who addressed. Any period of time which is determined according
to the provisions of this chapter by the giving of notice shall commence
five days after the date of mailing of such notice.
B.
The provisions of the Civil Practice Law and Rules or any other law
relative to limitations of time for the enforcement of a civil remedy
shall not apply to any proceeding or action taken by the Town to levy,
appraise, assess, determine or enforce the collection of any tax or
penalty provided by this chapter. However, except in the case of a
willfully false, fraudulent return with intent to evade the tax, no
assessment of additional tax shall be made after the expiration of
more than three years from the date of filing of a return; provided,
however, that where no return has been filed as provided by law, the
tax may be assessed at any time.
C.
Where, before expiration of the period prescribed herein for the
assessment of an additional tax, a taxpayer has consented, in writing,
that such period be extended, the amount of such additional tax due
may be determined at any time within such extended period. The period
so extended may be further extended by subsequent consents in writing
made before the expiration of the extended period.
Whenever any operator, any officer of a corporate operator,
any occupant, or other person fails to collect and pay over any tax
and/or penalty or interest as imposed by this chapter, the Town Attorney
shall, at the request of the Town Board, bring or cause to be brought
an action to enforce the payment of the same on behalf of the Town
in any court of the State of New York or of any other state or of
the United States. If, however, the Supervisor believes that any such
operator, officer, occupant, or other person is about to cease business,
leave the state, or remove or dissipate the assets out of which the
tax or penalties might be satisfied, and that any such tax or penalty
will not be paid when due, such tax or penalty may be declared to
be immediately due and payable, and the Supervisor may issue a warrant
immediately.
In addition to the powers granted in this chapter, the Supervisor
is hereby authorized and empowered to:
A.
Extend for cause shown, the time of filing any return for a period
not exceeding 30 days; and for cause shown, to remit penalties, but
not interest; and to compromise disputed claims in connection with
the taxes hereby imposed;
B.
Request information from the Tax Commission of the State of New York
or the Treasury Department of the United States relative to any person;
and to afford information to such Tax Commission or Treasury Department
relative to any person, notwithstanding any other provision of this
chapter;
C.
Delegate functions hereunder to any employee of Supervisor;
D.
Prescribe methods for confirming the rents for occupancy and to confirm
the accuracy of information on the taxable and nontaxable rents;
E.
Require any operator within the Town, if it is determined that adequate
records are not being maintained, to keep detailed records of the
nature and type of hotel maintained; nature and type of service rendered;
number of rooms available and occupied; daily leases, occupancy contracts
or arrangements; rents received, charged, and accrued; the names and
addresses of the occupants; whether or not any occupancy is claimed
to be subject to the tax imposed by this chapter; and to furnish such
information at the request of the Supervisor;
F.
Impose as a penalty upon any operator within the Town any necessary
costs of auditing services generated by discrepancies discovered upon
audit, in the records of the operator; and
G.
Make, adopt, and amend such other rules and regulations appropriate
to the carrying out of this chapter and the purposes thereof as may
be approved by the Town of Woodbury Town Board.
A.
The Supervisor or employees or agent(s) duly designated and authorized
shall have the power to administer oaths and take affidavits in relation
to any matter or proceeding in the exercise of their powers and duties
under this chapter. The Supervisor shall have power to subpoena and
require the attendance of witnesses and the production of books, papers,
and documents to secure information pertinent to the performance of
the duties hereunder in the enforcement of this chapter, and to examine
them in relation thereto. The Supervisor shall also have the power
to issue commissions for the examination of witnesses who are out
of the state, unable to attend, or who are excused from attendance.
B.
A Supreme Court Justice, either in court or in chambers, shall have
the power to summarily enforce by proper proceedings the attendance
and testimony of witnesses and the production and examination of books,
papers, and documents called for by the subpoena of the Supervisor
under this chapter.
C.
Any subpoenaed person who refuses to testify or produce books or
records, or who testifies falsely in any material matter pending before
the Supervisor under this chapter shall be guilty of a misdemeanor,
punishment for which shall be a fine of not more than $1,000 or imprisonment
for not more than one year, or both such fine and imprisonment.
D.
The officers who serve the summons or subpoena of the Supervisor
and witnesses attending in response thereto shall be entitled to the
same fees as are allowed to officers and witnesses in civil cases
in courts of record, except as herein provided otherwise. Such officers
shall be the Town of Woodbury police, or any officers or employees
of the Supervisor's office designated to serve such process.
From time to time, but no less than quarterly each year, the
Supervisor shall provide a report to the Town Board, for its audit
and review, of all actions taken pursuant to this chapter. The Supervisor's
report shall contain a list of all certificates of registration filed
or issued to any operator in the Town of Woodbury, and for each operator
shall state the returns filed all operators; the returns that have
not been timely filed by any operator; the amount of tax determined
to be payable by any operator; the tax paid and collected from any
operator; any tax that may be due and owing or past due from any operator,
and any enforcement action taken to collect any tax due under this
chapter.
