This article shall be known as the "Councilman George Woolsey
Law."
For purposes of this article, the following definitions shall
apply:
EFFECTIVE DATE
The date on which the local law enacting this article is
filed with the Secretary of State.
HOSTING COMPANY
An internet, application, technology, and/or similarly based
service through which a third party desiring to offer lodging (a "host")
and a third party desiring to book lodging (a "guest") for one or
more nights have the opportunity to communicate, negotiate, and consummate
a booking transaction for transient lodging accommodations pursuant
to a direct agreement between a host and guest to which the hosting
company is not a party but still facilitates and is entitled to receive
payments for rent on behalf of or for the host. Merely publishing
an advertisement for transient accommodations does not make the publisher
a hosting company.
HOTEL or MOTEL
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.
OCCUPANCY
The use or possession, or the right to the use or possession,
of any room in a hotel.
OCCUPANT
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.
OPERATOR
Any person operating a hotel or motel in the Town of Newburgh,
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 and entitled to be
paid the rent.
PERMANENT RESIDENT
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.
PERSON
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.
RENT
The per diem rental rate or charge 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.
RETURN
Any return filed or required to be filed as herein provided.
ROOM
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.
SUPERVISOR
The Town Supervisor of the Town of Newburgh.
TOURIST FACILITY
Building, structure of other facility, which may ordinarily
or originally be occupied for residential dwelling purposes, that
contains or comprises a transient lodging rentable unit, including,
but not limited to, "short term" or "vacation rental," or a location
that is otherwise made available for transient lodging accommodation
for rent directly by the owner or through an agent, operator or hosting
company.
On and after the effective date of this article, 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 article.
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 subsection 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 article shall apply only within the
territorial limits of the Town of Newburgh.
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.
At the time of filing a return of occupancy and of rents each
operator shall pay to the Supervisor or his authorized designee the
taxes imposed by this article 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 article 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. A host company may make a voluntary
payment on behalf of multiple participating host operators. Where
the Supervisor in his/her discretion deems it necessary to protect
revenues to be obtained under this article, he/she may require any
operator required to collect the tax imposed by this article 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 30 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
article 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.
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 §
166-38 and §
166-40 of this article shall be the exclusive remedies available to any person for the review of tax liability imposed by this article, 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 §
166-37 of this article.
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 article. 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 article or on behalf of any party to any action
or proceeding under the provisions of this article 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.
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 article, 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 article, 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
article;
C. Delegate functions hereunder to any employee of the Town;
D. Enter into intermunicipal agreements on behalf of the Town for the
performance of functions by another governmental entity;
E. Enter into agreements with hosting companies for the reporting, collection
and remittance of the tax provided for herein on behalf of participating
hosts;
F. Prescribe methods for confirming the rents for occupancy and to confirm
the accuracy of information on the taxable and nontaxable rents;
G. 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 article; and to furnish such
information at the request of the Supervisor;
H. 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
I. Make, adopt, and amend such other rules and regulations appropriate
to the carrying out of this article and the purposes thereof as may
be approved by the Town of Newburgh Town Board.
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 article. The Supervisor's
report shall contain a list of all certificates of registration filed
or issued to any operator in the Town or hosting company, and for
each operator shall state the returns filed for all operators and
hosting companies; the returns that have not been timely filed by
any operator or hosting company; the amount of tax determined to be
payable by any operator or hosting company; the tax paid and collected
from any operator or hosting company; any tax that may be due and
owing or past due from any operator or hosting company, and any enforcement
action taken to collect any tax due under this article.