[Adopted 3-15-1989 by L.L. No. 1-1989,
approved 4-5-1989]
This Article amends Local Law No. 2 of 1971
as previously amended by Local Law No. 2 of 1973 and Local Law No.
1 of 1986, and collectively shall be known as the "Monroe County Hotel
Room Occupancy Tax Law."
When used in this article, the following terms
shall have the meanings indicated:
Monroe County, New York.
The County Attorney of the County.
The Director of Finance of the County.
The Controller of the County.
A building or portion of it which is regularly used and kept
open as such for the lodging of guests. The term "hotel" includes,
but is not limited to, a motel, motor court or inn, or similar hotel-
or motel-type of accommodations by whatever name designated.
The use or possession or the right to the use or possession
of any room in a hotel.
A 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 in the County, including but
not limited to the owner or proprietor of such premises, lessee, sublessee,
mortgagee in possession, franchisee, licensee or any other person
otherwise operating such hotel.
Any occupant of any room or rooms in a hotel for at least
30 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
and any other person acting in a fiduciary or representative capacity,
whether appointed by a court or otherwise, and any combination of
the foregoing.
The consideration received for occupancy valued in money,
whether received in money or otherwise.
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.
[Amended 11-14-2000 by L.L. No. 7-2000, approved 12-12-2000]
On and after the first day of July 1971, there
is hereby imposed and there shall be paid a tax of 2% upon the rent
for every occupancy of a room or rooms in a hotel in the County, except
that the tax shall not be imposed upon a permanent resident, and except
that:
The tax imposed by this article shall be paid
upon any occupancy on and after the first day of July 1971, although
such occupancy is pursuant to a prior contract, lease or other arrangement.
Where rent is paid on a weekly, monthly or other term basis, the rent
shall be subject to the tax imposed by this article to the extent
that it covers any period on and after the first day of July 1971.
A.
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:
(1)
The state of New York, or any of its agencies, instrumentalities,
public corporations (including a public corporation created pursuant
to agreement or compact with another state or Canada), improvement
districts or political subdivisions of the state;
(2)
The United States of America, or any of its agencies
and instrumentalities, insofar as it is immune from taxation;
(3)
Any corporation, association, trust or community chest,
fund or foundation, organized and operated exclusively for religious,
charitable or education 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 subsection.
B.
Where any organization described in Subsection A(3) of this section carries on its activities in furtherance of the purposes for which it was organized, in premises in which, as part of said activities, it operates a hotel, occupancy of rooms in the premises and rents therefrom received by such corporation or association shall not be subject to tax hereunder.
The tax imposed by this article shall apply
only within the territorial limits of the County.
Within 10 days after the effective date of this
article, 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 Director of Finance a certificate
of registration in a form prescribed by the Director of Finance. The
Director of Finance 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 duplicate thereof
for each additional hotel of such operator. Each certificate or duplicate
shall state the hotel to which it is applicable. Such certificates
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 certificates shall be nonassignable
and nontransferable and shall be surrendered immediately to the Director
of Finance upon the cessation of business at the hotel named or upon
its sale or transfer.
A.
The tax imposed by this article shall be administered
and collected by the Director of Finance or other fiscal officers
of the County as he or she may designate by such means and in such
manner as are other taxes which are now collected and administered
by such officers in accordance with the Monroe County Charter or as
otherwise are provided by this article.
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
or charge 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 County, 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 article, 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 the operator
may have in the event of nonpayment of rent by the occupant; provided,
however, that the Director of Finance or other fiscal officer or officers,
employees or agents duly designated by him 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 Director of Finance may, wherever he/she deems
it necessary for the proper enforcement of this article, provide by
regulation that the occupant shall file returns and pay directly to
the Director of Finance the tax herein imposed, at such times as returns
are required to be filed and payment made by the operator.
D.
The tax imposed by this article shall be paid upon any occupancy on and after July 1, 1971, 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 July 1, 1971. Where any tax has been paid hereunder upon any rent which has been ascertained to be worthless, the Director of Finance may by regulation provide for credit and/or refund of the amount of such tax upon application therefor as provided in § 357-18 of this article.
E.
For the purpose of the proper administration of this article 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 the occupant. Where an occupant claims exemptions from the tax under the provisions of § 357-9, the rent shall be deemed taxable hereunder unless the operator shall receive from the occupant claiming such exemption a copy of a certificate issued by the Director of Finance certifying that the corporation or association therein named is exempt from the tax under § 357-9, together with a certificate duly executed by the corporation or association named in the certificate of the Director of Finance certifying that the occupant is its agent, representative or employee and that his occupancy is paid or to be paid by, and is necessary or required in the course of or in connection with the affairs of said 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 Director of Finance may be regulation
require. Such records shall be available for inspection and examination
at any time upon demand by the Director of Finance or his duly authorized
agent or employee and shall be preserved for a period of three years,
except that the Director of Finance may consent to their destruction
within that period or may require that they be kept longer.
A.
Every operator shall file with the Director of Finance
a return of occupancy and of rents, and of the taxes payable thereon
for the periods ending June 30, September 30, December 31 and March
31 of each year, on and after July 1, 1971. Such returns shall be
filed within 20 days from the expiration of the period covered thereby.
The Director of Finance may permit or require returns to be made by
other periods and upon such dates as he/she may specify. If the Director
of Finance deems it necessary in order to ensure the payment of the
tax imposed by this article, he/she 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 he/she may specify.
B.
The forms of returns shall be prescribed by the Director
of Finance and shall contain such information as he/she may deem necessary
for the proper administration of this article. The Director of Finance
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 local law is not filed,
if a return when filed is incorrect or insufficient on its face, the
Director of Finance shall take the necessary steps to enforce the
filing of such a return or of a corrected return.
At the time of filing a return of occupancy
and of rents each operator shall pay to the Director of Finance 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 shall be due from the operator and payable to
the Director of Finance on the date limited 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 the taxes due thereon. Where the Director of Finance 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 Director of Finance
may fix 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 Director of Finance determines that an operator is to file such
bond, 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
Director of Finance at which the necessity, propriety and amount of
the bond shall be determined by the Director of Finance. 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 Director of Finance or cash in such amount as he/she may prescribe,
may be deposited which shall be kept in the custody of the Director
of Finance 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.
If a return required by this article is not
filed, or if a return when filed is incorrect or insufficient, the
amount of tax due shall be determined by the Director of Finance from
such information as may be obtainable and, if necessary, the tax may
be estimated on the basis of external indices, such as number of rooms,
location, scale of rents, comparable rents, type of accommodations
and service, number of employees and/or other factors. Notice of such
determination shall be given to the person liable for the collection
and/or payment of the tax. Such determination shall finally and irrevocably
fix the tax, unless the person against whom it is assessed, within
30 days after giving of notice of such determination, shall apply
to the Director of Finance for a hearing, or unless the Director of
Finance of his/her own motion shall redetermine the same. After such
hearing, the Director of Finance shall give notice of his/her determination
to the person against whom the tax is assessed. The determination
of the Director of Finance shall be reviewable for error, illegality
or unconstitutionality or any other reason whatsoever by the proceeding
under Article 78 of the Civil Practice Laws and Rules of the State
of New York if application therefor is made to the Supreme Court of
the State of New York within 30 days after the giving of the notice
of such determination. A proceeding under Article 78 of the Civil
Practice Laws and Rules of the State of New York shall not be instituted
unless the amount of any tax sought to be reviewed, with penalties
and interest thereon, if any, shall be first deposited with the Director
of Finance and there shall be filed with the Director of Finance 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 the proceeding
or, at the option of the applicant, such undertaking filed with the
director of finance may be in a sum sufficient to cover the taxes,
penalties and interest thereon stated in such determination, plus
the costs and charges which may accrue against it in the prosecution
of the proceeding, in which event the applicant shall not be required
to deposit such taxes, penalties and interest as a condition precedent
to the application.
A.
All revenues resulting from the imposition of the
tax under this article shall be paid into the treasury of the County
and shall be credited and deposited in the general fund of the County.
B.
The revenue derived from the tax on and before the
30th day of June 1986, shall be allocated, after payment to the County
for administration and collection costs, 50% to the Rochester/Monroe
County Convention and Publicity Bureau and 50% to the City of Rochester,
subject, however, to the terms and conditions contained in contracts
which shall be entered into between the County and the Rochester/Monroe
Convention and Publicity Bureau and the City of Rochester, respectively.
The funds allocated to the Rochester/Monroe Convention and Publicity
Bureau shall be used for the purpose of promoting Monroe County, its
city, towns and villages in order to increase convention, trade show
and tourist business. The City of Rochester shall use the income which
it receives to make Rochester and Monroe County more attractive to
conventions, trades shows and other events by installing air conditioning
in and making interior repairs to the War Memorial Building and for
other related recreational activities.
C.
The revenue derived from the tax on and after the
first day of July 1986, up to and including the 30th day of April
1989, shall be allocated, after payment to the County for administration
and collection costs, as follows: 33 1/3% to the Rochester Monroe
County Convention and Visitors Bureau, Inc., which sum shall be used
for the same purpose as aforesaid; 33 1/3% to the City of Rochester,
which sum shall be used for the same purpose as aforesaid; 30% to
the City of Rochester, which sum shall be used only for the purpose
of offsetting operating deficits, as defined by contract between the
County and the City of Rochester, of the Rochester Riverside Convention
Center; and 3 1/3% to the Monroe County Fair and Recreation Association,
Inc., which sum shall be used for the purpose of promoting and publicizing
the advantages of Monroe County, its city, towns and villages in regard
to, among other things, agriculture, domestic arts and education,
during, among other times, the annual Monroe County Fair, subject,
however, to the terms and conditions contained in contracts which
shall be entered into between the County and the Rochester/Monroe
County Convention and Visitors Bureau, Inc., the City of Rochester
and the Monroe County Fair and Recreation Association, Inc., respectively,
and further subject to the condition that the allocation to the City
of Rochester for the Rochester Riverside Convention Center and to
the Monroe County Fair and Recreation Association, Inc., shall terminate
on December 31, 1987, except that such allocation may be extended
on a yearly basis by annual resolution of the Monroe County Legislature.
D.
The revenue derived from the tax on and after the
first day of May 1989 to the 31st day of December 1989 shall be allocated,
after payment to the County for administration and collection costs,
as follows: after payment to the County of the sum of $60,000 per
each calendar year for the purposes of funding County-operated or
-sponsored programs, activities and efforts to promote and enhance
tourism in Monroe County, 50% to the Rochester/Monroe County Convention
and Visitors Bureau, Inc., which sum shall be used for the same purpose
as aforesaid; 25% to the City of Rochester, which sum shall be used
for the purpose of making the City of Rochester and Monroe County
more attractive to conventions, trade shows and other events by making
interior repairs and other improvements to the War Memorial Building
and for other related recreational activities; 22 1/2% to the
City of Rochester, which sum shall be used only for the purpose of
offsetting "operating deficits," as defined by contract between the
County and City of Rochester, of the Rochester Riverside Convention
Center; and 2 1/2% to the Monroe County Fair and Recreation Association,
Inc., which sum shall be used for the same purpose as aforesaid; subject,
however, to the terms and conditions contained in contracts which
shall be entered into between the County and the Rochester/Monroe
County Convention and Visitors Bureau, Inc., the City of Rochester
and the Monroe County Fair and Recreation Association, Inc., respectively.
[Amended 12-12-1989 by L.L. No. 7-1989, approved 12-22-1989]
E.
The revenue derived from the tax on and after the
first day of January 1990 to the 31st day of December 1990 shall be
allocated, after payment to the County for administration and collection
costs, as follows:
[Added 12-12-1989 by L.L. No. 7-1989, approved 12-22-1989;[1] amended 4-2-1991 by L.L. No. 2-1991, approved 4-19-1991]
(2)
Eight and one-half percent to the County for the purposes
of funding cultural, artistic and other agencies, corporations and
associations whose activities promote or enhance tourism in Monroe
County and are authorized to receive County funding pursuant to the
County Law, subject to terms and conditions contained in contracts
to be entered into with the County;
(3)
Forty-two and one-half percent to the Rochester/Monroe
County Convention and Visitors Bureau, Inc., which sum shall be used
to promote and enhance tourism and convention and trade show business
in Monroe County, subject to terms and conditions contained in a contract
to be entered into between the Rochester/Monroe County Convention
and Visitors Bureau, Inc., and the County;
(4)
Twenty-five percent to the City of Rochester, which
sum shall be used for the purpose of making the City of Rochester
and Monroe County more attractive to conventions, trade shows and
other events by making interior repairs and other improvements to
the War Memorial Building and for other related recreational activities,
subject to terms and conditions contained in a contract to be entered
into between the City of Rochester and the County;
(5)
Twenty-two and one-half percent to the City of Rochester,
which sum shall be used only for the purpose of offsetting "operating
deficits," as defined by contract between the County and the City
of Rochester, of the Rochester Riverside Convention Center, subject
to terms and conditions contained in a contract to be entered into
between the City of Rochester and the County; and
(6)
One and one-half percent to the Monroe County Fair
and Recreation Association, Inc., which sum shall be used for the
purpose of promoting and enhancing tourism in Monroe County, subject
to terms and conditions contained in a contract to be entered into
between the Monroe County Fair and Recreation Association, Inc., and
the County.
[1]
Editor's Note: This local law also relettered
former Subsection E as Subsection F.
F.
The revenue derived from the tax on and after the
first day of January 1991 to the 31st day of December 2000 shall be
allocated after payment to the County for administration and collection
costs, as follows:
[Added 4-2-1991 by L.L. No. 2-1991,
approved 4-19-1991; amended 6-10-1997 by L.L. No. 4-1997; 9-9-1997 by L.L. No. 8-1997; 11-14-2000 by L.L. No.
7-2000, approved 12-12-2000]
(2)
One percent to the County for the purposes of funding
cultural, artistic and other agencies, corporations and associations
whose activities promote or enhance tourism in Monroe County and are
authorized to receive County funding pursuant to the County Law, subject
to terms and conditions contained in contracts to be entered into
with the County;
(3)
Fifty percent to the Greater Rochester Visitors Association
("GRVA"), which sum shall be used to promote and enhance tourism and
convention and trade show business in Monroe County, subject to terms
and conditions contained in a contract to be entered into between
the Greater Rochester Visitors Association and the County and beginning
on July 1, 1997, subject to a reorganization of the Board of Directors
of the GRVA, to be accomplished no later that July 1, 1997, as follows:
(a)
The Board of Directors shall consist of 17 voting
directors, including the following six members serving ex officio:
the Monroe County Executive, the Mayor of the City of Rochester, the
President of the Monroe County Legislature, the President of the Greater
Rochester Metro Chamber of Commerce, Inc., the President of the Industrial
Management Council and the President of the Hotel/Motel Association
and 11 members, each serving a maximum of two three-year terms: five
representatives from the visitors industry designated by the County
Legislature, three representatives from nonvisitor businesses, designated
by the County Executive, two representatives designated by the Hotel/Motel
Association of Rochester and one representative designated by the
New York State Restaurant Association, Greater Rochester Chapter.
(b)
The Board of Directors shall appoint an executive
committee of eight members comprised as follows: the County Executive,
the Mayor of the City of Rochester, the President of the County Legislature,
the President of the Hotel/Motel Association, two visitor-industry
members and two non-visitor-industry members.
(4)
Twenty-five percent to the City of Rochester, which
sum shall be used for the purpose of making the City of Rochester
and Monroe County more attractive to conventions, trade shows and
other events by making interior repairs and other improvements to
the War Memorial Building and for other related recreational activities,
subject to terms and conditions contained in a contract to be entered
into between the City of Rochester and the County;
(5)
Twenty-two and one-half percent to the City of Rochester,
which sum shall be used only for the purpose of offsetting "operating
deficits," as defined by contract between the County and the City
of Rochester, of the Rochester Riverside Convention Center, subject
to terms and conditions contained in a contract to be entered into
between the City of Rochester and the County; and
(6)
One and one-half percent to the Monroe County Fair
and Recreation Association, Inc., which sum shall be used for the
purpose of promoting and enhancing tourism in Monroe County, subject
to terms and conditions contained in a contract to be entered into
between the Monroe County Fair and Recreation Association, Inc., and
the County.
G.
The revenue derived from the tax on and after the
first day of January 2001 shall be allocated, after payment to the
County for administration and collection costs, as determined by the
County Legislature by resolution. All recipients of tax revenues shall
be subject to audit regarding the use and expenditure of said revenues
at the discretion of the County Legislature.
[Added 11-14-2000 by L.L. No. 7-2000, approved 12-12-2000B[2]]
H.
The County Legislature is authorized by resolution
to require such information and reports from each entity receiving
an allocation of tax revenues regarding the use and expenditure of
said revenues as the County Legislature may deem appropriate.
[Added 11-12-1996 by L.L. No. 12-1996, approved 12-11-1996]
I.
The County Executive is hereby authorized and directed
to enter into and execute, subject to the approval of the County Attorney,
all contracts or amendments thereto necessary to effectuate the provisions
of this section.
A.
In the manner provided in this section, the Director
of Finance shall refund or credit, without interest, any tax, penalty
or interest erroneously, illegally or unconstitutionally collected
or paid if application to the Director of Finance for such refund
shall be made within one year from the payment thereof. Whenever a
refund is made by the Director of Finance, 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 Director of Finance, provided that the application is made
within one year of the payment by the occupant to the operator, but
no actual refund or moneys shall be made to such operator until it
shall first establish to the satisfaction of the Director of Finance,
under such regulations as the Director of Finance may prescribe, that
it has repaid to the occupant the amount for which the application
for refund is made. The Director of Finance may in lieu of any refund
required to be made, allow credit therefor on payments due from the
applicant.
B.
An application for a refund or credit made as herein
provided shall be deemed an application for a revision of any tax,
penalty or interest complained of and the Director of Finance may
receive evidence with respect thereto. After making his/her determination,
the Director of Finance shall give notice thereof to the applicant
who shall be entitled to review of such determination by a proceeding
pursuant to Article 78 of the Civil Practice Laws and Rules of the
State of New York, provided that such proceeding is instituted within
30 days after the giving of the notice of such determination, and
provided that a final determination of tax due was not previously
made. Such a proceeding shall not be instituted unless an undertaking
is filed with the Director of Finance in such amount and with such
sureties as a Justice of the Supreme Court of the State of New York
shall approve to the effect that if such proceedings 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 under this section of a tax, interest or penalty which had been determined to be due pursuant to the provisions of this § 357-18 of this article where he/she had a hearing or an opportunity for a hearing, as provided in said section, or has failed to avail himself/herself of the remedies therein provided. No refund or credit shall be made of a tax, interest or penalty paid after a determination by the Director of Finance made pursuant to § 357-16 of this article unless it be found that such determination was erroneous, illegal or unconstitutional or otherwise improper by the Director of Finance after a hearing or of his/her own motion or in a proceeding under Article 78 of the Civil Practice Laws and Rules of the State of New York, 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 Laws and Rules of the State of New York to
review a determination adverse to him on his application for refund,
the Controller shall set up appropriate reserves to meet any decision
adverse to the County.
The remedies provided by §§ 357-16 and 357-18 of this article shall be exclusive remedies available to any person for the review of tax liability imposed by 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 an action or proceeding other than a proceeding in a nature of a certiorari proceeding under Article 78 of the Civil Practice Laws and Rules of the State of New York; provided, however, that a taxpayer may proceed by declaratory judgment is he/she institutes suit within 30 days after a deficiency assessment to the Director of Finance prior to the institution of such suit and posts a bond for costs as provided in § 357-16 of this article.
A.
Whenever any operator or any officer of a corporate
operator or any occupant or other person shall fail to collect and
pay over any tax and/or to pay any tax, penalty or interest imposed
by this article as therein provided, the County Attorney shall, upon
the request of the Director of Finance bring or cause to be brought
an action to enforce the payment of the same on behalf of the County
in any court of the State of New York or of any other state or of
the United States. If, however, the Director of Finance in his/her
discretion 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, he/she may
declare such tax or penalty to be immediately due and payable and
may issue a warrant immediately.
B.
As an additional or alternate remedy, the Director
of Finance may issue a warrant, directed to the Sheriff, commanding
him/her to levy upon and sell the real and personal property of the
operator or officer of a corporate operator or other person liable
for the tax, which may be found within the County for the payment
of the amount thereof, with any penalties and interest, and the cost
of executing the warrant, and to return such warrant to the Director
of Finance and to pay to him/her the money collected by virtue thereof
within 60 days after the receipt of such warrant. The Sheriff shall
within five days after the receipt of the warrant file with the County
Clerk a copy thereof, and thereupon such Clerk shall enter in the
judgment docket the name of the person mentioned in the warrant and
the amount of the tax penalties and interest for which the warrant
is issued and the date when such copy is filed. Thereupon the amount
of such warrant so docketed shall become a lien upon the Article to
and interest in real and personal property of the person against whom
the warrant is issued. The Sheriff shall then proceed upon the warrant,
in the same manner, and with like effect, as that provided by law
in respect to executions issued against property upon judgments of
a court of record and for services in executing the warrant he/she
shall be entitled to the same fees, which he/she may collect in the
same manner. In the discretion of the Director of Finance, a warrant
of like terms, force and effect may be issued and directed to any
officer or employee of the Department of Finance and in the execution
thereof such officer or employee shall have all the powers conferred
by law upon sheriffs, but shall be entitled to no fee or compensation
in excess of the actual expenses paid in the performance of such duty.
If a warrant is returned not satisfied in full, the Director of Finance
may from time to time issue new warrants and shall also have the same
remedies to enforce the amount due thereunder as if the County has
recovered judgment therefor and execution thereon has been returned
unsatisfied.
C.
Notice of sale, transfer or assignment.
(1)
Whenever an operator shall make a sale, transfer,
or assignment in bulk of any part or the whole of his hotel or his
lease, license or other agreement or right to possess or operate such
hotel or of the equipment, furnishings, fixtures, supplies or stock
of merchandise, or the said premises or lease, license or other agreement
or right to possess or operate such hotel and the equipment, furnishings,
fixtures, supplies and stock of merchandise pertaining to the conduct
or operation of said hotel, otherwise than in the ordinary and regular
prosecution of business, the purchaser, transferee or assignee shall
at least 10 days before taking possession of the subject of said sale,
transfer or assignment, or paying therefor, notify the Director of
Finance by registered mail of the proposed sale and of the price,
terms and conditions thereof, whether or not the seller, transferrer
or assignor has represented to or informed the purchaser, transferee
or assignee that it owes any tax pursuant to this article, and whether
or not the purchaser, transferee or assignee has knowledge that such
taxes are owing, and whether any such taxes are in fact owing.
(2)
When the purchaser, transferee or assignee shall fail to give notice to the Director of Finance as required by Subsection C(1), or whenever the Director of Finance shall inform the purchaser, transferee or assignee that a possible claim for such tax or taxes exists, any sums of money, property or choses in action, or other consideration, which the purchaser, transferee or assignee is required to transfer over to the seller, transferrer or assignor shall be subject to a first priority right and lien for any such taxes theretofore or thereafter determined to be due from purchaser, transferrer or assignor to the County, and the purchaser, transferee or assignee is forbidden to transfer to the seller, transferrer or assignor any such sums of money, property or choses in action to the extent of the amount of the County's claim. For failure to comply with the provisions of this subsection, the purchaser, transferee or assignee, in addition to being subject to the liabilities and remedies imposed under the provisions of § 44 of the Personal Property Law of the State of New York,[1] shall be personally liable for the payment to the County
of any such taxes theretofore or thereafter determined to be due to
the County from the seller, transferrer or assignor, and such liability
may be assessed and enforced in the same manner as the liability for
tax under this article.
[1]
Editor's Note: See now Uniform Commercial
Code § 6-101 et seq.
In addition to the powers granted to the Director
of Finance in this article, he/she is hereby authorized and empowered
to:
A.
Make, adopt and amend rules and regulations appropriate
to the carrying out of this local law and the purposes thereof.
B.
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 computed at the rate of 6% per annum; and
to compromise disputed claims in connection with the taxes hereby
imposed.
C.
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 such Treasury Department relative to any person, any other provision
of this article to the contrary notwithstanding.
D.
Delegate his/her functions hereunder to a Deputy Director
of Finance or any employee or employees of the Department of Finance.
E.
Prescribe methods for determining the rents for occupancy
and to determine the taxable and nontaxable rents.
F.
Require any operator within the County to keep detailed
records of the nature and type of hotel maintained, nature and type
of service rendered, the rooms available and rooms occupied daily,
leases or 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 upon request to the Director
of Finance.
G.
Assess, determine, revise and readjust the taxes imposed
under this article.
A.
The Director of Finance or his/her employees or agents
duly designated and authorized by him/her shall have power to administer
oaths and take affidavits in relation to any matter or proceeding
in the exercise of their powers and duties under this article. The
Director of Finance 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 his/her duties
hereunder and of the enforcement of this article and to examine them
in relation thereto, and to issue commissions for the examination
of witnesses who are out of the state or unable to attend before him/her
or excused from attendance.
B.
A Justice of the Supreme Court of the State of New
York, either in court or at chambers, shall have power summarily to
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 Director of Finance under this article.
C.
Any person who shall refuse to testify or to produce
books or records or who shall testify falsely in any material matter
pending before the Director of Finance under this article 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 Director of Finance 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 otherwise
provided. Such officers shall be the County Sheriff and his/her duly
appointed deputies or any officers or employees of the Department
of Finance of the County, designated to serve such process.
Wherever reference is made in placards or advertisements
or in any other publications to this tax, such reference shall be
substantially in the following form: "Tax on occupancy of hotel rooms,
" except that in any bill, receipt, statement or other evidence or
memorandum of occupancy or rent charge issued or employed by the operator,
the word "tax" will suffice.
A.
Any person failing to file a return or to pay or pay
over any tax to the Director of Finance within the time required by
this article shall be subject to a penalty of 5% of the amount of
tax due up to and including the 30th day off April 1989, and thereafter
9% of the amount of tax due; plus interest at the rate of 1% of such
tax for each month of delay, up to and including the 30th day of April
1989 and thereafter at the rate of 1 1/2% of such tax for each
month of delay, except, however, the first month after such return
was required to be filed or such tax became due; but the Director
of Finance, if satisfied that the delay was excusable, may remit all
or any part of such penalty, but not interest at the rate of 6% per
year. Such penalties and interest shall be paid and disposed of in
the same manner as other revenues from this article. Unpaid penalties
and interest may be enforced in the same manner as the tax imposed
by this article.
B.
Any operator or occupant and any officer of a corporate operator or occupant failing to file a return required by this article 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 article, 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 § 357-16 of this article or failing to file a registration certificate and such data in connection therewith as the Director of Finance may by regulation or otherwise require or to display or surrender the certificate of authority as required by this article or assigning or transferring such certificate of authority and any operator and 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 and any operator and 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 article and any operator failing to keep the records required by § 357-13 of this article shall, in addition to the penalties herein or elsewhere prescribed, 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. Officers of a corporate operator shall be personally liable for the tax collected or required to be collected by such corporation under this article and subject to the penalties herein above imposed.
C.
The certificate of the Director of Finance 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 article shall be presumptive evidence
thereof.
A.
Except in accordance with proper judicial order, or
as otherwise provided by law, it shall be unlawful for the Director
of Finance or any officer or employee of the Department of Finance
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 Director of Finance in an action or proceeding
under the provision 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 duly authorized representative of a certified
copy of any return filed in connection with his tax nor to prohibit
the publication of statistics so classified as to prevent the identification
of particular returns and the items thereof, or the inspection by
the County Attorney or other legal representative of the County or
by the District Attorney of any County within the 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 Director of Finance
permits them to be destroyed.
B.
Any violation of Subsection A of this section shall be punishable by a fine not exceeding $1,000 or by imprisonment not exceeding one year, or both, in the discretion of the court, and if the offender be an officer or employee of the County he shall be dismissed from office and be incapable of holding any public office for a period of five years thereafter.
A.
Any notice authorized or required under the provisions
of this article may be given by mailing the same to the person for
whom it is intended in a postpaid envelope addressed to such person
at the address given in the last return filed by him pursuant to the
provisions of this article or in any application made by him 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 whom addressed.
Any period of time which is determined according to the provisions
of this article by the giving of notice shall commence to run from
the date of mailing of such notice.
B.
The provisions of the Civil Practice Laws and Rules
of the State of New York 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 County to levy, appraise, assess,
determine or enforce the collection of any tax or penalty provided
by this article. However, except in the case of a willfully false
or 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 the 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 the 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.
