[HISTORY: Adopted by the Mayor and Council of the City of Española as indicated in article histories. Amendments noted where applicable.]
[Adopted 12-17-1996 by Ord. No. 558 (Ch. 90, Art. II, of the Code of Ordinances)]
The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
- The advisory board established in this article to make recommendations to the City Council, keep minutes of its proceedings and submit its recommendations, correspondence and other pertinent documents to the City Council.
- GROSS TAXABLE RENT
- The total amount of rent paid for lodging, not including the state gross receipts tax or local sales taxes.
- The transaction of furnishing rooms or other accommodations by a vendor to a vendee who for rent uses, possesses or has the right to use or possess any room or other units of accommodations in or at a taxable premises.
- The rooms or other accommodations furnished by a vendor to a vendee by a taxable service of lodging.
- OCCUPANCY TAX
- The tax on lodging authorized by the Lodgers' Tax Act, NMSA 1978 § 3-38-13 et seq.
- A corporation, firm, other body corporate, partnership, association or individual. The term "person" includes an executor, administrator, trustee, receiver or other representative appointed according to law and acting in a representative capacity, but does not include the United States of America, the state, any corporation, department, instrumentality or agency of the federal government or the state government, or any political subdivision of the state.
- The consideration received by a vendor in money, credits, property or other consideration valued in money for lodgings subject to an occupancy tax authorized in the Lodgers' Tax Act.
- TAXABLE PREMISES
- A hotel, apartment, apartment hotel, apartment house, lodge, lodginghouse, rooming house, motor hotel, guesthouse, guest ranch, ranch resort, guest resort, mobile home, motor court, auto camp, trailer court, trailer camp, trailer park, tourist camp, cabin or other premises for lodging.
- A person who travels for the purpose of business, pleasure or culture to a municipality or county imposing an occupancy tax.
- TOURIST-RELATED EVENTS
- Events that are planned for, promoted to and attended by tourists.
- TOURIST-RELATED FACILITIES AND ATTRACTIONS
- Facilities and attractions that are intended to be used by or visited by tourists.
- TOURIST-RELATED TRANSPORTATION SYSTEMS
- Transportation systems that provide transportation for tourists to and from tourist-related facilities, attractions and events.
- A natural person to whom lodgings are furnished in the exercise of the taxable service of lodging.
- A person furnished lodgings in the exercise of the taxable service of lodging.
The purpose of this article is to impose a tax which will be borne by persons using commercial lodging accommodations, which tax will provide revenues for the purpose of advertising, publicizing and promoting tourist-related attractions, facilities and events, and acquiring, establishing and operating tourist-related facilities, attractions or transportation systems, as authorized in § 298-16.
Any person who violates the provisions of this article for a failure to pay the tax, to remit proceeds thereof to the City, to properly account for any lodging and tax proceeds pertaining thereto or for violating the confidentiality provisions of § 298-14 shall be guilty of a misdemeanor and upon conviction shall be punished as provided in Chapter 1, General Provisions, Article III, Violations and Penalties, § 1-19.
There is hereby imposed an occupancy tax of 5% of gross taxable rent for lodging within the City paid to vendors.
Required. No vendor shall engage in the business of providing lodging in the City who has not first obtained a license as provided in this section.
Application; contents. Applicants for a vendor's license shall submit an application to the City Clerk stating:
The name of the vendor, including identification of any person, as defined in this article, who owns or operates, or both owns and operates, a place of lodging and the name or trade names under which the vendor proposes to do business and the post office address thereof.
A description of the facilities, including the number of rooms and the usual schedule of rates therefor.
A description of other facilities provided by the vendor or others to users of the lodgings, such as a restaurant, bar, cleaning, laundry, courtesy car or others, and a statement identifying the license issued, to whom issued, the authority issuing and the period for which issued. If applicable, the applicant also shall provide the identification number provided by the Bureau of Revenue of the state.
The nature of the business of the vendor and to what extent, if any, his business is exempt from the tax levied by the provisions of this article.
Other information reasonably necessary to effect a determination of eligibility for such license.
Review and granting of application. The City Clerk shall review applications for licenses within 10 days of receipt thereof and grant the license in due course if the applicant is doing business subject to the lodgers' tax.
Appeals. An applicant who is dissatisfied with the decision of the City Clerk may appeal the decision to the City Council by written notice to the City Clerk of such appeal, to be made within 15 days of the date of the decision of the City Clerk on the application. The matter shall be referred to the City Council for a hearing at a regular or special meeting in the usual course of business. The decision of the City Council made thereof shall be expressed in writing and be communicated in the same manner as the decision of the City Clerk is transmitted. The action of the City Council shall be deemed final.
Issuance upon favorable ruling. If the City Council finds for the applicant, the City Clerk shall issue the appropriate license or other notice conforming to the decision made by the City Council.
The occupancy tax shall not apply:
If the rent paid by the vendee is less than $2 a day;
To lodging accommodations at institutions of the federal government, the state or any political subdivision thereof;
To lodging accommodations at religious, charitable, educational or philanthropic institutions, including, without limitation, such accommodations at summer camps operated by such institutions;
To clinics, hospitals or other medical facilities;
To privately owned and operated convalescent homes, or homes for the aged, infirm, indigent or chronically ill; or
If the taxable premises do not have at least three rooms or three other units of accommodation for lodging.
Every vendor providing lodging shall collect the tax thereon on behalf of the City and shall act as a trustee therefor.
The tax shall be collected from vendees and shall be charged separately from the rent fixed by the vendor for the lodgings.
Each vendor licensed under this article shall be liable to the City for the tax provided in this article on the rent paid for lodging at his respective place of business.
Each vendor shall make a report by the 25th day of each month, on forms provided by the City Clerk, of the receipts for lodging in the preceding calendar month, and shall submit the proceeds of the lodgers' tax to the City and include sufficient information to enable the City to audit the reports, which shall be verified on oath by the vendor.
The vendor shall maintain adequate records of facilities subject to the tax and of proceeds received for the use thereof. Such records shall be maintained in City, shall be open to the inspection of the City during reasonable hours and shall be retained for three years.
A district court may issue a writ of mandamus or order an injunction or other appropriate remedy to enforce the provisions of this article.
The court shall award costs and reasonable attorneys' fees to the prevailing party in a court action to enforce the provisions of this article.
Every vendor is liable for the payment of the proceeds of any occupancy tax that the vendor failed to remit to the City, whether due to his failure to collect the tax or otherwise. He shall be liable for the tax plus a civil penalty equal to the greater of 10% of the amount not remitted or $100. The City Clerk shall give the delinquent vendor written notice of the delinquency, which notice shall be mailed to the vendor's local address.
If payments are not received within 15 days of the mailing of the notice, the City may bring an action in law or equity in the District Court for the collection of any amounts due, including, without limitation, penalties thereon and interest on the unpaid principal at a rate not exceeding 1% a month. If the City attempts collection through an attorney or the City Attorney for any purpose with regard to this article, the vendor shall be liable to the City for all costs and fees paid to the attorney or City Attorney, and all other expenses incurred in connection therewith.
The occupancy tax imposed by the City constitutes a lien in favor of the City upon the personal and real property of the vendor providing lodgings. The lien may be enforced as provided in NMSA 1978 §§ 3-36-1 through 3-36-7. Priority of the lien shall be determined from the date of filing.
Under process or order of court, no person shall sell the property of a vendor without first ascertaining from the City Clerk or Treasurer the amount of any occupancy tax due the City. Any occupancy tax due the City shall be paid from the proceeds of the sale before payment is made to the judgment creditor or any other person with a claim on the proceeds of the sale.
If any person believes he has made payment of any lodgers' tax in excess of that for which he was liable, he may claim a refund thereof by directing to the City Clerk, no later than 90 days from the date the payment was made, a written claim for refund. Every claim for refund shall state the nature of the person's complaint and the affirmative relief requested. The City Clerk shall allow the claim in whole or in part or may deny it. Refunds of tax and interest erroneously paid and amounting to $100 or more may be made only with the approval of the City Council.
The City Council shall conduct random audits to verify full payment of occupancy tax receipts.
The City Council shall determine each year the number of vendors within the City to audit.
The audits may be performed by the City Clerk or by any other designee of the City Council. A copy of the audits shall be filed annually with the Local Government Division of the Department of Finance and Administration.
The City Council shall furnish to the advisory board that portion of any proposed budget report or audit filed or received by the City Council pursuant to either NMSA 1978, Ch. 6, Art. 6 (NMSA 1978 § 6-6-1 et seq.), or the Audit Act (NMSA 1978 § 12-6-1 et seq.) that relates to expenditure of occupancy tax funds within 10 days of the filing or receipt of such proposed budget, report or audit by the City Council.
The City Council shall report to the Local Government Division of the Department of Finance and Administration on a quarterly basis any expenditure of occupancy tax funds pursuant to NMSA 1978 §§ 3-38-15 and 3-38-21, and shall furnish a copy of this report to the advisory board when it is filed with the Division.
It is unlawful for any employee of the City to reveal to any individual other than another employee of the City any information contained in the return or audit of any taxpayer, including vendors subject to this article, except to a court of competent jurisdiction in response to an order thereof in an action relating to taxes to which the City is a party, and in which information sought is material to the inquiry; to the taxpayer himself or to his authorized representative; and in such manner, for statistical purposes, the information revealed is not identified as applicable to any individual taxpayer.
The City Council shall administer the lodgers' tax monies collected. The Mayor shall appoint a five-member advisory board that consists of two members who are owners or operators of lodgings subject to the occupancy tax within the City, two members who are owners or operators of industries located within the City that primarily provide services or products to tourists and one member who is a resident of the City and represents the general public. The board shall advise the City Council on expenditure of funds authorized under § 298-16 for advertising, publicizing and promoting tourist attractions and facilities in the City and surrounding area.
The City may use the proceeds from the lodgers' tax to defray the costs of:
Collecting and otherwise administering the tax, including the performance of audits required by the Lodgers' Tax Act (NMSA 1978 § 3-38-13 et seq.) pursuant to guidelines issued by the Department of Finance and Administration;
Establishing, operating, purchasing, constructing, otherwise acquiring, reconstructing, extending, improving, equipping, furnishing or acquiring real property or any interest in real property for the site or grounds for tourist-related facilities, attractions or transportation systems of the City or the county;
The principal of and interest on any prior redemption premiums due in connection with and any other charges pertaining to revenue bonds authorized by NMSA 1978 § 3-38-23 or 3-38-24;
Advertising, publicizing and promoting tourist-related attractions, facilities and events of the City or county and tourist facilities or attractions within the area;
Providing police and fire protection and sanitation service for tourist-related events, facilities and attractions located in the City; or
Any combination of the foregoing purposes or transactions stated in this section, but for no other City purpose.