[Adopted 2-27-2017 by L.L. No. 2-2017, effective 3-13-2017]
For the purposes of this article, the following definitions
shall apply:
Clerk-Treasurer of the Village of Mamaroneck.
The date on which this article is filed with the Secretary
of State.
A building or portion of a building which is regularly used
and kept open as such for the lodging of guests, including an apartment
hotel, a motel or a boardinghouse, whether or not meals are served.
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 in the Village of Mamaroneck,
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.
Any person occupying 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
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 consideration received for occupancy 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 or suite of rooms with sleeping accommodations,
whether or not such accommodations are used, of any kind in any part
or portion of a hotel which is available for or let out for any purpose.
Beginning on April 1, 2017, there is hereby imposed and there
shall be paid a tax of 3% upon the rent for every occupancy of a room
or rooms in a hotel in this Village, except that the tax shall not
be imposed upon a permanent resident, or as otherwise provided herein.
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 of its agencies or 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.
B.
The United States of America, or any of its agencies and instrumentalities,
insofar as they are 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 subsection.
D.
A permanent resident of a hotel or motel.
The tax imposed by this article shall apply only within the
territorial limits of the Village of Mamaroneck.
All hotels are required to be licensed by the Village on an annual basis pursuant to Chapter 246. The license issued thereunder shall be considered registration as a hotel under this article and authorizes and requires the operator to collect the tax imposed by this article.
A.
The tax imposed by this article shall be administered and collected
by the Clerk-Treasurer or such other Village 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
article.
B.
The tax to be collected shall be stated and charged at the same time
as and in addition to 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 Village, 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 he/she may have in the event of nonpayment
of the rent by the occupant; provided, however, that the Clerk-Treasurer
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 tax imposed by this article shall be paid upon any occupancy on and after April 1, 2017, 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 April 1, 2017. Where any tax has been paid hereunder upon any rent which has been ascertained to be worthless, the Clerk-Treasurer may, by regulation, provide for credit and/or refund of the amount of such tax upon application therefor as provided in § 304-38 of this article.
D.
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 occupant. Where an occupant claims exemption from the tax under the provisions of § 304-29 of this article, the rent shall be deemed taxable hereunder unless the operator shall receive from the occupant claiming such exemption a copy of a New York State sales tax exemption certificate.
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 Clerk-Treasurer may by regulation require. Such
records shall be available for inspection and examination at any time
upon demand by the Clerk-Treasurer or his/her duly authorized agent
or employee and shall be preserved for a period of three years, except
that the Clerk-Treasurer may consent to their destruction within that
period or may require that they be kept together.
A.
Every operator shall file with the Clerk-Treasurer a return of occupancy
and of rents and of the taxes payable thereon for the three-month
periods ending the last day of February, May, August and November
on and after April 1, 2017, except that a return for the period April
1, 2017, through May 31, 2017, shall be separately filed. Such returns
shall be filed within 20 days from the expiration of the period covered
thereby. The Clerk-Treasurer may permit or require returns to be made
for other periods upon such dates as he/she may specify. If the Clerk-Treasurer
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 return shall be prescribed by the Clerk-Treasurer and
shall contain such information as he/she may deem necessary for the
proper administration of this article. The Clerk-Treasurer 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 article is not filed, or if a return
is incorrectly filed or is insufficient on its face, the Clerk-Treasurer
shall take such steps as he/she deems necessary to enforce the filing
of such return or of a corrected return.
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 giving the State of New York 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 laws or regulations,
shall be first deposited and there shall be 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, interests or penalties as
a condition precedent to the application.
At the time of filing a return of occupancy and of rents, each
operator shall pay to the Clerk-Treasurer 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 Clerk-Treasurer
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 Clerk-Treasurer 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 Clerk-Treasurer 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 Clerk-Treasurer 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 Clerk-Treasurer at which the necessity,
propriety and amount of the bond shall be determined by the Clerk-Treasurer.
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 Clerk-Treasurer 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 Clerk-Treasurer, 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.
All revenue resulting from the imposition of the tax under this
article shall be paid into the treasury of the Village and shall be
credited to and deposited in the general fund of the Village.
A.
In the manner provided in this section, the Clerk-Treasurer shall
refund or credit, without interest, any tax penalty or interest erroneously,
illegally or unconstitutionally collected or paid if application to
the Clerk-Treasurer for such refund shall be made within one year
from the payment thereof. Whenever a refund is made by the Clerk-Treasurer,
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 Clerk-Treasurer, 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 Clerk-Treasurer,
under such regulations as the Clerk-Treasurer 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 Clerk-Treasurer may, in lieu of any refund required to be made,
allow credit therefor on payments due or to become 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 Clerk-Treasurer may receive evidence with respect
thereto. After making his/her determination, the Clerk-Treasurer shall
give notice thereof to the applicant, who shall be entitled to review
such determination by a proceeding pursuant to Article 78 of the Civil
Practice Law and Rules, 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 Clerk-Treasurer in such amount and with such sureties
as a Justice of the Supreme Court shall approve to the effect that,
if such proceedings be dismissed or the tax confirmed, the petitioner
will pay costs and charges which may accrue in the prosecution of
such proceeding.
C.
Under this section 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 § 304-41 of this article 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 Clerk-Treasurer made pursuant to § 304-41 of this article unless it be found that such determination was erroneous, illegal or unconstitutional or otherwise improper by the Clerk-Treasurer 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 Clerk-Treasurer 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 Village.
The remedies provided by §§ 304-35 and 304-38 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 Clerk-Treasurer prior to the institution of such suit and posts a bond for costs as provided in § 304-36 of this article.
A.
Any person failing to file a return or to pay or pay over any tax
to the Clerk-Treasurer within the time required by this article shall
be subject to a penalty of 5% of the amount of tax due per month or
any fraction of a month to a maximum of 25% for each year; plus interest
at the rate of 1% of such tax for each month of delay or fraction
of a month after such return was required to be filed or such tax
became due; but the Clerk-Treasurer, if satisfied that the delay was
excusable, may remit all or any part of such penalty, but not interest.
Such net 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 an 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 § 304-36 of this article, or failing to file a registration certificate and such data in connection therewith as the Clerk-Treasurer may by regulation or otherwise require, or failing to display or surrender the certificate of authority as required by this article 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 issue 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 article, and any such person or operator failing to keep records required by this article, 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 article and penalties and interest thereon and subject to the fines and imprisonment herein authorized.
C.
The certificate of the Clerk-Treasurer 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.
D.
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.
A.
It shall be unlawful, except in accordance with proper judicial order
or as otherwise provided to the fullest extent permitted by law, for
the Clerk-Treasurer or employee or designee of the Clerk-Treasurer
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 Clerk-Treasurer 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 Village
Attorney or other legal representatives of the Village 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 Clerk-Treasurer 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 is an officer or employee of the Village, he/she may be, at the discretion of the Village Administrator, dismissed from office and be incapable of holding any further Village office as may be determined according to law.
A.
Any notice authorized or required under the provisions of this article
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 article 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 whom addressed. Any period of time which is determined according
to the provisions of this article 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 Village 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, 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 in the case of a return which should have been filed
and has not 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.
If any provision of this article, or the application thereof
to any person or circumstance, is held invalid, the remainder of this
article, and the application of such provision to other persons or
circumstances, shall not be affected thereby.