[Code 2005 § 98-131; Ord. No. 12-10-08-07, § 1, 12-10-2008]
This article shall be known and cited as The City of Cushing
[the "City"] Hotel/Motel Tax Ordinance.
[Code 2005 § 98-132; Ord. No. 12-10-08-07, § 2, 12-10-2008]
As used in this article:
The City of Cushing, Oklahoma.
Any building or buildings, structures, trailer, or other
facility in which the public may, for consideration, obtain sleeping
accommodations, and in which two or more rooms are used for the accommodation
of such occupant whether such rooms are in one or several structures.
The term shall include hotels, apartment hotels, motels, tourist courts,
lodging houses, inns, rooming houses, dormitory space where bed space
is rented to individuals or groups, apartments not occupied by "permanent
residents", recreational vehicle parks, and all other facilities where
rooms or sleeping facilities or space are furnished for a consideration.
The term shall not include hospitals, sanitariums or nursing homes.
The use or possession, or the right to the use or possession
of any room or rooms in a hotel, or the right to the use or possession
of the furnishings or the services and accommodations accompanying
the use and possession of the room or rooms.
The person, who for a consideration, uses, possesses, or
has the right to the use or possession of any room or rooms in a hotel
under any lease, concession, permit, right of access, license to use,
or other agreement.
Any person operating a hotel within the City, included, but
not limited to, the owner, proprietor, manager, lessee, sublessee,
mortgagee in possession, licensee, or any other person otherwise operating
such hotel.
An occupant who has resided in a room in a hotel for not
less than 30 consecutive days, with such status as a permanent resident
to end when any break in such residency occurs.
Any individual, corporation, company, partnership, voluntary
association, firm, club, society, organization or any other entity
of whatever kind or nature.
A room or space which is capable of being occupied by 75
or more persons and which is used for educational or amusement purposes
and shall include: dance halls; cabarets; night clubs; restaurants;
any room or space for public or private banquets, feasts, socials,
card parties or weddings; lodge and meeting halls or rooms; skating
rinks; gymnasiums; swimming pools; billiard, bowling and table tennis
rooms; halls; rooms used for public or private catering purposes;
funeral parlors; markets; recreational rooms; concert halls; broadcasting
studios; and all other places of similar use and occupancy.
A place where space is offered, with or without service facilities,
by any persons or municipality to the public for the parking and accommodation
of two or more automobile trailers, mobile homes, or recreational
vehicles which are used for lodging, for either a direct money consideration
or an indirect benefit to the lessor or owner in connection with a
related business, such space being hereby defined as a room for purposes
of this article, and the rental price thereof shall include all service
charges paid to the lessor. For the purposes of this definition, the
terms "campground", "camping resort", "RV resort", "travel resort",
and "travel park", or any variations of these terms, are synonymous
with the term "recreational vehicle park".
The consideration received for occupancy valued in money,
whether received in money or otherwise, including all receipts, cash
credits, and property or services of any kind or nature, and also
any amount for which credit is allowed by the operator to the occupant,
without any deduction therefrom whatsoever.
Any report filed or required to be filed as herein provided.
Any room or suite of rooms of any kind in any part or portion
of a hotel which is available for or let out for use or possessed
for any purpose other than as a "place of assembly."
The tax levied pursuant to this article.
[Code 2005 § 98-133; Ord. No. 12-10-08-07, § 3, 12-10-2008]
There is hereby levied an excise tax of 4% (in addition to any
and all other excise taxes now in force) upon the gross proceeds or
gross receipts derived from all rent for every occupancy of a room
or rooms in a hotel in this City. Rooms provided free of charge, through
barter, trade or any other arrangement or agreement of any kind or
nature, are also subject to such tax at the sales value of the room
so provided (with "sales value" to mean the price at which the room
would be rented to the operator's best customer in the ordinary
course of business).
[Code 2005 § 98-134; Ord. No. 12-10-08-07, § 4, 12-10-2008]
A.
Occupancy. The following shall be exempt from the tax levied in this
article:
(1)
A permanent resident, provided, any person who qualifies as a permanent
resident shall be entitled to the exemption retroactive;
(2)
The United States government or any agency or division thereof when
paid directly by the United States government;
(3)
The State of Oklahoma or any political subdivision thereof when paid
directly by the state or any political subdivision;
(4)
Any public school or state-accredited private school when paid directly
by the school, provided that its primary purposes in not carrying
on a business for profit; and
(5)
Any church when paid directly by the church, provided that its primary
purposes in not carrying on a business for profit.
B.
Certificate of exemption required. Every hotel claiming exemptions
shall submit a monthly exemption form, as provided by the City treasurer,
with each monthly room tax return. This exemption form shall indicate
beginning and ending occupancy dates, number of rooms, number of nights,
room(s) occupied, room rate, exempted amount, the name of the occupant
seeking exemption, the exempt organization with which they are affiliated,
reason for the exemption, and any other information required by the
City treasurer. Every exemption form shall be signed by the hotel
manager or authorized agent, so that the signature shall serve as
an acknowledgement that all information contained on the exemption
form is true and correct. Upon submission of these forms to the City,
the City treasurer shall make a final determination as to the validity
of all claimed exemptions. Should the City treasurer determine that
a claimed exemption is not valid, the hotel shall be assessed the
4% hotel tax plus applicable interest and penalties. The hotel claiming
such exemption is liable for payment of the hotel tax. For purposes
of this section, an exemption will not be validated by the City treasurer
unless the exemption is claimed for the month in which it accrues.
For good cause shown, the City treasurer may grant an extension for
claiming an exemption.
[Code 2005 § 98-135; Ord. No. 12-10-08-07, § 5, 12-10-2008]
The operator shall separately designate, charge and show the
tax on all bills, statements, receipts or any other evidence of charge
or payment of rent for occupancy issued or delivered by the operator.
In the absence of a certificate of exemption as specified above, it
shall be presumed that the rent on all occupancies is taxable, and
the burden of proof shall be on the operator.
[Code 2005 § 98-136; Ord. No. 12-10-08-07, § 6, 12-10-2008]
A.
Operator responsible for collections. The operator shall be responsible
for the collection of the tax from the occupant and shall be liable
to the City for the tax which shall be held in trust by the operator
until paid to the City. The operator shall join the City as a party
to any action brought by the operator to enforce collection of the
tax.
B.
Records to be kept. 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 City treasurer may by regulation require.
Such records shall be available for inspection and examination at
any time upon demand by the City treasurer, or a duly authorized agent
or employee of the City, and shall be preserved for a period of three
years.
C.
Returns.
(1)
Every operator shall file with the City treasurer a report of occupancy
and of rents, and of the taxes payable thereon for the period ending
on the last day of each month following the effective date of this
article. Such return shall be filed within the first 15 days after
the end of each such month.
(2)
Each operator shall further file with the City treasurer a copy of
their completed state sales tax form within 10 days after the end
of each month following the effective date of this article.
(3)
The form of return shall be prescribed by the City treasurer and
shall contain such information as may be deemed necessary for the
proper administration of this article. The City treasurer may require
amended returns to be filed within 10 days after notice and to contain
the information specified in the notice.
D.
Payment of tax. At the time of filing a return of occupancy and of
rents, each operator shall pay to the City treasurer the taxes imposed
by this article upon the rents included in such return. All taxes
not paid with a timely return shall be delinquent. All the taxes for
the period for which a return is required to be filed shall be due
from the operator and payable to the City treasurer on or before the
date fixed 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.
E.
Delinquent taxes. All taxes not paid within 15 calendar days following
the last day of the period shall be delinquent.
F.
Interest and penalties on unpaid taxes. If any tax levied by this
article becomes delinquent, the person responsible and liable for
such tax shall pay interest on such unpaid tax at the rate of 1 1/2%
per month on the unpaid balance from the date of delinquency. If any
tax levied by this article is not paid by the last calendar day of
the month due, the operator responsible and liable for such tax shall
pay a penalty on such unpaid tax at the rate of 10% per month on the
unpaid balance from the date of delinquency to a maximum of 50% of
the tax.
[Code 2005 § 98-137; Ord. No. 12-10-08-07, § 7, 12-10-2008]
Where the City treasurer believes that any operator is about
to cease business, leave the state, or remove or dissipate assets,
or for any other similar reason the City treasurer deems it necessary
in order to protect revenues under this article may require such operator
to file with the City a bond issued by a surety company authorized
to transact business in the state in such amount as the City treasurer
may fix to secure the payment of any tax or penalties and interest
due, or which may become due from such operator. In the event that
the City treasurer determines that an operator is to file such bond,
the City treasurer shall give notice to such operator specifying the
amount of security required. The operator shall file such security
as a performance bond or irrevocable letter of credit within five
days after the filing of such notice unless within such five days
the operator shall request in writing a hearing before the Board of
Commissioners, at which time the necessary propriety and amount of
the bond shall be determined by the Board of Commissioners. Such determination
shall be final and shall be complied with within 15 days thereafter.
In lieu of such bond, a cash or securities escrow, in an amount and
under terms approved by the City treasurer, may be deposited with
the City treasurer, who may at any time after five days' notice
to the depositor, apply them to any tax and/or any penalties due and
for that purpose the securities may be sold at private or public sale.
[Code 2005 § 98-138; Ord. No. 12-10-08-07, § 8, 12-10-2008]
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 assessed by the City treasurer from such information as may be
obtainable and, if necessary, the tax may be estimated on the basis
of external indicates, such as number of rooms, location, scale of
rents, comparable rents, types of accommodations and services, number
of employees, or other factors. Written notice of such assessments
shall be given to the person liable for the collection and payment
of the tax. Such assessment shall finally and irrevocably fix and
determine the tax:
(1)
Unless the person against whom it is assessed shall apply in writing
to the Board of Commissioners for a hearing within 60 days after the
City gives notice of such assessment; or
(2)
Unless the City treasurer decides to reassess the same.
After such hearing, the Board of Commissioners shall give written
notice of its determination within 30 days to the person against whom
the tax is assessed and such determination shall be final.
[Code 2005 § 98-139; Ord. No. 12-10-08-07, § 9, 12-10-2008]
A.
Procedure. The City treasurer shall direct the refund or credit of
any tax erroneously, illegally or unconstitutionally collected if
written application to the City treasurer for such refund is made
within two years from the date of payment thereof. For like causes,
and in the same period, a refund may be so made upon the initiative
of the City treasurer, subject to existing limits on the authority
of the City treasurer as to amount. The City treasurer, in lieu of
any refund required to be made, may allow credit thereof on payments
due from the applicant. Whenever a refund is made, the reasons therefor
shall be stated in writing. Such application may be made by the person
who has collected and paid such tax to the City treasurer; however,
no refund of money shall be made to the operator until the operator
has repaid to the occupant the amount for which the application for
refund is made.
B.
Determination and hearing. Upon application for a refund the City
treasurer may receive evidence with respect thereto, and make such
investigation as is deemed necessary. After making a determination
as to the refund, the City treasurer shall give written notice thereof
to the applicant. Such determination shall be final unless the applicant,
within 30 days after such notice, shall apply in writing to the Board
of Commissioners for a hearing. After such hearing the Board of Commissioners
shall give written notice of its decision to the applicant.
[Code 2005 § 98-140; Ord. No. 12-10-08-07, § 10, 12-10-2008]
Notices provided for under this article shall be deemed to have been given when such notice has been delivered personally to the operator or deposited in the United States mail, postage prepaid, to the last known address of the operator. In the absence of written evidence received by the City to the contrary, the last known address shall be presumed to be the address shown on the certificate of registration as required by § 17-52 herein.
[Code 2005 § 98-141; Ord. No. 12-10-08-07, § 11, 12-10-2008]
The remedies provided in this article shall be the exclusive
remedies available to any person for the review of tax liability imposed
by this article.
[Code 2005 § 98-142; Ord. No. 12-10-08-07, § 12, 12-10-2008]
In addition to all other powers granted to the City treasurer,
the City treasurer is hereby authorized:
(1)
To make, adopt and amend rules and regulations appropriate to the
execution of this article and for the purposes hereof;
(2)
To extend for cause shown the time for filing any return for a period
not exceeding 30 days; and for cause shown to waive, remit, or reduce
penalties or interest;
(3)
To delegate functions hereunder to authorized designees for the City;
(4)
To assess, reassess, determine, revise and readjust the amount of
taxes (but not the tax rate) imposed by this article;
(5)
To prescribe methods for determining the taxable and nontaxable rents;
(6)
To administer oaths and take affidavits concerning any matter or
proceeding under this article; and
(7)
To subpoena and require the attendance of witnesses and the production
of books, papers and documents to secure information pertinent to
the performance and the enforcement of this article and to examine
them in relation thereto.
[Code 2005 § 98-143; Ord. No. 12-10-08-07, § 13, 12-10-2008]
Every operator shall file with the City treasurer a certificate
of registration in a form prescribed by the City treasurer within
10 days after the effective date of this article, or in the case of
operators commencing business or opening new hotels after such effective
date, within three days after such commencement or opening. The City
treasurer 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 duplicates
thereof for each additional hotel. Each certificate or duplicate shall
state the hotel to which it is applicable. Such certificate of authority
shall be permanently displayed by the operator in such manner that
it may be seen and will come to the notice of all occupants and persons
seeking occupancy. Such certificates shall be nonassignable, nontransferable,
and shall be surrendered immediately to the City treasurer upon the
cessation of business at the hotel named, or upon its sale or transfer.
[Code 2005 § 98-144; Ord. No. 12-10-08-07, § 14, 12-10-2008]
All taxes collected pursuant to provisions of this article shall
be placed in the general funds of the City, shall be budgeted and
appropriated annually by the City, and shall be expended for the support
of the functions of the municipal government of the City, including
but not by way of limitation, for any projects, items, infrastructure
improvements, costs and/or expenses that encourage, promote and/or
foster economic development for the City, and the payment of debt
service on any indebtedness incurred for said purposes, including
principal, interest and any reserve requirements.
[Code 2005 § 98-145; Ord. No. 12-10-08-07, § 15, 12-10-2008]
The confidential and privileged nature of the records file concerning
the administration of the hotel tax is legislatively recognized and
declared and, in order to protect the same, the provisions of Title
68 Oklahoma Statutes Supp. 2008, § 205 of the State Sales
Tax Code, and each subsection thereof and all amendments thereto,
as hereby adopted by reference and made fully effective and applicable
to the administration of this article as if here set forth.
[Code 2005 § 98-146; Ord. No. 12-10-08-07, § 16, 12-10-2008]
A.
The willful intent or refusal of any taxpayer to make reports and
remittances therein required, or the making of any false and fraudulent
report for the purpose of avoiding or escaping payment of any tax
or portion thereof rightfully due under this article, shall each be
a Class A offense.
B.
The failure by an operator to file a security bond as required, to
register or to display the certificate of registration, or to separately
state the tax on the bill or to collect such tax from the occupant,
shall each be a Class B offense.
[Code 2005 § 98-147; Ord. No. 12-10-08-07, § 17, 12-10-2008]
A.
Whenever any operator, occupant or other person shall fail to collect
and/or pay over any tax, or to owe any tax, penalty or interest imposed
by this article as herein provided, the mayor may authorize the director
of finance to file notice of liens on behalf of the City against the
real estate upon which the hotel is located and/or against all franchises,
property and rights to property, whether real or personal, then belonging
to or thereafter acquired by the person owing the tax pursuant to
68 O.S. § 2701 and § 2704.
B.
The liens shall, upon proper filing, attach to the real estate and/or
personal property then owned or thereafter acquired by the debtor,
whether such property is used by the debtor in the operation of business
or is under the authority of an assignee, trustee, or receiver for
the benefit of creditors, from the date such taxes are due and payable
as allowed by 68 O.S. § 2704.
C.
The City treasurer shall notify the person owing the tax by personal
service or by certified mail that the City will file such liens if
any delinquent taxes, interest and/or penalties are not paid within
15 days of receiving such notice.
D.
The City treasurer may also authorize the City Attorney to institute
an action in personam and in rem to enforce payment and collect any
delinquent taxes, penalties and/or interest.
[Code 2005 § 98-148; Ord. No. 12-10-08-07, § 18, 12-10-2008]
The people of the City of Cushing, Oklahoma, by their approval
of this article at the election hereinabove provided for, hereby authorize
the City by ordinance duly enacted to make such administrative and
technical changes or additions in the method and manner of administration
and enforcing this article as may be necessary or proper for efficiency
and fairness, except that the rate of the tax herein provided for
shall not be changed without approval of the qualified electors of
the City as provided by law.
[Code 2005 § 98-149; Ord. No. 12-10-08-07, § 19, 12-10-2008]
The provisions hereof shall be cumulative and in addition to
any and all other taxing provisions of City ordinances.
[Code 2005 § 98-150; Ord. No. 12-10-08-07, § 20, 12-10-2008]
The provisions of this article are severable, and if any part
or provisions hereof shall be adjudged invalid by any court of competent
jurisdiction, such adjudication shall not affect or impair any of
the remaining parts or provisions hereof.
[Code 2005 § 98-151; Ord. No. 12-10-08-07, § 21, 12-10-2008]
The provisions of this article and the collection of the excise
tax referenced herein shall become effective on and after July 1,
2009, subject to approval by a majority of the qualified electors
of the City voting on the same in the manner prescribed by law. The
provisions of this article and the collection of the excise tax referenced
herein shall have no stated termination date.
