[Adopted 2-15-2017 by L.L. No. 1-2017]
For the purposes of this article, the following definitions
shall apply:
The date on which this article is filed with the Secretary
of State.
Any occupant of any room or rooms in a hotel whose rent is
paid from public assistance by the County of Westchester shall be
deemed an "exempt occupant" with respect to the period of such occupancy.
A building or portion of building which is regularly used
and kept open as such for the lodging of individuals, including an
apartment hotel, a motel, professional and business conference and
learning facilities when used by nonemployees, 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 Town of North Castle,
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 natural person occupying any room or rooms in a hotel
for at least 90 consecutive days shall be considered a "permanent
resident" with regard to the period of such occupancy.
An individual, partnership, society, association, joint-stock
company, corporation, limited liability company or similar entity,
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.
Tax Receiver of the Town of North Castle.
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 March 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 Town, except that the tax shall not be
imposed upon a permanent resident, or an exempt occupant, or as otherwise
provided herein.
Except as otherwise provided in this section, any use or occupancy
by any of the following shall not be subject to the tax imposed by
this article:
A.
The State of New York, or any 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 it is immune from taxation.
C.
Any corporation or association, or trust, or community chest, fund
or foundation organized and operated exclusively for religious, charitable
or educational purposes, or for the prevention of cruelty to children
or animals, and no part of the net earnings of which inures to the
benefit of any private shareholder or individual and no substantial
part of the activities of which is carrying on propaganda or otherwise
attempting to influence legislation; provided, however, that nothing
in this subsection shall include an organization operated for the
primary purpose of carrying on a trade or business for profit, whether
or not all of its profits are payable to one or more organizations
described in this subsection.
D.
A permanent resident of a hotel.
The tax imposed by this article shall apply only within the
territorial limits of the Town of North Castle.
A.
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 Receiver of Taxes a certificate of registration in a
form prescribed by the Receiver of Taxes.
B.
The Receiver of Taxes 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 a duplicate
thereof for each additional hotel of such operator. Each certificate
or duplicate shall state the hotel to which it is applicable. Such
certificate 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 certificate shall be nonassignable
and nontransferable and shall be surrendered immediately to the Receiver
of Taxes 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 Receiver of Taxes or such other Town 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 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 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 Town, and the operator shall be liable for the collection
thereof and for the tax. The operator and any officer of any 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 Receiver of Taxes 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 Receiver of Taxes may, whenever 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 Receiver of
Taxes the tax imposed at such times as returns are required to be
filed and payment made over by the operator.
D.
The tax imposed by this article shall be paid upon any occupancy on and after March 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 March 1, 2017. Where any tax has been paid hereunder upon any rent which has been ascertained to be worthless, the Receiver of Taxes may, by regulation, provide for credit and/or refund of the amount of such tax upon application therefor as provided in § 288-42 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 occupant. Where an occupant claims exemption from the tax under the provisions of § 288-33 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 Receiver of Taxes may by regulation require. Such
records shall be available for inspection and examination at any time
upon demand by the Receiver of Taxes or his/her duly authorized agent
or employee and shall be preserved for a period of three years from
the filing date for such returns, except that the Receiver of Taxes
may consent to their destruction within that period or may require
that they be kept longer.
A.
Every operator shall file with the Receiver of Taxes 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 March 1, 2017; the first return to be due for the period
March 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 Receiver of Taxes may permit or require returns
to be made for other periods upon such dates as he/she may specify.
If the Receiver of Taxes 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 Receiver of Taxes
and shall contain such information as he/she may deem necessary for
the proper administration of this article. The Receiver of Taxes 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 Receiver
of Taxes shall take such steps as he/she deems necessary to enforce
the filing of such return or of a corrected return.
A.
If a return required by local law is not filed or if a return, when
filed, is incorrect or insufficient, the amount of tax due shall be
determined by the Receiver of Taxes 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, locations, 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 notice of such determination, shall apply to the Receiver
of Taxes for a hearing or unless the Receiver of Taxes on his/her
own motion shall redetermine the same. After such hearing, the Receiver
of Taxes shall give notice of his/her determination to the person
against whom the tax is assessed.
B.
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 of the notice of such final
determination; provided, however, that any such proceeding under Article
78 of the Civil Practice Law and Rules shall not be instituted unless:
(1)
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
(2)
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 Receiver of Taxes 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 Receiver of Taxes
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 Receiver of Taxes 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 Receiver of Taxes 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 Receiver of Taxes 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 Receiver of Taxes at which the necessity,
propriety and amount of the bond shall be determined by the Receiver
of Taxes. 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 Receiver of Taxes 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 Receiver of Taxes, 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 credited to and deposited in the general fund of
the Town.
A.
In the manner provided in this section, the Receiver of Taxes shall
refund or credit, without interest, any tax penalty or interest erroneously,
illegally or unconstitutionally collected or paid if application to
the Receiver of Taxes for such refund shall be made within one year
from the payment thereof. Whenever a refund is made by the Receiver
of Taxes, 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 Receiver
of Taxes, 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 Receiver of Taxes, under such regulations as the Receiver of
Taxes 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 Receiver of Taxes 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 Receiver of Taxes may receive evidence with
respect thereto. After making his/her determination, the Receiver
of Taxes 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 Receiver of Taxes 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 § 288-45 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 Receiver of Taxes made pursuant to § 288-45 of this article unless it be found that such determination was erroneous, illegal or unconstitutional or otherwise improper by the Receiver of Taxes 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 Receiver of Taxes shall have the option
of crediting future tax payments to meet the cost of any settlements
or judgments or, at his/her option, may, in the first instance, set
up appropriate reserves to meet any decision adverse to the Town.
The remedies provided by § 288-39 and § 288-42 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 Receiver of Taxes prior to the institution of such suit and posts a bond for costs as provided in § 288-40 of this article.
A.
Any person failing to file a return or to pay or pay over any tax
to the Receiver of Taxes 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 Receiver of Taxes, 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 § 288-40 of this article, or failing to file a registration certificate and such data in connection therewith as the Receiver of Taxes 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 Receiver of Taxes 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 Receiver of Taxes or employee or designee of the Receiver of Taxes
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 Receiver of Taxes in an action or proceeding
under the provisions of this article or on behalf of any party to
any action or proceeding under the provisions of this article when
the returns or facts shown thereby are directly involved in such action
or proceeding, in either of which events the court may require the
production of, and may admit in evidence, so much of said returns
or of the facts shown thereby as are pertinent to the action or proceeding
and no more. Nothing herein shall be construed to prohibit the delivery
to a taxpayer or his/her duly authorized representative of a certified
copy of any return filed in connection with his/her tax nor to prohibit
the publication of statistics so classified to prevent the identification
of particular returns and items thereof or the inspection by the Town
Attorney or other legal representatives of the Town or by the District
Attorney of any county of the return of any taxpayer who shall bring
action to set aside or review the tax based thereon, or against whom
an action or proceeding has been instituted for the collection of
a tax or penalty. Returns shall be preserved for three years and thereafter
until the Receiver of Taxes 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 Town, he/she may be, at the discretion of the Town Board, dismissed from office and be incapable of holding any further Town 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 Town 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.
This article shall be effective immediately upon filing of same
with the Secretary of State of the State of New York.
