[Adopted 7-17-2017 by L.L. No. 1-2017]
The purpose of this article is to authorize the Village/Town
of Mount Kisco to impose an occupancy tax, pursuant to § 1202-z-3
of the New York State Tax Law, upon persons occupying any room or
rooms in a hotel or motel for hire in the incorporated area of the
Village/Town, which persons are no permanent residents of a hotel
or motel occupying such premises for a period of at least 90 consecutive
days.
For the purposes of this article, the following words and phrases
shall have the meanings respectively ascribed to them by this section:
EFFECTIVE DATE
The date on which this article is filed with the Secretary
of State.
EXEMPT OCCUPANT
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.
HOTEL
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.
OCCUPANCY
The use or possession or the right to the use or possession
of any room in a hotel.
OCCUPANT
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.
OPERATOR
Any person operating a hotel in the Village/Town of Mount
Kisco, 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.
PERMANENT RESIDENT
Any natural 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.
PERSON
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.
RENT
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.
RETURN
Any return filed or required to be filed as herein provided.
ROOM
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.
TREASURER
Treasurer of the Village/Town of Mount Kisco.
Beginning on August 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/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 or motel.
The tax imposed by this article shall apply only within the
territorial limits of the Village/Town of Mount Kisco.
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 Treasurer may by regulation require. Such records
shall be available for inspection and examination at any time upon
demand by the Treasurer or his/her duly authorized agent or employee
and shall be preserved for a period of three years, except that the
Treasurer may consent to their destruction within that period or may
require that they be kept together.
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.
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 an account as set forth by the Village
Board in the most current resolution of the Village Board.
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 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/Town.
The remedies provided by §§
79-10 and
79-13 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 Treasurer prior to the institution of such suit and posts a bond for costs as provided in §
79-11 of this article.
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.