[Adopted 8-11-1980 by L.L. No. 3-1980]
This article shall be known as the "Albany County Hotel Room
Occupancy Tax Law."
The intent of this article shall be to promote Albany County,
its city, towns and villages in order to increase convention, trade
show and tourist business in the County.
As used in this article, the following terms shall have the
meanings indicated:
The Commissioner of Management and Budget of Albany County.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
The Comptroller of Albany County.
The use or possession or the right to the use or possession
of any room in a hotel.
A person who, for a consideration, uses or 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 County of Albany, including
but not limited to the owner or proprietor of such premises, lessee,
sublessee, mortgagee in possession, licensee or any other person otherwise
operating such hotel.
A building or portion of it which is regularly used and kept
open as such for the lodging of guests. The term "hotel" includes
an apartment hotel, a motel, boardinghouse or club, which has available
for occupancy 25 or more rooms, whether or not meals are served.
[Amended 12-8-1997 by L.L. No. 10-1997]
Any occupant of 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
and any other person acting in a fiduciary or representative capacity,
whether appointed by a court or otherwise, and any combination of
the foregoing.
The consideration received for occupancy valued in money,
whether received in money or otherwise.
Any return filed or required to be filed as herein provided.
Any room or rooms of any kind in any part or portion of a
hotel, which is available for or let out for any purpose other than
as a place of assembly.
[Last amended 9-14-2020 by L.L. No. 5-2020[1]]
On and after the first day of January 1, 2020, there is hereby
imposed and there shall be paid a tax of 6% of the per-diem rental
rate charged to occupants for each hotel or motel room, except that
the tax shall not be imposed upon a permanent resident of such hotel
or motel.
[1]
Editor's Note: Section 4 of this local law provided that it
shall take effect 1-1-2021 and shall expire and be deemed repealed
12-31-2023.
The tax imposed by this article shall be paid upon any occupancy
on and after the first day of September, 1980 although such occupancy
is pursuant to a prior contract, lease or other arrangement. Where
rent is paid on a weekly, monthly or other term basis, the rent shall
be subject to the tax imposed by this article to the extent that it
covers any period on and after the first day of September, 1980.
A.
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:
(1)
The State of New York, or any of its agencies, 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;
(2)
The United States of America, or any of its agencies and instrumentalities,
insofar as it is immune from taxation;
(3)
Any corporation, association, 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.
B.
Where any organization described in Subsection A carries on its activities in furtherance of the purposes for which it was organized, in premises in which, as part of said activities, it operates a hotel, occupancy of rooms in the premises and rents therefrom received by such corporation or association shall not be subject to tax hereunder.
The tax imposed by this article shall apply only within the
territorial limits of the County of Albany.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
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 Commissioner of Management and Budget
a certificate of registration in a form prescribed by the Commissioner
of Management and Budget. The Commissioner of Management and Budget
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 certificates
of authority shall be prominently displayed by the operator in such
manner that they may be seen and come to the notice of all occupants
and persons seeking occupancy. Such certificates shall be nonassignable
and nontransferable and shall be surrendered immediately to the Commissioner
of Management and Budget upon the cessation of business at the hotel
named or upon its sale or transfer.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
A.
The tax imposed by this article shall be administered and collected
by the Commissioner of Management and Budget of the County of Albany
or other fiscal officers of the County as he/she may designate by
such means and in such manner as are other taxes which are now collected
and administered by such officers in accordance with the County Charter
or as otherwise are 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 or charge 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 County, 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 with respect to collecting the tax from the occupant, or
with respect to nonpayment of the tax by the occupant as if the tax
were a 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 rent by the occupant;
provided, however, that the Commissioner of Management and Budget
or other fiscal officer or officers, 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 Commissioner of Management and Budget may, wherever 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 Commissioner of Management and Budget the tax herein 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 September 1, 1980, 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 September 1, 1980. Where any tax has been paid hereunder upon any rent which has been ascertained to be worthless, the Commissioner of Management and Budget may by regulation provide for credit and/or refund of the amount of such tax upon application therefor as provided in § 270-42 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; except that, where by regulation pursuant to § 270-36C of this article, an occupant is required to file returns and pay directly to the Commissioner of Management and Budget the tax herein imposed, the burden of proving that a rent for occupancy is not taxable shall be upon the occupant. Where an occupant claims exemption from the tax under the provisions of Subsection D of this section, the rent shall be deemed taxable hereunder unless the operator shall receive from the occupant claiming such exemption a certificate duly executed by an exempt corporation or association certifying that the occupant is its agent, representative or employee, together with a certificate executed by the occupant that his/her occupancy is paid or to be paid by such exempt corporation or association, and is necessary or required in the course of or in connection with the occupant's duties as a representative of such corporation or association. Where deemed necessary by the operator, he/she may further require that any occupant claiming exemption from the tax furnish a copy of a certificate issued by the Commissioner of Management and Budget certifying that the corporation or association therein named is exempt from the tax under Subsection D of this section.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
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 Commissioner of Management and Budget may by regulation
require. Such records shall be available for inspection and examination
at any time upon demand by the Commissioner of Management and Budget
or his/her duly authorized agent or employee and shall be preserved
for a period of three years, except that the Commissioner of Management
and Budget many consent to their destruction within that period or
may require that they be kept longer.
[Amended 9-14-1981 by L.L. No. 8-1981; at time of adoption of Code (see
Ch. 1, General Provisions, Art. I)]
A.
Every operator shall file with the Commissioner of Management and
Budget a return of occupancy and of rents, and of the taxes payable
thereon for the quarterly periods ending on the last day of February,
May, August and November of each year, except that every operator
shall be required to file a return and pay taxes thereon for a transitional
period commencing October 1, 1981, and ending on November 30, 1981.
Such returns shall be filed within 20 days from the expiration of
the period covered thereby. The Commissioner of Management and Budget
may permit or require returns to be made for other periods and upon
such dates as he/she may specify. If the Commissioner of Management
and Budget 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 returns shall be prescribed by the Commissioner of Management
and Budget and shall contain such information as he/she may deem necessary
for the proper administration of this article. The Commissioner of
Management and Budget 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 a return when
filed is incorrect or insufficient on its face, the Commissioner of
Management and Budget shall take the necessary steps to enforce the
filing of such a return or of a corrected return.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
At the time of filing a return of occupancy and of rents, each
operator shall pay to the Commissioner of Management and Budget 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.
Where the Commissioner of Management and Budget, 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 Commissioner of Management and Budget may fix
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
Commissioner of Management and Budget determines that an operator
is to file such bond, 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 Commissioner of Management and Budget at which
the necessity, propriety and amount of the bond shall be determined
by the Commissioner of Management and Budget. 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
Commissioner of Management and Budget, or cash in such amount as he/she
may prescribe, may be deposited, which shall be kept in the custody
of the Commissioner of Management and Budget who may at any time without
notice to 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.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
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 determined by the Commissioner of Management and Budget 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,
location, 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 giving of notice of such determination, shall apply to the
Commissioner of Management and Budget for a hearing, or unless the
Commissioner of Management and Budget of his/her own motion shall
re-determine the same. After such hearing, the Commissioner of Management
and Budget shall give notice of his/her determination to the person
against whom the tax is assessed. The determination of the Commissioner
of Management and Budget shall be reviewable for error, illegality
or unconstitutionality or any other reason whatsoever by proceeding
under Article 78 of the Civil Practice Law and Rules if application
therefor is made to the Supreme Court within 30 days after the giving
of the notice of such determination. A proceeding under Article 78
of the Civil Practice Law and Rules shall not be instituted unless
the amount of any tax sought to be reviewed, with penalties and interest
thereon, if any, shall be first deposited with the Commissioner of
Management and Budget and there shall be filed with the Commissioner
of Management and Budget 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 the proceeding; or, at the option of the applicant,
such undertaking filed with the Commissioner of Management and Budget
may be in a sum sufficient to cover the taxes, penalties and interest
thereon stated in such determination plus the costs and charges which
may accrue against it in the prosecution of the proceeding, in which
event the applicant shall not be required to deposit such taxes, penalties
and interest as a condition precedent to the application.
[Last amended 9-14-2020 by L.L. No. 5-2020[1]]
All revenues resulting from the imposition of the tax under
this article shall be paid into the treasury of the County of Albany
and shall be credited to and deposited into three special funds as
follows:
A.
Revenues from the tax imposed by this article up to an amount equal
to 1/6 of such total revenue shall be credited to and deposited in
a special fund for convention and tourist development. The County
of Albany is authorized to retain up to a maximum of 10% of such revenue
derived from this fund to defray the necessary expenses of the County
in administering such tax. The revenue derived from this portion of
the tax, after deducting the amount provided for administering such
tax, shall be allocated to pay for services performed, subject to
the terms and conditions in contracts, which may be entered into between
the County and the Albany County Convention and Visitors Bureau, Inc.,
all at the option of the County, its successors or assigns. Said funds
so allocated shall be used for the purpose of promoting Albany County,
its cities, towns and villages, in order to increase convention/trade
show and tourism business.
B.
Revenues from the tax imposed by this article equal to 2/3 of such
total revenue shall be credited and deposited in a special account
to be known as the "Civic Center Debt Service Fund" and shall be maintained
separate and apart from other funds and accounts of the County. Moneys
in such account shall be deposited in one or more banks designated
in the manner provided by law, as a depository of funds of the County
of Albany. Pending expenditure from such fund, money therein may be
invested in the manner provided in General Municipal Law § 6-f
or in a successor statute to such section. Any interest earned or
capital gain realized on the moneys so deposited or invested shall
accrue and become part of the fund. Said moneys so deposited shall
be used, subject to appropriation, solely for the purpose of making
debt service payments on obligations issued by the County to finance
the acquisition, development (including construction), operation and
repair and continuing use and maintenance of a civic center and ancillary
facilities thereto, which ancillary facilities shall include, but
not be limited to, any buildings, structures, parking facilities,
machinery, equipment, facilities and appurtenances incidental thereto.
C.
Revenues from the tax imposed by this article equal to 1/6 of such
total revenue shall be credited and deposited in a special account
to be known as the "Albany Convention Center Authority Fund" and shall
be maintained separate and apart from other funds and accounts of
the County. Moneys in such account shall be deposited in one or more
banks designated in the manner provided by law as a depository of
funds of the County of Albany. Pending expenditure from such fund,
moneys therein may be invested in the manner provided in General Municipal
Law § 6-f or in a successor statute to such section. Any
interest earned or capital gain realized on the moneys so deposited
or invested shall accrue and become part of the fund. Said moneys
so deposited shall be used solely and exclusively by the Albany Convention
Center Authority for the development of a convention center project
to be located in the City of Albany. Albany County shall pay the moneys
in such fund over to such authority upon application for such moneys
by the authority.
D.
On and after the Albany Convention Center completion date, defined
as the date on which the architect for the convention center project
issues a certificate of substantial completion in substantial conformity
with AIA Document G704-2000 stating that the convention center facility
is sufficiently complete in accordance with the contract or contracts
for construction that the owner can occupy or utilize the convention
center facility for its intended use:
(1)
Revenues from the tax imposed by this article up to an amount equal
to 1/6 of such total revenue shall be credited to and deposited in
a special fund for convention and tourist development. The County
of Albany is authorized to retain up to a maximum of 10% of such revenue
derived from this fund to defray the necessary expenses of the County
in administering such tax. The revenue derived from this portion of
the tax, after deducting the amount provided for administering such
tax, shall be allocated to pay for services performed, subject to
the terms and conditions in contracts, which may be entered into between
the County and the Albany County Convention and Visitors Bureau, Inc.,
all at the option of the County, its successors or assigns. Said funds
so allocated shall be used for the purpose of promoting Albany County,
its cities, towns and villages, in order to increase convention/trade
show and tourism business.
(2)
Revenues from the tax imposed by this article equal to 1/3 of such
total revenue shall be credited and deposited in a special account
to be known as the "Civic Center Debt Service Fund" and shall be maintained
separate and apart from other funds and accounts of the County. Moneys
in such account shall be deposited in one or more banks designated
in the manner provided by law, as a depository of funds of the County
of Albany. Pending expenditure from such fund, money therein may be
invested in the manner provided in General Municipal Law § 6-f
or in a successor statute to such section. Any interest earned or
capital gain realized on the moneys so deposited or invested shall
accrue and become part of the fund. Said moneys so deposited shall
be used, subject to appropriation, solely for the purpose of making
debt service payments on obligations issued by the County to finance
the acquisition, development (including construction), operation and
repair and continuing use and maintenance of a civic center and ancillary
facilities thereto, which ancillary facilities shall include, but
not be limited to, any buildings, structures, parking facilities,
machinery, equipment, facilities and appurtenances incidental thereto.
(3)
Revenues from the tax imposed by this article equal to 1/2 of such
total revenue shall be credited and deposited in a special account
to be known as the "Albany Convention Center Authority Fund" and shall
be maintained separate and apart from other funds and accounts of
the County. Moneys in such account shall be deposited in one or more
banks designated in the manner provided by law, as a depository of
funds of the County of Albany. Pending expenditure from such fund,
moneys therein may be invested in the manner provided in General Municipal
Law § 6-f or in a successor statute to such section. Any
interest earned or capital gain realized on the moneys so deposited
or invested shall accrue and become part of the fund. Said moneys
so deposited shall be used solely and exclusively by the Albany Convention
Center Authority for the development of a convention center project
to be located in the City of Albany. Albany County shall pay the moneys
in such fund over to such authority upon application for such moneys
by the Authority.
[1]
Editor's Note: Section 4 of this local law provided that it
shall take effect 1-1-2021 and shall expire and be deemed repealed
12-31-2023.
[Amended 12-21-1999 by L.L. No. 8-1999; at time of adoption of Code (see
Ch. 1, General Provisions, Art. I)]
A.
In the manner provided in this section, the Commissioner of Management
and Budget shall refund or credit, without interest, any tax, penalty
or interest erroneously, illegally or unconstitutionally collected
or paid if application to the Commissioner of Management and Budget
for such refund shall be made within three years from the payment
thereof. Whenever a refund is made by the Commissioner of Management
and Budget, 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 Commissioner
of Management and Budget, provided that the application is made within
one year of the payment by the occupant to the operator, but no actual
refund of moneys shall be made to such operator until he/she shall
first establish to the satisfaction of the Commissioner of Management
and Budget, under such regulations as the Commissioner of Management
and Budget may prescribe, that he/she has repaid to the occupant the
amount for which the application for refund is made. The Commissioner
of Management and Budget may, in lieu of any refund required to be
made, allow credit therefor on payments 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 Commissioner of Management and Budget may receive
evidence with respect thereto. After making his/her determination,
the Commissioner of Management and Budget 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 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 Commissioner
of Management and Budget 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 all costs and charges which may accrue in the prosecution
of such proceeding.
C.
A person shall not be entitled to a revision, refund or credit under this section of a tax, interest or penalty which had been determined to be due pursuant to the provisions of this § 270-42 where he/she has had a hearing or an opportunity for a hearing, as provided in said section, or has failed to avail himself/herself of the remedies therein provided. No refund or credit shall be made of a tax, interest or penalty paid after a determination by the Commissioner of Management and Budget made pursuant to § 270-40 of this article, unless it be found that such determination was erroneous, illegal or unconstitutional or otherwise improper by the Commissioner of Management and Budget after a hearing or of 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 Comptroller shall set up appropriate reserves
to meet any decision adverse to the County.
The remedies provided by §§ 270-40 and 270-42 of this article shall be 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 Commissioner of Management and Budget prior to the institution of such suit and posts a bond for costs as provided in § 270-40 of this article.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
A.
Whenever any operator or any officer of a corporate operator or any
occupant or other person shall fail to collect and pay over any tax
and/or to pay any tax, penalty or interest imposed by this article
as herein provided, the County Attorney shall, upon the request of
the Commissioner of Management and Budget, bring or cause to be brought
an action to enforce the payment of the same on behalf of the County
of Albany in any court of the State of New York or of any other state
or of the United States. If, however, the Commissioner of Management
and Budget in his/her discretion believes that any such operator,
officer, occupant or other person is about to cease business, leave
the state or remove or dissipate the assets out of which the tax or
penalties might be satisfied, and that any such tax or penalty will
not be paid when due, he/she may declare such tax or penalty will
not be paid when due, he/she may declare such tax or penalty to be
immediately due and payable and may issue a warrant immediately.
B.
As an additional or alternate remedy, the Commissioner of Management
and Budget may issue a warrant, directed to the Sheriff, commanding
him/her to levy upon and sell the real and personal property of the
operator or officer of a corporate operator or other person liable
for the tax, which may be found within the County for the payment
of the amount thereof, with any penalties and interest, and the cost
of executing the warrant, and to return such warrant to the Commissioner
of Management and Budget and to pay to him/her the money collected
by virtue thereof within 60 days after the receipt of such warrant.
The Sheriff shall, within five days after the receipt of the warrant,
file with the County Clerk a copy thereof, and thereupon such Clerk
shall enter in the judgment docket the name of the person mentioned
in the warrant and the amount of the tax penalties and interest for
which the warrant is issued and the date when such copy is filed.
Thereupon, the amount of such warrant so docketed shall become a lien
upon the interest in real and personal property of the person against
whom the warrant is issued. The Sheriff shall then proceed upon the
warrant, in the same manner, and with like effect, as that provided
by law with respect to executions issued against property upon judgments
of a court of record, and for services in executing the warrant he/she
shall be entitled to the same fees which he/she may collect in the
same manner. In the discretion of the Commissioner of Management and
Budget, a warrant of like terms, force and effect may be issued and
directed to any officer or employee of the Commissioner of Management
and Budget, and in the execution thereof such officer or employee
shall have all the powers conferred by law upon sheriffs, but shall
be entitled to no fee or compensation in excess of the actual expenses
paid in the performance of such duty. If a warrant is returned not
satisfied in full, the Commissioner of Management and Budget may from
time to time issue new warrants and shall also have the same remedies
to enforce the amount due thereunder as if the County has recovered
judgment therefor and execution thereon has been returned unsatisfied.
C.
Sale, transfer or assignment of hotel or lease.
(1)
Whenever an operator shall make a sale, transfer or assignment in
bulk of any part or the whole of his/her hotel or his/her lease, license
or other agreement or right to possess or operate such hotel or of
the equipment, furnishings, fixtures, supplies or stock of merchandise,
or the premises or lease, license or other agreement or right to possess
or operate such hotel and the equipment, furnishings, fixtures, supplies
and stock or merchandise pertaining to the conduct or operation of
said hotel, otherwise than in the ordinary and regular prosecution
of business, the purchaser, transferee or assignee shall, at least
10 days before taking possession of the subject of said sale, transfer
or assignment, or paying therefor, notify the Commissioner of Management
and Budget by registered mail of the proposed sale and of the price,
terms and conditions thereof, whether or not the seller, transferrer
or assignor has represented to or informed the purchaser, transferee
or assignee that it owes any tax pursuant to this article, and whether
or not the purchaser, transferee or assignee has knowledge that such
taxes are owing, and whether any such taxes are in fact owing.
(2)
Whenever the purchaser, transferee or assignee shall fail to give notice to the Commissioner of Management and Budget as required by the preceding subsection or whenever the Commissioner of Management and Budget shall inform the purchaser, transferee or assignee that possible claim for such tax or taxes exists, any sums of money, property or choses in action, or other consideration, which the purchaser, transferee or assignee is required to transfer over to the seller, transferee or assignee shall be subject to a first priority right and lien for any such taxes theretofore or thereafter determined to be due from the seller, transferrer or assignor to the County, and the purchaser, transferee or assignee is forbidden to transfer to the seller, transferrer or assignor any such sums of money, property or choses in action to the extent of the amount of the County's claim. For failure to comply with the provisions of this subsection, the purchaser, transferee or assignee, in addition to being subject to the liabilities and remedies imposed under the provisions of Article 6 of the Uniform Commercial Code, shall be personally liable for the payment to the County of any such taxes theretofore or thereafter determined to be due to the County from the seller, transferrer or assignor, and such liability may be assessed and enforced in the same manner as the liability for tax under this article.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
In addition to the powers granted to the Commissioner of Management
and Budget in this article he/she is hereby authorized and empowered:
A.
To make, adopt and amend rules and regulations appropriate to the
carrying out of this article and the purposes thereof;
B.
To extend, for cause shown, the time of filing any return for a period
not exceeding 30 days; and, for cause shown, to remit penalties but
not interest computed at the rate of 6% per annum; and to compromise
disputed claims in connection with the taxes hereby imposed;
C.
To request information from the Department of Taxation and Finance
of the State of New York or the Treasury Department of the United
States relative to any person; and to afford information to such Department
of Taxation and Finance or such Treasury Department relative to any
person, any other provision of this article to the contrary notwithstanding;
D.
To delegate his/her functions hereunder to a Deputy Commissioner
of Management and Budget or any employee or employees of the Department
of Management and Budget;
E.
To prescribe methods for determining the rents for occupancy and
to determine the taxable and nontaxable rents;
F.
To require any operator within the County to keep detailed records
of the nature and type of hotel maintained, nature and type of service
rendered, the rooms available and rooms occupied daily, leases or
occupancy contracts or arrangements, rents received, charged and accrued,
the names and addresses of the occupants, whether or not any occupancy
is claimed to be subject to the tax imposed by this article, and to
furnish such information upon request to the Commissioner of Management
and Budget;
G.
To assess, determine, revise and readjust the taxes imposed under
this article.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
A.
The Commissioner of Management and Budget or his/her employees or
agents duly designated and authorized by him/her shall have power
to administer oaths and take affidavits in relation to any matter
or proceeding in the exercise of their powers and duties under this
article. The Commissioner of Management and Budget shall have power
to subpoena and require the attendance of witnesses and the production
of books, papers and documents to secure information pertinent to
the performance of his/her duties hereunder and of the enforcement
of this article and to examine them in relation thereto, and to issue
commissions for the examination of witnesses who are out of the state
or unable to attend before him/her or excused from attendance.
B.
A Justice of the Supreme Court, either in court or at chambers, shall
have power summarily to enforce by proper proceedings the attendance
and testimony of witnesses and the production and examination of books,
papers and documents called for by the subpoena of the Commissioner
of Management and Budget under this article.
C.
Any person who shall refuse to testify or to produce books or records
or who shall testify falsely in any material matter pending before
the Commissioner of Management and Budget under this article shall
be guilty of a misdemeanor, punishment for which shall be a fine of
not more than $1,000 or imprisonment for not more than one year, or
both such fine and imprisonment.
D.
The officers who serve the summons or subpoena of the Commissioner
of Management and Budget and witnesses attending in response thereto
shall be entitled to the same fees as are allowed to officers and
witnesses in civil cases in courts of record, except as herein otherwise
provided. Such officers shall be the County Sheriff and his/her duly
appointed deputies or any officers or employees of the Department
of Management and Budget designated to serve such process.
Wherever reference is made in placards or advertisements or
in any other publications to this tax, such reference shall be substantially
in the following form: "Tax on occupancy of hotel rooms"; except that
in any bill, receipt, statement or other evidence or memorandum of
occupancy or rent charge issued or employed by the operator, the word
"tax" will suffice.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
A.
Any person failing to file a return or to pay over any tax to the
Commissioner of Management and Budget within the time required by
this article shall be subject to a penalty of 5% of the amount of
tax due; plus interest at the rate of 1% of such tax for each month
of delay excepting the first month after such return was required
to be filed or such tax became due; but the Commissioner of Management
and Budget, if satisfied that the delay was excusable, may remit all
or any part of such penalty, but not interest at the rate of 6% per
year. Such 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 a corporate 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 wilfully false, and any operator and any officer of a corporate operator wilfully failing to file a bond required to be filed pursuant to § 270-40 of this article, or failing to file a registration certificate and such data in connection therewith as the Commissioner of Management and Budget may by regulation or otherwise require or to display or surrender the certificate of authority as required by this article or assigning or transferring such certificate of authority and any operator and any officer of a corporate operator wilfully failing to charge separately from the rent the tax herein imposed, or wilfully failing to state such tax separately on any evidence of occupancy and on any bill or statement or receipt of rent issued or employed by the operator, or wilfully failing or refusing to collect such tax from the occupant, and any operator and 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 operator failing to keep the records required by § 270-37 of this article, shall, in addition to the penalties herein or elsewhere prescribed, be guilty of a misdemeanor, punishment for which shall be a fine of not more than $1,000, or 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 subject to the penalties hereinabove imposed.
C.
The certificate of the Commissioner of Management and Budget 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.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
A.
Except in accordance with proper judicial order, or as otherwise
provided by law, it shall be unlawful for the Commissioner of Management
and Budget or any officer or employee of the Department of Management
and Budget 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 any thing contained in them in any action or proceeding
in any court, except on behalf of the Commissioner of Management and
Budget 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 as 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 tax nor to prohibit the publication of statistics so classified
as to prevent the identification of particular returns and the items
thereof, or the inspection by the County Attorney or other legal representatives
of the 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
Commissioner of Management and Budget 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 be an officer or employee of the County he/she shall be dismissed from office and be incapable of holding any public office for a period of five years thereafter.
A.
Any notice authorized or required under the provisions of this article
may be given by mailing the same to the person for 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 to run from 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 County 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 wilfully 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.
C.
Where, before the 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.
