[Adopted 2-23-2021 by L.L. No. 1-2021]
The purpose of this article is to authorize the Town of Mount Pleasant to impose a 3% hotel/motel occupancy tax, pursuant to § 1202-gg of the New York State Tax Law, upon persons occupying any room or rooms in a hotel or motel for hire in the Town. The hotel/motel occupancy tax will provide the Town with another source of funds to provide much-needed services to residents that are becoming much more difficult to provide due to the economic situation impacting local governments. The legislation has been adopted by the New York State Legislature and signed into law by the Governor. The legislation requires that each municipality authorized to institute such a hotel/motel occupancy tax adopt a local law which establishes the level of tax and the rules and regulations governing the collection of the tax and other procedures relating to the tax. This article of Chapter 196 shall implement the hotel/motel occupancy tax and establish all of the rules and procedures relating thereto.
For the purposes of this article, the following definitions
shall apply:
Comptroller of the Town of Mount Pleasant.
The effective date of this article shall be February 23,
2021.
Any building or portion of any building in the Town of Mount
Pleasant, Westchester County, which is used and kept open as such
for the overnight lodging of guests, including, but not limited to,
an apartment hotel, conference/training center, a motel or a boardinghouse,
whether or not meals are served.
The use or possession or the right to the use or possession
of any room in a hotel.
A natural person who, for a consideration, uses, possesses
or has the right to use or possess any room in a hotel under any lease,
concession, permit, right of access, license to use or other agreement
or otherwise.
Any person operating a hotel in the Town of Mount Pleasant,
Westchester County, 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.
An individual, partnership, society, association, joint-stock
company, corporation, estate, receiver, trustee, assignee, referee
or any other person acting in a fiduciary or representative capacity,
whether appointed by a court or otherwise, or any combination of the
foregoing.
The consideration received for occupancy valued in money,
whether received in money or otherwise, for the occupancy of a room
in a hotel for any period of time.
A document designed by the Comptroller and filled out by
the operator on a regular basis detailing the rents received for occupancies
of rooms in a prescribed time period and the applicable tax payable
thereon.
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 February 23, 2021, there is hereby imposed and
there shall be paid a per diem tax of 3% upon the rent for every occupancy
of a room or rooms in a hotel in the Town of Mount Pleasant, Westchester
County, except that the tax shall not be imposed upon an exempt occupant,
exempt organization 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.
Any permanent resident of a hotel, which are persons occupying any
room or rooms in a hotel for at least 30 consecutive days.
E.
Any occupant of any room or rooms in a hotel whose rent is paid from
public assistance by the County of Westchester.
The tax imposed by this article shall apply only within the
territorial limits of the Town of Mount Pleasant, Westchester County.
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 Comptroller a certificate of registration on a form
prescribed by the Comptroller.
B.
The Comptroller shall, within five days after receipt of such certificate
of registration, issue without charge to each operator a certificate
of authority empowering such operator to collect the tax from its
occupants and a duplicate thereof for each additional hotel of such
operator. Each certificate of authority 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 of authority shall be nonassignable and
nontransferable and shall be surrendered immediately to the Comptroller
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 Comptroller 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 corporate
operator shall be personally liable for the tax collected or required
to be collected under this article, and the operator shall have the
same right in respect to collecting the tax from the occupant, or
in respect to nonpayment of the tax by the occupant, as if the tax
were part of the rent for the occupancy payable at the time such tax
shall become due and owing, including all rights of eviction, dispossession,
repossession and enforcement of any innkeeper's lien that he/she may
have in the event of nonpayment of the rent by the occupant; provided,
however, that the Comptroller 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 Comptroller 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 Comptroller 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 February 23, 2021, regardless of whether such occupancy is 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 February 23, 2021. Where any tax has been paid hereunder upon any rent which has been ascertained to be worthless, the Comptroller may, by regulation, provide for credit and/or refund of the amount of such tax upon application therefor as provided in § 196-44 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 § 196-38 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 Comptroller requires. Such records shall be available
for inspection, audit and/or third-party audit and examination at
any time upon demand by the Comptroller or his/her duly authorized
agent or employee and shall be preserved for a period of three years,
except that the Comptroller may consent to their destruction within
that period or may require that they be kept together.
A.
Every operator shall file with the Comptroller a return of occupancy
and of rents and of the taxes payable thereon quarterly with the Town
(April 1, July 1, October 1 and January 1). Such returns shall be
filed within five days from the expiration of the period covered thereby.
The Comptroller may permit or require returns to be made for other
periods upon such dates as he/she may specify. If the Comptroller
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
or longer periods than those prescribed pursuant to the foregoing
provisions of this section and upon such dates as he/she may specify.
B.
The form of the return shall be prescribed by the Comptroller and
shall contain such information as he/she may deem necessary for the
proper administration of this article. The Comptroller may require
amended returns to be filed within five days after request by the
Comptroller.
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 Comptroller
shall take such steps as he/she deems necessary to enforce the filing
of such return or of a corrected return.
Any final determination of the amount of any tax payable hereunder
shall be reviewable for error, illegality or unconstitutionality or
any other reason whatsoever by a proceeding under Article 78 of the
Civil Practice Law and Rules if application therefor is made to the
Supreme Court of the State of New York, County of Westchester, 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:
A.
The amount of any tax sought to be reviewed, with such interest and
penalties thereon as may be provided for by local law 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 Financial Services 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.
A.
At the time of filing a return of occupancy and of rents, each operator
shall pay to the Comptroller 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; it shall be due from the operator
and payable to the Comptroller 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.
B.
Where the Comptroller 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 Financial Services of this state as to solvency and responsibility,
in such amount as the Comptroller 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 Comptroller 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 Comptroller at which the necessity,
propriety and amount of the bond shall be determined by the Comptroller.
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 Comptroller 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 Comptroller, 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 authorized
under this article shall be paid into the treasury of the Town of
Mount Pleasant and shall be credited to and deposited in the general
fund of the Town of Mount Pleasant and may thereafter be allocated
at the discretion of the Town Board.
A.
In the manner provided in this section, the Comptroller shall refund
or credit, without interest, any tax penalty or interest erroneously,
illegally or unconstitutionally collected or paid if application to
the Comptroller for such refund shall be made within one year from
the payment thereof. Whenever a refund is made by the Comptroller,
he/she shall state his/her reason therefor in writing. Such application
for a refund may be made by the occupant, operator or other person
who has actually paid the tax. Such application may be made by an
operator who has collected and paid over such tax to the Comptroller,
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
Comptroller, under such regulations as the Comptroller 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 Comptroller 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 Comptroller may receive evidence with respect
thereto. After making his/her determination, the Comptroller 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 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 the Town's
costs and charges which may accrue in the handling 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 § 196-37 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 Comptroller made pursuant to §§ 196-37 and 196-50 of this article unless it be found that such determination was erroneous, illegal or unconstitutional or otherwise improper by the Comptroller 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 Comptroller 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 §§ 196-44 and 196-47 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 Comptroller prior to the institution of such suit and posts a bond for costs as provided in § 196-44 of this article.
A.
Any person failing to file a return or to pay over any tax to the
Comptroller 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 Comptroller, 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,
including filing of a lien by the Town for said unpaid amount, penalties
and interest against the hotel property and the foreclosure of same
under New York law.
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 under
this article, or failing to file a registration certificate and such
data in connection therewith as the Comptroller 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 issued 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 Comptroller 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 Comptroller or employee or designee of the Comptroller 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 Comptroller 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, including auditors and third-party
auditors, 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 Comptroller
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 Supervisor, 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 provisions to other persons or
circumstances, shall not be affected thereby.
