[Adopted 9-22-2022 by L.L. No. 5-2022]
This article shall be known as the "Village of Nyack Hotel Room
Occupancy Tax Law."
As used in this article, the following terms shall have the
meanings indicated:
A building or portion of it which is used and kept open as
such for the overnight lodging of guests. The term "hotel" includes
an apartment hotel, a 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 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 agreements, or otherwise.
Any person operating a hotel in the Village of Nyack, 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.
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 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
a place of assembly.
The Village Treasurer of Village of Nyack.
On or after the first day of January 2023, 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 county, except that the tax
shall not be imposed upon a permanent resident.
The tax imposed by this article shall be paid upon any occupancy
on or after the first day of January 1, 2023, 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 or after the first day of January 2023, and such
rent shall be apportioned on the basis of the ratio of the number
of days falling within said period to the total number of days covered
thereby.
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) or political
subdivisions.
(2)
The United States of America, and any of its agencies and instrumentalities,
insofar as it is immune from taxation.
(3)
The United Nations or any international organization of which the
United States of America is a member.
(4)
Any corporation, association, trust, or community chest, fund, foundation,
or limited-liability company, organized and operated exclusively for
religious, charitable, scientific, testing for public safety, literary
or educational purposes, or to foster national or international amateur
sports competition (but only if no part of its activities involve
the provision of athletic facilities or equipment), or for the prevention
of cruelty to children or animals, no part of the net earnings of
which inures to the benefit of any private shareholder or individual,
no substantial part of the activities of which is carrying on propaganda,
or otherwise attempting to influence legislation [except as otherwise
provided in Subsection (h) of § 501 of the United States
Internal Revenue Code of 1954, as amended], and which does not participate
in, or intervene in (including the publishing or distributing of statements),
any political campaign on behalf of any candidate for public office.
(5)
A post or organization of past or present members of the Armed Forces
of the United States, or an auxiliary unit or society of, or a trust
or foundation for, any such post or organization:
(a)
Organized in this state;
(b)
At least 75% of the members of which are past or present members
of the Armed Forces of the United States and substantially all of
the other members of which are individuals who are cadets, or are
spouses, widows, widowers, ancestors, or lineal descendants of past
or present members of the Armed Forces of the United States or of
cadets; and
(c)
No part of the net earnings of which inures to the benefit of
any private shareholder or individual.
(6)
The following Indian nations or tribes residing in New York State:
Cayuga, Oneida, Onondaga, Poospatuck, Saint Regis Mohawk, Seneca,
Shinnecock, Tonawanda and Tuscarora, where it is the purchaser, user
or consumer.
B.
Where any organization described in Subsection A(4) of this section 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 Village of Nyack.
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 Treasurer a certificate of registration on a form prescribed
by the Treasurer.
B.
The Treasurer shall, within five days after such registration, issue
without charge to each operator a certificate of authority empowering
such operator to collect the tax from the occupant and 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 Treasurer
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 Treasurer or such other Village 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 Village, 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 Treasurer 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 Treasurer 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 Treasurer 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 January 1, 2023, 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 January 1, 2023. Where any tax has been paid hereunder upon any rent which has been ascertained to be worthless, the Treasurer may, by regulation, provide for credit and/or refund of the amount of such tax upon application therefor as provided in § 305-44 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 § 305-37 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.
F.
All of the provisions under Article 28 of the Tax Law of the State
of New York relating to or applicable to the administration and collection
of the taxes imposed by that article shall apply to the taxes imposed
by this article, with the same force and effect as if those provisions
had been incorporated in full into this article, except as otherwise
provided in § 1250 of the Tax Law.
A.
Every operator shall file with the Village Treasurer a return of
occupancy and of rents and of the taxes payable thereon for the periods
ending the last day of February, May, August and November on and after
January 1, 2023. Such returns shall be filed within 20 days from the
expiration of the period covered thereby. The Village Treasurer may
permit or require returns to be made by other periods and upon such
dates as he may specify. If the Village Treasurer deems it necessary
in order to ensure the payment of the tax imposed by this article,
he 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 may specify.
B.
The forms of return shall be prescribed by the Village Treasurer
and shall contain such information as he may deem necessary for the
proper administration of this article. The Village Treasurer may require
amended returns to be filed within 20 days after notice and to contain
the information specified in the notice.
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.
At the time of filing a return of occupancy and of rents, each
operator shall pay to the Treasurer 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 Treasurer 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 Treasurer 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 Treasurer 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 Treasurer 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 Treasurer at which the necessity, propriety and amount of the
bond shall be determined by the Treasurer. 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
Treasurer 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 Treasurer,
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 of the revenues resulting from the imposition of tax authorized
by this article shall be paid into the treasury of the Village of
Nyack and shall be credited to and deposited in the general fund of
the Village; and may thereafter be allocated at the discretion of
the Nyack Village Board for any Village purpose.
A.
In the manner provided in this section, the Treasurer shall refund
or credit, without interest, any tax penalty or interest erroneously,
illegally or unconstitutionally collected or paid if application to
the Treasurer for such refund shall be made within one year from the
payment thereof. Whenever a refund is made by the Treasurer, 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 Treasurer, 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 Treasurer, under
such regulations as the Treasurer 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 Treasurer
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 Treasurer may receive evidence with respect
thereto. After making his/her determination, the Treasurer 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 Treasurer 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 § 305-45 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 Treasurer made pursuant to § 305-45 of this article unless it be found that such determination was erroneous, illegal or unconstitutional or otherwise improper by the Treasurer 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.
D.
The remedies provided by §§ 305-42 and 305-45 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 § 305-42 of this article.
A.
Any person failing to file a return or to pay or pay over any tax
to the Treasurer 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 Treasurer, 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 § 305-42 of this article, or failing to file a registration certificate and such data in connection therewith as the Treasurer 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 violation, punishable by a fine of up to $1,000. 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 herein authorized.
C.
The certificate of the Treasurer 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.
This article shall be construed and enforced in conformity with
Articles 28 and 29 of the Tax Law of the State of New York pursuant
to which the same is enacted and which are incorporated in this article
by this reference.
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 Village Treasurer may by regulation require. Such
records shall be available for inspection and examination at any time
upon demand by the Village Treasurer or his duly authorized agent
or employee and shall be preserved for a period of three years, except
that the Village Treasurer may consent to their destruction within
that period or may require that they be kept longer.
The Village Treasurer is hereby empowered to promulgate and
amend suitable rules and regulations prescribing the necessary forms
for carrying into effect the provisions of this article relating to
tax on the occupancy of hotel rooms.
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 Treasurer or employee or designee of the Treasurer 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 Treasurer 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 Village Attorney
or other legal representatives of the Village 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
Treasurer permits them to be destroyed.
B.
Any violation of Subsection A of this section shall be punishable by a fine not exceeding $1,000, in the discretion of the court, and if the offender is an officer or employee of the Village, he/she may be, at the discretion of the Village Administrator, dismissed from office and be incapable of holding any further Village 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 Village 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 take effect on January 1, 2023, except that
certificates of registration may be filed with the Village Treasurer,
and certificates of authority to collect tax may be issued by the
Village Treasurer prior to said date.
