This article shall be known as the "City of Newburgh Hotel Room
Occupancy Tax Law."
For the purpose of this article, the following terms shall have
the meanings indicated:
EFFECTIVE DATE
The date on which the local law enacting this article is
filed with the Secretary of State.
HOSTING COMPANY
An internet, application, technology, and/or similarly based
service through which a third party desiring to offer lodging (a "host")
and a third party desiring to book lodging (a "guest") for one or
more nights have the opportunity to communicate, negotiate, and consummate
a booking transaction for transient lodging accommodations pursuant
to a direct agreement between a host and guest to which the hosting
company is not a party but still facilitates and is entitled to receive
payments for rent on behalf of or for the host. Merely publishing
an advertisement for transient accommodations does not make the publisher
a hosting company.
HOTEL or MOTEL
Any facility, or portion thereof, consisting of rentable
units and providing lodging of guests on an overnight basis. For the
purposes of this article, the term "hotel" shall mean and include
any facility providing lodging on an overnight basis including those
facilities designated and commonly known as "bed-and-breakfast" and
"tourist" facilities, and shall include but not be limited to hotels,
motels, tourist homes, motel courts, bed-and-breakfast establishments,
short-term rentals, vacation rentals, clubs or similar facilities,
whether or not meals are served to guests or residents thereof, and/or
a location that is otherwise made available for transient lodging
accommodation for rent directly by the owner or through an agent,
operator or hosting companies.
OCCUPANCY
The use or possession, or the right to the use or possession,
of any room in a hotel.
OCCUPANT
A natural person who, for a consideration, uses, possesses
or has the right to use or possess any room in a hotel under any lease,
concession, permit, right of access, license to use or other agreement
or otherwise.
OPERATOR
Any person operating a hotel or motel in the City of Newburgh,
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 or motel and entitled to be
paid the rent. Such term shall also include a hosting company and
a room remarketer and such hosting company or room remarketer shall
be deemed to operate a hotel, motel or tourist home, or portion thereof,
with respect to which such person has the rights of a hosting company
or room remarketer.
PERMANENT RESIDENT
Any natural person occupying any room or rooms in a hotel
for at least 90 consecutive days shall be considered a permanent resident
with regard to the period of such occupancy.
PERSON
An individual, partnership, society, association, joint-stock
company, corporation, estate, receiver, trustee, assignee, referee
or any other person acting in a fiduciary or representative capacity,
whether appointed by a court or otherwise, or any combination of the
foregoing.
RENT
The per diem rental rate or charge received for occupancy
of each room, valued in money, whether received in money or otherwise,
for the occupancy of a room in a hotel for any period of time.
RETURN
Any return filed or required to be filed as herein provided.
ROOM
Any room or rooms 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.
ROOM REMARKETER
A person who reserves, arranges for, conveys, or furnishes
occupancy, whether directly or indirectly, to an occupant for rent
in an amount determined by the room remarketer, directly or indirectly,
whether pursuant to a written or other agreement. Such person's ability
or authority to reserve, arrange for, convey, or furnish occupancy
directly or indirectly, and to determine rent therefore, shall be
the "rights of a room remarketer." A room remarketer is not a permanent
resident with respect to a room for which such person has the rights
of a room remarketer.
On or after April 1, 2023, there is hereby imposed and there
shall be paid a tax of 5% upon the rent for every occupancy of a room
or rooms in a hotel or motel in the City of Newburgh, except that
the tax shall not be imposed upon a permanent resident, or as otherwise
provided herein.
The tax imposed by this chapter shall be paid upon any occupancy
on and after April 1, 2023, although such occupancy is pursuant to
a prior contract, lease or other arrangement. However, for any occupancy
taking place on or after April 1, 2023, where rent for such occupancy
has been pre-paid through a third-party room remarketer or pre-paid
in full to the hotel and where such rent is paid prior to the effective
date, and for which the hotel has no other direct financial transaction
with the occupant, that occupancy shall not be subject to the tax.
Where rent is paid on a weekly, monthly or other term basis, the rent
shall be subject to the tax imposed by this chapter to the extent
that it covers any period on and after the April 1, 2023.
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 public corporation, including any public
corporation created pursuant to agreement or compact with another
state or the Dominion of Canada, improvement district, or other political
subdivision of the state;
B. The United States of America, 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 section;
D. A permanent resident of a hotel or motel.
The tax imposed by this article shall apply only within the
territorial limits of the City of Newburgh.
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 may by regulation require. Such records
shall be available for inspection and examination at any time upon
demand by the Comptroller or the Comptroller's 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.
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; 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 Comptroller on
the date prescribed herein for the filing of the return which is filed
correctly showing the amount of rents and taxes due thereon. 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 Insurance
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.
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 the 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, shall be first
deposited and there is 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, interest or penalties as
a condition precedent to the application.
All revenue resulting from the imposition of the tax under this
article shall be paid into the treasury of the City and shall be credited
to and deposited in the general fund of the City. Such revenues may
be used for any lawful purpose.
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 a refund, the Director of Finance shall have the option
of crediting future tax payment to meet the cost of any settlement
or judgments or, at his/her option, may, in the first instance, set
up appropriate reserves to meet any decision adverse to the City.
The remedies provided by §§
270-89 and
270-91 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 §
270-88 of this article.
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 Comptroller's designee 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
the taxpayer's 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 Corporation
Counsel or other legal representatives of the City 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.
Whenever any operator, any officer of a corporate operator,
any occupant, or other person fails to collect and pay over any tax
and/or penalty or interest as imposed by this article, the Corporation
Counsel shall, at the request of the City Council, bring or cause
to be brought an action to enforce the payment of the same on behalf
of the City in any court of the State of New York or of any other
state or of the United States. If, however, the Comptroller 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, such tax or penalty
may be declared to be immediately due and payable, and the Comptroller
may issue a warrant immediately.
In addition to the powers granted in this article, the Director
of Finance is hereby authorized and empowered to:
A. 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; and to compromise disputed claims in connection with
the taxes hereby imposed;
B. Request information from the Tax Commission of the State of New York
or the Treasury Department of the United States relative to any person;
and afford information to such Tax Commission or Treasury Department
relative to any person, notwithstanding any other provision of this
article;
C. Delegate functions hereunder to the Comptroller;
D. Prescribe methods for confirming the rents for occupancy and confirm
the accuracy of information on the taxable and non-taxable rents;
E. Require any operator within the City, if it is determined that adequate
records are not being maintained, to keep detailed records of the
nature and type of hotel maintained; nature and type of service rendered;
number of rooms available and occupied; daily leases, 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 at the request of the Director of Finance;
F. Impose as a penalty upon any operator within the City any necessary
cost of auditing services generated by discrepancies discovered, upon
audit, in the records of the operator; and
G. Make, adopt, and amend such other rules and regulations appropriate
to the carrying out of this article and the purposes thereof as may
be approved by the City Council of the City of Newburgh.
From time to time, but no less than quarterly each year, the
Comptroller shall provide a report to the City Council, for its audit
and review, of all actions taken pursuant to this article. The report
shall contain a list of all certificates of registration filed or
issued to any operator in the City of Newburgh and for each operator
shall state the returns filed by all operators; the returns that have
not been timely filed by any operator; the amount of tax determined
to be payable by any operator; the tax paid and collected from any
operator; any tax that may be due and owing or past due from any operator,
and any enforcement action taken to collect any tax due under this
article.