Note: Prior ordinance history: Ord. 90-02 § 1 (3.25.010—3.25.140).
This chapter shall be known as the "Temecula Uniform Transient
Occupancy Tax."
(Ord. 05-16 § 1)
Except where the context otherwise requires, the definitions
given in this section shall govern the construction of this chapter.
means any structure, or any portion of any structure, which
is occupied or intended or designed for occupancy by transients for
dwelling, lodging or sleeping purposes, and includes, but is not limited
to, any hotel, inn, tourist home or house, motel studio hotel, bachelor
hotel, lodging house, rooming house, apartment house, rental unit,
dormitory, public or private club, mobilehome or house trailer at
a fixed location, or other similar structure or portion thereof, duplex,
triplex, single-family dwelling units except any private dwelling
house or other individually owned single-family dwelling rented only
infrequently and incidental to normal occupancy or any timeshare as
set out in California Revenue and Taxation Code Section 7280; provided,
that the burden of establishing that the facility is not a hotel shall
be on the owner or operator thereof.
means the use or possession or the right to the use or possession,
of any room or rooms or portion thereof, offered for rent for dwelling,
lodging or sleeping purposes.
means the person who is proprietor of the hotel, whether
in the capacity of owner, lessee, sublessee, mortgagee in possession,
licensee or any other capacity. Where the operator performs his or
her functions through a managing agent of any type or character other
than an employee, the managing agent shall also be deemed an operator
for the purposes of this chapter and shall have the same duties and
liabilities as his or her principal. Compliance with the provisions
of this chapter by either the principal or the managing agent shall,
however, be considered to be compliance by both.
means any individual, firm, partnership, joint venture, association,
social club, fraternal organization, joint stock company, corporation,
estate, trust, business trust, receiver, trustee, syndicate or any
other group or combination acting as a unit.
means the consideration charged, whether or not received,
for the occupancy of space in a hotel valued in money, whether to
be received in money, goods, labor or otherwise, including all receipts,
cash, credits and property and services of any kind or nature, without
any deduction therefrom whatsoever.
means the city manager of the city of Temecula or the person
designated by the city manager to act in the city manager's
place.
means any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license or other agreement for a period of thirty consecutive calendar days or less, counting portions of calendar days as full days. Any such person so occupying space in a hotel shall be deemed to be a transient until the period of thirty days has expired unless there is an agreement in writing between the operator and the occupant obliging the occupant to pay market rate for the occupancy for a period of at least thirty-one consecutive days. The tax administrator may develop and promulgate standard forms setting for the minimum substance of such agreements, and may require submission of such forms with the returns required by Section 3.20.070 of this chapter. In determining whether a person is a transient, uninterrupted periods of time extending both prior and subsequent to the effective date of the ordinance codified in this chapter may be considered.
(Ord. 05-16 § 1)
A.
For
the privilege of occupancy in any hotel, each transient is subject
to and shall pay a tax in the amount of eight percent of the rent
charged by the operator. Such tax constitutes a debt owed by the transient
to the city which is extinguished only by payment to the operator
of the hotel at the same time the rent is paid. If the rent is paid
in installments, a proportionate share of the tax shall be paid with
each installment. The unpaid tax shall be due upon the transient's
ceasing to occupy space in the hotel. If, for any reason, the tax
due is not paid to the operator of the hotel, the tax administrator
may require that such tax shall be paid directly to the tax administrator.
B.
In the
event that an agreement exists between the hotel and any person for
occupancy, as defined in this chapter, for a period in excess of thirty
days, and in the event that such person allows occupancy by another
person for thirty days or fewer as subtenant, guest, licensee or permittee,
the person who has made the agreement with the hotel as aforesaid
shall be subject to and shall pay the tax provided for herein.
(Ord. 05-16 § 1)
No tax shall be imposed upon:
A.
Any
officer or employee of the United States of America when traveling
on official business;
B.
Any
officer or employee of a foreign government who is exempt by reason
of express provision of federal law or international treaty;
No exemption shall be granted except upon a claim in writing made at the time rent is collected upon a form complying with subsection (e) of Section 7280 of the Revenue and Taxation Code. The tax administrator may require submission of copies of such forms with the returns required by Section 3.20.070 of this chapter.
(Ord. 05-16 § 1)
Each operator shall collect the tax imposed by this chapter
to the same extent and at the same time as the rent is collected from
every transient. The amount of tax shall be separately stated from
the amount of rent charged, and each transient shall receive a receipt
for payment from the operator. No operator of a hotel shall advertise
or state in any manner, whether directly or indirectly, that the tax
or any part thereof will be assumed or absorbed by the operator, or
that it will not be added to the rent, or that, if added, any part
will be refunded, except in the manner hereinafter provided.
(Ord. 05-16 § 1)
A.
Within
thirty days after commencing business each operator of any hotel shall
register with the tax administrator. Upon registration, each hotel
operator shall obtain a transient occupancy registration certificate
to be at all times posted in a conspicuous place on the premises.
C.
In addition,
such certificate shall bear the following text:
"This Transient Occupancy Registration Certificate signifies
that the person named on the face hereof has fulfilled the requirements
of the uniform Transient Occupancy Tax by registering with the Tax
Administrator for the purpose of collecting from Transients the Transient
Occupancy Tax and remitting such tax to the Tax Administrator. This
certificate does not authorize any person to conduct any unlawful
business or to conduct any lawful business in an unlawful manner,
nor to operate a hotel without strictly complying with all applicable
laws, including but not limited to those requiring a permit from any
board, commission, department or office of this City. This certificate
does not constitute a permit."
(Ord. 05-16 § 1)
Each operator shall, on or before the last day of the month
following the close of each calendar month or of such different reporting
period as may be established by the tax administrator, make a return
to the tax administrator, on forms provided by the tax administrator,
of the total rents charged and received, the amount of tax collected
for transient occupancies, and such other information as may be reasonably
required. At the time the return is filed, the full amount of the
tax collected shall be remitted to the tax administrator. The tax
administrator may establish either shorter or longer reporting periods
for any individual certificate holder or category of certificate holders
if the tax administrator deems it necessary or desirable in order
to insure collection of the tax or to increase the efficiency of its
administration. Returns and payments are due immediately upon cessation
of business for any reason. All taxes collected by operators pursuant
to this chapter shall be held in trust for the account of the city
until payment thereof is made to the tax administrator. The return
and tax payment shall be deemed timely made if postmarked by the United
States Postal Service on the date due.
(Ord. 05-16 § 1; Ord. 09-07 § 1)
A.
An operator
who is transferring, selling, or terminating its business shall notify
the tax administrator in writing at least thirty days in advance of
the date of transfer, sale, or termination. If the decision to sell,
transfer, or terminate the business is made fewer than thirty days
before the transfer, sale, or termination occurs, the operator shall
notify the tax administrator immediately upon making that decision
and in no event later than the date of transfer, sale, or termination.
The operator shall at the same time notify in writing any purchaser
or transferee of its hotel of the purchaser's or transferee's
potential responsibility for unpaid collected taxes if any, as set
forth in this section and in Revenue and Taxation Code Section 7283.5.
B.
Upon
cessation of business, whether by sale, transfer, termination, an
operator shall, on or before the same day of the next month following
the cessation of business, or on the last day of that month if no
corresponding day exists, make a return to the tax administrator on
approved forms of the total taxable rents charged, the amount of tax
collected for the reporting period ending on the cessation date, remittances
made if any, and the balance of the tax due. The balance of tax due
if any shall be remitted to the tax administrator at the time the
final return is filed. After filing the final return and remitting
the balance due, the operator shall make its records of account available
for a closeout audit by the tax administrator or his or her designee.
Returns filed and taxes remitted and actually received by the tax
administrator on or before the same day of the next month following
cessation of business, or on the last day of that month if no corresponding
day exists, shall be timely filed and remitted; otherwise, the taxes
are delinquent and subject to the penalties imposed by this chapter.
C.
Any
person purchasing an ongoing hotel business may apply to the tax administrator
for a tax clearance certificate showing the tax due, if any, from
the selling operator as of a date specified in the tax clearance certificate
request. For purposes of this section, successive hotel businesses
conducted without substantial interruption at the same hotel shall
constitute an ongoing hotel business.
1.
The
issuance and effect of such certificates shall be as set forth in
Revenue and Taxation Code Section 7283.5.
2.
Before
requesting records and conducting the audit permitted by subdivision
(b) of Revenue and Taxation Code Section 7283.5, the tax administrator
shall proceed in such manner as he or she may deem best to obtain
facts and information on which to base an estimate of the tax due.
The tax administrator shall notify the selling operator of this estimate
when requesting records for audit. If the selling operator fails to
provide records in response to the request within thirty days after
the serving or mailing of the estimate and record request, the tax
administrator may issue a tax certificate in the amount of the estimate.
3.
By
resolution, the city may set an administrative fee for issuance of
any such certificate.
(Ord. 05-16 § 1)
A.
Original
Delinquency. Any operator who fails to remit any tax imposed by this
chapter within the time required shall pay a penalty of ten percent
of the amount of the tax in addition to the amount of the tax.
B.
Continued
Delinquency. Any operator who fails to remit any delinquent remittance
on or before a period of thirty days following the date on which the
remittance first became delinquent shall pay a second delinquency
penalty of ten percent of the amount of the tax in additional to the
amount of the tax and the ten percent penalty first imposed.
D.
Interest.
In additional to the penalties imposed, any operator who fails to
remit any tax imposed by this chapter shall pay interest at the rate
of one-half of one percent per month for each month or portion of
a month that the tax shall be delinquent on the amount of the tax,
exclusive of penalties, from the date on which the tax first became
delinquent until paid. The interest shall be computed on a monthly
basis and shall not be subject to proration for any portion of a month.
E.
Penalties
Merged with Tax. Every penalty imposed and such interest as accrues
under the provisions of this section shall become a part of the tax
herein required to be paid.
F.
Collection.
In addition to all other remedies the city may have in the collection
of the tax, the city may initiate legal proceedings against the operator
for the collection of all amounts due to the city pursuant to this
chapter. In such action the city shall be entitled to receive its
reasonable attorney's fees and costs of collection from the
operator.
(Ord. 05-16 § 1)
A.
If any
operator shall fail or refuse to collect the tax and to make, within
the time provided in this chapter, any report and remittance of the
tax or any portion thereof required by this chapter, the tax administrator
shall proceed in such manner as the tax administrator may deem best
to obtain facts and information on which to base an estimate of the
tax due.
B.
As soon
as the tax administrator shall procure such facts and information
as the tax administrator is able to obtain upon which to base the
assessment of any tax imposed by this chapter and payable by any operator
who has failed or refused to collect the same and to make such report
and remittance, the tax administrator shall proceed to determine and
assess against such operator the tax, interest and penalties provided
for by this chapter. In the event such determination is made, the
tax administrator shall give a notice of the amount so assessed by
serving it personally or by depositing it in the United States mail,
postage prepaid, addressed to the operator so assessed at his last
address known to the tax administrator.
C.
Such
operator may within ten days after the serving or mailing of such
notice make application in writing to the tax administrator for a
hearing on the amount assessed. If application by the operator for
a hearing is not made within the time prescribed, the tax, interest
and penalties, if any, determined by the tax administrator shall become
final and conclusive and immediately due and payable.
D.
If such application is made, the tax administrator shall give not less than five days' written notice in the manner prescribed in this chapter to the operator to show cause at a time and place fixed in the notice why the amount specified therein should not be fixed for such tax, interest and penalties. At such hearing, the operator may appear and offer evidence why such specified tax, interest and penalties should not be so fixed. After such hearing, the tax administrator shall determine the proper tax to be remitted and shall thereafter give written notice to the person in the manner prescribed herein of such determination and the amount of such tax, interest and penalties. The amount determined to be due shall be payable after fifteen days unless an appeal is taken as provided in Section 3.20.110 of this chapter.
(Ord. 05-16 § 1)
A.
Any
operator aggrieved by any decision of the tax administrator with respect
to the amount of such tax, interest and penalties or other decisions
of the tax administrator ("tax determination"), may appeal
the tax determination pursuant to the provisions of this section.
Any operator appealing the tax determination pursuant to the provision
of this section shall pay the costs of a hearing officer to hear the
appeal, unless such operator substantially prevails on the appeal.
B.
The
right to file a written appeal shall terminate upon the expiration
of fifteen calendar days of the date of the serving or mailing of
the tax determination. The written appeal shall be filed with the
city clerk of the city of Temecula and shall be accompanied by an
appeal fee in an amount as set by city council resolution, which amount
shall include a deposit for the costs of the hearing officer. The
city clerk shall promptly forward a copy of the appeal to the tax
administrator.
C.
In the
event an appeal is timely filed, the tax determination shall not be
effective until a final decision has been rendered by the hearing
officer pursuant to this section. If no timely appeal is filed, the
tax determination shall become effective upon expiration of the period
for filing appeals.
D.
Upon
receipt of a timely appeal, the city clerk shall select a hearing
officer to conduct the appeal hearing. Not later than fifteen days
after the filing of the notice of appeal, the city clerk shall notify
the tax administrator and operator of the name of the proposed hearing
officer. The tax administrator or operator may reject a proposed hearing
officer once without cause and any subsequent proposed hearing officers
only on the basis of actual bias upon notifying, not later than five
days after the date of mailing the notice of the name of the proposed
hearing officer, the city clerk in writing that he or she elects to
reject the proposed hearing officer. The hearing officer shall be
fair, impartial, and knowledgeable in municipal affairs, and shall
have no bias for or against the tax administrator or operator.
E.
The
city clerk shall then set the hearing for a date not less than fifteen
days after the mailing of the notice of hearing nor more than thirty
days after the mailing of the notice of hearing. The parties may in
writing agree to a continuance of the hearing date. On the motion
of a party and for good cause shown, the hearing officer may continue
the initial hearing date.
F.
At the
appeal hearing, the hearing officer shall receive oral and written
evidence from the tax administrator and operator. The hearing officer
shall have authority to administer oaths to those persons who will
provide oral testimony. The evidence presented need not comply with
the strict rules of evidence set forth in the California Evidence
Code but shall be the type of evidence upon which reasonable and prudent
people rely upon in the conduct of serious affairs. The hearing officer
shall have full and complete authority to control the proceedings
and to provide for cross examination of witness in a fair and impartial
manner. The tax administrator shall have the burden of proof to establish
by clear and convincing evidence the facts upon which tax determination
is based. The appeal hearing shall be recorded by audio recording.
Any party may, at its sole cost and expense, utilize the services
of a certified court reporter to prepare the verbatim record of the
hearing. If a court reporter is used, the transcript prepared shall
be made available for purchase to both parties. The hearing officer
may continue the appeal hearing from time to time, but only upon written
motion of a party showing good cause for the continuance.
G.
The
hearing officer may uphold, modify or reverse the tax determination.
Within ten days of the conclusion of the appeal hearing, the hearing
officer shall render his or her decision and make written findings
supporting the decision and file it with the city clerk. The findings
of the hearing officer shall be final and conclusive. Upon receipt
of the hearing officer's decision, the city clerk shall send
a copy of it to the tax administrator and operator, along with a proof
of mailing. If the appellant prevails following a final decision,
the appeal fee shall be returned without interest. Any amount found
to be due shall be due and payable within ten days upon the service
of notice.
H.
Any
legal action challenging the hearing officer's decision shall
be filed within ninety days of the date of the proof of service of
mailing of the hearing officer's decision, pursuant to Section
1094.5, et seq. of the California Code of Civil Procedure.
(Ord. 05-16 § 1; Ord. 09-07 § 2)
A.
It shall
be the duty of every operator liable for the collection and payment
to the city of any tax imposed by this chapter to keep and preserve,
for a period of four years, all records as may be necessary to determine
the amount of such tax as he may have been liable for the collection
of and payment to the city, which records the tax administrator shall
have the right to inspect at all reasonable times.
B.
Such
records shall be made available to the city at operator's regular
place of business, but in no event outside the county of Riverside.
C.
Should
any examination or audit of operator's records reveal an underpayment
of any fee required under this chapter, the amount of such underpayment
shall become due and payable to the city not later than fifteen days
after written notice of such underpayment is sent to operator by the
city. Should an underpayment of more than three percent be discovered,
operator shall bear the entire cost of the audit.
D.
All
tax returns and information furnished by any operator pursuant to
this chapter shall be confidential and shall not be open to public
inspection nor the specific contents thereof disclosed by any officer
or employee except as necessary in the performance of official duty
pursuant to this chapter, or in the course of any proceeding, hearing
or litigation involving the existence or amount of the tax liability
of such operator, or with the written consent of the operator or his
authorized representative.
(Ord. 05-16 § 1)
A.
Whenever the amount of any tax, interest or penalty has been overpaid or paid more than once or has been erroneously or illegally collected or received by the city under this chapter, it may be refunded as provided in subsections B and C of this section. No refund shall be issued except upon a claim in writing therefore, stating under penalty of perjury the specific grounds upon which the claim is founded, filed with the tax administrator within one year of the date of payment. The claim shall be on forms furnished by the tax administrator. Each person seeking a refund must file an individual claim; no class claims shall be recognized.
B.
Claim
by Operator. An operator may claim a refund, or take as credit against
taxes collected and remitted, the amount overpaid, paid more than
once, or erroneously or illegally collected or received when it is
established in a manner prescribed by the tax administrator that the
person from whom the tax has been collected was not a transient; provided,
however, that neither a refund nor a credit shall be allowed unless
the amount of the tax so collected has either been refunded to the
transient or credited to rent subsequently payable by the transient
to the operator.
C.
Claim by Transient. A transient may obtain a refund of taxes overpaid or paid more than once or erroneously or illegally collected or received by the city by filing a claim in the manner provided in subsection A of this section, but only when the tax was paid by the transient directly to the tax administrator, or when the transient, having paid the tax to the operator, establishes to the satisfaction of the tax administrator that the transient has been unable to obtain a refund from the operator who collected the tax.
D.
Evidence.
No refund shall be paid under the provisions of this section unless
the claimant establishes his right thereto by written records showing
entitlement thereto.
(Ord. 05-16 § 1)
A.
Any
tax required to be paid by any transient under the provisions of this
chapter shall be deemed a debt owned by the transient to the city.
Any such tax collected by an operator which has not been paid to the
city shall be deemed a debt owed by the operator to the city. Any
person owing money to the city under the provisions of this chapter
shall be liable to an action brought in the name of the city for the
recovering of such amount.
B.
Failure
of an operator to collect tax required to be paid by any transient
shall not excuse the operator's obligation under this chapter.
An operator must pay to the city any tax required to be paid by any
transient, whether or not the operator collects such tax from that
transient.
C.
If any amount required to be paid to the city under this chapter is not paid when due, the tax administrator may, within ten years after the amount is confirmed according to the procedure set forth in Section 3.20.070 or Section 3.20.080 of this chapter, as applicable, file for record in the office of the Riverside County recorder a certificate specifying the amount of tax, penalties, and interest due; the name and address, as it appears on the tax administrator's records, of the operator liable for the tax, penalties, and interest; and the fact that the tax administrator has complied with all provisions of this chapter in the determination of the amount required to be paid. From the time of filing for record, the amount of the tax, penalties, and interest constitutes a lien upon any real property in the county owned by the operator or acquired by the operator thereafter. This lien has the force, effect, and priority of a judgment lien and shall continue for ten years from the time of filing of the certificate, unless sooner released or otherwise discharged, or unless renewed for subsequent periods in the manner prescribed by law.
D.
The
amounts required to be paid by any operator under this chapter with
penalties and interest shall be satisfied first in any of the following
cases:
1.
Whenever
the operator is insolvent;
2.
Whenever
the operator makes a voluntary assignment of its assets;
3.
Whenever
the estate of the operator in the hands of executors, administrators,
heirs, or receivers is insufficient to pay all debts;
4.
Whenever
the estate and effects of an absconding, concealed, or absent operator
required to pay any amount under this chapter are levied upon by process
of law.
(Ord. 05-16 § 1)
Any operator or other person who fails or refuses to register
as required in this chapter, or to furnish any return required to
be made, or who fails or refuses to furnish a supplemental return
or other data required by the tax administrator, or who renders a
false or fraudulent return or claim, is guilty of a misdemeanor. Any
person required to make, render, sign or verify any report or claim
who makes any false or fraudulent report or claim with intent to defeat
or evade the determination of any amount due required by this chapter,
is guilty of a misdemeanor.
(Ord. 05-16 § 1)
