Note: Prior ordinance history: Ords. 803, 1374 and 1464.
The ordinance codified in this chapter is adopted pursuant to
the provisions of California Revenue and Taxation Code Sections 7280
and 7281.
(Ord. 1748 § 1, 2005; Ord. 1992 § 1, 2020; Ord. 2030, 8/8/2023)
Except where the context requires, the following definitions
shall govern the construction of this chapter.
means an encumbrance or charge imposed upon specific property
for security for performance of an act.
means the county of Merced.
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, motel, hostel, or public or private club at a fixed location, or other similar structure or portion thereof. A hotel does not include a "bed and breakfast" facility, a "vacation rental" facility, "homestay" facility or other similar structure of portion thereof (collectively known as "other transient facility"), all of which are defined in Merced County Code Zoning Section 18.60.270. "Hotel" does not include a hospital room, medical clinic, convalescent home or home for the aged.
means the use or possession or the right to the use or possession
of any room or rooms or portions thereof, in any hotel or other transient
facility for dwelling, lodging or sleeping purposes.
means the person who is the proprietor of the hotel or other
transient facility, whether in the capacity of owner, lessee, sublessee,
mortgagee in possession, licensee, or any other capacity. If the operator
performs his or her functions through a managing agent of any type
or charter other than an employee, the managing agent shall also be
deemed an operator for the purposes of this chapter by either the
principal or the managing agent shall, however, be considered to be
compliance by both.
includes a bed and breakfast, vacation rental, or homestay all of which are defined in Merced County Code Zoning Section 18.60.270.
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 or other transient facility
valued in money, whether to be received in money, goods, labor, or
otherwise, including all receipts, cash, credit, and property and
services of any kind or nature, without any deduction therefrom whatsoever.
means the tax collector of the county of Merced.
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 30 consecutive calendar days or
less. For the purpose of counting consecutive days, each day for which
full rent is charged by the operator shall be deemed a full day.
(Ord. 1748 § 1, 2005; Ord. 1992 § 1, 2020; Ord. 2030, 8/8/2023)
No tax shall be imposed upon:
A.
Any person as to whom, or any occupancy as to which, it is beyond
the power of the county to impose the tax provided in this chapter;
B.
Any federal or state officer when on official business;
C.
Any officer or employee of a foreign government who is exempt by
reason of express provision of federal or state law;
D.
Employees of insurance companies while performing insurance related
business. This exemption shall apply only to those insurance companies
which do business in California and which pay the California Gross
Premiums Tax annually pursuant to California Constitution Article
XII, Section 28, in lieu of all other taxes;
E.
Employees of federal credit unions while performing credit union
business. This exemption shall apply only to those credit unions organized
and operating under the Federal Credit Union Act.
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No exemption shall be granted under this section unless a claim
of exemption in the form prescribed by the tax collector is executed
by the transient under penalty of perjury and filed with the operator
at the time rent is collected.
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(Ord. 1748 § 1, 2005; Ord. 1992 § 1, 2020; Ord. 2030, 8/8/2023)
There is imposed a tax upon each transient for the privilege
of occupancy in any hotel or other transient facility in any unincorporated
area within the county. The tax imposed by this chapter shall be at
the rate of 10% of the rent charged by the operator, on the effective
date of the ordinance codified in this chapter. Said tax constitutes
a debt owed by the transient to the county which is extinguished only
by payment to the operator or directly to the tax collector. The transient
shall pay the tax at the 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 when the transient ceases
to occupy space in the hotel or other transient facility. The tax
imposed by this chapter is for the purpose of raising revenues for
the general governmental purposes of the county. All the proceeds
for the said tax shall be placed in the county's general fund and
used for the usual current expenses of the county.
(Ord. 1748 § 1, 2005; Ord. 1992 § 1, 2020; Ord. 2030, 8/8/2023)
If a transient exercises occupancy or is entitled to occupancy for a period longer than 30 consecutive days, the operator shall refund to such person immediately the total amount of the tax previously collected by the operator from such person during the initial 30 consecutive days of occupancy under this chapter. The operator shall not be liable to the tax collector for remittance of the amount of refunded tax required by this chapter, except that the operator shall report to the tax collector in the manner required by Section 5.32.080 of this chapter the collection and refund of said tax amount.
(Ord. 1748 § 1, 2005; Ord. 1992 § 1, 2020; Ord. 2030, 8/8/2023)
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 the rent charged, and each transient shall receive a
receipt for payment of the tax from the operator. No operator of a
hotel or other transient facility shall advertise or state in any
manner, whether directly or indirectly, that the tax or any party
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 provided in this chapter.
(Ord. 1748 § 1, 2005; Ord. 1992 § 1, 2020; Ord. 2030, 8/8/2023)
Prior to establishing a transient occupancy business, each operator
of any hotel or other transient facility shall submit an application
to the community and economic development department. Upon community
and economic development department approval, the tax collector shall
issue a transient occupancy registration certificate that must be
posted in a conspicuous place on the premises at all times. Such certificate
shall, among other things, state the following:
A.
The name of the operator;
B.
The address of the hotel;
C.
The date upon which the certificate was issued;
D.
"This Transient Occupancy Registration Certificate signifies that the person or entity named on the face hereof has fulfilled the requirements of the Transient Occupancy Ordinance Chapter 5.32 and Short-Term Rentals Section 18.60.270 by registering with the community and economic development department for the purpose of complying with the zoning ordinance standards and collecting from transient the transient occupancy tax and remitting said tax to the tax collector. 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 or other transient facility without strictly complying with all local applicable laws, including, but not limited to, those requiring a permit form any board, commission, department or office of the county. This certificate does not constitute a permit."
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Persons engaged in such business as a hotel operator or short-term
residential rental in the unincorporated area of Merced County must
register within 30 days after commencing business, but such privilege
of registration after the date of imposition of such tax shall not
relieve any person from the obligation of collection and remittance
of tax on and after the date of imposition, regardless of their eligibility
to register or registration status.
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(Ord. 1748 § 1, 2005; Ord. 1992 § 1, 2020; Ord. 2030, 8/8/2023)
Each operator shall, on or before the last day of the calendar
month following the close of each calendar quarter, or at the close
of any shorter reporting period which may be established by the tax
collector, make a return to the tax collector, on forms provided by
the tax collector. Each operator shall report total rents charged
and received and the amount of tax collected from transient occupancies
for the period. At the time the return is filed, the full amount of
the tax collected shall be remitted to the tax collector.
If an operator has been issued more than one transient occupancy
registration certificate, the operator shall report the tax collected
and due on each unit that has a transient occupancy registration certificate.
The operator may remit payment in one check for multiple units, but
the accounting for tax collected and due shall be itemized for each
separate certificated rental unit. At the time the return is filed,
the full amount of the tax collected shall be remitted to the tax
collector.
Failure to comply with the quarterly filing and remittance requirement
may cause the tax collector to require monthly filing and remittance
of TOT receipts to ensure timely compliance with the law.
The tax collector may establish shorter reporting periods for
any operator and require additional information in the return if deemed
necessary in order to insure collection of the tax. 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 county until payment thereof is made
to the tax collector.
(Ord. 1748 § 1, 2005; Ord. 1992 § 1, 2020; Ord. 2030, 8/8/2023)
A.
Original Delinquency. Any operator who fails to remit any tax imposed
by this chapter within the time required shall pay a penalty of 10%
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 30 days following the date on
which the remittance first became delinquent shall pay a second delinquent
penalty of 10% of the amount of the tax in addition to the amount
of the tax and the 10% penalty first imposed.
D.
Interest. In addition to the penalties imposed, any operator who
fails to remit any tax imposed by this chapter shall pay interest
at the rate of one and one-half percent per month or fraction thereof
on the amount of the tax, exclusive of penalties, from the date on
which the remittance first becomes delinquent, until paid.
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 required to be paid by this chapter.
(Ord. 1748 § 1, 2005; Ord. 1992 § 1, 2020; Ord. 2030, 8/8/2023)
A.
If any operator fails or refuses to collect any tax required by this
chapter and to make within the time provided in this chapter any report
and remittance of said tax, then the tax collector shall proceed in
such manner as he or she may deem best to obtain facts and information
on which to base the estimate of the tax due. As soon as the tax collector
secures such facts and information upon which to base the assessment
of any tax imposed and made payable by this chapter, the tax collector
shall then proceed to determine and assess against the operator the
tax, interest and penalties provided for by this chapter.
B.
After such determination has been made, the tax collector shall give written notice of the amount so assessed and of the recording of the certificate of tax lien made pursuant to Section 5.32.110 of this chapter by either serving such notice personally or by mailing it by first class mail, postage prepaid, addressed to the operator so assessed or person so responsible and aggrieved at their last known address as filed with the tax collector. Such operator or person may, within 20 days after the personal service or mailing of such notice, make application in writing to the tax collector for a hearing before the tax collector. If application by the operator or person aggrieved for hearing is not made and received by the tax collector within said 20-day period, or within the extended period provided by California Code of Civil Procedure Section 1013 where the tax collector mails such notice, then the tax, interest, and penalties determined and the certificate of tax lien recorded by the tax collector shall become final, conclusive and subject to all enforcement or execution procedures or actions as permitted by law. All collection remedies at law and this chapter are cumulative and no action taken by the tax collector or the county shall constitute an election to pursue one remedy to the exclusion of any others.
C.
If such application is timely made and received, the tax collector
shall give not less than five days' written notice to the operator
or person aggrieved, in the manner prescribed in this section, to
show cause at a time and place stated why said tax, interest, and
penalties should not be so fixed and/or why such certificate of tax
lien should not be enforced. At such hearing, the operator or person
aggrieved shall appear either personally or by attorney and offer
relevant evidence why the amount determined and the tax lien recorded
by the tax collector should not be fixed and enforced. Failure to
appear at the noticed hearing will result in dismissal of the application
for hearing and forfeiture of any right to further hearing and appeal
under this chapter and of the operator or person's administrative
exhaustion of rights and remedies.
D.
After such hearing, the tax collector shall determine the proper tax to be remitted, if any, and shall thereafter give written notice to the operator or person aggrieved, in the manner prescribed by this section, of the tax collector's decision, including the amount of any tax, interest, and penalties assessed and the release, adjustment or maintenance of the certificate of tax lien recorded pursuant to Section 5.32.110 of this chapter. The amount determined by the tax collector shall be payable 10 days after the personal service or mailing of the tax collector's notice of decision, unless an appeal made pursuant to Section 5.32.160 of this chapter is timely received by the clerk of the county board of supervisors.
(Ord. 1748 § 1, 2005; Ord. 1992 § 1, 2020; Ord. 2030, 8/8/2023)
A.
A certificate of tax lien for any delinquent tax, interest or penalty imposed by Sections 5.32.090 and 5.32.100 of this chapter will be recorded by the tax collector with the county recorder on any real property in the county in which the operator or person responsible for collecting any tax imposed by this chapter has any ownership or beneficial interest. The certificate of tax lien shall have the same legal force, effect and priority of a judgment lien on all personal and real property in the county owned by the operator or person responsible for the collection and remittance of tax under this chapter.
B.
A certificate of tax lien will not be recorded against the mortgage holder of the real property, or against the owner of any property subject to the tax imposed by this chapter who solely leases it to another person to operate for transient occupancy as defined in Section 5.32.020 of this chapter.
D.
An operator or person aggrieved by the tax collector recording of a certificate of tax lien may make a written application to the tax collector for a hearing within 20 days of the notice by the tax collector given pursuant to Section 5.32.100(B), of this chapter. The civil enforcement or execution of the tax lien created by this section shall be stayed during the hearing and appeal process provided for by Sections 5.32.100 and 5.32.160 of this chapter and during any judicial review petitioned for by either party to the proceedings under this chapter.
(Ord. 1748 § 1, 2005; Ord. 1992 § 1, 2020; Ord. 2030, 8/8/2023)
If an operator or any person responsible for the collection,
reporting and remittance of any tax under this chapter sells or transfers
the hotel, the purchaser(s), grantee(s) or title company shall withhold
a sufficient portion of the purchase price or transfer in escrow to
be made payable to the county to cover the amount for which such seller
is responsible for under this chapter, unless and until such seller
deposits into escrow a signed and sealed receipt from the tax collector
showing that payment has been made and stating that no amount is due
the county. Upon full payment of all amounts due under this chapter,
the tax collector shall within 10 days record with the county recorder
a satisfaction of lien reflecting such payment and release of tax
lien.
(Ord. 1748 § 1, 2005; Ord. 1992 § 1, 2020; Ord. 2030, 8/8/2023)
A.
If the purchaser(s) or grantee(s) of a hotel or other transient facility subject to a recorded certificate of tax lien and any tax, interest and penalty imposed by this chapter fails to withhold such amounts from the purchase price or transfer as required by Section 5.32.120 of this chapter, then such purchaser(s) or grantee(s) who has actual knowledge of such tax lien or amounts due, shall be personally liable, jointly or individually for the payment of the amount required to be withheld pursuant to Section 5.32.120 of this chapter and to the extent of the purchase price or transfer, valued in U.S. currency.
B.
If the title company retained in the transfer or sale and purchase of a hotel or other transient facility subject to a certificate of tax lien recorded with the county recorder fails to withhold such delinquent amounts from the purchase price or transfer as required by Section 5.32.120 of this chapter, the title company will be liable for the payment of the amount required to be withheld to the extent of the purchase price or transfer, valued in U.S. currency, unless such title company provides during the escrow period of such sale or transfer written and actual notice to each purchaser or grantee of the hotel or other transient facility of the purchaser's or grantee's potential liability under Sections 5.32.120 and 5.32.130 of this chapter, together with notice of all amounts due and the certificate of tax lien filed by the tax collector and recorded against the hotel. The title company shall within three days of giving such notice to the purchaser(s) or grantee(s) provide and mail to the tax collector a copy of the title company's notice to the purchaser(s) or grantee(s) of the requirements of this chapter, the recorded certificate of tax lien and the taxes due thereunder.
C.
Within 30 days after receiving a written request from the purchaser or grantee for registration certificate, the tax collector shall either issue the certificate or mail notice to the purchaser at the address as it appears on the records of the tax collector, of the amount that must be paid as a condition of issuing the certificate. Failure of the tax collector to timely mail the notice will release the purchaser or grantee from any further obligation to withhold taxes, interest or penalties from the purchase price or transfer as provided in Section 5.32.170 of this chapter.
(Ord. 1748 § 1, 2005; Ord. 1992 § 1, 2020; Ord. 2030, 8/8/2023)
If the tax collector is not satisfied with a return filed by an operator or the amount of the tax required to be paid to the county pursuant to a return, the tax collector may compute and determine the amount required to be paid upon the basis of the facts contained in the return or upon the basis of any information within the tax collector's possession or that may come into his or her possession. One or more deficiency determinations may be made of the amount due for any period. The tax collector shall give the operator written notice of his or her determination in the same manner as provided in Section 5.32.100 of this chapter. The operator shall thereafter be entitled to apply for a hearing on the amount assessed pursuant to the procedures set forth in Section 5.32.100 of this chapter, and shall thereafter be entitled to appeal to the county board of supervisors in accordance with the provisions of Section 5.32.160 of this chapter. The penalties and interest provided by Section 5.32.90 shall be applicable to the amount of deficiency established pursuant to this section.
(Ord. 1748 § 1, 2005; Ord. 1992 § 1, 2020; Ord. 2030, 8/8/2023)
Whenever the amount of any tax, penalty, or interest has been
paid more than once or has been erroneously or illegally collected
by the tax collector under this chapter, it may be refunded provided
a verified claim for refund in writing stating the specific ground
upon which the claim is founded, is filed with the clerk of the county
board of supervisor within three years from the date of such payment
or amount. The claim shall be made on forms provided by the tax collector.
If the claim is approved by the county board of supervisors, the excess
amount collected or paid shall be refunded or credited on any amounts
then due and payable from the operator from whom it was collected
or by whom paid, and the balance may be refunded to such operator,
or the operator's administrators or executors, successors or assignees.
(Ord. 1748 § 1, 2005; Ord. 1992 § 1, 2020; Ord. 2030, 8/8/2023)
Any operator or person aggrieved by any unfavorable determination or action of the tax collector made pursuant to this chapter may after exhausting his or her hearing rights pursuant to Section 5.32.100, appeal to the county board of supervisors by filing a written notice of appeal with the clerk of the board of supervisors within 10 days after the personal service or mailing of the notice of the determination by the tax collector made pursuant to Section 5.32.100 or 5.32.110(B), of this chapter. The board of supervisors shall fix a time for hearing such appeal based upon the full administrative record made pursuant to Section 5.32.100(C) and (D), of this chapter, together with any official records of the county. The clerk of the county board of supervisors shall give notice in writing to appellant(s) at their last known address as filed with the tax collector by first class mail, as prescribed by Section 5.32.110(B) of this chapter of the board of supervisors' decision. There shall be no reconsideration of the board's decision. The decision of the board of supervisors shall be final upon the date the county clerk mails the written decision of the board of supervisors to appellants.
(Ord. 1748 § 1, 2005; Ord. 1992 § 1, 2020; Ord. 2030, 8/8/2023)
Every operator or person liable for the collection and payment
to the county of any tax imposed by this chapter shall keep and preserve,
for a period of three years, all records necessary to determine the
amount of such tax for which he or she may have been liable for the
collection of and payment to the county. The tax collector shall have
the right to inspect said records at all reasonable times and places.
(Ord. 1748 § 1, 2005; Ord. 1992 § 1, 2020; Ord. 2030, 8/8/2023)
Any tax required to be paid by any transient under the provisions
of this chapter shall be deemed a debt owed by the transient to the
county. Any such tax required to be collected by an operator, purchaser,
or title company which has not been paid to the county shall be deemed
a debt owed by the operator to the county. It shall be the duty of
the tax collector or designee to enforce the requirements of this
chapter. Said delinquencies shall be collected in the same manner
as any unsecured tax collection procedure as provided by the California
Revenue and Taxation Code.
(Ord. 1748 § 1, 2005; Ord. 1992 § 1, 2020; Ord. 2030, 8/8/2023)
A.
Failure of an operator to pay the tax collector taxes collected under
this chapter is punishable as a felony pursuant to Section 424 of
the Penal Code. In addition, any person violating any of the provisions
of this chapter is guilty of a misdemeanor and punishable by a fine
of not more than $500.00 or by imprisonment in the County Jail for
the period of not more than six months or by both such fine and imprisonment.
B.
Any person who fails or refuses to register as required in this chapter, or to furnish any return required to be made, or fails or refuses to furnish a supplemental return or other data required by the tax collector, or who renders a false or fraudulent return or claim, is guilty of a misdemeanor, and is punishable as set forth in subsection A of this section. 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 delay, obstruct or evade any determination or any amount due pursuant to this chapter is guilty of a misdemeanor and is punishable as stated in subsection A of this section.
(Ord. 1748 § 1, 2005; Ord. 1992 § 1, 2020; Ord. 2030, 8/8/2023)
If any provision of this chapter is held to be unconstitutional,
preempted by federal law, or otherwise invalid by any court of competent
jurisdiction, the remaining provisions of the chapter shall not be
invalidated.
(Ord. 1748 § 1, 2005; Ord. 1992 § 1, 2020; Ord. 2030, 8/8/2023)
