For the purpose of this chapter, the following definitions shall
apply unless the context clearly indicates or requires a different
meaning.
means any structure, or any portion of any structure which
is occupied or intended or designed for occupancy by transients, including,
but not limited to, dwelling, lodging or sleeping purposes, including
any hotel, inn, tourist home or house, motel, studio hotel, bachelor
hotel, lodging house, rooming house, apartment house, time-share project
or facility, dormitory, public or private club, mobile home or house
trailer at a fixed location or recreational vehicle space 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 units rented only occasionally (infrequently)
and incidentally to the normal occupancy by the owner or the owner’s
family; provided, that the burden of establishing that the housing
or facility is not a hotel as defined herein shall be upon the owner
or operator thereof, who shall file with the Tax Administrator such
information as the Tax Administrator may require, to establish and
maintain such status.
means use or possession or the right or a license or contractual
or membership right to the use, occupancy or possession of any room,
rooms, hotel or portion thereof, or recreational vehicle space offered
for rent or used or occupied for dwelling, lodging or sleeping purposes
regardless of the purpose for which such rooms are rented, used or
occupied.
means the person who is the proprietor of the hotel, whether
in the capacity of owner, lessee, sublessee, mortgagee in possession,
licensee, time-share project manager or operator, 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 purpose 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 or chargeable to the tenant
or person entitled to occupancy, 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, whether paid
or payable, prior to or following occupancy, including consideration
paid in whole or part on a long-term basis, such as in a time-share
project, without any deduction whatsoever.
means the City Manager or designated agent.
means the right or entitlement to occupancy in perpetuity,
for life, or for a term of years or other extended term, to the recurrent,
exclusive use or occupancy of a lot, parcel, unit, room(s), hotel
or portion thereof, or segment of real property, annually or on some
other seasonal or periodic basis, for a period of time that has been
or will be allotted from the use or occupancy periods into which the
time-share project which is involved has been divided, whether such
right or entitlement to occupancy attaches in advance to a specific
lot, parcel, unit, room(s), or portion of a hotel, or segment of real
property, or at a future time or times.
means any person who exercises occupancy or is entitled to
occupancy by reason of concession, permit, right of access, license,
time-share occupancy or other agreement for a period of 28 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 28 days has expired, unless
there is an agreement in writing between the operator and the occupant
providing for a longer period of occupancy. Unless days of occupancy
or entitlement to occupancy by one person are consecutive without
a break, then prior or subsequent periods of such occupancy or entitlement
to occupancy shall not be counted when determining whether a period
exceeds the stated 28 calendar days.
(Prior code § 35.035)
Within 30 days after the effective date of the ordinance codified
in this section, or within 30 days after commencing business, whichever
is later, each operator of any hotel renting occupancy to transients
shall register such hotel with the Tax Administrator and obtain from
him or her a transient occupancy registration certificate, to be at
all times posted in a conspicuous place on the premises.
(Prior code § 35.036)
For the privilege of occupancy in any hotel, each transient
is subject to and shall pay a tax in the amount of 12 percent of the
rent charged by the operator or otherwise payable by the transient.
Such tax constitutes a debt owed by the transient to the City, which
is extinguished only by payment to the operator of the hotel or to
the City 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 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.
(Prior code § 35.037; Res. 2007-73 8-7-07)
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, provided a claim in writing thereof, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the City Manager within three years of the date of payment. The claim shall be on forms furnished by the City Manager.
B.
An operator
may claim a refund or take as credit against taxes collected and remitted
any amount overpaid, paid more than once or erroneously or illegally
collected or received when it is established in a manner prescribed
by the City Manager that the person from whom the tax has been collected
was not a transient; provided, that neither a refund nor a credit
shall be allowed unless the amount of the tax collected has either
been refunded to the transient or credited to rent subsequently payable
by the transient to the operator.
C.
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 City Manager, or when the transient having paid the tax to the operator establishes to the satisfaction of the City Manager that the transient has been unable to obtain a refund from the operator who collected the tax.
D.
No refund
shall be paid under the provisions of this section unless the claimant
establishes his or her right thereto by written records showing entitlement
thereto.
(Prior code § 35.038)
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 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.
(Prior code § 35.039)
Each operator shall, on or before the last day of the month following the close of any monthly or at the close of any shorter reporting period which may be established by the City Manager, make and return to the City Manager, on forms provided by him or her, of the total rents, charged or chargeable whether or not received, including any rentals charged for occupancies exempt under the provisions of the definition for transient set forth in Section 3.20.010 of this chapter, and the amount of the tax collected for transient occupancies. Amounts claimed on the return as exempt from the tax under the definition of transient provided in Section 3.20.010 shall be fully itemized and explained on the return or supporting schedule, and a return shall be filed whether or not any taxes have been collected. The City Manager may establish shorter reporting periods for any certificate holder, if he or she deems it necessary in order to ensure collection of the tax, and the City Manager may require further information in the return. 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 City Manager.
(Prior code § 35.040)
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 City Manager 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 City Manager shall procure such facts and information as he or she 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 City Manager shall proceed to determine and assess against such operator the tax, interest and penalties provided for by this chapter. In case such determination is made, the City Manager 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 or her last known place of residence. Such operator may, within ten days after the serving or mailing of such notice, make application in writing to the City Manager 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 City Manager shall become final and conclusive and immediately due and payable. If such application is made, the City Manager shall give not less than five days written notice in the manner prescribed herein to the operator to show cause at a time and place fixed in such 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 City Manager 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 15 days, unless an appeal is taken as provided in Section 3.20.100 of this chapter.
(Prior code § 35.041)
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 30 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 addition to the amount of
the tax and the ten percent 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-half of one percent per month or fraction thereof on the amount
of the tax, exclusive of penalties, from the date on which the remittance
became 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
herein required paid.
F.
Revocation
of Permit. Whenever any operator fails to comply with any provision
of this chapter relating to occupancy tax or any rule or regulation
of the Tax Administrator relating to occupancy tax prescribed and
adopted under this chapter, the Tax Administrator upon hearing, after
giving the operator ten days’ notice in writing specifying the
time and place of hearing and requiring him or her to show cause why
the permit or permits should not be revoked may suspend or revoke
any one or more of the permits held by the operator. The Tax Administrator
shall give to the operator written notice of the suspension or revocation
of any of the permits. The notices herein required may be served personally
or by mail in the manner prescribed for service of notice of a deficiency
determination. The Tax Administrator shall not issue a new permit
after revocation of a permit unless he or she is satisfied that the
former holder of the permit will comply with the provisions of this
chapter relating to the occupancy tax and regulations of the Tax Administrator.
G.
Closure
of Hotel without Permit. During any period of time during which a
permit has not been issued, or is suspended, revoked or otherwise
not validly in effect, the Tax Administrator may require that the
hotel be closed.
H.
Recording
Certificate—Lien. If any amount required to be remitted or paid
to the City under this chapter is not remitted or paid when due, the
Tax Administrator may, within three years after the amount is due,
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 records of the Tax Administrator
of the operator liable for the same and the fact that the Tax Administrator
has complied with all provisions of this chapter in the determination
of the amount required to be remitted and paid. From the time of the
filing for record, the amount required to be remitted together with
penalties and interest constitutes a lien upon all real property in
the County owned by the operator or afterwards and before the lien
expires acquired by him or her. The 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.
I.
Priority
and Lien of Tax.
1.
The
amounts required to be remitted and/or paid by any operator under
this chapter with penalties and interest shall be satisfied first
in any of the following cases:
a.
Whenever the person is insolvent;
b.
Whenever the person makes a voluntary assignment of his or her assets;
c.
Whenever the estate of the person in the hands of executors, administrators,
or heirs is insufficient to pay all the debts due from the deceased;
d.
Whenever the estate and effects of an absconding, concealed or absent
person required to pay any amount under this chapter are levied upon
by process law. This article does not give the City a preference over
any recorded lien which attached prior to the date when the amounts
required to be paid became a lien.
2.
The
preference given to the City by this section shall be subordinate
to the preferences given to claims for personal services by California
Civil Procedure Code Sections 1204 and 1206.
J.
Warrant for Collection of Tax. At any time within three years after any operator is delinquent in the remittance or payment of any amount herein required to be remitted or paid or within three years after the last recording of a certificate under subsection H of this section, the Tax Administrator may issue a warrant for the enforcement of any liens and for the collection of any amount required to be paid to the City under this chapter. The warrant shall be directed to any sheriff, marshal, or constable and shall have the same effect as a writ of execution. The warrant shall be levied and sale made pursuant to it in the same manner with the same effect as a levy of and a sale pursuant to a writ of execution. The Tax Administrator may pay or advance to the sheriff, marshal, or constable the same fees, commissions and expenses for his or her services as are provided by law for similar services pursuant to a writ of execution. The Tax Administrator, and not the court, shall approve the fees for publication in a newspaper.
K.
Seizure
and Sale. At any time within three years after any operator is delinquent
in the remittance or payment of any amount, the Tax Administrator
may forthwith collect the amount in the following manner. The Tax
Administrator shall seize any property, real or personal, of the operator
and sell the property, or a sufficient part of it, at public auction
to pay the amount due together with any penalties and interest imposed
for the delinquency and any costs incurred on account of the seizure
and sale. Any seizure made to collect occupancy taxes due shall be
only of property of the operator not exempt from execution under the
provisions of the California Civil Procedure Code.
L.
Successor’s
Liability—Withholding by Purchaser. If any operator liable for
any amount under this chapter sells out his or her business or quits
the business, the operator’s successor or assigns shall withhold
sufficient of the purchase price to cover such amount until the former
owner produces a receipt from the Tax Administrator showing that it
has been paid or a certificate stating that no amount is due.
M.
Liability
of Purchaser—Release. If the purchaser of a hotel fails to withhold
purchase price as required, he or she shall become personally liable
for the payment of the amount required to be withheld to the extent
of the purchase price, valued in money. Within 60 days after receiving
a written request from the purchaser for a certificate, or within
60 days from the date the former owner’s records are made available
for audit, whichever period expires the later, but in any event not
later than 90 days after receiving the request, the Tax Administrator
shall either issue the certificate or mail notice to the purchaser
at his or her address as it appears on the records of the Tax Administrator
of the amount that must be paid as a condition of issuing the certificate.
Failure of the Tax Administrator to mail the notice will release the
purchaser from any further obligation to withhold purchase price as
above provided. The time within which the obligation of the successor
may be enforced shall start to run at the time the operator sells
his or her business or at the time that the determination against
the operator becomes final, whichever event occurs the later.
N.
Withhold Notice. If any person or operator is delinquent in the remittance or payment of the amount required to be remitted or paid or in the event a determination has been made against the person or operator for the remittance of tax and payment of the penalty, the City may, within three years after the tax obligation became due, give notice thereof personally or by registered mail to all persons, including the state or any political subsection thereof, having in their possession or under their control any credits or other personal property belonging to the taxpayer. After receiving the withholding notice, the person so notified shall make no disposition of the taxpayer’s credits, other personal property or debts until the City consents to a transfer or disposition or until 60 days elapse after the receipt of the notice, whichever expires earlier. All persons, upon receipt of such notice, shall advise the City immediately of all such credits, other personal property or debts in their possession, under their control or owing by them. If such notice seeks to prevent the transfer or other disposition of a deposit in a bank or other credits or personal property in the possession or under the control of the bank, to be effective the notice shall be delivered or mailed to the branch or office of such bank at which such deposit is carried or at which such credits or personal property is held. If any person so notified makes transfer or disposition of the property or debts required to be held hereunder during the effective period of the notice to withhold, he or she shall be liable to the City to the extent of the value of the release up to the amount of the indebtedness owned by the taxpayer to the City.
O.
Expenses
Paid from Gross Receipts. The expense for staff and collection of
the tax herein provided shall be paid from the gross receipts.
(Prior code § 35.042)
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 three years, all records as may be necessary
to determine the amount of such tax as the operator may have been
liable for the collection of and payment to the City which records
the City Manager shall have the right to inspect at all reasonable
times.
(Prior code § 35.043)
Any operator aggrieved by any decision of the City Manager with respect to the amount of such tax, interest and penalties, if any, may appeal by filing a notice of appeal with the City Clerk within 15 days of the serving or mailing of the determination of tax due. The appeal shall be conducted in accordance with the applicable procedures set forth in Chapter 4.36 of the Desert Hot Springs Municipal Code, as may be amended. The decision of the Hearing Officer shall be final and conclusive and shall be served upon the appellant in the manner prescribed above for service of notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of notice.
(Prior code § 35.044; Ord. 695 10-15-19)
Any operator or other person who fails or refuses to register
as required by this chapter, or to furnish any return to be made,
or who fails or refuses to furnish a supplemental return or other
data required by the City Manager, 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 to be made, is guilty of
a misdemeanor.
(Prior code § 35.045)
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
City. Any 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
recovery of such amount.
(Prior code § 35.046)
All funds received by the City from operators pursuant to the
provisions of this chapter shall be deposited in the general fund
of the City.
(Prior code § 35.047)
