Editor's note–Former chapter 113 pertaining
to lodging; occupancy tax, was repealed and replaced in its entirety
by Ordinance 2023-02 adopted 3/20/2023. Prior to replacement this chapter derived
from the following: Ordinance 1999-10 adopted 7/27/99; Ordinance 2020-1 adopted 1/14/20; Ordinance 2022-07 adopted 10/25/2022.
This chapter may be cited as the "lodgers' occupancy tax
chapter."
(Ordinance 2023-02 adopted 3/20/2023)
For the purposes of this chapter, the following words and phrases
have the following meanings.
The county clerk for the County of Santa Fe, New Mexico.
The county treasurer for the County of Santa Fe, New Mexico.
A structure or portion of a structure that is designed, occupied
or intended to be occupied, or has been previously used, as living
quarters for a family and includes facilities for cooking, sleeping,
and sanitation; but not including recreational vehicles, travel trailers,
hotels, motels, and boardinghouses. Dwelling or dwelling unit includes
single-family, two-family, and multifamily dwellings; manufactured
homes; mobile homes; and tiny houses.
The total amount of rent paid for lodging, not including
the state gross receipts tax or local sales taxes.
The transaction of furnishing rooms or other accommodations
by a vendor to a vendee who, for rent, uses, possesses, or has the
right to use or possess any room or other unit or accommodation in
or at a taxable premises.
The rooms or other accommodations furnished from a vendor
to a vendee by a taxable service of lodging.
The tax on lodging, authorized by this chapter.
A corporation, firm, partnership, association, individual,
or other entity, including an executor, administrator, trustee, receiver
or other representative appointed according to law and acting in a
representative capacity, but does not include the United States of
America, the state, or any political subdivision, corporation, department,
instrumentally, or agency of the federal government, the state government,
or any political subdivision of the state.
The consideration received by a vendor in money, credit,
property or other consideration valued in money for lodgings, subject
to the occupancy tax authorized by this chapter.
A dwelling or portion thereof that is rented for periods
of less than thirty (30) consecutive days.
A person or entity that provides a means through which a
vendor may offer a dwelling unit, or portion thereof, for STR use,
and from which the person or entity financially benefits.
A hotel, motel, or other premises used for lodging that is
not the vendee's household or primary residence. This includes,
without limitation, hotels, motels, tourist homes, short-term rentals,
vacation rentals by owner, guestrooms for compensation, lodging houses,
motor courts, inns, hostels, rooming houses, camps, studios, bed and
breakfasts, or other structure, or portion thereof, offering, or renting
for lodging, dwelling, or sleeping purposes, in guestrooms for compensation,
and shall further include any trailer court, trailer spaces, or combinations
of such spaces and trailers, including mobile homes, and timeshare
units not occupied by the timeshare owner or a guest of the owner.
Lodgings for the purpose of housing a vendee within proximity
of the vendee's employment or job location.
Events that are planned for, promoted to and attended by
tourists.
Facilities and attractions that are intended to be used by
or visited by tourists.
Transportation systems that provide transportation for tourists
to and from tourist-related facilities and attractions and tourist-related
events.
A person who travels for the purpose of business, pleasure,
or culture to or within the county, including residents and nonresidents
of the county.
A natural person to whom lodgings are furnished in the exercise
of the taxable service of lodging. A vendee does not include a natural
person who has been a permanent resident of the taxable premises for
at least thirty (30) consecutive days, who has entered into a written
agreement for lodging at the taxable premises for a period of at least
thirty (30) days, or whose rent is less than $2.00 per day.
A person or the person's agent who provides lodgings
to a vendee for rent.
(Ordinance 2023-02 adopted 3/20/2023)
(A)
Statutory authority.
The board of county commissioners
of the county, pursuant to section 3-38-14, et seq., NMSA 1978, hereby
imposes an occupancy tax on gross taxable rent for lodging within
the county and outside of the municipal limits of any incorporated
municipality in the county.
(B)
Exemptions.
The occupancy tax shall not apply:
(1)
If a vendee:
(a)
Has been a permanent resident of the taxable premises for a
period of at least thirty consecutive days, unless those premises
are temporary lodging; or
(b)
Enters into or has entered into a written agreement for lodgings
at the taxable premises for a period of at least thirty (30) consecutive
days, unless those premises are temporary lodging;
(2)
If the rent paid by a vendee is less than two dollars ($2.00)
a day;
(3)
To lodging accommodations at institutions of the federal government,
the state, or any political subdivision thereof;
(4)
To lodging accommodations at religious, charitable, educational
or philanthropic institutions, including accommodations at summer
camps operated by such institutions;
(5)
To clinics, hospitals, or other medical facilities; or
(6)
To privately owned and operated convalescent homes or homes
for the aged, infirm, indigent, or chronically ill.
(C)
Amount.
The amount of occupancy tax imposed under this
chapter is five percent (5%) of gross taxable rent.
(D)
Date due.
The occupancy tax shall be paid by the vendor
in the form of cash, check, or other acceptable payment method to
the county treasurer on or before the 25th day of each month for the
previous calendar month's lodging.
(E)
Reports due.
The vendor shall complete, sign and submit, together with the payment set forth in subsection (C), the vendor's monthly CRS gross receipts tax form, and the county lodger's tax report. This requirement applies regardless of whether a short-term rental platform collects occupancy taxes as an agent for the vendor.
(F)
Civil penalty and interest.
A civil penalty of one hundred
dollars ($100.00) or ten percent (10%) of the amount of occupancy
tax due, whichever is greater, plus interest at the rate of one percent
(1%) per month, will be assessed against any vendor whose payments
are either delinquent or late, in addition to the vendor's liability
for any unpaid or uncollected funds.
(G)
Collection.
This chapter may be enforced by an action
for Mandamus, Injunction, or other appropriate remedy. The occupancy
tax constitutes a lien in favor of the county upon the personal and
real property of the vendor. The lien may be enforced as provided
in sections 3-36-1 through 3-36-7, NMSA 1978. Priority of the lien
shall be determined from the date of filing. The vendor shall be liable
for any and all costs and reasonable attorney's fees associated
with collection of funds under this section.
(H)
Date due.
Except as otherwise required in this subsection (H), the occupancy tax shall be paid by the vendor in the form of cash, check, or other acceptable payment method to the county treasurer on or before the 25th day of each month for the previous calendar month's lodging. All short-term rental platforms that display STR listings and facilitate payment of rent from vendee to vendor for properties in the county and outside the municipal limits of any municipality in the county shall collect the occupancy tax on gross taxable rent for such vendors and remit those taxes to the county treasurer by the aforementioned date. The short-term rental platform shall be considered an agent of the vendor for purposes of occupancy tax collections and remittance responsibilities as set forth in this chapter.
(Ordinance 2023-02 adopted 3/20/2023)
(A)
Business registration and business licenses.
All vendors,
other than short-term rentals, as defined in the business registration
and licensing regulations (Ordinance No. 1992-3), must obtain a county
business registration pursuant to this section. Short-term rentals
must obtain a business registration (owner-occupied short-term rentals)
or business license (non-owner-occupied short-term rentals) pursuant
to Ordinance No. 1992-03, as amended by the short-term rental regulation,
registration, and licensing regulations (Ordinance No. 2022-7).
(B)
Accounting application.
All vendors applying for a county
business registration must submit an application including the following
information:
(1)
The name of the vendor, including identification of any person,
as defined in this chapter, who owns or operates a place of lodging
and the name or trade names under which the vendor proposes to do
business and the mailing and street addresses thereof;
(2)
A description of the facilities, including the number of rooms
and the usual schedule of rates therefor;
(3)
A description of other facilities provided by vendor or others
to users of the lodgings such as restaurant, bar, cleaning, laundry,
courtesy car, stenographer, tailor or others and a statement identifying
any applicable licenses/registrations and tax identification numbers
for those facilities.
(4)
State of New Mexico gross receipts tax number (C.R.S. ID#).
(C)
Review.
The finance department shall review applications
for registration with (10) days of receipt thereof, and approve the
registration in due course if the applicant is doing business subject
to the occupancy tax.
(D)
Refunds.
Any vendor claiming a refund for overpayment
shall file a request, in writing, with the county finance director
within ninety (90) days of the alleged overpayment. The request shall
clearly document the gross rent for the payment period, the amount
of occupancy tax collected, the amount remitted to the county, and
the amount of overpayment claimed. The finance director shall review
the refund request and take action to approve or deny the request
within thirty (30) days.
(E)
Dispute procedure.
An applicant who is dissatisfied with a decision of the finance director under subsections (C) and (D) may appeal the decision to the board of county commissioners by written notice to the county clerk of such appeal, to be made within fifteen (15) days of receipt of the decision. The matter shall be referred to the board of county commissioners for hearing in the usual course of business. The action of the board of county commissioners shall be deemed final, and the board of county commissioners shall issue written findings of fact and conclusions of law.
(F)
Short-term rental platforms.
(1)
Short-term rental platforms shall collect occupancy taxes and remit those taxes to the county treasurer as required by section 113.03(H) above. Short-term rental platforms shall disclose to the county on a monthly basis each of their STR listings located in the county, the name of the person responsible for such listing, the address of each such listing, the length of stay of each such listing, and the price for each stay. Short-term rental platforms shall also ask vendors whether their lodgings are located within the unincorporated area of the county, the presumptive city limits of the City of Santa Fe, or within a municipality.
(2)
Safe harbor.
A short-term rental platform, who operates in compliance with this subsection (F), shall be presumed to be in compliance with this chapter, except that short-term rental platforms remain responsible for compliance with the administrative penalty provisions in section 113.08 of this chapter.
(Ordinance 2023-02 adopted 3/20/2023)
(A)
Tourism promotion.
Not less than fifty percent (50%)
of the proceeds from the occupancy tax shall be used for the purpose
of advertising, publicizing, or promoting tourist-related facilities,
attractions, transportation systems, or events in the county, including,
but not limited to, the County Fairgrounds, Stanley Cyclone Center,
exposition buildings, field houses, auditoriums, welcome centers,
tourist information centers, museums, performing art facilities, open
spaces and trails, and convention halls and other convention facilities
of the county.
(B)
Operations and facilities.
Any balance of the occupancy tax proceeds not used for the purposes set forth in subsection (A) of this section may be used to defray the costs of:
(1)
Collecting and otherwise administering the occupancy tax including
the performance of audits required by the Lodgers' Tax Act (sections
3-38-13 to 3-38-25, NMSA 1978) pursuant to guidelines issued by the
department of finance and administration;
(2)
Establishing, operating, purchasing, constructing, otherwise
acquiring, reconstructing, extending, improving, equipping, furnishing
or acquiring real property or any interest in real property for the
site or grounds for tourist-related facilities and attractions or
tourist-related transportation systems;
(3)
The principal of and interest on any prior redemption premiums
due in connection with and any other charges pertaining to revenue
bonds authorized by section 3-38-23 or 3-38-24, NMSA 1978;
(4)
Advertising, publicizing and promoting tourist-related attractions,
facilities and events of the county and tourist-related facilities,
attractions and events within the area;
(5)
Providing police and fire protection and sanitation service
for tourist-related facilities, attractions and events located in
the county;
(6)
Any combination of the foregoing purposes or transactions stated
in this section; or
(7)
As otherwise allowed by the Lodgers' Tax Act (sections
3-38-13 to 3-38-25, NMSA 1978).
(C)
Spending reserves.
Occupancy tax proceeds collected under subsection (A) of this section, tourism promotion, shall be expended within two years of the close of the fiscal year in which they were collected.
(D)
Contracting for services.
The board of county commissioners
may contract for management of programs and activities funded by the
occupancy tax. In the event of such contracting for services, the
following requirements apply:
(1)
The contracting person or governmental entity shall be required
to provided quarterly reports to the board of county commissioners
listing the expenditures for that period. Within ten (10) days of
receiving such reports, the board of county commissioners shall forward
them to the lodgers' tax advisory board.
(2)
Funds provided to the contracting person or governmental agency
shall be maintained in a separate account established for that purpose
and shall not be commingled with any other money.
(3)
The contracting person or governmental entity shall maintain
complete and accurate financial records of each expenditure of the
tax revenue made and upon request of the governing body of the municipality
or county shall make such records available for inspection.
(4)
The funds expended under this section may be spent for day-to-day
operations, supplies, salaries, office rental, travel expenses and
other administrative costs only if those administrative costs are
directly related to the purpose of this section.
(5)
A contracting person or governmental entity may subcontract
with the approval of the board of county commissioners. A subcontractor
shall be subject to the same terms and conditions as the contractor
regarding separate financial accounts, periodic reports and inspection
of records.
(Ordinance 2023-02 adopted 3/20/2023)
(A)
Appointment of members.
The board of county commissioners
shall appoint an advisory board of five residents of the county, two
of whom shall represent the lodging industry, two of whom are directly
involved in tourist-related industries, and one member at-large who
shall represent the general public.
(B)
Term.
The term for all members of the advisory board
shall begin on the first day of January in even numbered years, and
shall expire on the last day of December, two years thereafter, or
when each member's respective successor has been duly appointed.
Members may be reappointed for up to two additional successive terms.
(C)
Service of members.
Members of the advisory board shall
serve at the pleasure of the board of county commissioners and may
be removed at any time, with or without cause.
(D)
Replacement of members.
Upon the death, removal, resignation,
change of residence from the county or inability of a member of the
board to act, a vacancy on the advisory board shall exist. This vacancy
shall be filled by appointment by the board of county commissioners
for the unexpired term of such member.
(E)
Role of advisory board.
The advisory board shall make
recommendations to the board of county commissioners concerning the
expenditure of the occupancy tax proceeds. The advisory board shall
also prepare semiannual budgets, setting forth the amount of money
collected by the county treasurer, and also setting forth all expenditures
made during such semi-annual period.
(F)
Open meetings.
The advisory board shall hold open meetings,
pursuant to the New Mexico Open Meetings Act, and shall abide by the
rules and regulations for the conduct of public meetings, as promulgated
by the board of county commissioners.
(Ordinance 2023-02 adopted 3/20/2023)
(A)
Number of audits.
The board of county commissioners
shall determine each year the number of vendors within the county
to audit, based on a recommendation from the county treasurer.
(B)
Random audit.
The county treasurer shall select at random one or more vendors, as determined by the board of county commissioners, to verify reported gross rent, full collection of occupancy tax and accuracy of the information contained on the report and form required in section 113.03(E) of this chapter.
(C)
Notice.
Vendors selected for audit shall be entitled
to reasonable notice of an audit.
(D)
Procedure.
The audit(s) may be performed by the county
treasurer or by any other designee of the board of county commissioners.
A copy of the audit(s) shall be filed annually with the local government
division of the department of finance and administration.
(E)
Confidentiality.
It is unlawful for any employee of
the county to reveal to any individual other than another employee
of the county, or the taxpayer or their authorized representative,
any information contained in the return or audit of any taxpayer including
vendors subject to the Lodger's Tax Act, except as otherwise
provided by law. Information for statistical purposes may be revealed
in such a manner that the information revealed is not identified as
applicable to any individual taxpayer.
(F)
Record preservation and destruction.
The vendor shall
maintain adequate records of facilities subject to the tax and of
proceeds received for the use thereof. Such records shall be maintained
in the county and shall be open to the inspection of the county during
reasonable hours and shall be retained for three (3) years.
(Ordinance 2023-02 adopted 3/20/2023)
(A)
Budgets, reports, and audits.
The board of county commissioners
shall furnish to the advisory board that portion of any proposed budget,
report, or audit filed or received by the board of county commissioners
to either the Local Government Finances statute (sections 6-6-1 to
6-6-20, NMSA 1978), or the Audit Act (sections 12-6-1 to 12-6-14,
NMSA 1978), that relate to the expenditure of occupancy tax funds
within ten (10) days of the filing or receipt of such proposed budget,
report or audit by the board of county commissioners.
(B)
Expenditures.
The board of county commissioners shall
report to the local government division of the department of finance
and administration on a quarterly basis any expenditure of occupancy
tax funds pursuant to sections 3-38-15 and 3-38-21, NMSA 1978, and
shall furnish a copy of this report to the advisory board when it
is filed with the local government division.
(Ordinance 2023-02 adopted 3/20/2023)
Any person who violates the provisions of the lodger's
tax ordinance by failure to pay the tax, to remit the proceeds thereof
to the county, to submit required forms and reports, or to account
properly for any lodging tax proceeds pertaining hereto, shall be
subject to penalties not to exceed ninety (90) days in jail and/or
a fine of five hundred dollars ($500.00) for each violation. Each
month of noncompliance constitutes a separate offense.
(Ordinance 2023-02 adopted 3/20/2023)
(A)
The occupancy tax imposed by the county constitutes a lien in favor
of the county upon the personal and real property of the vendor providing
lodgings in the county. The lien may be enforced as provided in sections
3-36-1 through 3-36-7, NMSA 1978. Priority of the lien shall be determined
from the date of filing.
(B)
Under process or order of court, no person shall sell the property
of any vendor without first ascertaining from the county treasurer
the amount of any occupancy tax due the county. Any occupancy tax
due the county shall be paid from the proceeds of the sale before
payment is made to the judgment creditor or any other person with
a claim on the sale proceeds.
(C)
The county treasurer shall furnish to any person applying for such
a certificate a certificate showing the amount of all liens in the
records of the county against any vendor pursuant to chapter 3, article
38, NMSA 1978.
(Ordinance 2023-02 adopted 3/20/2023)
