This chapter shall be known as the "Uniform Transient Occupancy Tax Ordinance of the city of Burlingame."
(Ord. 847 § 1, (1966); Ord. 1989 § 2, (2020))
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 any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodginghouse, roominghouse, apartment house, dormitory, public or private club, mobile home or house trailer at a fixed location, or other similar structure or portion thereof. "Hotel" does not mean any of the following: any hospital, sanitarium, medical clinic, convalescent home, rest home, home for aged people, foster home or other similar facility operated for the care or treatment of human beings; any asylum, jail, prison, orphanage or other facility in which human beings are detained and housed under legal restraint; any housing owned or controlled by any educational institution and used exclusively to house students, faculty or other employees, and any fraternity or sorority house or similar facility occupied exclusively by students and employees of such educational institution, and officially recognized or approved by it; any housing operated or used exclusively for religious, charitable or educational purposes by any organization having qualifications, for exemption from property taxes under the laws of California; any housing owned by a governmental agency and used to house its employees or for governmental purposes; any camp as defined in the labor code or other housing furnished by an employer exclusively for employees.
means the use or possession, or the right to the use or possession, of any room or rooms or portion thereof, in any hotel or short-term rental for dwelling, lodging or sleeping purposes.
means the person who is proprietor of the hotel or short-term rental, 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 of any type or character is an operator for the purposes of this chapter and shall have the same duties and liabilities as his or her principal. In relation to short-term rentals, the operator is the party responsible for collecting the transient occupancy tax, whether that entity is a hosting platform or host. Compliance with the provisions of this chapter by either the principal or the managing agent shall, however, be considered to be compliance by both.
Except as used in the definition for transient below, "person" 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 short-term rental 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. The value of complimentary meals or other similar services or inducements shall not be deducted. In the event of dispute the tax administrator shall determine the proper rent.
means the city finance director/treasurer or the director/treasurer's designated representative.
means any individual who exercises occupancy or is entitled to occupancy of a specific room by reason of concession, permit, right of access, license or other agreement for a period of 30 consecutive calendar days or less, counting portions of calendar days as full days. Any such individual so occupying space in a hotel or short-term rental shall be deemed to be a transient until the period of 30 days has expired unless there is an agreement in writing providing for a longer period of occupancy of the room. In determining whether a person is a transient, uninterrupted periods of time extending both prior and subsequent to the effective date of this chapter may be considered.
means the use or possession of or the right to use or possess any room or rooms, or portions thereof in any dwelling unit for residing, sleeping or lodging purposes for less than 30 consecutive calendar days, counting portions of days as full calendar days.
(Ord. 847 § 1, (1966); Ord. 1135 § 1, (1978); Ord. 1348 § 1, (1987); Ord. 1359 § 1, (1988); Ord. 1443 § 1, (1991); Ord. 1705 § 2, (2003); Ord. 1989 § 2, (2020))
For the privilege of occupancy in any hotel or short-term rental, each transient is subject to and shall pay a tax in the amount of 12% of the rent charged by the operator.
(Ord. 1668, (2001); Ord. 1840 § 1, (2009); Ord. 1989 § 2, (2020))
The tax imposed by this chapter constitutes a debt owed by the transient to the city which is extinguished only by payment to the operator or to the city. The transient shall pay the tax to the operator of the hotel or short-term rental 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 or short-term rental. If for any reason the tax due is not paid to the operator of the hotel or short-term rental, the tax administrator may require that such tax shall be paid directly to the tax administrator.
(Ord. 847 § 1, (1966); Ord. 924 § 1, (1970); Ord. 1104 § 1, (1977); Ord. 1132 § 1, (1978); Ord. 1439 § 1, (1991); Ord. 1672 § 2, (2001); Ord. 1989 § 2, (2020))
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 city to impose this tax; provided, employees of the state or federal government are exempt only if room charges are paid directly by their employing agency. Copies of official travel orders are generally required. (See 46 Cal. Ops. Atty. Gen. 16).
(b)
Any properly credentialed officer or employee of a foreign government who is exempt by reason of express provision of federal law or international treaty.
(Ord. 847 § 1, (1966); Ord. 1215 § 1, (1981); Ord. 1348 § 2, (1987); Ord. 1443 § 2, (1991); Ord. 1705 § 3, (2003); Ord. 1989 § 2, (2020))
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 or short-term rental 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 provided in this chapter.
(Ord. 847 § 1, (1966); Ord. 1989 § 2, (2020))
(a)
No more than five days after commencing business or after a change in operator, each operator of any hotel or short-term rental renting occupancy to transients shall register the hotel or short-term rental with the tax administrator and obtain from the administrator a transient occupancy registration certificate that will be posted at all times in a conspicuous place on the hotel or short-term rental premises. This certificate shall, among other things, state the following:
(b)
This transient occupancy registration certificate signifies that the person named on the face hereof has fulfilled the requirements of the uniform transient occupancy tax ordinance by registering with the tax administrator for the purpose of collecting from transients the transient occupancy tax and remitting said 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 or short-term rental without strictly complying with all local applicable laws, including, but not limited to, those requiring a permit from any board, commission, department or office of this city. The certificate does not constitute a permit.
(c)
No more than five days after changing the name of a hotel registered under this section, the hotel operator shall notify the tax administrator of the new name in writing and obtain from the administrator an amended transient occupancy registration certificate specifying the new hotel name.
(Ord. 847 § 1, (1996); Ord. 1348 § 3, (1987); Ord. 1443 § 3, (1991); Ord. 1705 § 4, (2003); Ord. 1989 § 2, (2020))
(a)
Each operator shall, on or before the last day of each month, make a return to the tax administrator, on forms provided by the administrator, of the total rents charged and the amount of tax calculated for transient occupancies for the preceding month. Unless a separate bank account is permitted and established as hereinafter set forth, the full amount of the tax calculated shall be remitted to the tax administrator together with the return. If any exemptions or bad debts are included on the return, copies of back-up information including room folios shall be included with the return. The signed, original return together with the remittance shall be delivered in person to the tax administrator or postmarked no later than the last day of the month in which it is due. Returns and remittances mailed pursuant to this subsection shall be sent by certified mail. The tax administrator may establish shorter reporting and/or remitting periods for any operator and may require additional information in any return. Returns and payments are due immediately upon cessation of business for any reason.
(b)
Any operator collecting less than $10,000 in transient occupancy taxes per quarter shall deposit such taxes in a separate bank account in trust for the benefit of the city, until payment thereof is made to the tax administrator.
(c)
All other operators shall post a bond or irrevocable letter of credit guaranteeing payment of taxes, equal to one quarter's tax as determined by the tax administrator. Any such bond shall provide for no more than 10 days notice of cancellation to city.
(d)
Notwithstanding subsection (c) above, the tax administrator may require an operator to establish a separate bank account in trust for the city for deposit of transient occupancy taxes, until payment is made to the city, when the tax administrator determines that an operator may not be capable of properly complying with the collection or remittance requirements of this chapter.
(e)
The city may also appoint or obtain an agent or receiver to collect the taxes due at the hotel or short-term rental itself.
(f)
Any hosting platform, as defined in Chapter 6.56, that assists with arranging transient occupancy may enter into a voluntary collection agreement (or equivalent) with the city for the collection and payment of transient occupancy taxes. Where a hosting platform has entered into such an agreement, the hosting platform shall have the same duties and liabilities of the operator under this chapter. Compliance with the provisions of this chapter by either the operator or the hosting platform shall be considered to be compliance by both. To comply with Section 4.09.060, a hosting platform shall register in its own name and post its transient occupancy registration certificate on its website, if applicable. Operators that only use a hosting platform for providing lodging to transients shall not be required to register separately with the tax administrator or post a transient occupancy registration certificate on-site so long as such hosting platform used by the operator has registered pursuant to Section 4.09.060.
(Ord. 847 § 1, (1966); Ord. 1348 § 4, (1987); Ord. 1443 § 4, (1991); Ord. 1498 § 1, (1994); Ord. 1705 § 5, (2003); Ord. 1989 § 2, (2020))
(a)
Original Delinquency. Any operator who fails to remit any tax imposed by this chapter within the time required shall pay a penalty of 5% 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 15 days following the date on which the remittance first became delinquent shall pay a second delinquency penalty of 5% of the amount of the tax in addition to the amount of the tax and the 5% penalty first imposed. An additional penalty of 5% shall be paid for each 15 days thereafter which the remittance is delinquent.
(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 percent per month or fraction thereof on the amount of the tax, exclusive of penalties, from the date on which the remittance first 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 required to be paid by this chapter.
(Ord. 847 § 1, (1966); Ord. 1135 § 2, (1978); Ord. 1443 § 5, (1991); Ord. 1989 § 2, (2020))
(a)
If any operator shall fail or refuse to collect said tax and to make, within the time provided in this chapter, any report and remittance of said tax or any portion thereof required by this chapter or if the tax administrator reasonably believes that a hotel or short-term rental operator has not accurately and fully made any such report or remittance, the tax administrator shall proceed in such manner as the administrator may deem best to obtain facts and information on which to base the administrator's estimate of the tax due.
(b)
The tax administrator may review any return filed pursuant to this chapter and may request or inspect any documents or accounts as provided for in this chapter to determine what the correct tax due is. The tax administrator, and any person designated as an agent by the tax administrator, may, at any time during normal business hours, for the purpose of enforcing the provisions of this chapter, inspect and audit the accounts, books, papers, and documents of any operator that holds any tax certificate of the city under this chapter or that has filed a return with the city under this chapter. Any person shall produce under the seal of the city the person's authority to make such an audit or inspection.
(c)
No person conducting an inspection or review pursuant to this section may reveal the information obtained from such an inspection or audit to anyone not charged with the administration or enforcement of the provisions of this title.
(d)
As soon as the tax administrator shall procure such facts and information as the 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 neglected, failed or refused to collect the same and to make such report and remittance, the administrator shall proceed to determine and assess against such operator the tax, interest and penalties provided for by this chapter. The administrator may include in said assessment costs of any necessary audits or investigations. These costs will include any additional visits or expenses incurred because an operator failed to provide records as required by this chapter. In case 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 or her last known place of address.
(e)
The operator to be assessed by the administrator's determination may, within 10 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. If such application is made, the tax administrator 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 said notice why the amount specified should not be fixed for such tax, interest and penalties. At the hearing, the operator may appear and offer evidence why such specified tax, interest and penalties should not be so fixed. After the hearing, the tax administrator shall determine the proper tax to be remitted and shall thereafter give written notice to the operator of the determination and the amount of the tax, interest and penalties now due. The amount determined to be due shall be payable after 15 days unless an appeal is taken as provided in Section 4.09.100.
(Ord. 847 § 1, (1966); Ord. 1443 § 6, (1991); Ord. 1705 § 6, (2003); Ord. 1989 § 2, (2020))
Any operator aggrieved by any decision of the tax administrator with respect to the amount of such tax, interest and penalties, if any, may appeal to the council 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 council shall fix a time and place for hearing such appeal, and the city clerk shall give notice in writing to such operator at his or her last known place of address. The findings of the council 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.
(Ord. 847 § 1, (1966); Ord. 1989 § 2, (2020))
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 he or she 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. Such records shall be maintained at the operator's premises or shall be available for delivery to the tax administrator within one week after request. Such records shall be so maintained for at least six months after a change of operator. The records shall include at least the following:
(a)
Daily summaries of room occupancies;
(b)
A record of each occupancy charge for which an exemption is claimed, including the name of the individual occupying the room, dates of occupancy and reasons for exemption;
(c)
List of bad debts claimed for exemption, including names and addresses of debtor, amount of room rent unpaid, and all room folios documenting the applicable occupancies;
(Ord. 847 § 1, (1966); Ord. 1135 § 3, (1978); Ord. 1443 § 7, (1991); Ord. 1705 § 6, (2003); Ord. 1989 § 2, (2020))
(a)
Whenever the amount of any tax, interest or penalty 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 therefor, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the city council within the time period set forth in Chapter 4.15. Accrual of the cause of action shall be the date upon which payment of the tax was actually made or the date the tax was due, whichever was earlier.
(b)
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)
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)
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.
(Ord. 847 § 1, (1966); Ord. 1443 § 8, (1991); Ord. 1657 § 2, (2001); Ord. 1989 § 2, (2020))
(a)
The following shall apply to hotel and short-term rental operations:
(1)
Actions to Collect. 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 such tax collectible by any operator which has not been paid to the city shall be deemed a debt owed by the operator to the city. The amount of the tax collected by the operator shall be held to be a special fund in trust for the city and shall be deemed to be public monies upon collection. This trust obligation shall apply whether the taxes collected are held in a separate account or not. 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.
(2)
Recording Certificate—Lien. If any amount required to be paid to the city under the ordinance codified in this chapter is not paid when due, the administrator may within three years after the amount is due file for record in the office of the San Mateo 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 paid. From the time of the filing for record, the amount required to be paid together with penalties and interest constitutes a lien upon a real property in the county owned by the operator or acquired by him or her afterwards and before the lien expires. The lien has the force, effect and priority of a judgment lien and shall continue for 10 years from the time of filing of the certificate unless sooner released or otherwise discharged.
(3)
Priority and Lien of Tax. 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:
(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; or
(D)
Whenever the estate and effects of an absconding, concealed or absent person required to pay any amount under this chapter levied upon by process of law. This chapter 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.
(4)
Warrant for Collection of Tax. At any time within three years after any operator is delinquent in the payment of any amount herein required to be paid off within years after the last recording of a certificate of lien under subsection (2) 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 and 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.
(b)
The following shall apply to hotel operations only:
(1)
Seizure and Sale. At any time within three years after any operator is delinquent in the 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 code of civil procedure.
(2)
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, his or her successor assignee 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.
(3)
Liability of Purchaser—Release. If the purchaser of a hotel fails to withhold funds from the purchase price as required, he or she shall become personally liable for the payment of the amount required to be withheld by him or her 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 shall 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.
(4)
Sale of a hotel, dismissal of the operator or other termination of his or her rights to operate the facility shall not relieve him or her from liability for taxes due or owing under this chapter.
(Ord. 847 § 1, (1966); Ord. 1359 § 2, (1988); Ord. 1705 § 8, (2003); Ord. 1989 § 2, (2020))
Any person violating any of the provisions of this chapter shall be guilty of a misdemeanor and shall be punishable therefor by a fine of not more than $500 or by imprisonment for a period of not more than six months or by both such fine and imprisonment.
Any operator or other person who fails or refuses to register as required herein, 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, and is punishable as aforesaid. 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 and is punishable as aforesaid.
(Ord. 847 § 1, (1966); Ord. 1989 § 2, (2020))