This chapter shall be known as the "Uniform Transient Occupancy Tax Ordinance of the City of Winters."
(prior code § 3-6.01; Ord. 93-11 (part))
Except where the context otherwise requires, the definitions given in this section govern the construction of this chapter.
means any structure, or any portion of any structure, which is occupied or intended or designated for occupancy by transients for dwelling, lodging or sleeping purposes, located in the city of Winters, and includes any hotel, inn, tourist home or house, dormitory, public or private club, mobile home or house trailer at a fixed location outside a mobile home park, or other similar structure or portion thereof.
means the use or possession, or the right to the use or possession of any room or rooms or portion thereof, in any hotel for dwelling, lodging or sleeping purposes.
means the person who charges for occupancy within a hotel regardless of whether the person has physical control over, or makes management decisions about, the hotel. An operator may include, but is not limited to, the proprietor of the hotel, whether in the capacity of owner, lessee, sublessee, mortgagee in possession, licensee, or any other capacity. Where the operator performs his or her functions through a managing agent of any type or character other than an employee, the managing agent shall also be deemed an operator for the purposes of this chapter and shall have the same duties and liabilities as his or her principal. Compliances 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 a person who has the legal right to operate, or the owner of, a hotel.
means the total consideration charged to the transient, whether or not received, for the occupancy of space in a hotel. "Rent" includes charges for equipment (such as, but not limited to, rollaway beds and cribs) and in-room services (such as, but not limited to, movies and other services), valued in money, whether to be received in money, goods, labor or otherwise. "Rent" includes all receipts, cash, credits and property and services of any kind or nature, without any deduction therefrom whatsoever.
means any person who acquires the right to operate a hotel from a predecessor proprietor, directly or indirectly, by any means. If, following transfer of an ownership or management interest in a hotel, the hotel continues to operate as such, either continuously or for business interruption not exceeding thirty (30) days, the hotel shall constitute a succession for purposes of this chapter.
means any person who exercises occupancy or is entitled to occupancy by reasons of concession, permit, right of access, license or other agreement for a period of thirty (30) consecutive calendar days or less, counting portions of calendar days as full days. Any such person so occupying space in a hotel shall be deemed to be a transient until the period of thirty (30) days has expired unless there is an agreement in writing between the operator and the occupant providing for a longer period of occupancy. In determining whether a person is a transient, uninterrupted periods of time extending both prior and subsequent to the effective date of the ordinance codified in this chapter may be considered.
(prior code § 3-6.02; Ord. 93-11 (part); Ord. 2012-04 §§ 2, 3; Ord. 2014-02 §§ 2 (part), 3, 2014)
B.
Revenue and Taxation Code Section 7282.3 prohibits levying of such tax on any amount subject to sales and use tax. Thus the city cannot collect a transient occupancy tax on meals (including beverages) served to lodgers subject to sales and use tax.
C.
The tax constitutes a debt owed by the transient to the city, which is extinguished only by payment to the operator or to the city. Transient shall pay the tax to the operator of the hotel 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 ceasing to occupy space in the hotel. If for any reason the tax due is not paid to the operator of the hotel, the financial management director shall require that such tax be paid directly to the financial management department of the city.
(prior code § 3-6.03; Ord. 93-11 (part); Ord. 2003-07 § 2; Ord. 2012-04 §§ 2, 4; Ord. 2014-02 § 4)
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 the tax herein provided;
B.
Any officer or employee of a foreign government who is exempt by reason of express provision of federal law or international treaty.
No exemption shall be granted except upon a claim therefor made at the time rent is collected and under penalty of perjury upon a form prescribed by the director of financial management.
(prior code § 3-6.04; Ord. 93-11 (part); Ord. 2012-04 § 2)
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 § 3-6.05; Ord. 93-11 (part))
Within thirty (30) days after the effective date of the ordinance codified in this chapter, or within thirty (30) days after commencing business, whichever is later, each proprietor of any hotel renting occupancy to transients shall register the hotel with the financial management department and obtain a transient occupancy registration certificate to be at all times posted in a conspicuous place on the premises. The certificate shall, among other things, state the following:
A.
The name of the proprietor;
B.
The address of the hotel;
C.
The date upon which the certificate was issued;
D.
The following statement:
This Transient Occupancy Registration Certificate signifies that the person named on the face hereof has fulfilled the requirements of the Transient Occupancy Tax Ordinance by registering with the Financial Management Department for the purpose of collection from transients the Transient Occupancy Tax and remitting said tax to the Financial Management Department. This certificate does not authorize any person to conduct any unlawful business in an unlawful manner, nor to operate a hotel 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. This certificate does not constitute a permit. |
(prior code § 3-6.06; Ord. 93-11 (part); Ord. 2012-04 §§ 2, 5; Ord. 2014-02 § 5)
Each operator shall, on or before the last day of the month following the close of each calendar quarter, or at the close of any shorter reporting period which may be established by the director of financial management of the city, make a return to the financial management department, on forms provided, of the total rents charged and received and the amount of tax collected for transient occupancies. At the time the return is filed, the full amount of the tax collected shall be remitted to the financial management department. The director of financial management may establish shorter reporting periods for any certificate holder if he or she deems it necessary in order to insure collection of the tax and he or she 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 financial management department.
(prior code § 3-6.07; Ord. 93-11 (part); Ord. 2012-04 § 2)
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 (10) percent of the amount of the tax in addition to the amount of the tax.
B.
Continued Delinquency. Any operator who fails to remit any delinquent remittance on or before a period of thirty (30) days following the date on which the remittance first became delinquent shall pay a second delinquency penalty of ten (10) percent of the amount of the tax in addition to the amount of the tax and the ten (10) 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 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 herein required to be paid.
(prior code § 3-6.08; Ord. 93-11 (part); Ord. 2012-04 § 2)
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 director of financial management of the city shall proceed in such manner as may deem best to obtain facts and information on which to base his or her estimate of the tax due. As soon as the director of financial management shall procure such facts and information as 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, he or she 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 director of financial management 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. Such operator may within ten (10) days after the serving or mailing of such notice make application in writing to the director of financial management 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 director of financial management shall become final and conclusive and immediately due and payable. If such application is made, the director of financial management 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 the notice why the amount specified therein should not be fixed for such tax, interest and penalties. At such hearing, the operator may appear and offer evidence why such specified tax, interest and penalties should not be so fixed. After such hearing the director of financial management shall determine the proper tax to be remitted and shall thereafter give written notice to the person in the manner prescribed herein of such determination and the amount of such tax, interest and penalties. The amount determined to be due shall be payable after fifteen (15) days unless an appeal is taken as provided in Section 3.24.100.
(prior code § 3-6.09; Ord. 93-11 (part); Ord. 2012-04 § 2)
Any operator aggrieved by any decision of the director of financial management with respect to the amount of such tax, interest and penalties, if any, may appeal to the city council by filing a notice of appeal with the city clerk within fifteen (15) days of the serving or mailing of the determination of tax due. The city council shall fix a time and place for hearing such appeal, and the city clerk 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.
(prior code § 3-6.10; Ord. 93-11 (part); Ord. 2012-04 § 2)
A.
It shall be the duty of every operator liable for the collection and payment to the city of any tax imposed by this article to keep and preserve, for a period of four years, within the boundaries of this city, all business records as may be necessary to determine the amount of such tax for which the operator is liable for the collection and payment to the city. The director and authorized deputies or agents, in the exercise of duties imposed by this article, shall have the right to inspect such records at all reasonable times and to apply auditing procedures necessary to determine the amount of tax due to the city. All records which may be necessary to inspect shall be kept within the city or shall be produced within ten (10) working days of written notice at the business location within the city.
B.
In the event records are not produced upon request, or such records are not reasonably able to be audited, the tax, interest, and penalties will be levied based upon the prior collections and remittances of taxes by the operator to the city for that operator's hotel during the audit period. Further, and without limitation, any operator who does not produce records following written notice as set forth herein shall pay, as a civil penalty, in addition to any tax, penalty, or interest, the sum of one hundred dollars ($100.00) per day for each business day the records are not produced for audit.
(prior code § 3-6.11; Ord. 93-11 (part); Ord. 2012-04 § 6; Ord. 2014-02 § 6)
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, that a claim in writing therefor, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the director within one year of the date of payment.
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 director of financial management 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 financial management department, or when the transient having paid the tax to the operator, establishes to the satisfaction of the director of financial management 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 § 3-6.12; Ord. 93-11 (part); Ord. 2012-04 §§ 2, 7; Ord. 2014-02 § 7)
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 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 § 3-6.13; Ord. 93-11 (part))
A.
Pursuant to California Revenue and Taxation Code Section 7283.5, as it may be amended from time to time, a successor proprietor or prospective successor proprietor may request in writing from the city the issuance of a tax clearance certificate stating the amount of tax and any accrued penalties and interest, due and owing, if any.
B.
The city shall, within ninety (90) days of the receipt of the written request for a tax clearance certificate, issue the tax clearance certificate or may conduct an audit of the hotel. The audit must be completed within ninety (90) days from the date the records of the hotel were made available to the city, and a tax clearance certificate must be issued within thirty (30) days of the completion of the audit.
C.
If, following an audit, the city determines that the current proprietor's records are insufficient to assess the amount of tax due and owing, the city shall, within thirty (30) days of making that determination, notify the prospective successor proprietor that a tax clearance certificate will not be issued.
D.
If the city does not comply with the request for a tax clearance certificate, the successor proprietor shall not be liable for any transient occupancy tax obligation incurred prior to the date of the purchase or transfer of the property.
E.
The tax clearance certificate shall state the following:
1.
The amount of tax, interest, and penalties then due and owing;
2.
The period of time for which the tax clearance certificate is valid; and
3.
That the purchaser, transferee, or other person may rely on the tax clearance certificate as conclusive evidence of the tax liability associated with the property as of the date specified on the certificate.
F.
Any successor proprietor who does not obtain a tax clearance certificate under this section, or who obtains a tax clearance certificate that indicates that tax is due and owing and fails to withhold sufficient funds in the escrow account for the purchase of the property to satisfy the transient tax liability shall be held liable for the amount of tax due and owing.
G.
The fee for issuance of a tax clearance certificate shall be established by resolution of the city council.
(Ord. 2012-04 § 8; Ord. 2014-02 § 8)
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 one thousand dollars ($1,000.00) or by imprisonment in the county of Yolo jail for a period of not more than six months or by both 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 director of financial management, 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 an amount due required by this chapter to be made, is guilty of a misdemeanor and is punishable as aforesaid.
(prior code § 3-6.14; Ord. 93-11 (part); Ord. 2003-07 § 2; Ord. 2012-04 § 2)