This article shall be known as and cited as the "Lodger's Tax Ordinance."
[Adopted 5-8-2024 by Ord. No. 24-01; amended 4-8-2025 by Ord. No. 25-02]
The purpose of this article is to impose a tax which will be borne by persons using commercial lodging accommodations, and will provide revenues for the purpose of advertising, publicizing, and promoting facilities and tourist attractions, as authorized in § 205-77 of this article.
As used in the Lodger's Tax Ordinance the following definitions apply:
Means the Lodgers Tax Advisory Board established herein to make recommendations to the Board of County Commissioners, keeping minutes of its proceedings and submitting its recommendations, correspondence and other pertinent documents to the Board of County Commissioners.
As used herein means the Board of County Commissioners of Otero County, New Mexico.
Means the County Manager of Otero County, New Mexico, and shall include his or her designee.
Means the total amount of rent paid for lodging, not including the state gross receipts tax or local sales tax.
Means the transaction of furnishing rooms or other accommodations by a vendor, to a vendee, who for a rent use, possesses, or has the right to use or possess any room or rooms or other units of accommodations in or at a taxable premises.
Means the rooms or other accommodations furnished by a vendor to a vendee by a taxable service of lodging.
Means a natural person or entity who facilitates the rental of lodging by:
Advertising the lodging by any means, whether physical or electronic, including by internet website, online booking platform, catalog, television, or radio broadcast; and
Collecting payment from the Lodger and transmitting that payment to the owner/operator either directly or indirectly through agreements or arrangements with the owner/operator, regardless of whether the marketplace provider receives compensation or consideration in exchange for the marketplace provider's services.
Means the tax on lodging authorized by the Lodgers' Tax Act, Sections 3-38-13 through 3-38-25 NMSA 1978.
Means a corporation, firm, other body corporate, partnership, association or individual. "Person" includes an executor, administrator, trustee, receiver or other representative appointed according to law and acting in a representative capacity.
"Person" does not include the United States of America, the State of New Mexico, any corporation, department, instrumentality or agency of the federal government or the state government, or any political subdivision of the state. |
Means the consideration received by a vendor in money, credits, property or other consideration valued in money for lodgings subject to an occupancy tax authorized in the Lodgers' Tax Act, Sections 3-38-13 through 3-38-25 NMSA 1978.
Means a hotel, apartment, apartment hotel, apartment house, lodge, lodging housing, rooming house, motor hotel, guest house, guest ranch, ranch resort, guest resort, mobile home, motor court, auto court, auto camp, trailer court, trailer camp, trailer park, tourist camp, cabin, workforce camp or other premises for lodging; that is not the vendee's household or primary residence.
Means lodgings for the purpose of housing a vendee within the proximity of the vendee's employment or job location.
Means a person who travels for the purpose of business, pleasure or culture, within the County and outside any incorporated area, imposing an occupancy tax.
Means events that are planned for, promoted to and attended by tourists.
Means facilities and attractions that are intended to be used by or visited by tourist/s within the County.
Means transportation systems that provide transportation for tourists to and from tourist-related facilities and attractions and tourist-related events within the County.
Means a natural person to whom lodgings are furnished in the exercise of the taxable service of lodging.
Means a person furnishing lodgings in the exercise of the taxable service of lodging.
A.
There is hereby imposed an occupancy tax of 5% of gross taxable rent for the first 30 days of lodging within the County lying outside the incorporated limits of any municipality of Otero County, paid to vendors. Any temporary lodging in excess of 30 days is hereby imposed an occupancy tax of 5% of gross taxable rent for lodging within the County lying outside the incorporated limits of any municipality of Otero County, paid to vendors.
B.
Every vendor who is furnishing any lodgings within the unincorporated areas of the County is exercising a taxable privilege.
C.
The following portions of the proceeds from the occupancy tax that are collected based on the first 30 days a vendee rents lodgings in taxable premises shall be used only for advertising, publicizing and promoting tourist-related facilities and attractions and tourist-related events:
(1)
Not less than 1/2 of the proceeds from the first 3% of the occupancy tax and not less than 1/4 of the proceeds from the occupancy tax in excess of 3% shall be used for those purposes; and
D.
The proceeds remaining from the 5% occupancy tax, that are collected for the first 30 days, a lodger rents lodging in taxable premises, in excess of the amount required to be used for advertising, publicizing, and promoting tourist-related facilities, attractions, and tourist-related events may be used for any purpose authorized in § 205-77.
E.
The proceeds from the occupancy tax that are required to be used to advertise, publicize and promote tourist-related facilities and attractions and tourist-related events shall be used within two years of the close of the fiscal year in which they were collected and shall not be accumulated beyond that date or used for any other purpose, as per § 205-77A.
A.
No vendor shall engage in the business of providing lodging within that part of Otero County lying outside of the incorporated limits of any municipality of Otero County, who has not first submitted an application and received approval as provided in this section.
B.
Vendors shall submit an application to the County Manager, or his or her designee, stating:
(1)
The name of the vendor, including identification of any person, as defined in this article, who owns and/or operates, a place of lodging, the name or trade names under which the vendor proposes to do business, and the post office address 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 the vendor or others to users of the lodgings such as a restaurant, bar, cleaning, laundry, courtesy car, trailer or others, and a statement identifying the license issued, to whom issued, the authority issuing, and the period for which issued. If applicable, the vendor shall also provide the identification number provided to the vendor by the Bureau of Revenue of the State of New Mexico;
(4)
The nature of the business practices of the vendor and to what extent, if any, his business is exempt from the Lodger's Tax;
(5)
Other information reasonably necessary to affect a determination of eligibility for such application, including but not limited to the identification of any marketplace providers that will be utilized to facilitate the rental of the lodging.
The County Manager, or his or her designee, shall review applications within 10 days of receipt thereof, and approve the application in due course if the applicant is doing business subject to the Lodger's Tax;
C.
An applicant who is dissatisfied with the decision of the County Manager, or his or her designee, may appeal the decision to the Board of County Commissioners by written notice to the County Manager, or his or her designee, of such appeal to be made within 15 days of the date of the decision of the County Manager on the application. The matter shall be referred to the Board of County Commissioners for hearing at a regular or special meeting in the usual course of business. The decision of the Board of County Commissioners made thereof shall be expressed in writing and be communicated in the same manner as the decision of the County Manager, or his or her designee, is transmitted. The action of the Board of County Commissioners shall be deemed final;
D.
If the Board of County Commissioners finds for the applicant, the County Manager, or his or her designee, shall issue the approval or other notice conforming to the decision made by the Board of County Commissioners.
The occupancy tax shall not apply:
A.
If a vendee:
(1)
Has been a permanent resident of the taxable premises for a period of at least 30 consecutive days; unless those premises are temporary lodging or
(2)
Enters into or has entered into a written agreement for lodgings at the taxable premises for a period of at least 30 consecutive days unless those premises are temporary lodging;
B.
If the rent paid by the vendee is less than $2 a day;
C.
To lodging accommodations at institutions of the federal government, the state or any political subdivision thereof;
D.
To lodging accommodations at religious, charitable, educational or philanthropic institutions, including without limitations such accommodations at summer camps operated by such institutions;
E.
To clinics, hospitals or other medical facilities; or
F.
To privately owned and operated convalescent homes, or homes for the aged, infirm, indigent or chronically ill.
The following requirements shall apply concerning the collection of the tax and reporting to the Board of County Commissioners:
A.
Every vendor providing lodgings pursuant to this article shall collect the tax thereon on behalf of the County and shall act as a trustee therefor and/or if utilizing a marketplace provider shall ensure the collection of the tax by the marketplace provider.
B.
The tax shall be collected from vendees and shall be charged separately from the rent fixed by the vendor for the lodgings.
C.
Each vendor approved by application under this article shall be liable to the County of Otero for the tax provided herein on the rent paid for lodging at vendor's respective place of business.
D.
Each vendor shall make a report by the 25th day of each month, on forms provided by the County Manager, or his or her designee, of the receipts for lodging in the preceding calendar month, and shall submit the proceeds of the Lodger's Tax to the County Manager and include sufficient information to enable the County to audit the reports and shall be verified on oath by the vendor.
E.
Vendors shall furnish to each vendee an affidavit/attestation form to be completed by the vendee as to the reason for the lodging request. This affidavit/attestation form shall be provided to the County by the vendor with the report referenced in § 205-69D of this article. Such affidavit/attestation form shall be approved separately through Resolution #12-19-24/113-134; Establishing Forms to Be Utilized in the Administration of the Otero County Ordinance 24-01: Imposing a Lodger's Tax.
A.
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 Otero County, New Mexico, and shall be open to the inspection of the County during reasonable hours and shall be retained for three years.
B.
Marketplace providers facilitating lodging rentals in the unincorporated areas of Otero County shall:
(1)
Coordinate with Otero County to establish policies and procedures for the collection of occupancy tax and remittance to the County for all properties subject to this article utilizing the marketplace provider's services.
(2)
Maintain adequate records of facilities subject to the tax and of proceeds received for the use thereof. Such records shall be maintained in a manner accessible to Otero County, and shall be open to the inspection of the County during reasonable hours with reasonable notice and shall be retained for three years.
A.
Every vendor is liable for the payment of the proceeds of any occupancy tax that the vendor failed to remit to the County whether due to vendor's failure to collect the tax or otherwise. Vendor shall be liable for the tax plus a civil penalty equal to the greater of 10% of the amount not remitted or $100. The County Manager, or his or her designee, shall give the delinquent vendor written notice of the delinquency, which notice shall be mailed to the vendor's local address.
B.
If payments are not received within 15 days of the mailing of the notice, the County may bring an action in law or equity in the district court for the collection of any amounts due, including without limitation penalties thereon, interest on the unpaid principal at a rate not exceeding 1% a month, the costs of collection and reasonable attorneys' fees incurred in connection therewith.
C.
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 Section 3-36-1 through 3-36-7 N.M.S.A. 1978. Priority of the lien shall be determined from the date of filing.
D.
Under process or order of court, no person shall sell the property of a vendor without first ascertaining from the County Manager or 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 any judgment creditor or any other person with a claim on the proceeds of the sale.
E.
The Treasurer of the County shall furnish to any person applying for such a certificate, a certificate showing the amount of all liens in the records for the County against any vendor pursuant to Section 3-38-13 et seq, NMSA 1978.
In addition to any civil penalty or other remedy provided by law, any person, found to have violated the provisions of this occupancy tax ordinance for a failure to pay the tax, to remit the proceeds thereof to Otero County or to account properly for any lodging and tax proceeds pertaining thereto, may be punished by a fine of up to $300.
If any person believes they have made a payment of any Lodger's Tax in excess of that for which they are liable, they may claim a refund thereof by directing to the County Manager, or his or her designee, no later than 90 days from the date the payment was made, a written claim for refund. Every claim for refund shall state the nature of the person's complaint and the affirmative relief requested. The County Manager, or his or her designee, shall allow the claim in whole or in part or may deny it. Refunds of tax and interest erroneously paid and amounting to $100 or more may be made only with the approval of the Board of County Commissioners.
A.
The Board of County Commissioners, through its Finance Director, shall select for annual random audit(s) one or more vendors to verify the amount of gross rent subject to the occupancy tax and to ensure that the full amount of occupancy tax on the rent is collected from each vendor thus audited.
B.
The Board of County Commissioners, through its Finance Director, shall determine each year the number of vendors in the County to audit and shall arrange for random audits to verify full payment of occupancy tax receipts.
C.
The audit(s) may be performed by the County Manager, the Finance Director or the Finance Director's designee, 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.
It is unlawful for any employee of the County of Otero to reveal to any individual other than another employee of the County of Otero any information contained in the return or audit of any taxpayer, including vendors subject to the Lodger's Tax Act, except to a court of competent jurisdiction in response to an order thereof in an action relating to taxes to which the County of Otero is a party, and in which information sought is material to the inquiry; to the taxpayer or to their authorized representative; and in such manner, for statistical purposes, the information revealed is not identified as applicable to any individual taxpayer.
The Board of County Commissioners, to-wit:
A.
The Otero County Commissioners shall appoint a Lodgers Tax Advisory Board of five residents of the County:
(1)
Two members who are owners or operators of lodgings or facilities subject to the occupancy tax within the unincorporated area of the County.
(2)
Two members who are owners or operators of industries located within the unincorporated area of the County that primarily provide services or products to tourists; and
(3)
One member at-large who shall represent the general public.
The board shall serve without compensation. The board shall biennially elect one of its members as Chairperson and one as Vice-Chairperson.
B.
The County Manager, or his or her designee, and the County Director of Finance shall be ex-officio members of the board. Additionally, the Chairperson of the Board of County Commissioners may appoint, with consent and approval of the Board of County Commissioners, one Commissioner as an ex-officio member of the board. Ex-officio members shall have no vote in any proceedings.
C.
Term of office. The members of the Board created as set forth above shall serve at the pleasure of the County Commission.
D.
Secretary. A designee of the County Manager shall be the secretary of the board and shall faithfully keep minutes of the board and all other correspondence of the Board but shall have no vote in any of the proceedings.
E.
Removal of board member. Any board member, may be removed by a majority vote of the Board of County Commissioners.
F.
Meetings. The board shall meet quarterly or as deemed necessary as decided by the Board or Board of County Commissioners.
G.
Duties. The Board shall submit to the Board of County Commissioners recommendations for the expenditures of funds authorized pursuant to this article and the Lodgers Tax Act for advertising, publicizing, and promoting tourist attractions, facilities and events in the County, outside of the incorporated limits of any municipality, and surrounding area.
A.
Subject to the provision contained in § 205-66, Rate and imposition of tax, Subsection C, and the limitations contained in § 205-77 of this article, for the first 30 days of use, the County may use the proceeds of the tax to defray the costs of:
(1)
Collecting and otherwise administering the tax including the performance of audits required by the Lodger's Tax Ordinance;
(2)
Establishing, operating, purchasing, constructing, otherwise acquiring, reconstructing, extending, improving, equipping, furnishing, or acquiring real property, or interest in real property for the site or grounds for tourist-related facilities and attractions or tourist-related transportation systems of Otero County;
(3)
The principal of and interest on any prior redemption premiums due in connection with any other charges pertaining to revenue bonds authorized by Section 3-38-23 or Section 3-38-24 NMSA 1978;
(4)
Advertising, publicizing and promoting tourist facilities within Otero County, provided that 100% of said revenues deducting operating and collection expenses shall be used for the purpose of advertising, publicizing and promoting the facilities set forth above, and tourist attractions within the area;
(5)
Providing law enforcement, fire protection, and sanitation service for tourist-related facilities, attractions and events located within the County;
(6)
Providing a required minimum revenue guarantee for air service to the County to increase the ability of tourists to easily access the municipality's or County's tourist-related facilities, attractions and events; or
(7)
Any combination of forgoing purposes or transactions stated in this section but for no other County purpose.
B.
The proceeds from the occupancy tax that are collected based on the 31st and subsequent days a vendee rents lodging in a taxable premise may be used for General Fund purposes as designated through resolution; Designation of General Fund Purposes for Proceeds from Occupancy Tax Collected for Lodgings After First 30 Days as Described in Otero County Ordinance 24-01; Imposing a Lodger's Tax approved separately from and in reference to this article.
C.
As used in this section, "minimum revenue guarantee" is the amount of money guaranteed by a municipality or county to be earned by an airline providing air services to and from that municipality or county, which is the difference between the minimum flight charge revenue specified in the contract between the municipality or county and the airline and the amount of actual flight charge revenue received by the airline that is less than that contractual amount.
A.
Revenue bonds may be issued at any time or from time to time by the County to defray wholly or in part the costs of any one, all or any combination of purposes authorized in § 205-77A(2) through (6).
B.
The revenue bonds may be payable from and such payment may be secured by a pledge of and lien on the revenues derived from:
(1)
The proceeds of the occupancy tax of the County after the deduction of those amounts required to be expended pursuant to § 205-66D and the administration costs pertaining to the occupancy tax in an amount not to exceed 10% of the occupancy tax receipts collected by the County in any fiscal year, excluding from the computation of such costs the administration costs ultimately recovered from delinquent vendors by civil action as penalties, costs of collection and attorney fees but not as interest on unpaid principal;
(2)
The tourist-related facilities and attractions or tourist-related transportation systems to which the bonds pertain, after provision is made for the payment of the operation and maintenance expenses of the tourist-related facilities and attractions or tourist-related transportation systems; or
C.
The bonds shall bear interest at a rate as authorized in the Public Securities Act [Sec. 6-14-1 through 6-14-3 NMSA 1978], and the first interest payment may be for any period authorized in the Public Securities Act.
D.
Except as otherwise provided in the Lodgers' Tax Ordinance 24-01, revenue bonds authorized in the Lodgers' Tax Ordinance shall be issued in accordance with the provisions of Sections 3-31-2 through 3-31-6 NMSA 1978.
A.
Any County revenue bonds issued as authorized in the Lodgers' Tax Ordinance 24-01 may issue refunding revenue bonds payable from pledged revenues therein authorized for the payment of revenue bonds at the time of the refunding or at the time of the issuance of the bonds being refunded as the Board of County Commissioners of the County may determine, notwithstanding the revenue sources or the pledge of such revenues or both are thereby modified.
B.
Refunding bonds may be issued for the purpose of refinancing, paying and discharging all or any part of such outstanding bonds of any one or more or all outstanding issues:
(1)
For the acceleration, deceleration or other modification of the payment of such obligations, including without limitation any capitalization of any interest thereon in arrears or about to become due for any period not exceeding one year from the date of the refunding bonds;
(2)
For the purpose of reducing interest costs or effecting other economies;
(3)
For the purpose of modifying or eliminating restrictive contractual limitations pertaining to the issuance of additional bonds, otherwise concerning the outstanding bonds, or to any facilities relating thereto; or
(4)
For any combination of the foregoing purposes.
C.
The interest on any bond refunded shall not be increased to any rate in excess of the rate authorized in the Public Securities Act [Sec. 6-14-1 through 6-14-3 NMSA 1978] and shall be paid as authorized in that act.
D.
Bonds for refunding any bonds for any other purpose permitted by the Lodgers' Tax Ordinance may be issued separately or issued in combination in one series or more.
E.
Except as otherwise provided in the Lodgers' Tax Ordinance, refunding bonds authorized in the Lodgers' Tax Ordinance shall be issued in accordance with the provisions of Sections 3-31-10 and 3-31-11 NMSA 1978.
Any amount of revenue attributable to a tax imposed pursuant to the Lodgers' Tax Ordinance, shall continue to be dedicated to the same amount of revenue attributable to the tax until the ordinance dedicating the revenue expires, the term of the dedicating expires, the Board of County Commissioners acts to change the dedication either by ordinance or by resolution as provided for in this article, or, in the case of bonded indebtedness, the debt is fully discharged or otherwise provided for in full.
If any section, subsection, sentence, clause, phrase or portion of this article is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions of this article.
All ordinances and parts of ordinances in conflict with the provisions of this article are hereby repealed.
This article shall be in full force and effect on January 1, 2025. There will be a 60-day delay in the enforcement of this article. The first installment of the County Lodger's Tax is due April 26, 2025, and shall become delinquent if not paid by that date. The amendments to this article shall be effective 30 days following its recordation in the Otero County Clerk's Office, which shall occur following its approval by the Board of County Commissioners, as provided for by law.