Chapter 6.11 TIME-SHARE TAX IN LIEU OF TRANSIENT OCCUPANCY TAX

For the privilege of occupancy in any time-share project for any period of time, and in lieu of the transient occupancy tax under Chapter 6.09 PGMC, any time-share owner, or person occupying through or under a time-share owner, shall pay a tax for each such period of occupancy equivalent to eight percent of rental value of the premises occupied for the period of occupancy.

The tax administrator shall determine the rental value of each time-share unit periodically in advance from whatever evidence which may be available, including but not limited to: prevailing rates for rental of similar facilities; actual rentals charged by the promoter in unsold time-share units in the project; rentals charged by individual time-share owners.

Each time a rental value is established for a time-share project, the tax administrator shall mail written notice of the determination to the association and the manager of the project. Any person aggrieved by such a determination shall have 15 days from the receipt of the notice to appeal such to the city council. The city council's determination on appeal shall be final.

(d)

The tax imposed by this section shall not apply to transient rentals of units by the promoter prior to sale, but such shall be subject to Chapter 6.09 PGMC. The tax under this chapter shall apply, in lieu of Chapter 6.09 PGMC, to occupancy by or through an individual time-share owner, whatever consideration may have been given.

(Ord. 1316 N.S. § 1, 1982)

§ 6.11.030 Collection of tax.

The manager or the association shall collect the applicable tax from the individual time-share owner or the person actually occupying the unit by or through such owner either at the time of actual occupancy or at the time of its collection of the maintenance assessment.

(Ord. 1316 N.S. § 1, 1982)

§ 6.11.040 Reporting and remitting.

Each promoter, manager, or association 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 tax administrator, make a return to the tax administrator, on forms provided by him or her, of the total occupancies of each time-share unit and the taxes due under this chapter on account thereof and the taxes collected. Such return may collectively report units bearing similar rental values, if supported by required records. At the time the return is filed, the full amount of the tax collected shall be remitted to the tax administrator. The tax administrator may establish shorter reporting periods for any certificate holder if he or she deems it necessary in order to ensure collection of the tax and 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 pursuant to this chapter shall be segregated from the promoter or association's funds and shall be held in trust for the benefit and account of the city until payment thereof is made to the tax administrator.

(Ord. 1316 N.S. § 1, 1982)

§ 6.11.050 Penalties and interest.

Original Delinquency. Any promoter or association which fails to remit any tax imposed by this chapter within the time required shall pay a penalty of 10 percent of the amount of the tax in addition to the amount of the tax.

Continued Delinquency. Any promoter or association who fails to remit any delinquent remittance on or before a period of 30 days following the date on which the remittance first became delinquent shall pay a second delinquency penalty of 10 percent of the amount of the tax in addition to the amount of the tax and the 10 percent penalty first imposed.

§ 6.11.060 Failure to collect and report tax – Determination of tax by tax administrator.

Fraud. If the tax administrator determines that the nonpayment of any remittance due under this chapter is due to fraud, a penalty of 25 percent of the amount of the tax shall be added thereto in addition to the penalties stated in subsections (a) and (b) of this section.

(d)

Interest. In addition to the penalties imposed, any promoter or association 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.

(Ord. 1316 N.S. § 1, 1982)

If any promoter or association fails or refuses 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 tax administrator shall proceed in such manner as he or she may deem best to obtain facts and information on which to base his or her estimate of the tax due. As soon as the tax administrator procures such facts and information as he or she is able to obtain upon which to base the assessment of any tax imposed by this chapter and payable by any promoter or association 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 promoter or association the tax, interest and penalties provided for 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 promoter or association so assessed at his or her last known place of address. Such promoter or association 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 promoter or association 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 in this section 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 promoter or association may appear and offer evidence why such specified tax, interest and penalties should not be so fixed. After such hearing the tax administrator shall determine the proper tax to be remitted and shall thereafter give written notice to the person in the manner prescribed herein of such determination and the amount of such tax, interest and penalties. The amount determined to be due shall be payable after 15 days unless an appeal is taken as provided in PGMC § 6.11.070.

(Ord. 1316 N.S. § 1, 1982)

§ 6.11.070 Appeal.

Any promoter or association 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. 1316 N.S. § 1, 1982)

§ 6.11.080 Records.

It shall be the duty of every promoter or association 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.

(Ord. 1316 N.S. § 1, 1982)

§ 6.11.090 Refunds.

Filing Claim. Whenever the amount of any tax, interest or penalty has been overpaid or paid more than once or has been erroneously or illegally collected or received by the city under this chapter, it may be refunded as provided in subsections (b) and (c) of this section, provided a claim in writing therefor is filed with the tax administrator. The claim shall conform in all respects to the requirements set forth for claims against the city in Chapter 6.06 PGMC.

Refund to Operator. A promoter or association 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 is liable therefor; 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 such person or credited to tax subsequently payable by such person to the promoter or association.

Refund to Occupant. An occupant 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 occupant directly to the tax administrator, or when the occupant, having paid the tax to the operator, establishes to the satisfaction of the tax administrator that the occupant has been unable to obtain a refund from the promoter or association who collected the tax.

(d)

Proof Required. 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. 1316 N.S. § 1, 1982; Ord. 02-28 § 4, 2002)

§ 6.11.100 Actions to collect.

Any tax required to be paid by any occupant under the provisions of this chapter shall be deemed a debt owed by the occupant to the city. Any such tax collected by a promoter or association which has not been paid to the city shall be deemed a debt owed by the promoter or association to the city, for which the city may bring suit in addition to remedies for misappropriating of city funds. Any tax which a promoter or association has failed to collect, willfully or negligently or by failure to carry out the duties hereunder employed, and any interest or penalties thereon shall be deemed a debt owed 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 of Pacific Grove for the recovery of such amount.

(Ord. 1316 N.S. § 1, 1982)

§ 6.11.110 Enforcement.

The city attorney may prosecute, pursuant to PGMC § 1.16.010 and § 1.16.012:

Any person violating any of the provisions of this chapter or any person willfully refusing to pay any tax required hereunder;

Any promoter or association 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;