ARTICLE IV Occupancy Tax

On and After January 1, 2026, for a period of two years from the date of the enactment of this article, there is hereby imposed and there shall be paid a tax of 3% of the per diem rental rate for each room, upon the rent for every occupancy of a room or rooms in a hotel in the City of Utica, provided however, that such tax shall not be applicable to a permanent resident of a hotel or motel as defined in this article.

The tax imposed herein shall be paid upon any occupancy on and after January 1, 2026, although such occupancy is pursuant to a prior contract, lease or other arrangement. Where rent is paid on a weekly or other term basis, the rent shall be subject to the tax imposed herein to the extent that it covers any period on and after January 1, 2026, and such rent shall be apportioned on the basis of the ratio of the number of days falling within said period to the total number of days covered thereby.

Sec. 1-25-67 Exempt organizations.

Except as otherwise provided in herein, occupancy by any of the following shall not be subject to the tax imposed under this article:

The State of New York, or any of its agencies, instrumentalities, public corporations (including a public corporation created pursuant to agreement of compact with another state or Canada), improvement district or other political subdivision of the state;

The United States of America, and any of its agencies and instrumentalities, insofar as it is immune from taxation;

Any corporation or association, or trust, or community chest, fund or foundation organized and operated exclusively for religious, charitable or educational purposes, or for the prevention of cruelty to children or animals, and no part of the net earnings of which inures to the benefit of any private shareholder or individual and no substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation; provided, however, that nothing in this paragraph shall include an organization operated for the primary purpose of carrying on a trade or business for profit, whether or not all of its profits are payable to one or more organizations described in this paragraph; or

A permanent resident of a hotel or motel. For the purposes of this section, the term "permanent resident" shall mean a natural person occupying any room or rooms in a hotel or motel for at least 90 consecutive days.

Sec. 1-25-68 Territorial limitations.

Any tax imposed under the authority of this article shall apply only within the territorial limits of the City of Utica.

Sec. 1-25-69 Registration.

Within 10 days after the effective date of this article or amendment or, in the case of operators commencing business after such effective date, within three days after such commencement or opening, every operator shall file with the City Comptroller a certificate of registration in a form prescribed by the City Comptroller.

The City Comptroller shall, within five days after such registration, issue, without charge to each operator, a certificate of authority empowering such operator to collect the tax from occupants and duplicate thereof for each additional hotel of such operator. Each certificate or duplicate shall state the hotel or motel to which it is applicable.

Such certificates of authority shall be prominently displayed by the operator in such manner that it may be seen and come to the notice of all occupants and persons seeking occupancy.

Sec. 1-25-70 Administration and collection.

Such certificates shall be non-assignable and nontransferable, and shall be surrendered immediately to the City Comptroller upon the cessation of business at the hotel or motel named, or upon its sale or transfer.

The tax imposed by this article shall be collected and administered by the Comptroller, or his/her designee, of the City of Utica by such means and in such a manner as other taxes, which are collected and administered by such officer, or as otherwise may be provided in this article or other applicable rule or law.

The tax to be collected shall be stated and charged separately from the rent and shown separately on any record thereof, at the time when the occupancy is arranged or contracted for and charged for, and upon every evidence of occupancy or any bill or statement or charge made for said occupancy issued or delivered by the operator. The tax shall be paid by the occupant to the operator as trustee for and on account of the City, and the operator shall be liable for the collection thereof, and for the tax.

The operator and any officer of any corporate operator shall be personally liable for the tax collected or required to be collected under this article, and the operator shall have the same right in respect to collecting the tax from the occupant, or in respect to nonpayment of the tax by the occupant as if the tax were a part of the rent for the occupancy payable at the time such tax shall become due and owing, including all rights of eviction, dispossession, repossession and enforcement of any innkeeper's lien that he may have in the event of nonpayment of rent by the occupant; provided, however, that the Comptroller or employees or agents duly designated by him/her shall be join as a party in any action or proceeding brought by the operator to collect or enforce the collection of the tax.

The Comptroller may, wherever he or she deems it necessary for the proper enforcement of this article, provide by regulation, that the occupant shall file returns and pay directly to the City the tax herein imposed, at such times as returns are required to be filed and payment over made by the operator.

Except as to and where the occupant has paid rent in full prior to the effective, the tax imposed by this article shall be paid upon any occupancy on and after January 1, 2026, although such occupancy is had pursuant to a contract, lease, or other arrangement made prior to such date. Where rent is paid or charged or billed or falls due on either a weekly, monthly or other term basis, the rent so paid, charged, billed or falling due shall be subject to the tax herein imposed to the extent that it covers any portion of the period on and after January 1, 2026. Where any tax has been paid hereunder upon any rent which has been ascertained to be worthless, the Comptroller may, by regulation, provide for credit and/or refund of the amount of such tax upon application therefore as provided in this chapter.

(f)

For the purpose of the proper administration of this article, and to prevent evasion of the tax hereby imposed, it shall be presumed that all rents are subject to tax until the contrary is established, and the burden of proving that a rent for occupancy is not taxable hereunder shall be upon the operator or the occupant. Where an occupant claims exemptions from the tax, the rent shall be deemed taxable hereunder unless the operator shall receive from the occupant claiming such exemption a copy of a New York State Sales tax exemption certificate.

Sec. 1-25-71 Records.

Every operator shall keep records of every occupancy and of all rent paid, charged or due thereon and of the tax payable thereon, in such form as the Comptroller may by regulation require. Such records shall be available for inspection and examination at any time upon demand by the City Comptroller, his or her designee or a duly authorized agent or employee, and shall be preserved for a period of three years, except that the City Comptroller may consent to their destruction within that period, or may require that they be kept longer.

Sec. 1-25-72 Returns.

Every operator shall file with the City Comptroller a return of occupancy and of rents, and of the taxes payable thereon for the periods ending March 31, June 30, September 30, and December 31 of each year. Such returns shall be filed within 20 days from the expiration of the period covered thereby. The City Comptroller may permit or require returns to be made by other periods and upon such dates as he may specify. If the City Comptroller deems it necessary in order to insure the payment of the tax imposed by this article, he may require returns to be made for shorter periods than those prescribed pursuant to the foregoing provisions herein and upon such dates as he or she may specify.

The forms of returns shall be prescribed by the City Comptroller and shall contain such information as he may deem necessary for the proper administration of this article. The City Comptroller may require amended returns to be filed within 20 days after notice and to contain the information specified in the notice.

If a return required by this article is not filed, or if a return when filed is incorrect or insufficient on its face, the City Comptroller shall take the necessary steps to enforce the filing of such a return or of a corrected return.

Disclosure of returns.

(1)

Except in accordance with proper judicial order, or as otherwise provided by law, it shall be unlawful for the City Comptroller or any officer or employee of the office of City Comptroller to divulge or make known in any manner the rents or other information relating to the business of a taxpayer contained in any return required under this article.

(2)

The officer charged with the custody of such returns shall not be required to produce any of them or evidence of anything contained in them in any action of proceeding in any court, except on behalf of the City Comptroller in an action or proceeding under the provisions of this article, or on behalf of any party to any action or proceeding under the provisions of this article when the returns or facts shown thereby are directly involved in such action or proceeding, in either of which events the court may require the production of, and may admit in evidence, so much of said returns or of the facts shown thereby, as are pertinent to the action or proceeding and no more.

(3)

Nothing herein shall be construed to prohibit the delivery to a taxpayer or his duly authorized representative of a certified copy of any return filed in connection with his tax nor to prohibit the publication of statistics so classified as to prevent the identification of particular returns and the items thereof, or the inspection by the Corporation Counsel or other legal representatives of the City, of the return of any taxpayer who shall bring action to set aside or review the tax based thereon, or against whom an action or proceeding has been instituted for the collection of a tax or penalty.

(4)

Returns shall be preserved for three years and thereafter until the City Comptroller permits them to be destroyed.

Sec. 1-25-73 Payment of tax.

At the time of filing a return of occupancy and of rents, each operator shall pay to the City Comptroller the taxes imposed by this article upon the rents required to be included in such return, as well as all other monies collected by the operator acting or purporting to act under the provisions in this article.

In the event a Court of competent jurisdiction determines that the tax collected is invalidly required to be filed, it shall be due from the operator and payable to the City Comptroller on the date limited for the filing of the return for such period, without regard to whether a return is filed or whether the return which is filed correctly shows the amount of rents and the taxes due thereon.

Where the City Comptroller in his or her discretion deems it necessary to protect revenues to be obtained under this article he or she may require any operator required to collect the tax imposed by this article to file with the office of the City Comptroller a bond, issued by a surety company authorized to transact business in this state and approved by the superintendent of insurance of this state as to the solvency and responsibility, in such amount as the City Comptroller may fix to secure the payment of any tax and/or penalties and interest due or which may become due from such operator. In the event that the City Comptroller determines that an operator is to file such bond he shall give notice to such operator to that effect specifying the amount of the bond required. The operator shall file such bond within five days after the giving of such notice unless within such five days the operator shall request in writing a hearing before the City Comptroller at which the necessity, propriety and amount of the bond shall be determined by the City Comptroller. Such determination shall be final and shall be complied with within 15 days after the giving of notices thereof. In lieu of such bond, securities approved by the City Comptroller or cash in such amount as he may prescribe may be deposited which shall be kept in the custody of the City Comptroller who may at any time without notice to the depositor apply them to any tax and/or interest or penalties due, and for that purpose the securities may be sold by him at public or private sale without notice to the depositor thereof.

Sec. 1-25-74 Determination of tax.

If a return required by this article is not filed, or if a return when filed is incorrect or insufficient the amount of tax due shall be determined by the City Comptroller from such information as may be obtainable and, if necessary, the tax may be estimated on the basis of external indices, such as number of rooms, location, scale or rents, comparable rents, type of accommodations and service, number of employees and/or other factors.

Notice of such determination shall be given to the person liable for the collection and/or payment of the tax. Such determination shall finally and irrevocably fix the tax unless the person against whom it is assessed, within 30 days after giving of notice of such determination, shall apply to the City Comptroller for a hearing, or unless the City Comptroller of his or her own motion shall re-determine the same. After such hearing, the City Comptroller shall give notice of his determination to the person against whom the tax is assessed.

The determination of the City shall be reviewable for error, illegality or unconstitutionality or any other reason whatsoever by a proceeding under Article 78 of the Civil Practice Law and Rules; provided, however, that such proceeding is instituted in the Supreme Court within 30 days after the giving of the notice of such determination.

A proceeding under Article 78 of the Civil Practice Law and Rules shall not be instituted unless:

(1)

The amount of any tax sought to be reviewed, with penalties and interest thereon, if any, shall be first deposited and there is filed an undertaking, issued by a surety company authorized to transact business in this state and approved by the superintendent of insurance of this state as to solvency and responsibility, in such amount as a justice of the Supreme Court shall approve to the effect that if such proceeding be dismissed or the tax confirmed the petitioner will pay all costs and charges which may accrue in the prosecution of such proceeding; or

(2)

At the option of the petitioner such undertaking may be in a sum sufficient to cover the taxes, penalties and interest thereon stated in such determination plus the costs and charges which may accrue against it in the prosecution of the proceeding, in which event the petitioner shall not be required to pay such taxes, penalties and interest as a condition precedent to the application.

Sec. 1-25-75 Refunds.

In the manner provided in this section the City Comptroller shall refund or credit without interest, any tax, penalty or interest erroneously, illegally or unconstitutionally collected or paid if application to the City Comptroller for such refund shall be made within one year from the payment thereof. Whenever a refund is made by the City Comptroller, he or she shall state his reason therefor in writing.

Such application may be made by the occupant, operator or other person who has actually paid the tax. When made by an operator who has collected and paid over such tax to the Comptroller, provided that the application is made within one year of the payment by the occupant to the operator, but no actual refund of monies shall be made to such operator shall be acted upon and refunded any monies due, only after such operator shall first establish to the satisfaction of the City Comptroller, under such regulations as the City Comptroller may prescribe, that he or she has repaid or will simultaneously repay to the occupant the amount for which the application for refund is made.

The City Comptroller may, in lieu of any refund required to be made, allow credit therefor on payments due from the petition.

Where any tax imposed hereunder shall have been erroneously, illegally or unconstitutionally collected and application for the refund thereof duly made to the City Comptroller, and such City Comptroller shall have made a determination denying such refund, such determination shall be reviewable by a proceeding under Article78 of the Civil Practice Law and Rules; provided, however, that such proceeding is instituted within 30 days after the giving of the notice of such denial, that final determination of tax due was not previously made, and that an undertaking be filed with the City Comptroller in such amount and with such sureties as a Justice of the Supreme Court shall approve to the effect that if such proceeding be dismissed or the tax confirmed, the petitioner will pay all costs and charges which may accrue in the prosecution of such proceeding.

A person shall not be entitled to a revision, refund or credit under this section, of a tax, interest or penalty which had been determined to be due pursuant to the provisions this Article where he or she has had a hearing or an opportunity for a hearing, as provided in said section, or has failed to avail themselves of the remedies therein provided.

(f)

No refund or credit shall be made of a tax, interest or penalty paid after a determination by the City Comptroller made pursuant to this article unless it be found that such determination was erroneous or unconstitutional or otherwise improper by the City Comptroller after a hearing or of his or her own motion, or in a proceeding under Article 78 of the Civil Practice Law and Rules, pursuant to the provisions of said section, in which event or refund or credit without interest shall be made of the tax, interest or penalty found to have been overpaid.

Sec. 1-25-76 Disposition of revenues.

All revenues from the imposition of the tax under this article shall be paid into the treasury of the City of Utica and shall be credited to and deposited in the General Fund Account(s) of the City of Utica. Such revenues may be used to support municipal services, infrastructure and other essential expenditures as determined by the Common Council of the City of Utica.

Sec. 1-25-77 Reserves.

In cases where the occupancy or operator has applied for a refund and has instituted a proceeding under Article 78 of the Civil Practice Law and Rules to review a determination adverse to an application for refund, the City Comptroller shall have the option of crediting future payments to meet the cost of any settlements or judgments or, at his/her option, may, in the first instance, set up appropriate reserves to meet any decision adverse to the City.

Sec. 1-25-78 Remedies exclusive.

The remedies provided in this article shall be exclusive remedies available to any person(s) or entity for the review of tax liability imposed by this article. No determination or proposed determination of tax or determination on any application for refund shall be enjoined or reviewed by an action for declaratory judgment, an action for money had and received or by any action or proceeding other than a proceeding in a nature of a certiorari proceeding under Article 78 of the Civil Practice Law and Rules; provided, however, that a taxpayer may proceed by declaratory judgment if he or she institutes suit within 30 days after a deficiency assessment is made, and pays the amount of the deficiency assessment to the City Comptroller prior to the institution of such suit and posts a bond for costs as provided in this article.

Sec. 1-25-79 Proceeding to recover tax.

Whenever any operator or any officer of a corporate operator or any occupancy or other person shall fail to collect and pay over any tax and/or to pay any tax, penalty or interest imposed by this article, as therein provided, Corporation Counsel for the City of Utica shall, upon the request of the City Comptroller, bring or cause to be brought an action to enforce the payment of the same on behalf of the City of Utica in any court of the State of New York or of any other state or of the United States.

If, however, the City Comptroller in his discretion believes that any such operator, officer, occupant or other person is about to cease business, leave the state or remove or dissipate the assets out of which the tax or penalties might be satisfied, and that any such tax or penalty will not be paid when due, he or she may declare such tax or penalty to be immediately due and payable and may issue a warrant immediately.

As an additional or alternate remedy, the City Comptroller may direct the City Assessor to, in preparation of the next assessment roll, assess the amount of such tax or penalty upon the property occupied by business giving right to such tax or penalty, and this amount shall be levied, collected and enforced in the same manner as taxes upon said property for City taxes are levied, collected and enforced.

Whenever an operator shall make a sale, transfer, or assignment in bulk of any part or the whole of his or her hotel or his or her lease, license or other agreement or right to possess or operate such hotel, apartment hotel, or of the equipment, furnishings, fixtures, supplies or stock of merchandise, of the said premises or lease, license or other agreement or right to possess or operate such hotel, apartment hotel and the equipment, furnishings, fixtures, supplies and stock of merchandise pertaining to the conduct or operation of such hotel, otherwise than in the ordinary and regular prosecution of business, the purchaser, transferee or assignee shall at least 10 days before taking possession of the subject of said sale, transfer or assignment, or paying therefor, notify the City Comptroller by registered mail of the proposed sale and of the price, terms and conditions thereof whether or not the seller, transferor or assignor, has represented to or informed the purchaser, transferee or assignee that it owes any tax pursuant to this article, and whether or not the purchaser, transferee or assignee has knowledge that such taxes are owing, and whether any such taxes are in fact owing.

Sec. 1-25-80 General powers of Comptroller relative to occupancy tax.

Whenever the purchaser, transferee or assignee shall fail to give notice to the City Comptroller as required by the preceding subsection, or whenever the City Comptroller shall inform the purchaser, transferee or assignee that a possible claim for such tax or taxes exists, any sums of money, property or choses in action, or other consideration, which the purchaser, transferee or assignee is required to transfer over to the seller, transferor or assignor shall be subject to a first priority right and lien for any such taxes theretofore or thereafter determined to be due from the seller, transferor or assignor to the county, and the purchaser, transferee or assignee is forbidden to transfer to the seller, transferor or assignor any such sums of money, property or choses in action to the extent of the amount of the City's claim. For failure to comply with the provisions of this subsection, the purchaser, transferee or assignee, in addition to being subject to the liabilities and remedies imposed under the provisions of the Uniform Commercial Code, shall be personally liable for the payment to the City of any such taxes theretofore or thereafter determined to be due to the City from the seller, transferor, or assignor, and such liability may be assessed and enforced in the same manner as the liability for tax under this article.

In addition to the powers granted hereunder, the City Comptroller is hereby authorized and empowered to:

Make, adopt and amend rules and regulations appropriate to the carrying out of this article, and the purposes thereof;

Extend for cause shown, the time of filing any return for a period not exceeding 30 days; and for cause shown, to waive penalties but not interest computed at the rate of 6% per annum; and to compromise disputed claims in connection with the taxes hereby imposed;

Request information from the Tax Commission of the State of New York or the Treasury Department of the United States relative to any person, any other provision of this article to the contrary notwithstanding;

Delegate his or functions hereunder to a duly authorized representative of the City Comptroller;

Sec. 1-25-81 Administration of oaths and compelling testimony.

Prescribe methods for determining rents for occupancy and to determine the taxable and nontaxable rents;

(f)

Require any operator within the City to keep detailed records of the nature and type of hotel maintained, nature and type of service rendered, the rooms available and rooms occupied daily, leases or occupancy contracts or arrangements, rents received, charged and accrued, the names and addresses of the occupants, whether or not any occupancy is claimed to be subject to the tax imposed by this article, and to furnish such information upon request to the City Comptroller.

(g)

Assess, determine, revise and readjust the taxes imposed under this article.

(h)

Require any operator to submit with the return required hereunder a copy of any tax return for sales, occupancy or uses taxes submitted to the Tax Commission or other instrumentality of the State of New York.

The City Comptroller or his or her employees, or agents duly designated and authorized, shall have power to administer oaths and take affidavits in relation to any matter or proceeding in the exercise of their powers and duties under this article. The City Comptroller shall have power to subpoena and require the attendance of witnesses and the production of books, papers and documents to secure information pertinent to the performance of his duties hereunder and of the enforcement of this article, and to examine them in relation thereto, and to issue commissions for the examination of witnesses who are out of the state or unable to attend before him or excused from attendance.

A Justice of the Supreme Court either in court or at chambers shall have power summarily to enforce by proper proceedings the attendance and testimony of witnesses and the production and examination of books, papers and documents called from by the subpoena of the City Comptroller under this article.

Any person who shall refuse to testify or to produce books or records or who shall testify falsely in any material matter pending before the City Comptroller under this article shall be guilty of a misdemeanor, punishment for which shall be a fine of no more than $1,000 or imprisonment for not more than one year, or both such fine and imprisonment.

The officers who serve the summons or subpoena of the City Comptroller and witnesses attending in response thereto shall be entitled to the same fees as are allowed to officers and witnesses in civil cases in courts of record, except as herein otherwise provided. Such officers shall be the Police Chief and his duly appointed deputies or any officers or employees of the City Comptroller, designated to serve such process.

Sec. 1-25-82 Penalties and interest.

Any person failing to file a return or to pay or pay over any tax to the City Comptroller within the time required by this article shall be subject to a penalty of 5% of the amount of tax due, plus interest at the rate of 1% of such tax for each month of delay excepting the first month after such return was required to be filed or such tax became due.

Such penalties and interest shall be paid and disposed of in the same manner as other revenues from this article. Unpaid penalties and interest may be enforced in the same manner as the tax imposed by this article.

Any operator or occupant and any officer of a corporate operator or occupant failing to file a return required by this article, or filing or causing to be filed, or making or causing to be made or giving or causing to be given any return, certificate, affidavit, representation, information, testimony or statement required or authorized by this article, which is willfully false, and any operator and any officer of a corporate operator willfully failing to file a bond required to be filed pursuant to this article, or failing to file a registration certificate and such data in connection therewith as the City Comptroller may by regulation or otherwise require or to display or surrender the certificate of authority as required by this article, or assigning or transferring such certificate or authority and any operator and any officer of a corporate operator willfully failing to charge separately from the rent the tax herein imposed, or willfully failing to state such tax separately on any evidence of occupancy and on any bill or statement or receipt of rent issued or employed by the operator, or willfully failing or refusing to collect such tax from the occupant, and any operator failing to keep the records required by this article, shall, in addition to the penalties herein or elsewhere prescribed, be guilty of a misdemeanor, punishment for which shall be a fine of not more than $1,000, or imprisonment for not more than one year, or both such fine and imprisonment. Officers of a corporate operator shall be personally liable for the tax collected or required to be collected by such corporation under this article, and subject to the penalties hereinabove imposed.

Sec. 1-25-83 Notices; limitations of time.

The certificate of the City Comptroller to the effect that a tax has not been paid, that a return, bond or registration certificate has not been filed, or that information has not been supplied pursuant to the provisions of this article shall be presumptive evidence thereof.

Any notice authorized or required under the provisions of this article may be given by mailing the same to the person for whom it is intended in a post-paid envelope addressed to such person at the address given in the last return filed by him pursuant to the provisions of this article, or in any application made by him or her, or, if no return has been filed or application made, then to such address as may be obtainable. The mailing of such notice shall be presumptive evidence of the receipt of the same by the person to whom addressed. Any period of time which is determined according to the provisions of this article by the giving of notice shall commence to run from the date of filing of such notice.

The provisions of the Civil Practice Law and Rules or any other law relative to limitations of time for the enforcement of a civil remedy shall not apply to any proceeding or action taken by the City to levy, appraise, assess, determine or enforce the collection of any tax or penalty provided by this article.

Except in the case of a willfully false or fraudulent return with intent to evade the tax, no assessment of additional tax shall be made after the expiration of more than three years from the date of the filing of a return; provided, however, that where no return has been filed as provided by law the tax may be assessed at any time.