[Adopted by L.L. No. 5-1991]
A.
Authority. This article is adopted by the Ulster County Legislature pursuant to the enabling legislation of New York State Tax Law § 1202-l (Chapter 221 of the Laws of 1991).
B.
Purpose. The purpose of this article is to authorize
Ulster County to collect a hotel and motel room occupancy tax due
to the need for additional revenue.
C.
BOARD OR OTHER CHARGE
COMMISSIONER OF FINANCE
COUNTY
HOTEL or MOTEL
OCCUPANCY
OCCUPANT
OPERATOR
PERMANENT RESIDENT
PERSON
RENT
RETURN
ROOM
TAX
Definition. Unless the context requires a different
meaning, when used in this article, the following terms shall have
the following meanings:
The charge or charges which an operator shall impose for
food and meals or for other services and facilities at a hotel or
motel, which charge is included in the cost of occupancy of a room
as a common charge or, if such charges are separately stated, is a
charge which is not optional and is required to be paid by the occupant
as part of the cost of occupancy of a room.
The Commissioner of Finance of Ulster County or the Commissioner's
designee.[1]
The County of Ulster.
A building or portion of it which is regularly used and kept
open as such for lodging on an overnight basis. The term "hotel" or
"motel" includes an apartment hotel, motor court or inn, boardinghouse
or club, or similar hotel or motel type of accommodations by whatever
name designated, whether or not meals are served, and shall include
those facilities commonly known as "bed-and-breakfast" and "tourist"
facilities. Rent received by operators of bungalow colonies shall
not be deemed to be taxable, provided that each occupant shall occupy
rooms pursuant to a written agreement providing for the exclusive
possession of such room for a period of 90 days or more, and provided
further that there are no maid, food or other common hotel services
provided.
The use or possession or the right to use or possession of
any room in a hotel or motel.
A person who, for a consideration, uses, possesses, or has
the right to use or possess any room in a hotel or motel under any
lease, concession, permit, right of access, license to use or other
agreement, or otherwise.
Any person operating a hotel or motel in the County of Ulster,
including but not limited to the owner or proprietor of such premises,
lessee, sublessee, mortgagee in possession, licensee or any other
person otherwise operating such hotel or motel.
Any occupant of any room or rooms in a hotel or motel for
at least 90 consecutive days shall be considered a permanent resident
with regard to the period of such occupancy.
An individual, partnership, society, association, joint-stock
company, corporation, estate, receiver, trustee, assignee, referee,
and any other person acting in a fiduciary or representative capacity,
whether appointed by a court or otherwise, and any combination of
the foregoing.
The consideration received for occupancy valued in money,
whether received in money or otherwise.
Any return filed or required to be filed as herein provided.
Any room or rooms of any kind in any part or portion of a
hotel or motel which are available for or let out for any purpose
other than a place of assembly.
The tax imposed pursuant to this article and any increase,
reduction or modification hereafter authorized.
[1]
Editor's Note: Throughout this chapter, references to the
"Treasurer" were amended to "Commissioner of Finance" 8-17-2010 by
L.L. No. 3-2010.
D.
Territorial limitations. The tax imposed by this article
shall apply only within the territorial limits of the County of Ulster.
E.
Reference to tax. Wherever reference is made in placards,
advertising or other publications to the tax imposed by this article,
such reference shall be substantially in the following form: "Tax
on occupancy of hotel or motel rooms," except that in any bill, receipt,
statement or other agreement or memorandum of occupancy or rent charge
issued or employed by an operator, the words "occupancy tax" shall
suffice.
A.
Administration. The tax imposed by this article shall
be administered and collected by the Commissioner of Finance or other
fiscal officers of the County as he may designate by such means and
in such manner as are other taxes which are now collected and administered
by such officers or as otherwise provided by this article.
B.
General powers of the Commissioner of Finance. In
addition to the powers granted to the Commissioner of Finance in this
article, the Commissioner of Finance is hereby authorized and empowered
to:
(1)
Make, adopt and amend rules and regulations appropriate
to the carrying out of this article and the purposes thereof; provided,
however, that no rule or regulation shall become effective until 30
days after such rule or regulation shall have been filed with the
Clerk of the County Legislature, except that any regulation adopted
within 60 days after adoption of this article shall be effective immediately
upon such filing.
(2)
Extend, for cause shown, the time of filing any return
for a period not exceeding three months, provided that not less than
90% of the estimated tax for the period for which the return is required
to be filed shall be paid together with the request for such extension,
and for cause shown to remit penalties but not interest computed at
the rate and in the manner provided in § 924-a of the Real
Property Tax Law on taxes not paid, and to compromise disputed claims
in connection with the tax imposed by this article.
(3)
Request information from the Tax Commissioner of the
State of New York or the Treasury Department of the United States
relative to any person and to afford information to such Tax Commission
or Treasury Department relative to any person, any other provision
of this article to the contrary notwithstanding.
(4)
Delegate his functions hereunder to a Deputy Commissioner
of Finance or any employee or employees of the Commissioner of Finance.
(5)
Prescribe methods for determining the rents for occupancy
and to determine the taxable and nontaxable rents.
(6)
Require any operator within the County to keep detailed
records of the nature and type of hotel maintained, nature and type
of service rendered, rooms available and rooms occupied daily, leases
or occupancy contracts or arrangements, rents received, charged and
accrued, and the names and addresses of the occupants, whether or
not any occupancy is claimed to be subject to the tax, and to furnish
such information upon request to the Commissioner of Finance.
(7)
Assess, determine, revise and readjust the taxes imposed
under this article and require the filing of estimated tax returns
and payments of estimated tax where necessary.
(8)
Request the County Attorney to take such action as
may be required to enforce this article, including but not limited
to providing representation in any administrative proceeding conducted
by the Commissioner of Finance for enforcement of this article or
any appropriate proceeding brought in the name of the County in any
court of appropriate jurisdiction without any further authorization
of the County Legislature.
C.
Administration of oaths and compelling testimony.
(1)
The Commissioner of Finance or his employees or agents
duly designated and authorized by him 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
Commissioner of Finance 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 to 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.
(2)
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 for by the subpoena of the Commissioner
of Finance under this article.
(3)
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 Commissioner of Finance under this article shall
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.
(4)
The officers who serve the summons or subpoena of
the Commissioner of Finance 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 County Sheriff and his duly appointed
deputies or any officers or employees of the Commissioner of Finance
designated to serve such process.
A.
Imposition of tax. On and after the second day of
September 1991, there is hereby imposed and there shall be paid a
tax of 2%, with a ceiling of $1 until December 31, 1992, upon the
rent for every occupancy of a room or rooms in a hotel or motel in
this County, except that the tax shall not be imposed upon:
B.
Statement of tax to be collected; person liable for
payment of tax.
(1)
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,
and the tax shall be paid by the occupant to the operator as trustee
for and on account of the County, 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 Commissioner of Finance or other fiscal
officer or officers, employees or agents duly designated by him shall
be joined as a party in any action or proceeding brought by the operator
to collect or enforce collection of tax.
(2)
The Commissioner of Finance may, whenever he deems
it necessary for the proper enforcement of this article, provide by
regulation that the occupant shall file returns and pay directly to
the Commissioner of Finance the tax herein imposed, at such times
as returns are required to be filed and payment made over by the operator.
(3)
The tax imposed by this article shall be paid upon any occupancy on and after September 2, 1991, 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 September 2, 1991. Where any tax has been paid hereunder upon any rent which has been ascertained to be worthless, the Commissioner of Finance may by regulation provide for credit and/or refund of the amount of such tax upon application therefor as provided in § 312-8F of this article.
(4)
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, except that, where by regulation pursuant to Subsection B(2) an occupant is required to file returns and pay directly to the Commissioner of Finance the tax herein imposed, the burden of proving that a rent for occupancy is not taxable shall be upon the occupant. Where an occupant claims exemption from the tax under the provisions of Subsection D, the rent shall be deemed taxable hereunder unless the operator shall receive from the occupant claiming such exemption a certificate duly executed by an exempt corporation or association certifying that the occupant is its agent, representative, or employee, together with a certificate executed by the occupant that his occupancy is paid or to be paid by such exempt corporation or association and is necessary or required in the course of or in connection with the occupant's duties as a representative of such corporation or association. Where deemed necessary by the operator, he may further require that any occupant claiming exemption from the tax furnish a copy of a certificate issued by the Commissioner of Finance certifying that the corporation or association therein named is exempt from the tax under Subsection D.
C.
Determination of taxable rent.
(1)
If the cost of occupancy of a room includes only the
cost of occupancy of the room and board and other charges are separately
stated and are incurred at the option of the occupant, rent subject
to the tax shall be the charge made by the operator for occupancy
of a room and the tax shall be based on the amount.
(2)
If the cost of occupancy of a room shall include only
board as a common charge, or where board is separately stated and
board is not optional and is required to be paid by the occupant as
part of the cost of occupancy of a room, the operator shall use the
schedule shown below to determine the percentage of the total charge
to be apportioned to rent subject to the tax and collect the tax based
on that amount:
|
Total Charge Includes
|
Room
|
Board
| |
|---|---|---|---|
|
Room, breakfast, lunch, dinner
|
50%
|
50%
| |
|
Room, lunch, dinner
|
65%
|
35%
| |
|
Room, breakfast, dinner
|
65%
|
35%
| |
|
Room, breakfast, lunch
|
75%
|
25%
| |
|
Room, dinner
|
80%
|
20%
| |
|
Room, lunch
|
90%
|
10%
| |
|
Room, breakfast
|
90%
|
10%
|
(3)
If the cost of occupancy of a room shall include only
other charges, as defined herein, as a common charge, or where other
charges are separately stated and such other charges are not optional
and are required to be paid by the occupant as part of the cost of
occupancy of a room, the operator shall use the schedule shown below
to determine the percentage of the total charge to be apportioned
to rent subject to the tax and collect the tax based on that amount:
|
Total Charge Includes
|
Room
|
Board
| |
|---|---|---|---|
|
Room, other charge
|
95%
|
5%
|
(4)
If the cost of occupancy of a room shall include charges defined in Subsection C(2) and (3) of this section as a common charge or where such charges are separately stated and such charges are not optional and are required to be paid by an occupant as part of the cost of occupancy of a room, the operator shall use the schedule shown below to determine the percentage of the total charge to be apportioned to rent subject to the tax and collect the tax based on that amount:
|
Total Charge Includes
|
Room
|
Board
| |
|---|---|---|---|
|
Room, breakfast, lunch, dinner, other charge
|
40%
|
60%
| |
|
Room, lunch, dinner, other charge
|
60%
|
40%
| |
|
Room, breakfast, dinner, other charge
|
60%
|
40%
| |
|
Room, breakfast, lunch, other charge
|
70%
|
30%
| |
|
Room, dinner, other charge
|
75%
|
25%
| |
|
Room, lunch, other charge
|
85%
|
15%
| |
|
Room, breakfast, other charge
|
85%
|
15%
|
(5)
When the occupant becomes a permanent resident, the
operator shall discontinue collection of the tax.
(6)
If the operator neither separately states the charge
for board, other charges or both nor uses the above schedules, the
entire charge is taxable until the occupant becomes a permanent resident.
D.
Exempt organizations. Except as otherwise provided
in this section, any use or occupancy by any of the following shall
not be subject to the tax imposed by this article:
(1)
The State of New York or any public corporation (including
a public corporation created pursuant to agreement or compact with
another state or Canada), improvement district or political subdivision
of the state.
(2)
The
United States of America, insofar as it is immune from taxation.
(3)
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 subsection 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 subsection. Acceptable evidence that such an organization
is among such organizations may include a valid New York State sales
tax exemption certificate, together with evidence of organization
and operation for such purposes.
A.
Registration. Within 10 days after the effective date
of this article 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 Commissioner of Finance
an application for a certificate of authority empowering such operator
to collect the tax from the occupant. Upon receipt of such application,
the Commissioner of Finance shall issue a certificate of authority
to such operator which when authenticated shall constitute the authority
for the purposes of this article. Each application for a certificate
of authority shall state the hotel or motel to which it is applicable;
the name of the operator of such hotel or motel, the address of such
operator, the taxpayer identification number assigned to such operator,
the state of incorporation and the date upon which such corporation
obtained authority to do business in this state, if not organized
in this state, the names of each partner, if a partnership, and such
other information as the Commissioner of Finance may by rule require.
Such certificate 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. Such certificates
shall be nonassignable and nontransferable and shall be surrendered
immediately to the Commissioner of Finance upon the cessation of business
at the hotel or motel named or upon its sale or transfer.
B.
Records to be maintained. 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 Commissioner of
Finance may by regulation require. Such records shall be available
for inspection and examination at any time upon demand by the Commissioner
of Finance or his duly authorized agent or employee and shall be preserved
for a period of three years, except that the Commissioner of Finance
may consent to their destruction within that period or may require
that they be kept longer.
C.
Returns.
(1)
Every operator shall file with the Commissioner of
Finance a return of occupancy and of rents and of the taxes payable
thereon for the quarterly periods ending February 28, May 31, August
31 and November 30 of each year, on and after December 1, 1991. Such
returns shall be filed within 20 days from the expiration of the period
covered thereby. The Commissioner of Finance may permit or require
returns to be made by other periods and upon such dates as he may
specify. If the Commissioner of Finance deems it necessary in order
to ensure 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 of this section and upon such dates as
he may specify.
(2)
The forms of returns shall be prescribed by the Commissioner
of Finance and shall contain such information as he may deem necessary
for the proper administration of this article. The Commissioner of
Finance may require amended returns to be filed within 20 days after
notice and to contain the information specified in the notice.
(3)
If a return required by this article is not filed,
or a return filed is incorrect or insufficient on its face, the Commissioner
of Finance shall take the necessary steps to enforce the filing of
such a return or of a corrected return.
D.
Payment of tax. At the time of filing a return of
occupancy and of rents, each operator shall pay to the Commissioner
of Finance the taxes imposed by this article upon the rents required
to be included in such return, as well as all other moneys collected
by the operator acting or purporting to act under the provisions of
this article; even though it may be judicially determined that the
tax collected is invalidly required to be billed, it shall be due
from the operator and payable to the Commissioner of Finance on the
date limited for the filing of the return for such period, without
regard for 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 Commissioner of Finance, in his discretion, deems it necessary
to protect revenues to be obtained under this article, the Commissioner
of Finance may require an operator to file with him 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
solvency and responsibility, in such amount as the Commissioner of
Finance 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 Commissioner of Finance 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 Commissioner of Finance at which the necessity, propriety
and amount of the bond shall be determined by the Commissioner of
Finance. Such determination shall be final and shall be complied with
within 15 days after the giving of such notice thereof. In lieu of
such bond, securities approved by the Commissioner of Finance or cash
in such amount as he may prescribe may be deposited which shall be
kept in the custody of the Commissioner of Finance, who may at any
time without notice to the depositor apply it to any tax and/or interest
or penalties due, and for that purpose the securities may be sold
by him at public sale without notice to the depositor thereof.
E.
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 Commissioner of Finance
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 of rents, comparable rents, type of accommodations
and service, number of employees and/or other factors. Notice of 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 Commissioner of Finance
for a hearing, or unless the Commissioner of Finance of his own motion
shall redetermine the same. After such hearing, the Commissioner of
Finance shall give notice of his determination to the person against
whom the tax is assessed. The determination of the Commissioner of
Finance shall be reviewable for error, illegality or unconstitutionality
or any other reason whatsoever by proceeding under Article 78 of the
Civil Practice Law and Rules if application therefor is made to the
Supreme Court within 30 days after 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 with
the Commissioner of Finance and there shall be first deposited with
the Commissioner of Finance 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 is dismissed or the tax confirmed
the petitioner will pay all costs and charges which may accrue in
the prosecution of the proceeding; or
(2)
At the option of the applicant such undertaking filed
with the Commissioner of Finance 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 applicant shall not be required
to deposit such taxes, penalties and interest as a condition precedent
to the application.
F.
Refunds.
(1)
In the manner provided in this section, the Commissioner
of Finance shall refund or credit, without interest, any tax, penalty
or interest erroneously, illegally or unconstitutionally collected
or paid if application to the Commissioner of Finance for such refund
shall be made within one year from the payment thereof. Whenever a
refund is made by the Commissioner of Finance, he shall state his
reason therefor in writing. Such application may also be made by an
operator who has collected and paid over such tax to the Commissioner
of Finance, provided that the application is made within one year
of the payment by the occupant to the operator, but no actual refund
of moneys shall be made to such operator until he shall first establish
to the satisfaction of the Commissioner of Finance, under such regulations
as the Commissioner of Finance may prescribe, that he has repaid to
the occupant the amount for which the application for refund is made.
The Commissioner of Finance may, in lieu of any refund required to
be made, allow credit therefor on payments due from the applicant.
(2)
An application for a refund or credit made as herein
provided shall be deemed an application for a revision of any tax,
penalty or interest complained of and the Commissioner of Finance
may receive evidence with respect thereto. After making his determination,
the Commissioner of Finance shall give notice of his determination
to the person seeking the refund. Such determination may be reviewable
in a proceeding under Article 78 of the Civil Practice Law and Rules
if application therefor is made to the Supreme Court within 30 days
after the giving of notice of such determination, if a final determination
of tax due was not previously made and an undertaking is filed with
the Commissioner of Finance in such amount and with such sureties
as a Justice of the Supreme Court shall approve to the effect that
if such proceedings are dismissed or the tax confirmed, the petitioner
will pay all costs and charges which may accrue in the prosecution
of such proceeding.
(3)
A person shall not be entitled to a revision, refund or credit under this subsection of a tax, interest or penalty which had been determined to be due pursuant to the provisions of Subsection E of this section where he has had a hearing or an opportunity for a hearing, as provided in said subsection, or has failed to avail himself of the remedies therein provided. No refund or credit shall be made of the tax, interest or penalty paid after a determination by the Commissioner of Finance made pursuant to Subsection E of this section unless it is found that such determination was erroneous, illegal or unconstitutional or otherwise improper by the Commissioner of Finance after a hearing on the petition of a person liable for payment of the tax brought within 30 days after the filing of a determination of the Commissioner of Finance after a hearing pursuant to Subsection E of this section, or upon the Commissioner of Finance's own motion in a proceeding under Article 78 of the Civil Practice Law and Rules, pursuant to the provisions of said subsection, in which event a refund or credit without interest shall be made of the tax, credit or penalty found to have been overpaid.
G.
Reserves. In cases where the occupant 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 him on his application for refund, the Commissioner of Finance
shall set up appropriate reserves to meet any decision adverse to
the County.
H.
Remedies exclusive. The remedies provided by Subsections E and F of this section shall be exclusive remedies available to any person for the review of tax liability imposed by this article, and no determination or proposed 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 an action or 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 institutes suit within 30 days after a deficiency assessment is made and pays the amount of the deficiency assessment to the Commissioner of Finance prior to the institution of such suit and posts a bond for costs as provided in Subsection E of this section.
A.
Proceedings to recover tax.
(1)
Whenever any operator or any officer of a corporate
operator or any occupant 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 herein provided, the County Attorney may, upon
the request of the Commissioner of Finance, bring or cause to be brought
an action to enforce the payment of the same on behalf of the County
of Ulster in any court of the State of New York or of any other state
or of the United States. If, however, the Commissioner of Finance
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 may declare such tax or penalty to be immediately due and payable
and may issue a warrant immediately.
(2)
As an additional or alternate remedy, the Commissioner
of Finance may issue a warrant, directed to the Sheriff, commanding
him to levy upon and sell the real and personal property of the operator
or officer of a corporate operator or other person liable for the
tax which may be found within the County for the payment of the amount
thereof, with any penalties and interest, and the cost of executing
the warrant, and to return such warrant to the Commissioner of Finance
and to pay to him the money collected by virtue thereof within 60
days after the receipt of such warrant. The Sheriff shall, within
five days after the receipt of the warrant, file with the County Clerk
a copy thereof, and thereupon such Clerk shall enter in the judgment
docket the name of the person mentioned in the warrant and the amount
of the tax, penalties and interest for which the warrant is issued
and the date when such copy is filed. Thereupon the amount of such
warrant so docketed shall become a lien upon the interest in real
and personal property of the person against whom the warrant is issued.
The Sheriff shall then proceed upon the warrant in the same manner
and with like effect as that provided by law in respect to executions
issued against property judgments of a court of record, and for services
in executing the warrant he shall be entitled to the same fees, which
he may collect in the same manner. In the discretion of the Commissioner
of Finance, a warrant of like terms, force and effect may be issued
and directed to any other officer or employee of the Commissioner
of Finance and in the execution thereof such officer or employee shall
have all the powers conferred by law upon the Sheriff but shall be
entitled to no fee or compensation in excess of the actual expenses
paid in the performance of such duty. If a warrant is returned not
satisfied in full, the Commissioner of Finance may from time to time
issue new warrants and shall also have the same remedies to enforce
the amount due thereunder as if the County has recovered judgment
therefor and execution thereon has been returned unsatisfied.
(3)
Whenever an operator shall make a sale, transfer,
or assignment in bulk of any part or the whole of his hotel or motel
or his lease, license or other agreement or right to possess or operate
such hotel or motel, or of the equipment, furnishings, fixtures, supplies
or stock of merchandise, or said premises or lease, license or other
agreement or right to possess or operate such hotel or motel and the
equipment, furnishings, fixtures, supplies and stock of merchandise
pertaining to the conduct or operation of said hotel or motel, 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 the sale, transfer or assignment or paying therefor,
notify the Commissioner of Finance by registered or certified mail,
return receipt requested, 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.
(4)
Whenever the purchaser, transferee or assignee shall
fail to give notice to the Commissioner of Finance as required by
the preceding subsection or whenever the Commissioner of Finance 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 County'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 Article 6 of the Uniform Commercial
Code, shall be personally liable for the payment to the County of
any such taxes theretofore or thereafter determined to be due to the
County 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.
B.
Penalties and interest.
(1)
Any person failing to file a return or to pay over
any tax to the Commissioner of Finance within the time required by
this article shall be subject to a penalty of 5% of the amount of
tax due for each month or portion thereof, excepting the first month
after such return was required to be filed or such tax became due,
during which such tax due shall remain unpaid, but in no event shall
such penalty exceed 25% of the tax due plus interest computed at the
rate and in the manner provided in § 924-a of the Real Property
Tax Law, but in no event shall such interest be less than 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, but the Commissioner
of Finance, if satisfied that the delay was excusable, may remit all
or part of the penalty but not interest computed at the rate of 6%
per year. Such penalties and interest shall be paid and disposed of
in the same manner as other revenues of such tax. Unpaid penalties
and interest may be enforced in the same manner as the tax imposed
by this article.
(2)
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 § 312-8E of this article or failing to file a registration certificate by such date in connection therewith as the Commissioner of Finance 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 of 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 officer of a corporate operator who shall refer or cause reference to be made to this tax in a form or manner other than that required by this article, and any operator failing to keep the records required by § 312-8B of 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.
C.
Returns to be secret.
(1)
Except in accordance with proper judicial order or
as otherwise provided by law, it shall be unlawful for the Commissioner
of Finance or any officer or employee of the Commissioner of Finance
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
to be filed pursuant to this article. The officers 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 or proceeding
in any court, except on behalf of the Commissioner of Finance in an
action or proceeding under the provisions of this article or on behalf
of any party to the 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 is pertinent to the
action or proceeding and no more. 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 County Attorney or other legal representative
of the County 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.
Returns shall be preserved for three years and thereafter until the
Commissioner of Finance permits them to be destroyed.
[Amended 8-17-2010 by L.L. No. 3-2010]
(2)
Any violation of Subsection C(1) shall be punishable by a fine not exceeding $1,000 or by imprisonment not exceeding one year, or both, in the discretion of the court, and if the offender is an officer or employee of the County he shall be dismissed from office and be incapable of holding any public office for a period of five years thereafter.
D.
Notices and limitations of time.
(1)
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 postpaid 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 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 giving the notice shall commence to run from the
date of mailing of such notice.
(2)
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 County 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 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.
(3)
Where, before the expiration of the period prescribed
herein for the assessment of an additional tax, a taxpayer has consented
in writing that such period be extended, the amount of such additional
tax due may be determined at any time within such extended period.
The period so extended may be further extended by subsequent consents
in writing made before the expiration of the extended period.
All revenues resulting from the imposition of the tax under
this article shall be paid into the treasury of the County and shall
be credited to and deposited in the general fund of the County, and
thereafter such amount as may be hereafter required to defer necessary
expenses of the County in administering such tax shall be applied
annually for such purpose. In the event that the cost of administering
such tax shall be less than that budgeted in any fiscal year, the
amount by which budgeted amount shall be less than the actual expenditures
of the County shall be appropriated from the revenues derived from
such tax. After deducting the amount necessary for administration
of such tax, the greater of 10% of the revenue derived from the tax
or $150,000 shall be credited to and deposited in a special tourism
and convention fund, and the collections therefrom shall thereafter
be allocated by the County Legislature only for tourism and convention
promotion and development. The Chairperson may appoint an advisory
committee of up to four persons, which may include members of the
County Legislature and public officials, to advise the Legislature
concerning such allocation.
This article shall take effect on September 2, 1991, except
that the provisions of this article relating to registration and the
authority of the Commissioner of Finance to adopt regulations and
take all necessary action to prepare for the implementation and enforcement
of this article shall take effect immediately. Notwithstanding anything
to the contrary contained in this article, if this article shall be
adopted less than 30 days prior to its effective date, the regulations
adopted by the Commissioner of Finance after the date of such adoption
and the effective date will become effective on the date of filing
of the same with the Clerk of the County Legislature.
