HomeMy WebLinkAbout638ORDINANCE NO. 638
AN ORDINANCE OF THE PEOPLE OF THE CITY OF IRWINDALE
ADOPTING CHAPTER 3.14 OF THE IRWINDALE MUNICIPAL CODE ADDING A
TRANSIENT OCCUPANCY TAX TO THE IRWINDALE MUNICIPAL CODE
WHEREAS, the City of Irwindale's general fund is used to fund such essential
government functions such as police, fire, public works, parks and recreation,
environmental programs and other essential services provided by the City to its citizens;
and
WHEREAS, the voters of the State of California approved Proposition 218
(Article XIII C, Section 2 of the California Constitution and Government Code Section
53723) authorizes the City to impose, extend or increase a general tax upon a majority
vote of the population; and
WHEREAS, Revenue and Taxation Code Section 7280 authorizes the City to
levy a tax on hotels, inns, tourist homes, motels, or other lodging for the privilege of
occupying a room or rooms; and
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF IRWINDALE,
CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. The Irwindale Municipal Code is hereby amended by adding a new
chapter, numbered 3.14, entitled "Transient Occupancy Tax," said chapter to read as
follows:
CHAPTER 3.14: TRANSIENT OCCUPANCY TAX
3.14.010 Short Title
This Chapter shall be known as the "Uniform Transient Occupancy Tax of the
City of Irwindale."
3.14.020 Definitions
For the purposes of this chapter, unless otherwise apparent from the context,
certain words and phrases used in this chapter are defined as follows:
A. "Hotel" shall mean any structure, or any portion of any structure, which is
occupied or intended for occupancy by transients for dwelling, lodging, or sleeping
purposes and shall include any hotel, inn, tourist home or house, motel, studio hotel,
bachelor hotel, lodging house, rooming house, dormitory, public or private club, mobile
home or house trailer at a fixed location, or other similar structure, or portion thereof;
provided that the burden of establishing that the facility is not a hotel shall be on the
owner or operator thereof.
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B. "Occupancy" means the use or possession or the right to the use or
possession of any hotel room or rooms or portion thereof, offered for rent for dwelling,
lodging or sleeping purposes.
C. "Operator" shall mean the person who is the proprietor of the hotel
whether in the capacity of owner, lessee, sublessee, mortgagee in possession,
licensee, or any other capacity. Where the operator performs his functions through a
managing agent of any type or character, other than an employee, the managing agent
shall also be deemed an operator for the purposes of this chapter and shall have the
same duties and liabilities as his principal. Compliance with the provisions of this
chapter by either the principal or managing agent, however, shall be considered
compliance by both.
D. "Person" shall mean any individual, firm, partnership, joint venture,
association, social club, fraternal organization, joint stock company, corporation, estate,
trust, business trust, receiver, trustee, syndicate, or any other group or combination
acting as a unit.
E. "Rent" shall mean the consideration charged, whether or not received, for
the occupancy of space in a hotel valued in money, whether to be received in money,
goods, labor or otherwise, including all receipts, cash, credits, property, and services of
any kind or nature, without any deduction therefrom whatsoever.
F. "Tax Administrator" shall be the Finance Director of the City, or his or her
designee.
G. "Transient" shall mean any person who exercises occupancy or is entitled
to occupancy by reason of concession, permit, right of access, license, or other
agreement for a period of thirty (30) consecutive calendar days or less, counting
portions of calendar days as full days. Any such persons so occupying space in a hotel
shall be deemed to be a transient until the period of thirty (30) days has expired unless
there is an agreement in writing between the operator and the occupant providing for a
longer period of occupancy. Any individual who exercises or is entitled to occupancy for
a period of thirty (30) days or less shall be deemed to be a transient, regardless of
whether the reservation and/or payment for occupancy is made directly by the individual
exercising occupancy or another individual or entity. The intent is to tax the individual
transient occupying the hotel room.
For the purposes of this definition, the exercise of entitlement to occupancy shall
be evidenced by any of the following:
(1) An individual's signature on a hotel registration card or form, a hotel
invoice or receipt or any other document associated with an individual's occupancy in a
hotel; and/or
(2) An individual's identification provided to hotel staff as proof of
employment, membership or affiliation with any person as defined in subsection D as a
condition of or in connection with exercising occupancy in a hotel.
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In determining whether a person is a transient, uninterrupted periods of time
extending both prior and subsequent to the effective date of the provisions of this
chapter may be considered.
3.14.030 Tax Imposed.
For the privilege of occupancy in any hotel, each transient shall be subject to and
shall pay a tax in the amount of ten (10%) percent of the total rent paid by the transient.
Such tax shall constitute a debt owed by the transient to the City, which debt shall be
extinguished only by payment to the operator or to the City. The transient shall pay the
tax to the operator of the hotel at the time the rent is paid. If the rent is paid in
installments, a proportionate share of the tax shall be paid with each installment. The
unpaid tax shall be due upon the transient ceasing to occupy space in the hotel. If for
any reason the tax due is not paid to the operator of the hotel, the Tax Administrator
may require that such tax be paid directly to the Tax Administrator.
3.14.040 Exemption from Provisions.
No tax shall be imposed upon:
A. Any person as to whom, or any occupancy as to which, it is beyond the
legal power of the City to impose the tax provided for in this chapter; and
B. Any officer or employee of a foreign government, which officer or
employee is exempt by reason of express provision of Federal law or international
treaty.
No exemption shall be granted except upon a claim therefor made at the time the
rent is collected and under penalty of perjury upon a form prescribed by the Tax
Administrator.
3.14.050 Operator's Duties
Each operator shall collect the tax imposed by the provisions of this chapter to
the same extent and at the same time the rent is collected from every transient. The
amount of the tax shall be separately stated from the amount of the rent charged.
No operator of a hotel shall advertise or state in any manner, whether directly or
indirectly, that the tax, or any part thereof, will be assumed or absorbed by the operator,
or that it will not be added to the rent, or that, if added, any part will be refunded except
in the manner provided in this chapter.
3.14.060 Registration
At least thirty (30) days before commencing business, each operator of any hotel
renting an occupancy to transients shall register such hotel with the Tax Administrator
and obtain from him or her a "Transient Occupancy Registration Certificate", which shall
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at all times be posted in a conspicuous place on the premises. Such certificate shall,
among other things, set forth the following information:
A. The name of the operator;
B. The address of the hotel;
C. The date upon which the certificate was issued; and
D. A statement as follows: 'This 'Transient Occupancy Registration
Certificate" signifies that the person named on the face hereof has fulfilled the
requirements of the Uniform Transient Occupancy Tax Law by registering with the Tax
Administrator for the purpose of collecting from transients the Transient Occupancy Tax
and remitting such tax to the Tax Administrator. This certificate shall not authorize any
person to conduct any unlawful business or to conduct any lawful business in an
unlawful manner, nor to operate a hotel without strictly complying with all local
applicable laws, including, but not limited to, those requiring a permit from any board,
commission, department, or office of this City. This certificate shall not constitute a
permit."
3.14.070 Reporting and Remitting.
Each operator shall, on or before the last day of the month following the close of
each calendar quarter, or at the close or any shorter reporting period which may be
established by the Tax Administrator, make a return to the Tax Administrator, on forms
provided by him, of the total rents charged and received and the amount of tax collected
for transient occupancies. At the time the return is filed, the full amount of the tax
collected shall be remitted to the Tax Administrator. The Tax Administrator may
establish shorter reporting periods for any certificate holder if he or she deems it
necessary in order to insure collection of the tax, and he may require further information
in the return. Returns and payments shall be due immediately upon cessation of
business for any reason. All taxes collected by operators pursuant to the provisions of
this chapter shall be held in trust for the account of the City until payment thereof is
made to the Tax Administrator.
Tax returns filed with the City pursuant to this Chapter, and all information
contained therein regarding amounts of gross receipts, adjustments, credits, over
collections, penalties, and interest shall be and shall remain confidential. Provided,
however, that this section shall not apply to any disclosures made in conjunction with
any action or proceeding of any kind relating to determination or collection of tax owed
or any prosecution for violation of this chapter or any related civil or criminal action. Nor
shall this section apply where disclosure is required by a court order or other legal
process involving the enforcement of state or federal law. This section shall not prohibit
disclosure of statistical or cumulative information when the information provided does
not disclose or identify the individual taxpayer.
3.14.080 Penalties and Interest.
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A. Original Delinquency. Any operator who shall fail to report and remit any
f tax imposed by the provisions of this chapter within the time required shall pay a penalty
in the amount of ten percent (10%) of the tax in addition to the amount of the tax.
B. Continued Delinquency. Any operator who shall fail to remit any
delinquent remittance on or before a period of thirty (30) days following the date on
which the remittance first became delinquent shall pay a second delinquency penalty in
the amount of ten (10%) of the tax in addition to the amount of the tax and the ten
percent (10%) penalty first imposed.
C. Fraud. If the Tax Administrator shall determine that the non-payment of
any remittance due pursuant to the provisions of this chapter is due to a fraud, a penalty
in the amount of twenty-five (25%) of the amount of the tax shall be added thereto in
addition to the penalties set forth in subsections (A) and (B) of this section.
D. Interest. In addition to the penalties imposed, any operator who shall fail to
remit any tax imposed by the provisions of this chapter shall pay interest at the rate of
one-half of one percent (.5%) 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 and interest merged with tax. Every penalty imposed and such
interest as accrues pursuant to the provisions of this section shall become a part of the
tax required to be paid by the provisions of this chapter.
3.14.090 Failure to Collect and Report Tax: Determination by Tax Administrator:
Appeals to Tax Administrator.
If any operator shall fail or refuse to collect such tax and to make, with the time
provided in this chapter, any report and remittance of such tax, or any portion thereof,
required by the provisions of this chapter, the Tax Administrator shall proceed in such a
manner as he may deem best to obtain the facts and information on which to base his
estimate of the tax due. As soon as the Tax Administrator shall procure such facts and
information as he or she is able to obtain upon which to base the assessment of any
such tax imposed by the provisions of this chapter and payable by any operator who
has failed or refused to collect the same and to make such report and remittance, the
Tax Administrator shall proceed to determine and assess against such operator the tax,
interest, and penalties provided for by the provisions of this chapter. In the event such
determination is made, the Tax Administrator shall give notice of the amount so
assessed by serving it personally or depositing it in the United States mail, postage
prepaid, addressed to the operator so assessed at his last known place of business.
Such operator may, within ten (10) days after the service or mailing of such
notice, make an application in writing to the Tax Administrator for a hearing on the
amount assessed. If an application by the operator 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
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such an application is made, the Tax Administrator shall give not less than five (5) days
written notice in the manner prescribed in this section to the operator to show cause at a
time and place fixed in such notice why the amount specified therein should not be fixed
for such tax, interest, and penalties. At such hearing, the operator may appear and
offer evidence why such specified tax, interest, and penalties should not be so fixed.
After such hearing, the Tax Administrator shall determine the proper tax to be
remitted and shall thereafter give written notice to the person in the manner prescribed
in this section of such determination and the amount of such tax, interest and penalties.
The amount determined to be due shall be payable after fifteen (15) days unless an
appeal is filed as provided in Section 3.14. 100 of this chapter.
3.14.100 Appeals to Council.
Any operator 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 fifteen (15) days after the service or
mailing of the determination of the 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 last known place of business. The findings of the Council shall be final and
conclusive and shall be served upon the appellant in the manner prescribed in this
chapter for the service of a notice of a hearing. Any amount found to be due shall be
immediately due and payable upon the service of notice.
3.14.110 Records.
It shall be the duty of every operator liable for the collection and payment to the
City of any tax imposed by the provisions of this chapter to keep and preserve, for a
period of three (3) 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.
3.14.120 Refunds.
A. Whenever the amount of any tax, interest, or penalty has been overpaid,
or paid more than once, or erroneously collected or received by the City pursuant to the
provisions of this chapter, such amount may be refunded as provided in subsections (B)
and (C) of this section provided a claim in writing therefor, stating under penalty of
perjury the specific grounds upon which the claim is founded, is filed with the Tax
Administrator within one (1) year after the date of payment. The claim shall be on forms
furnished by the Tax Administrator.
B. An operator may claim a refund or take as credit against taxes collected
and remitted, the amount overpaid, paid more than once, or erroneously or illegally
collected or received, when it is established in a manner prescribed by the Tax
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Administrator that the person from whom the tax has been collected was not a transient;
provided, however, neither a refund nor a credit shall be allowed unless the amount of
the tax so collected has either been refunded to the transient or credited to rent
subsequently payable by the transient to the operator.
C. A transient may obtain a refund of taxes overpaid, paid more than once, or
erroneously or illegally collected or received by the City by filing a claim in the manner
provided in subsection (A) of this section, but only when the tax was paid by the
transient directly to the Tax Administrator, or when the transient, having paid the tax to
the operator, establishes to the satisfaction of the Tax Administrator that the transient
has been unable to obtain a refund from the operator who collected the tax.
D. No refund shall be paid pursuant to the provisions of this section unless
the claimant establishes his right thereto by written records showing entitlement thereto.
3.14.130 Actions to Collect.
A. Any tax required to be paid by any transient pursuant to the provisions of
this chapter shall be deemed debt by the transient to the City. Any such tax collected
by an operator which has not been paid to the City shall be deemed a debt owed by the
operator to the City. Any person owing money to the City pursuant to the provisions of
this chapter shall be liable to an action brought in the name of the City for the recovery
of such amount.
B. All transient occupancy collections by an operator shall be subject to audit
by the Tax Administrator, under conditions determined by the Tax Administrator. A
reasonable per hour fee equal to the City's costs for the audit of transient occupancy
accounts shall be charged to the owner and/or operator of the hotel where unpaid taxes
are discovered as a result of the audit. If the City is the prevailing party in litigation filed
to collect taxes, penalties, and/or interest due under this chapter, the City shall be
entitled to recover reasonable attorney's fees and costs engendered by such litigation
from the owners and/or operator of the hotel. The City Attorney shall be authorized, as
set forth in Government Code Section 37104 et seq. to issue subpoenas which require
the production of records for audit purposes.
3.14.140, Rules and Regulations and Interpretations
The Tax Adrni iistrator may promulgate rules and regulations consistent with the
provisions of this chapter as may be necessary or desirable to aid in the enforcement
and administrafion.df this chapter. Any such rule or regulation that may affect the
amount of the.tax owed the City shall be subject to approval by the City Council. Said
rules and regulations shall be filed in the Office of the Tax Administrator and maintained
in an orderly and readily accessible manner. The burden to secure and comply with the
rules and regulations shall be upon the operator.
3.14.150 Violations of Provisions.
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A. Any person violating any of the provisions of this chapter shall be guilty of
an misdemeanor as provided by 1.12.010 of this Code and shall be liable for costs
incurred by the prosecution of any civil action for any such violation.
B. It shall not be a defense to violations of this chapter that the operator has
forwarded any return due or tax collected to its principal or corporate headquarters, nor
that any failure to file or remit taxes was based on the direction or inaction of such
principal or corporate headquarters.
C. Any person charged with the receipt, safekeeping, transfer, or
disbursement of these public tax funds who fails to remit said taxes when due shall be
subject to the provisions of Penal Code Section 424.
SECTION 2. If any sections, subsections, sentences, phrases, or portions are for
any reason, held to be invalid or unconstitutional by the decision of any Court of
competent jurisdiction, such decision shall not affect the validity of the remaining
portions of their Ordinance. The City Council of the City of Irwindale hereby declares
that it would have adopted this Ordinance and each section, subsection, sentence,
clause, phrase, or portion thereof irrespective of the fact that any one or more sections,
subsections, sentences, clauses, phrases, or portions thereof may be declared invalid
or unconstitutional.
SECTION 3. Effective Date. This Ordinance shall be in full force and effective
immediately upon its passage.
SECTION 4. Posting. The Deputy City Clerk shall certify as to the passage of
this Ordinance and shall cause the same to be posted at the designated locations in the
City of Irwindale.
PASSED, APPROVED AND ADOPTED by the People of the City of Irwindale on
the 3rd day of November 2009.
IWJ. Kimbeo-AWC
Clerk,Deputy City of Irwindale
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