HomeMy WebLinkAbout05-16 CC Ordinance
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ORDINANCE NO 05.16
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TEMECULA
AMENDING CHAPTER 3.20 OF THE TEMECULA MUNICIPAL CODE
RELATING TO TRANSIENT OCCUPANCY TAX
THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY ORDAIN AS
FOLLOWS:
Section 1. Chapter 3.20 of Title 3 (Revenue and Finance) of the Temecula Municipal
Code is hereby amended and restated to read as follows:
Chapter 3.20
Transient Occupancv Tax
3.20.010 Short Title.
This chapter shall be known at the "Temecula Uniform Transient Occupancy Tax".
3.20.020 Definitions.
Except where the context otherwise requires, the definitions given in this section shall
govern the construction of this chapter.
"Hotel" shall mean any structure, or any portion of any structure, which is occupied or
intended or designed for occupancy by Transients for dwelling, lodging or sleeping
purposes, and includes, but is not limited to, any hotel, inn, tourist home or house, motel
studio hotel, bachelor hotel, lodging house, rooming house, apartment house, rental unit,
dormitory, public or private club, mobilehome or house trailer at a fixed location, or other
similar structure or portion thereof, duplex, triplex, single-family dwelling units except any
private dwelling house or other individually owned single-family dwelling rented only
infrequently and incidental to normal occupancy or any timeshare as set out in California
Revenue and Taxation Code Section 7280; provided that the burden of establishing that
the facility is not a hotel shall be on the owner or Operator thereof.
"Occupancy" shall mean the use or possession or the right to the use or possession, of
any room or rooms or portion thereof, offered for rent for dwelling, lodging or sleeping
purposes.
"Operator" shall mean the person who is 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 or her 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 or her principal. Compliance with the provisions of this chapter by either the
principal or the managing agent shall, however, be considered to be compliance by both.
"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.
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"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 and property and services of any kind or
nature, without any deduction therefrom whatsoever.
"Tax Administrator" shall mean the City Manager of the City of Temecula or the person
designated by the City Manager to act in the City Manager's place.
"Transient" means 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 person 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 obliging the occupant to pay market rate for the
occupancy for a period of at least thirty-one (31) consecutive days. The Tax
Administrator may develop and promulgate standard forms setting for the minimum
substance of such agreements, and may require submission of such forms with the
returns required by Section 3.20.070. In determining whether a person is a Transient,
uninterrupted periods of time extending both prior and subsequent to the effective date
of this ordinance codified in this chapter may be considered.
3.20.030 Rate.
A. For the privilege of occupancy in any hotel, each Transient is subject to
and shall pay a tax in the amount of eight (8) percent of the rent charged by the
Operator. Such tax constitutes a debt owed by the Transient to the city which is
extinguished only by payment to tl1e Operator of the hotel at the same 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's 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 shall be paid directly to the Tax
Administrator.
B. In the event that an agreement exists between the hotel and any person
for occupancy, as defined in this chapter, for a period in excess of thirty (30) days, and in
the event that such person allows occupancy by another person for thirty (30) days or
fewer as subtenant, guest, licensee or permittee, the person who has made the
agreement with the hotel as aforesaid shall be subject to and shall pay the tax provided
for herein.
3.20.040 Exemptions.
No tax shall be imposed upon:
(a) Any officer or employee of thEl United States of America when traveling on official
business.
(b) Any officer or employee of a foreign government who is exempt by reason of
express provision of federal law or international treaty.
No exemption shall be granted except upon a claim in writing made at the time rent is
collected upon a form complying with subsection (e) of Section 7280 of the Revenue and
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Taxation Code. The Tax Administrator may require submission of copies of such forms
with the returns required by Section 3.20.070.
3.20.050
Operator's duties.
Each Operator shall collect the tax imposed by this chapter to the same extent and at
the same time as the rent is collected from every Transient. The amount of tax shall be
separately stated from the amount of rent charged, and each Transient shall receive a
receipt for payment from the Operator. 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 hereinafter provided.
3.20.060
Registration and certificate.
A. Within thirty (30) days after commencing business each Operator of any
hotel shall register with the Tax Administrator. Upon registration, each hotel Operator
shall obtain a Transient occupancy registration certificate to be at all times posted in a
conspicuous place on the premises.
B. Such certificate shall, among other things, state the following:
1. The name of the Operator;
2. The address of the hotel; and
3. The date upon which the certificate was issued.
C. In addition, such certificate shall bear the following text:
"This Transient Occupancy Registration Certificate signifies that the person named on
the face hereof has fulfilled the requirements of the uniform Transient Occupancy Tax 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 does 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 applicable laws, including but not limited to those requiring a permit
from any board, commission, department or office of this City. This certificate does not
constitute a permit."
3.20.070
Reporting and remitting.
Each Operator shall, on or before the last day of the month following the close of each
calendar month or of such different reporting period as may be established by the Tax
Administrator, make a return to the Tax Administrator, on forms provided by the Tax
Administrator, of the total rents charged and received, the amount of tax collected for
Transient occupancies, and such other information as may be reasonably required. 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 either shorter or longer
reporting periods for any individual certificate holder or category of certificate holders if
the Tax Administrator deems it necessary or desirable in order to insure collection of the
tax or to increase the efficiency of its administration. Returns and payments are due
immediately upon cessation of business for any reason. All taxes collected by Operators
pursuant to this chapter shall be held in trust for the account of the city until payment
thereof is made to the Tax Administrator.
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3.20.080
Reporting and remitting upon cessation or transfer of business.
A. An Operator who is transferring, selling, or terminating its business shall
notify the Tax Administrator in writing at least thirty (30) days in advance of the date of
transfer, sale, or termination. If the decision to sell, transfer, or terminate the business is
made fewer than thirty (30) days before the transfer, sale, or termination occurs, the
Operator shall notify the Tax Administrator immediately upon making that decision and in
no event later than the date of transfer, sale, or termination. The Operator shall at the
same time notify in writing any purchaser or transferee of its Hotel of the purchaser's or
transferee's potential responsibility for unpaid collected taxes if any, as set forth in this
Section and in Revenue and Taxation Code Section 7283.5.
B. Upon cessation of business, whether by sale, transfer, termination, an
Operator shall, on or before the same day of the next month following the cessation of
business, or on the last day of that month if no corresponding day exists, make a return
to the Tax Administrator on approved forms of the total taxable rents charged, the
amount of tax collected for the reporting period ending on the cessation date,
remittances made if any, and the balance of the tax due. The balance of tax due if any
shall be remitted to the Tax Administrator at the time the final return is filed. After filing
the final return and remitting the balance due, the Operator shall make its records of
account available for a closeout audit by the Tax Administrator or his or her designee.
Returns filed and taxes remitted and actually received by the Tax Administrator on or
before the same day of the next month following cessation of business, or on the last
day of that month if no corresponding day exits, shall be timely filed and remitted;
otherwise, the taxes are delinquent and subject to the penalties imposed by this chapter.
C. Any person purchasing an ongoing Hotel business may apply to the Tax
Administrator for a tax clearance certificate showing the tax due, if any, from the selling
Operator as of a date specified in the tax clearance certificate request. For purposes of
this Section, successive Hotel businesses conducted without substantial interruption at
the same Hotel shall constitute an ongoing Hotel business.
1. The issuance and effect of such certificates shall be as set forth in
Revenue and Taxation Code Section 7283.5.
2. Before requesting records and conducting the audit permitted by
subdivision (b) of Revenue and Taxation Code Section 7283.5, the Tax Administrator
shall proceed in such manner as he or she may deem best to obtain facts and
information on which to base an estimate of the tax due. The Tax Administrator shall
notify the selling Operator of this estimate when requesting records for audit. If the
selling Operator fails to provide records in response to the request within thirty (30) days
after the serving or mailing of the estimate and record request, the Tax Administrator
may issue a tax certificate in the amount of the estimate.
3. By resolution, the City may set an administrative fee for issuance
of any such certificate.
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3.20.090
Penalties and interest.
A. Original Delinquency. Any Operator who fails to remit any tax imposed by
this chapter within the time required shall pay a penalty of ten (10) percent of the amount
of the tax in addition to the amount of the tax.
B. Continued Delinquency. Any Operator who fails 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 of ten (10)
percent of the amount of the tax in additional to the amount of the tax and the ten (10)
percent penalty first imposed.
C. Fraud. If the Tax Administrator determines that the nonpayment of any
remittance due under this chapter is due to fraud, a penalty of twenty-five (25) percent of
the amount of the tax shall be added thereto in addition to the penalties stated in
subsections A and B of this section.
D. Interest. In additional to the penalties imposed, any Operator who fails to
remit any tax imposed by this chapter shall pay interest at the rate of one-half of one
percent (.5%) per month for each month or portion of a month that the tax shall be
delinquent on the amount of the tax, exclusive of penalties, from the date on which the
tax first became delinquent until paid. The interest shall be computed on a monthly
basis and shall not be subject to proration for any portion of a month.
E. Penalties Merged with Tax. Every penalty imposed and such interest as
accrues under the provisions of this section shall become a part of the tax herein
required to be paid.
F. Collection. In addition to all other remedies the City may have in the
collection of the tax, the City may initiate legal proceedings against the Operator for the
collection of all amounts due to the City pursuant to this Chapter. In such action the City
shall be entitled to receive its reasonable attorney fees and costs of collection from the
Operator.
3.20.100
Failure to collect and report tax.
A. If any Operator shall fail or refuse to collect the tax and to make, within
the time provided in this chapter, any report and remittance of the tax or any portion
thereof required by this chapter, the Tax Administrator shall proceed in such manner as
the Tax Administrator may deem best to obtain facts and information on which to base
an estimate of the tax due.
B. As soon as the Tax Administrator shall procure such facts and information
as the Tax Administrator is able to obtain upon which to base the assessment of any tax
imposed by 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 this chapter. In the event such determination is made, the Tax
Administrator shall give a notice of the amount so assessed by serving it personally or
by depositing it in the United States mail, postage prepaid, addressed to the Operator so
assessed at his last address known to the Tax Administrator.
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C. Such Operator may within ten (10) days after the serving or mailing of
such notice make application in writing to the Tax Administrator for a hearing on the
amount assessed. If application by the 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.
D. If such application is made, the Tax Administrator shall give not less than
five (5) days' written notice in the manner prescribed herein to the Operator to show
cause at a time and place fixed in the notice why the amount specified therein should not
be fixed for such tax, interest and penalties. At such hearing, the 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 herein 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 taken
as provided in Section 3.20.110.
3.20.110
Appeal.
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 City Council by filing
a notice of appeal with the city clerk within fifteen (15) days of the serving or mailing of
the determination of tax due. The City 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
address. The findings of the city council shall be final and conclusive and shall be
served upon the appellant in the manner prescribed above for service of notice of
hearing. Any amount found to be due shall be immediately due and payable upon the
service of notice.
3.20.120
Records and Audits.
A. It shall be the duty of every Operator liable for the collection and payment
to the city of any tax imposed by this chapter to keep and preserve, for a period of four
(4) years, all records as may be necessary to determine the amount of such tax as he
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.
B. Such records shall be made available to the City at Operator's regular
place of business, but in no event outside the County of Riverside.
C. Should any examination or audit of Operator's records reveal an
underpayment of any fee required under this ordinance, the amount of such
underpayment shall become due and payable to the City not later than fifteen (15) days
after written notice of such underpayment is sent to Operator by the City. Should an
underpayment of more than three (3) percent be discovered, Operator shall bear the
entire cost of the audit.
D. All tax returns and information furnished by any Operator pursuant to this
chapter shall be confidential and shall not be open to public inspection nor the specific
contents thereof disclosed by any officer or employee except as necessary in the
performance of official duty pursuant to this chapter, or in the course of any proceeding,
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hearing or litigation involving the existence or amount of the tax liability of such Operator,
or with the written consent of the Operator or his authorized representative.
3.20.130
Refunds.
A. Whenever the amount of any tax, interest or penalty has been overpaid or
paid more than once or has been erroneously or illegally collected or received by the city
under this chapter, it may be refunded as provided in subsections Band C of this
section. No refund shall be issued except upon a claim in writing therefore, stating
under penalty of perjury the specific grounds upon which the claim is founded, filed with
the Tax Administrator within one (1) year of the date of payment. The claim shall be on
forms furnished by the Tax Administrator. Each person seeking a refund must file an
individual claim; no class claims shall be recognized.
B. Claim by Operator. An Operator may claim a refund, or take as credit
against taxes collected and remitted, the amount overpaid, paid more that once, or
erroneously or illegally collected or received when it is established in a manner
prescribed by the Tax Administrator that the person from whom the tax has been
collected was not a Transient; provided, however, that neither a refund nor a credit shall
be allowed unless the amount of the tax so collected has either been refunded to the
Transient or credited to rent subsequently payable by the Transient to the Operator.
C. Claim by Transient. A Transient may obtain a refund of taxes overpaid or
paid more than once or erroneously or illegally collected or received by the city by filing a
claim in the manner provided in subsection A, 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. Evidence. No refund shall be paid under the provisions of this section
unless the claimant establishes his right thereto by written records showing entitlement
thereto.
3.20.140
Tax declared a debt; action to collect.
A. Any tax required to be paid by any Transient under the provisions of this
chapter shall be deemed a debt owned 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 under the
provisions of this chapter shall be liable to an action brought in the name of the city for
the recovering of such amount.
B. Failure of an Operator to collect tax required to be paid by any Transient
shall not excuse the Operator's obligation under this chapter. An Operator must pay to
the city any tax required to be paid by any Transient, whether or not the Operator
collects such tax from that Transient.
C. If any amount required to be paid to the city under this chapter is not paid
when due, the Tax Administrator may, within ten years after the amount is confirmed
according to the procedure set forth in Section 3.20.070 or Section 3.20.080, as
applicable, file for record in the office of the Riverside County recorder a certificate
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specifying the amount of tax, penalties, and interest due; the name and address, as it
appears on the Tax Administrator's records, of the Operator liable for the tax, penalties,
and interest; and the fact that the Tax Administrator has complied with all provisions of
this chapter in the determination of the amount required to be paid. From the time of
filing for record, the amount of the tax, penalties, and interest constitutes a lien upon any
real property in the county owned by the Operator or acquired by the Operator
thereafter. This lien has the force, effect, and priority of a judgment lien and shall
continue for ten years from the time of filing of the certificate, unless sooner released or
otherwise discharged, or unless renewed for subsequent periods in the manner
prescribed by law.
D. The amounts required to be paid by any Operator under this Chapter with
penalties and interest shall be satisfied first in any of the following cases:
1. Whenever the Operator is insolvent;
2. Whenever the Operator makes a voluntary assignment of its
assets;
3. Whenever the estate of the Operator in the hands of executors,
administrators, heirs, or receivers is insufficient to pay all debts;
4. Whenever the estate and effects of an absconding, concealed, or
absent Operator required to pay any amount under this chapter are levied upon by
process of law.
3.20.150
Violations designated misdemeanor.
Any Operator or other person who fails or refuses to register as required in this chapter,
or to furnish any return required to be made, or who fails or refuses to furnish a
supplemental return or other data required by the Tax Administrator, or who renders a
false or fraudulent return or claim, is guilty of a misdemeanor. Any person required to
make, render, sign or verify any report or claim who makes any false or fraudulent report
or claim with intent to defeat or evade the determination of any amount due required by
this chapter, is guilty of a misdemeanor.
Section 2. The City Council of the City of Temecula does find, determine and
declare that:
a. The Ordinance makes administrative changes to the Transient Tax
Ordinance changes required by Chapter 936 of the Statutes of 2004 (AB 1916) which
pertain to the clarification of exemptions required by statutes and case law, collection
procedures, records retention, refund claims and other procedural matters with respect
to the administration of the Transient Tax system.
b. This Ordinance does not change the rate of the tax, the scope of the tax
nor the class of persons subject to the tax.
c. The entire Chapter 3.20, Transient Occupancy Tax, of the Temecula
Municipal Code has been amended and restated by this Ordinance for the convenience
of the Operators and the Tax Administrators in implementing the changes to Chapter
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3.20 and incorporating the renumbering of the added sections. Except for the changes
to the previous version of Chapter 3.20, this Ordinance is declarative of existing law and
the rights and obligations established under the prior version shall continue unless
altered by the applicable changes set forth in this Ordinance.
Section 3. If any section, subsection, sentence, clause, phrase or portion of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of a court
of competent jurisdiction, such decision shall not affect the validity of the remaining
portions of the Ordinance. The City Council hereby declares that it would have adopted
this Ordinance, and each section, subsection, sentence, clause, phrase, or portion
thereof, irrespective of the fact that anyone or more sections, subsections, sentences,
clauses, phrases or portions be declared invalid or unconstitutional.
Section 4. The City Clerk shall certify to the passage and adoption of this ordinance
and shall cause same to be published as required by law.
PASSED, APPROVED, AND ADOPTED by the City Council of the City of Temecula this
13th day of December, 2005.
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Jeff Comerchero, Mayor
ATTEST:
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[SEAL]
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STATE OF CALIFORNIA
COUNTY OF RIVERSIDE
CITY OF TEMECULA
)
) ss
)
I, Susan W. Jones, MMC, City Clerk of the City of Temecula, do hereby certify that the
foregoing Ordinance No. 05-16 was duly introduced and placed upon its first reading at a meeting
of the City Council of the City of Temecula on the 22nd day of November, 2005 and that thereafter,
said Ordinance was duly adopted by the City Council of the City of Temecula at a meeting thereof
held on the 13th day of December, 2005 by the following vote:
AYES: 5 COUNCIL MEMBERS:
NOES: 0 COUNCIL MEMBERS:
ABSENT: 0 COUNCIL MEMBERS:
ABSTAIN: 0 COUNCIL MEMBERS:
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Edwards, Naggar, Roberts, Washington,
Comerchero
None
None
None
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Su an W. Jones, MMC
City Clerk