Attachment 2: Redline of TOT Text Amendments
ARTICLE 6. TRANSIENT OCCUPANCY TAX
2-4-601: TITLE AND PURPOSE:
This article shall be known as the BURBANK UNIFORM TRANSIENT OCCUPANCY TAX ORDINANCE.
This article may be referenced as the “Burbank Uniform Transient Occupancy Tax Ordinance”.
The Burbank Uniform Transient Tax Ordinance establishes a transient occupancy tax of up to 12 percent, as last approved by the voters in the April 10, 2007 election . All taxes, interest , and penalties received pursuant to the provisions of this article will be deposited by the Tax Administrator in the City's General Fund and may be utilized for general governmental purposes, as determined by the City Council, through the annual budget adoption process.
2-4-602: DEFINITIONS:
The following words and phrases, wherever used in this article, shall be construed as herein are defined as follows:
DIRECTOR: The City Manager, or the designee or designees of the City Manager.
HOTEL ACCOMMODATIONS: Any room or rooms in any structure, or any portion of a structure, which is occupied or intended or designed for occupancy for dwelling, lodg ing, or sleeping purposes, and includes any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodging house, rooming house, apartment house, dormitory, public or private club, mobile home or house trailer at a fixed location, or other similar structure or portion thereof.. The term "hotel accommodations" does not include an accommodation whichthat a person occupies as histheir domicile and permanent residence.
OCCUPANCY: The use or possession or the right to the use or possession of any hotel accommodations.
OPERATOR: Any person who engages in the proprietorship of a hotel without regard to histheir legal estate in the premises ; the term. “Operator” includes the executor, administrator, assignee , or immediate successor in interest of the proprietor of a hotel.
RENT: The consideration charged, whether or not received, for the occupancy of space in a hotel valued in money, whether to be received in mo ney, goods, labor , or otherwise, including all receipts, cash credits , and property and services of any kind or nature, withoutexcluding any deduction therefrom whatsoeverdeductions.
TAX ADMINISTRATOR: The City Manager, or the designee of the City Manager.
TOT: The transient occupancy tax imposed under this article.
TRANSIENT: Any person who exercises occupancy or is entitled to occupancy of any hotel accommodation by reason of concession, permit, right of access, license, or other agreement. For the purpose of this definition, "transient"Transient" does not include:
A. Any natural person who, by way of an advance monthly payment, is entitled to and actually does occupy a hotel accommodation for a calendar month or, in the alternative, for thirty (30) consecutive calendar days; nor
B. Any natural person who, having occupied a hotel accommodation for a calendar month or, in the alternative, for thirty (30) consecutive calendar days, and after having paid the transient occupancy tax TOT during saidthis period, thereafter continues to occupy said hotel accommodation.
2-4-603: TAX IMPOSED:
A. For the privilege of occupancy of any hotel accommodation, each transient is subject to and shallmust pay a taxTOT in the amount as designated in the Burbank Fee Resolution. This tax shall constituteTOT constitutes a debt owed by the transient to the City which is extinguished only by payment 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 shallTOT must be paid with each installment. The unpaid tax shallTOT will be due upon the transient's ceasing to occupy space in the hotel. If for any reason the taxTOT due is not paid to the operator of the hotel, the DirectorTax Administrator may require that such tax shallTOT be paid directly to the License Division.Financial Services Department.
B. The City Council may adjust the TOT designated in the Burbank Fee Resolution by resolution after a public hearing. Such TOT designated in the Burbank Fee Resolution may not exceed 12 percent, unless otherwise approved by the voters.
2-4-604: EXEMPTIONS:
No tax shallTOT will be imposed upon:
A. Any person as to whom, or any occupancy as to which, it is beyond the power of the City to impose the tax herein providedthis TOT;
B. Any Federal or State officer or employee while on official business only and when payment for such occupancy is made directly to the operator by duly authorized voucher payment from a governmental accounting office;
C. Any officer or employee of a foreign government who is exempt by reason of an express provision of Federal law or international treaty.
No exemption shallmay be granted except upon a claim thereforrequest made at the time rent is collected and made under penalty of perjury upon a form prescribed by the Director.Tax Administrator.
2-4-605: OPERATOR'S DUTIES:
EachAn operator shallmust collect the taxTOT imposed by this article to the same extent and at the same time as the rent is collected from every transient. The amount of tax shallTOT must be separately stated from the amount of the rent charged, and each transient shallwill receive a receipt for payment from the operator. No operator of a hotel shallmay advertise or state in any manner, whether directly or indirectly, that any amount of the tax or any part thereofTOT 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 hereinafteras otherwise provided. in this article.
2-4-606: REGISTRATION:
Within thirty (30) days after hethe operator undertakes the proprietorship of a hotel, every operator renting occupancy to transients shallmust register histhe hotel with the DirectorTax Administrator and obtain from himthe Tax Administrator a "Transient Occupancy Registration Certificate". The certificate issued by the DirectorTax Administrator is personal to each operator and ismay not be transferable from person to person or from place to place.
2-4-607: REGISTRATION CERTIFICATES:
The Transient Occupancy Registration Certificate issued to each registered operator shallmust be posted by himthe operator in a conspicuous place uponon the hotel premises. The certificate shallwill be entitled "Transient Occupancy Registration Certificate" and shallmust state:
A. (1) The name of the registered operator.
B. (2) The name and address of the hotel.
C. (3) The date of issuance of the certificate.
D. (4) The explanationstatement, "This certificate does not constitute a permit. It signifies that the person named hereon has fulfilled the requirements of the Burbank Uniform Transient Occupancy Tax Ordinance by registering with the DirectorTax Administrator for the purpose of collecting and remitting the required transient occupancy taxTOT. This certificate does not authorize any person to operate a hotel without strictly complying with all state and local laws including those requiring a permit from any board, commission, office or department of the City of Burbank"; and
E. (5) The legendstatement:
“THIS CERTIFICATE IS NOT TRANSFERABLE. A new proprietor of this hotel must obtain a new Transient Occupancy Registration Certificate from the DirectorTax Administrator within thirty (30) days. A new proprietor is liable for all accrued and unpaid transient occupancy taxes..”
2-4-608: REPORTING AND REMITTING:
Each operator shallmust, on or before the last day of the month following the close of each calendar quarter, or at the close of any shorter reporting period which may be established by the Director,month make a return to the DirectorTax Administrator, on forms provided by himthe Tax Administrator, of the total rents charged and received and the amount of taxTOT collected for transient occupancies. Returns are due or before the last day of the month following the close of each month. At the time the return is filed, the full amount of the taxTOT collected shallmust be remitted to the Director. He may establish shorter reporting periods for any certificate holder if he deems it necessary in order to ensure collection of the tax and he Tax Administrator . The Tax Administrator may require further information in the return it necessary to ensure collection of the TOT . Returns and payments are due immediately upon cessation of business for any reason. All taxes collected by operators pursuant to this article shallmust be held in trust for the account of 263 the City until payment thereof is made to the DirectorTax Administrator.
Taxes collected subject to this article are delinquent if not received by the Tax Administrator on or before the due date as set forth in the City’s tax remittance form or in any other correspondence from the Tax Administrator. Should the due date occur on a weekend or legal holiday, the return must be received by the Tax Administrator on or before the first regular working day following the weekend or legal holiday. A direct deposit, including electronic fund transfers and other similar methods of electronically exchanging monies between financial accounts, made by an operator in satisfaction of its obligations under this section will be considered timely if the transfer is initiated on or before the due date, and the transfer settles into the City’s account on or before the following business day.
2-4-609: SECURITY DEPOSIT:
Whenever hethe Tax Administrator deems it reasonably necessary to ensure remittance of the transient occupancy taxTOT, the DirectorTax Administrator may require any operator to deposit security for his payment of the taxTOT. The type and amount of security deposit shallwill be determined by the DirectorTax Administrator but shallmay not exceed a sum or value equal to twice the estimated taxTOT payable by the operator for any one calendar quarter. To recover transient occupancy tax TOT, including penalty and interest, remittable by the depositor, the DirectorTax Administrator may apply or sell at public auction the security deposited with him.
Security deposits in the form of bearer bonds issued by the United States of America or by the State may be sold by the DirectorTax Administrator at private sale for the current market price. At least ten (10) days prior tobefore the application or sale of a security deposit, the Director shallTax Administrator may serve upon the depositing operator notice of intent to apply or sell the security deposit. Service of notice may be made by placing the notice in the United States mail, postage prepaid, addressed to the depositing operator at hisoperator’s hotel. Any portion of the proceeds from the sale of security remaining after satisfaction of outstanding transient occupancy taxesTOT, penalty, interest, and costs of sale, may be retained by the DirectorTax Administrator for security or may be paid over by him to the depositing operator.
2-4-610: TRANSFER OF BUSINESS:
A. OPERATOR’S DUTY TO NOTIFY.
Any operator who conveys or quits the hotel business must notify the Tax Administrator in writing of such event, and provide the name and address of the purchaser or transferee, in the event of a sale or transfer, at least 30 days in advance of the conveyance or close of the business. If the decision to convey or quit was made less than 30 days prior to the purchase, transfer , or close of the business, operator must provide written notice immediately.
B. SUCCESSOR'S LIABILITY:
If an operator conveys or quits hisoperator’s hotel business, hisoperator’s assignee or successor in interest shallmay withhold sufficient of the purchase price to cover the accrued or outstanding transient occupancy taxTOT liability of the operator until the operator produces a certificate of the DirectorTax Administra tor stating the nonliability of the operator for payment of transient occupancy taxTOT. If the assignee or successor in interest fails to withhold the amount required to pay the tax liability, he shall becomethe assignee or successor in interest is personally liable for the payment of the amount required to be withheld by himthe assignee or successor in interest.
B.
C. CERTIFICATE OF NONLIABILITY:
Within thirty (30) days from the date of receipt of the application of any operator for a certificate of nonliability for the payment of transient occupancy tax TOT, the Director shall Tax Administrator will issue the certificate if the operator's tax liability has been satisfied to the date of application. If taxTOT has accrued to that date, the Director shallTax Administrator will give notice to the operator of the amount which must be paid as a condition of issuing the certificate.
2-4-611: PENALTIES AND INTEREST; AUDIT DEFICIENCY:
A. ORIGINAL DELINQUENCY:
Any operator who fails to remit any tax imposed by this article TOT within the time required shallmust pay a penalty of ten10 percent (10%) of the amount of the taxTOT in addition to the amount of the taxTOT.
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 shallmust pay a second delinquency penalty of twenty20 percent (20%) of the amount of the taxTOT in addition to the amount of the taxTOT and the ten10 percent (10%) penalty first imposed.
C. FRAUD:
If the DirectorTax Administrator determines that the nonpayment of any remittance due under this article is due to fraud, a penalty of twenty five25 percent (25%) of the amount of the tax shallTOT will be added thereto in addition to the penalties stated in subsections A and B of this section. section.
D. INTEREST:
In addition to the penalties imposed, any operator who fails to remit any taxTOT imposed by this article shallmust pay interest at the rate of two percent (2%) per month or fraction thereof of such rate on the amount of taxTOT from the date on which the remittance first became delinquent until paid.
E. PENALTIES FOR FAILURE TO KEEP AND PRESERVE REQUIRED RECORDS.
If any person subject to record -keeping under this section unreasonably denies the Tax Administrator access to such records, or fails to produce the information requested in an administrative subpoena within the time specified, then the Tax Administrator m ay impose a penalty of $2,000 or five percent of the tax already reported for the audit period, whichever is greater, on such person following: 1) the initial date that the person refuses to provide such access; or 2) the due date for production of records as set forth in the administrative subpoena. This penalty is in addition to any other penalty imposed under this article.
F. AUDIT DEFICIENCY
If, upon audit by the City, an operator is found to be deficient in either its return or its remittance or both, the Tax Administrator may immediately assess the operator the amount of the net deficiency plus all applicable penalties and interest, as specified in Section 2-4-611, on the amount of the net deficiency for each quarter or portion thereof for which said operator's remittance was deficient.
G. PENALTIES MERGED WITH TAX:
Every penalty imposed and such interest as accrues under the provisions of this section shallwill become a part of the tax herein required to be paid.
2-4-612: FAILURE TO COLLECT AND REPORT TAX; DETERMINATION OF TAX :; HEARING:
If any operator shall failfails or refuserefuses to collect said taxthis TOT and to make, within the time provided in this article, any report and remittance of said taxTOT or any portion thereofof TOT required by this article, the Director shallTax Administrator may proceed in such manner as he may deemthe Tax Administrator deems best to obtain facts and information on which to base histhe Tax Administrator’s estimate of the tax due. As soon as the Director shall procureTax Administrator procures such facts and information as he is able to obtain upon which to base the assessment of any tax imposed by this article and payable by any operator who has failed or refused to collect the same and to make such report and remittance, he shall proceed to the Tax Administrator may determine and assess against such operator the tax, interest , and penalties provided for by this arti cle. In case such determination is made, the Director shall Tax Administrator will 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 hisoperator’s last known place of address. Such
If the operator maydesires to challenge the amount assessed, the operator must, within ten (10) days after the serving or mailing of such notice make application in writinga written request to the DirectorTax Administrator for a hearing on the amount assessed. If the application by the operator for a hearing is not made within the time prescribed, the tax, interest , and penalties, if any, determined by the Director shall become Tax Administrator is final and conclusive and immediately due and payable. If such application
If a written request for a hearing is made, the Director shallTax Administrator will give not less than five (5) days' days written notice in the manner prescribed herein according to the notice procedure described above to the operator to show cause at a time and place fixed in saidthe notice why saidthe amount specified thereinin the notice 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 Director shall Tax Administrator may determine the proper tax to be remitted and shall thereafter after will give written notice to the personapplicant in the manner prescribed herein of such determination and the amount of such tax, interest , and penalties. The amount determined to be due shallmust be payablepaid after fifteen (15) days unless an appeal is taken as provided in Title 2, Chapter 1, Article 15 of this code.
2-4-613: RECORDS:
A. Right of Inspection: No reports or statements by an operator shall be conclusive as to the matters set forth in such reports or statements, nor shall the filing of such reports or statements preclude the City from collecting by appropriate action such sum as is actually due and payable under this article. A. RIGHT OF INSPECTION:
The reports or statements of the operator and each of the several items in such reports and statements shall beis subject to audit and verification by the Director, hisTax Administrator, its deputies, or authorized agents of the City, who are hereby authorized to examine, audit, and inspect such books and records of any operator as may be necessary in their judgementjudgment to verify or ascertain the tax due.
B. MAINTENANCE OF RECORDS: It shall be the duty of every Every operator tomust keep and preserve for a period of not less than three (3) years all records as may be necessary to determine the amount of any tax liability pursuant tounder this article, which records the DirectorTax Administrator, or hisits deputies or agents shall have the right to may inspect and copy at all reasonable times upon demand. Each operator within the City is hereby required tomust permit an examination of such books and records for the purposes described in this section and at a location within the City of Burbank. In the event such books and records cannot be made available within the City of Burbank, the operator is hereby required to must reimburse the City for the costs of all transportation, lodging, meals, portal to portal travel time, and other incidental costs reasonably incurred by the City in obtaining saidthe audit.
C. RECORD FORMAT:
Records are tomust be prepared in accordance with established accounting principles and include information to thoroughly support filing claims for gross rent, exemptions, taxable rent, and transient occupancy tax for all occupancies. All hotel information provided to the Tax Administrator, or its representatives will be kept confidential and used for tax review purposes only.
D. CONFIDENTIALITY:
Except as specifically provided in this subsection , the information furnished or secured pursuant tounder this article shallwill be treated as confidential. Any unauthorized disclosure or use of such information by any officer, agent, or employee of the City of Burbank shall constituteismay be a misdemeanor and such officer, agent, or employee shallmay be subject topunished by the penalty provisions of this code, in addition to any other penalties provided by law; provided, however .
However, this section shallsubsection will not apply to any disclosures made in connection with any appeal proceeding pursuant to this article or any civil action relating to the recovery of such taxes, interest, or penalties, or any prosecution of any person for violation of any provisions of this article. The provisions Further, the confidentiality provision of this subsection C shalldoes not include, however, apply to the monthly or annual gross revenues of an operator taxable under this article, or the amount of tax paid by an operator pursuant to under this article ., or any other information required or permitted to be disclosed under applicable federal, state, or local law.
2-4-614: REFUNDS:
A. CLAIM ToMUST BE IN WRITING:
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 article, itsuch amount may be refunded as provided in subsections B and C of this section, providedif the requester files a written claim in writing therefor, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the DirectorTax Administrator within three (3) years of the date of payment. that is subject to refund . The written claim shallmust be on forms furnished by the Director.Tax Administrator.
B. OPERATOR'S REFUND; Options: OPTIONS:
An operator may claim a refund or take as a credit against taxes collected and remitted theany amount overpaid, or paid more than once or erroneously or illegally collected or received, from a person, when it is established in a manner prescribed by the DirectorTax Administrator that the person from whom the tax has been collected was not a transient; provided, however, that neither a. No refund nor a credit shallwill be allowedgiven to operator unless the amount of the tax so collectedoperator has either been already refunded to the non-transient or credited to rent subsequently payable by the transient to the operatorsuch amounts.
C. TRANSIENT REFUND:
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 of this section, but only when the tax was paid by the transient directly to the DirectorTax Administrator, or when the transient having paid the tax to the operator, establishes to the satisfaction of the DirectorTax Administrator that the transient has been unable to obtain a refund from the operator who collected the tax.
D. RECORDS REQUIRED:
No refund shallwill be paid under the provisions of this section unless the claimant establishes his right thereto byshows proof through written records showing entitlement thereto..
2-4-615: ACTIONS TO COLLECT:
Any tax required to be paid by any transient under the provisions of this article shall be deemedis a debt owed by the transient to the City. Any such tax collected by an operator which has not been paid to the City shall be deemed is a debt owed by the operator to the City. Any person owing money to the City under the provisions of this article shall beis liable tounder an action brought in the name of the City for the recovery of such an amount.
2-4-616: FAILURE TO REGISTER OR FILE REPORTS, ETC.::
An operator or otherAny person who failsis guilty of a misdemeanor if that person does any of the following:
A. Fails or refuses to register as required herein,by this article; or B. Fails or refuses to furnish any return required to be made, by this article; or who fails C. Fails or refuses to furnish a supplemental return or other data required by the Director,Tax Administrator; or who renders
D. Renders a false or fraudulent return or claim; or
E. Fails to submit to an examination, audit , and anyinspection of books and records if required under this article; or
A.F. If that person is required to make, render, sign or verify any report or claim who, under this article, and makes any false or fraudulent report or claim with intent to defeat or evade the determination of any amount due required by this article to be made, is guilty of a misdemeanor..
2-4-617: EFFECTIVE DATE:
The tax imposed by this article shall become operative and be imposed on October 1, 1964, and shall not apply prior to said date. 2-4-617: ADDITIONAL POWERS AND DUTIES OF THE TAX ADMINISTRATOR:
The Tax Administrator has the power to enforce this article and may adopt rules and regulations not inconsistent with the provisions of this article to carry out and enforce the payment, collection, and remittance of the TOT. Where uncertainty exists regarding the interpretation of any provision of this article or its application to a specific operator or transient occupant, the Tax Administrator may interpret and determine the intent of the provision.
The Tax Administrator may, with the consent and approval of the City Attorney, enter into written agreements with persons liable for the payment of delinquent taxes, penalties , and interest, in monthly installments, or more often, extending over a period not exceeding 1 year. In any such agreement, such person must acknowledge the obligation owed the City and agree that, if the person fails to make timely payment of any installment, that the whole amount unpaid, principal together with interest is immediately due and payable. The execution of such an agreement will not prevent any accrual of penalties and interest on unpaid balances at the rate provided above .
No penalties or additional interest will accrue on account of taxes included in the agreement after the execution of t he agreement and the payment of the first installment and after if the person complies with the terms of the agreement . The execution of such an agreement may render any subsequent appeal null and void and may constitute a waiver by the operator against future action.
In addition to a ny other authority, the Tax Administrator, upon the concurrence of the City Attorney, may discontinue the collection of any claim.