Attachment 1
1 ORDINANCE NO.________
AN ORDINANCE OF THE COUNCIL OF THE CITY OF
BURBANK AMENDING AND RESTATING ARTICLES 2-4-6
(TRANSIENT OCCUPANCY TAX) AND 2 -4-19 (TRANSIENT
PARKING TAX) OF TH E BURBANK MUNICIPAL CODE TO
REVISE PENALTIES FOR FAILURE TO COMPLY WITH AUDIT
REQUESTS, CLARIFY TAX ADMINISTRATOR POWERS AND
OTHER CLARIFYING AMENDMENTS
City Attorney’s Synopsis
This ordinance will not change any existing transient occupancy or transient parking tax rates previously approved by the voters. Instead, t his ordinance amends the Burbank Municipal Code’s (“BMC”) existing transient occupancy tax and transient parking tax provisions so it more clearly restates existing regulations and procedures involving tax collection, expenditure, notice, penalties, and enforcement, including the powers and duties of the tax administrator.
THE COUNCIL OF THE CITY OF BURBANK FINDS AS FOLLOWS:
A. In 1964, the City adopted its transient occupancy tax (“TOT”). The TOT was last submitted to the voters on April 10, 2007, and the voters approved a TOT of up to 12 percent. (See Ordinance No. 3710.) The City’s TOT regulations are located in Article 2-4-6 of the BMC, and have not been updated since 2012
B. In 1995, the City adopted its transient parking tax (“TPT”). The TPT was last submitted to the voters on April 8, 2003, and the voters approved a TPT of up to 12 percent. (See Ordinance No. 3 772.) The City’s T PT regulations are located in Article 2- 4-19 of the BMC, and have not been updated since 2009.
C. The City desires to streamline the TOT and TPT regulations by adding clarifications consistent with the existing laws , voter approvals, and current practices. This version will also restate existing provisions using plain language concepts. This ordinance will not affect nor change any existing TOT or TPT rates that were previously approved by the voters.
THE COUNCIL OF THE CITY OF BURBANK DOES ORDAIN AS FOLLOWS:
Section 1. Environmental Review . The City Council exercises its independent judgment and finds that this ordinance is not subject to California Environmental Quality Act (CEQA) pursuant the State CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, Sections: 15060(c)(2), because the ordinance will not result in a direct or reasonably foreseeable indirect physical change in the environment; 15061(b)(3), because the ordinance is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment; and 153 78(b)(4), because governmental fiscal and administrative activities that is not committed to any project, are not considered projects under CEQA . Therefore, the adoption of this ordinance is exempt from CEQA and no further environmental review is necessary.
2 Section 2. Amendment and Restatement of Article 2 -4-6 (TOT). BMC Title 2 , Chapter 4, Article 6, is amended and restated as set forth in the attached Exhibit A.
Section 3. Amendment and Restatement of Article 2- 4-19 (TPT). BMC Title 2, Chapter 4, Article 19, is amended and restated as set forth in the attached Exhibit B.
Section 4. Codification. The City Manager or their designee is authorized to execute any action necessary to codify these amendments into the BMC.
Section 5. Severability. If any provision of this ordinance or its application is held invalid by a court of competent jurisdiction, such invalidity will not affect other provisions, sections, or applications of the ordinance which can be given effect without the invalid provision or application, and to this end each phrase, section, sentence, or word is declared to be severable.
Section 6. Effective Date. This ordinance is effective at 12:01 a.m. on the 31st day after the date of adoption.
Section 7. Publication. The City Clerk will certify to the passage of this ordinance and cause the City Attorney Synopsis of this ordinance to be published once in a newspaper of general circulation within 14 days of adoption, that is published and circulated in the City of Burbank, California.
PASSED AND ADOPTED this ____ day of ________, 2022.
__________________________
Jess A. Talamantes
Mayor
Attest: Approved as to Form:
Office of the City Attorney
____________________________ By: _______________________ Zizette Mullins, MMC, City Clerk Kane Thuyen
Senior Assistant City Attorney
3 STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) ss.
CITY OF BURBANK )
I, Zizette Mullins, MMC, City Clerk of the City of Burbank, do hereby certify that the foregoing Ordinance No. ___________ was duly and regularly passed and adopted by the Council of the City of Burbank at its regular meeting held on the ____ day of ______, 2022, by the following vote:
AYES:
NOES:
ABSENT:
I further certify that said Synopsis was published as required by law in a newspaper of general circulation in the City of Burbank, Californi a on the ____ day of ___________, 2022.
____________________________
Zizette Mullins, MMC, City Clerk
4 ARTICLE 6. TRANSIENT OCCUPANCY TAX
2-4-601: TITLE AND PURPOSE:
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. All taxes, interest, and penalties received pursuant to the provisions of this artic le 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 in this article are defined as follows:
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, lodging, 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. The term "hotel accommodations" does not include an accommodation that a person occupies as their 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 their legal estate in the premises . “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 money, goods, labor, or otherwise, including all receipts, cash credits , and property and services of any kind or nature, excluding any deductions.
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. "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 alternati ve, for 30 consecutive calendar days; nor
B. Any natural person who, having occupied a hotel accommodation for a calendar month or, in the alternative, for 30 consecutive calendar days, and after having paid the TOT during this period, continues to occupy said hotel accommodation.
EXHIBIT A
5 2-4-603: TAX IMPOSED:
A. For the privilege of occupancy of any hotel accommodation, each transient is subject to and must pay a TOT in the amount as designated in the Burbank Fee Resolution. This TOT 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 TOT must be paid with each installment. The unpaid TOT will be due upon the transient's ceasing to occupy space in the hotel. If the TOT due is not paid to the operator of the hotel, the Tax Administrator may require that such TOT be paid directly to the 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 TOT 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 this 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 may be granted except upon a request made at the time rent is collected and made under penalty of perjury upon a form prescribed by the Tax Administrator.
2-4-605: OPERATOR'S DUTIES:
An operator must collect the TOT imposed by this article to the same extent and at the same time as the rent is collected from every transient. The amount of TOT must be separately stated from the amount of the rent charged, and each transient will receive a receipt for payment from the operator. No operator of a hotel may advertise or state in any manner, whether directly or indirectly, that any amount of the TOT 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 as otherwise provided in this article.
2-4-606: REGISTRATION:
Within 30 days after the operator undertakes the proprietorship of a hotel, every operator renting occupancy to transients must register the hotel with Tax Administrator and obtain from the Tax Administrator a "Transient Occupancy Registration Certificate". The certificate issued by the Tax Administrator is personal to each operator and may not be transferable from person to person or from place to place.
6 2-4-607: REGISTRATION CERTIFICATES:
The Transient Occupancy Registration Certificate issued to each registered operator must be posted by the operator in a conspicuous place on the hotel premises. The certificate will be entitled "Transient Occupancy Registration Certificate" and must state:
(1) The name of the registered operator.
(2) The name and address of the hotel.
(3) The date of issuance of the certificate.
(4) The statement, "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 Tax Administrator for the purpose of collecting and remitting the required TOT. 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 (5) The statement:
“THIS CERTIFICATE IS NOT TRANSFERABLE. A new proprietor of this hotel must obtain a new Transient Occupancy Registration Certificate from the Tax 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 must, on or before the last day of the month following the close of each month make a return to the Tax Administrator , on forms provided by the Tax Administrator , of the total rents charged and received and the amount of TOT 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 TOT collected must be remitted to the Tax Administrator. The Tax Administrator may require further information in the return if 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 must be held in trust for the account of the City until payment is made to the Tax 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 their 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 the Tax Administrator deems it reasonably necessary to ensure remittance of the TOT, the Tax Administrator may require any operator to deposit security for their payment of the TOT. The type and amount of security deposit will be determined by the Tax Administrator but may not exceed a sum or value equal to twice the estimated TOT payable by the operator for any one calendar quarter. To recover TOT , including penalty and interest, remittable by 7 the depositor, the Tax Administrator may apply or sell at public auction the security deposited with them. Security deposits in the form of bearer bonds issued by the United States of America or by the State may be sold by the Tax Administrator at private sale for the current market price. At least 10 days before the application or sale of a security deposit, the Tax 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 operator’s hotel. Any portion of the proceeds from the sale of sec urity remaining after satisfaction of outstanding TOT , penalty, interest, and costs of sale, may be retained by the Tax Administrator for security or may be paid 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 conveyanc e 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 operator’s hotel business, operator’s assignee or successor in interest may withhold sufficient of the purchase price to cover the accrued or outstanding TOT liability of the operator until the operator produces a certificate of the Tax Administrator stating the nonliability of the operator for payment of TOT. If the assignee or successor in interest fails to withhold the amount required to pay the tax liability, the assignee or successor in interest is personally liable for the payment of the amount r equired to be withheld by the assignee or successor in interest.
C. CERTIFICATE OF NONLIABILITY:
Within 30 days from the date of receipt of the application of any operator for a certificate of nonliability for the payment of TOT, the Tax Administrator w ill issue the certificate if the operator's tax liability has been satisfied to the date of application. If TOT has accrued to that date, the Tax 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 TOT within the time required must pay a penalty of 10 percent of the amount of the TOT in addition to the amount of the TOT.
B. CONTINUED DELINQUENCY:
Any operator who fails to remit any delinquent remittance on or before a period of 30 days following the date on which the remittance first became delinquent must pay a second delinquency penalty of 20 percent of the amount of the TOT in addition to the amount of the TOT and the 10 percent penalty first imposed.
C. FRAUD:
8 If the Tax Administrator determines that the nonpayment of any remittance due under this article is due to fraud, a penalty of 25 percent of the amount of the TOT will be added in addition to the penalties stated in subsections A and B of this section.
D. INTEREST:
In addition to the penalties imposed, any operator who fails to remit any TOT imposed by this article must pay interest at the rate of two percent per month or fraction t hereof of such rate on the amount of TOT 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 deni es 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 may 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 their return or their 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 will become a part of the tax required to be paid.
2-4-612: FAILURE TO COLLECT AND REPORT TAX; DETERMINATION OF TAX; HEARING:
If any operator fails or refuses to collect this TOT and to make, within the time provided in this article, any report and remittance of TOT or any portion of TOT required by this article, the Tax Administrator may proceed in such manner as the Tax Administrator deems best to obtain facts and information on which to base the Tax Administrator’s estimate of the tax due. As soon as the Tax Administrator procures such facts and information 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, the Tax Administrator may determine and assess against such operator the tax, interest, and penalties provided for by this article. In case such determination is made, the Tax Administrator will give 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 operator’s last known place of address.
If the operator desires to challenge the amount assessed, the operator must, within 10 days after the serving or mailing of such notice make a written request to the Tax Administrator for a hearing on the amount assessed. If the application by the operator for a hearing is not made 9 within the time prescribed, the tax, interest , and penalties, if any, determined by the Tax Administrator is final and conclusive and immediately due and payable.
If a written request for a hearing is made, the Tax Administrator will give not less than f ive days written notice according to the notice procedure described above to the operator to show cause at a time and place fixed in the notice why the amount specified in 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 Tax Administrator may determine the proper tax to be remitted and after will give written notice to the applicant in the manner prescribed herein of such determination and the amount of such tax, interest , and penalties. The amount determined to be due must be paid after 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:
The reports or statements of the operator and each of the several items in such reports and statements is subject to audit and verification by the Tax Administrator, their deputies, or authorized agents of the City, who are authorized to examine, audit, and inspect such books and records of any operator as may be necessary in their judgment to verify or ascertain the tax due.
B. MAINTENANCE OF RECORDS:
Every operator must keep and preserve for a period of not less than three years all records as may be n ecessary to determine the amount of any tax liability under this article, which records the Tax Administrator, or their deputies or agents may inspect and copy at all reasonable times upon demand. Each operator within the City must 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 must reimburse the City for the costs of all transportation, lodging, meals, travel time, and other incidental costs reasonably incurred by the City in obtaining the audit.
C. RECORD FORMAT:
Records must 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.
D. CONFIDENTIALITY:
Except as specifically provided in this subsection, the information furnished or secured under this article will be treated as confidential. Any unauthorized disclosure or use of such information by any officer, agent, or employee of the City of Burbank may be a misdemeanor and such officer, agent, or employee may be punished by the penalty provisions of this code, in addition to any other penalties provided by law. However, this subsection 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. Further, the confidentiality provision of this subsection does not apply to the monthly or annual gross revenues of an operator 10 taxable under this article, the amount of tax paid by an operator 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 MUST 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, such amount may be refunded as provided in subsections B and C of this section, if the requester files a written claim, stating under penalty of perjury the specific grounds upon which the claim is founded, with the Tax Administrator within three years of the date of payment that is subject to refund. The written claim must be on forms furnished by the Tax Administrator.
B. OPERATOR'S REFUND; OPTIONS:
An operator may claim a refund or take as a credit against taxes collected and remitted any 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 Tax Administrator that the person from whom the tax has been collected was not a transient . No refund nor credit will be given to operator unless operator has already refunded to the non-transient or credited to rent such 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 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. RECORDS REQUIRED:
No refund will be paid unless the claimant shows proof through written records.
2-4-615: ACTIONS TO COLLECT:
Any tax required to be paid by any transient under the provisions of this article is a debt owed by the transient to the City. Any such tax collected by an operator which has not been paid to the City is a debt owed by the operator to the City. Any person owing money to the City under the provisions of this article is liable under 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:
Any person is guilty of a misdemeanor if that person does any of the following:
A. Fails or refuses to register as required by this article; or B. Fails or refuses to furnish any return required to be made by this article; or C. Fails or refuses to furnish a supplemental return or other data required by the Tax Administrator; or
D. Renders a false or fraudulent return or claim; or
11 E. Fails to submit to an examination, audit , and inspection of books and records if required under this article; or
F. If that person is required to make, render, sign or verify any report or claim , under this article, and makes any false or fraudulent report or claim with intent to defeat or evade the determination of any amount required by this article.
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 the 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 any other authority, the Tax Administrator, upon the concurrence of the City Attorney, may discontinue the collection of any claim.
12 ARTICLE 19. TRANSIENT PARKING TAX
2-4-1901: TITLE AND PURPOSE:
This article may be referenced as the “Transient Parking Tax Ordinance”. The Transient Parking Tax Ordinance establishes a transient parking tax of up to 12 percent, as last approved by the voters. 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.
2-4-1902: DEFINITIONS:
The following words and phrases in this article are defined as follows:
MEDICAL FACILITY: A building or buildings where at least 90 percent of the total occupied space in each building is occupied by tenants who provide medical, dental, psychological, pharmacy, medical laboratory, and/or other similar health care services to humans.
MOTOR VEHICLE: Every self-propelled vehicle operated or suitable for operation on the highway.
OCCUPANCY: The use or possession or the right to the use or possession of any space for the parking of a motor vehicle in a parking facility.
OPERATOR: Any person who operates a parking facility, whether in the capacity of owner, lessee, mortgagee in possession, licensee, valet, or other service supplier or any other capacity. When the operator performs operator’s functions through a managing agent of any type or character other than an employee, the managing agent will also be deemed an operator for purposes of this article and will have the same duties and liabilities as the principal. When the managing agent collects parking fees and tax on behalf of the principal and deposits the same into the principal's account in a financial institution, such principal is responsible for reporting and remitting the tax to the City. The managing agent must provide the Tax Administrator with the name and address of each principal who will be responsible for reporting and remitting the tax to the City. Compliance with the provisions of this article by either the principal or the managing agent constitutes compliance by both. A person who qualifies as an operator may not, by reason of being exempt from the tax imposed in this article, be exempt from the duties and liabilities of an operator imposed under this article.
PARKING FACILITY: Any outdoor space or uncovered plot, place, street, lot, parcel, yard or enclosure, any building or structure, or any portion of such, where or in which a motor vehicle may be parked, stored, housed or kept, for which any charge is made.
PARKING FEE: The consideration charged, whether or not received, for the occupancy or use of space in a parking facility valued in money, whether 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. The parking fee must include the total charges required to be paid by a transient occupant, including, but not limited to, any valet or service labor charge in connection with the use or occupancy of parking space on public or private
EXHIBIT B
13 property. The parking fee will not be charged to the transient occupant of space in a parking facility for the sale of petroleum products, automobile parts, or other tangible personal property, the rendering of services, including car wash services, totally unconnected with the use or occupancy of parking space, or where parking space is provided to the transient occupant as a compliment from the operator and where no consideration is charged to or received from any other person.
PARKING METER: Any device which, when the recording device is set in motion, or immediately following the remittance of any payment, registers the period of time that any motor vehicle may be parked in the space assigned.
PERSON: Any natural person, partnership, joint venture, joint stock company, corporation, estate, trust, business trust, receiver, administrator, executor, assignee, trustee in bankruptcy, firm, company, association, club, syndicate, society, public agency, municipal corporation, joint powers agency, special district, the State of California, political subdivision of the State of California, the United States, instrumentality of the United States, or any group or combination acting as a unit, whether mutual, cooperative, fraternal, nonprofit or otherwise.
TAX ADMINISTRATOR: The City Manager, or the designee or designees of the City Manager.
TPT: The transient parking tax imposed under this article.
TRANSIENT OCCUPANT: A person who, for a consideration, uses, possesses, or has the right to use or possess any space for the parking of a motor vehicle in a parking facility under any lease, concession, permit, right of access, license to use or other agreement or otherwise, whether voluntarily or involuntarily. Transient occupant includes any person required to pay any valet or service labor charge in connection with the parking of motor vehicles on public or private property. Transient occupant also includes any person required to pay a charge for the occupancy of a parking space by another person by means of validation or otherwise unless the person paying for the parking space pays in advance and the natural person occupying the parking space is entitled to occupy the parking space for a calendar month or longer period, in which case, neither the person paying the parking fee nor the natural person occupying the parking space. Transient occupant does not include a person who, by way of advance payment, is entitled to occupy a parking space for a calendar month or longer period.
2-4-1903: TAX IMPOSED:
A. For the privilege of occupying space in any parking facility in the City of Burbank, each transient occupant is subject to and must pay a tax, or TPT, in the amount as designated in the Burbank Fee Resolution. The TPT must be paid upon any occupancy by a transient occupant on and after February 1, 1996, although such occupancy may be pursuant to a contract, lease or other arrangement made prior to such date. The TPT constitutes a debt owed by the transient occupant to the City, which is extinguished by payment to the operator or the City.
B. The City Council may adjust the TPT designated in the Burbank Fee Resolution by resolution after a public hearing. Such TPT designated in the Burbank Fee Resolution 14 may not exceed 12 percent, unless otherwise approved by the voters.
2-4-1904: TRANSIENT OCCUPANT TO PAY TAX TO THE OPERATOR:
Unless prohibited by the laws of the United States or the State of California or exempted by the provisions of this article, every transient occupant occupying a parking space in a parking facility must pay TPT to the operator along with the parking fee for occupancy. If the parking fee is paid in installments, or if an amount paid is less than the full amount of the parking fee and TPT accrued at the time of payment, a proportionate share of the TPT will be deemed to have been paid with each such payment or installment. Any unpaid TPT is due upon the transient occupant's ceasing to occupy parking space in the parking facility. If for any reason the TPT is not paid to the operator, the Tax Administrator may require that such TPT be paid directly to the City. Payment of the TPT to the operator does not relieve the transient occupant of liability for the TPT to the City until the TPT has been remitted to the City by the operator unless the transient occupant has a receipt for the parking fee and TPT issued by the operator.
2-4-1905: OPERATOR'S DUTIES:
An operator must collect the TPT to the same extent and at the same time as the parking fee is collected from every transient occupant. In all cases in which the TPT is not collected by the operator from the transient occupant, the operator will be liable to the City for the amount of TPT due on the amount of the taxable parking fee collected from the transient occupant under the provisions of this article the same as though the TPT were paid by the transient occupant. The amount of TPT must be separately stated from the amount of the parking fee charged, and each transient occupant, upon demand, must be given a receipt for payment. No operator may advertise or hold out or state in any manner, directly or indirectly, that the TPT or any portion will be assumed or absorbed by the operator or that it will not be added to the parking fee for the parking space, or that, if added, it or any portion will be refunded.
2-4-1906: EXEMPTIONS:
No tax 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 TPT.
B. The parking fee for any occupancy of a parking space in a parking facility owned and operated by the City for public parking. This subsection does not exempt a City-owned parking facility that is leased to or operated by private parties.
C. The parking fee for any occupancy of a parking space in a parking facility that is part of a hospital.
D. The parking fee for any occupancy of a parking space in a parking facility that is part of a medical facility provided: 1) the parking facility exclusively serves such medical facility and 2) the medical facility has been certified by the Tax Administrator as a medical facility. “Transient Parking Medical Facility Exemption Certificates” may be issued according to the guidelines established by the Tax Administrator.
15 E. The impound and/or storage fees charged by a tow operation within the City of Burbank, duly licensed and permitted pursuant to the provisions of Title 3, Chapter 4, Article 5 of this code.
2-4-1907: REGISTRATION:
A. TRANSIENT PARKING FACILITY REGISTRATION.
1. Within 30 days after commencing business, any operator of any parking facility must register each parking facility with the Tax Administrator by completing and submitting a City of Burbank Transient Parking Tax application. The Tax Administrator will review the application and if the application is complete, may issue the operator a "Transient Parking Registration Certificate". Each certificate issued by the Tax Administrator is personal to each operator and may not be transferable from person to person or from place to place.
2. Each operator of any parking facility must re-register each parking facility with the Tax Administrator 30 days before each fiscal year, the start of the fiscal year being July 1
st.
B. TRANSIENT PARKING MEDICAL FACILITY EXEMPTION REGISTRATION.
1. Within 30 days after commencing business, any operator of any parking facility seeking the medical facility exemption may register each parking facility with the Tax Administrator by completing and submitting a City of Burbank Transient Parking Tax Medical Facility Exemption application. The Tax Administrator will review the application and if the application is complete, may issue the operator a “Transient Parking Medical Facility Exemption Certificate”, in accordance with Section 2-4- 1906. Each certificate issued by the Tax Administrator is personal to each operator and may not be transferable from person to person or from place to place.
2. Each operator of any parking facility must re-register each parking facility with the Tax Administrator 30 days prior to the beginning of each fiscal year, the start of the fiscal year being July 1
st of each year.
2-4-1908: REGISTRATION CERTIFICATES:
A. TRANSIENT PARKING REGISTRATION CERTIFICATE.
The Transient Parking Registration Certificate issued to each registered operator must be posted in a conspicuous place upon the parking facility premises. Notwithstanding the foregoing, the certificate for any unattended parking facility may be maintained at any other business location of the operator within the City of Burbank. Each certificate will expire on the 30
th of June following the date of issuance. The certificate will be entitled "Transient Parking Registration Certificate" and must state:
(1) The name of the registered operator;
(2) The name and address of the parking facility;
(3) The date of issuance of the certificate;
(4) The date of expiration of the certificate;
(5) The statement: "This certificate does not constitute a permit; it signifies 16 that the named person has fulfilled the requirements of the Burbank Transient Parking Tax Ordinance by registering with the Tax Administrator for the purpose of collecting and remitting the required transient parking tax. This certificate does not authorize any person to operate a parking facility 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
(6) The statement: “THIS CERTIFICATE IS NOT TRANSFERABLE”. A new proprietor of this parking facility must obtain a new Transient Parking Registration Certificate from the City of Burbank within 30 days of assuming ownership. A new proprietor is liable for all accrued and unpaid transient parking taxes, including all applicable interest and penalties.
B. TRANSIENT PARKING MEDICAL FACILITY EXEMPTION CERTIFICATE.
The Transient Parking Medical Facility Exemption Certificate issued to each registered operator must be posted in a conspicuous place upon the parking facility premises. Notwithstanding the foregoing, the certificate for any unattended parking facility may be maintained at any other business location of the operator within the City of Burbank.
Each certificate will expire on the 30th of June following the date of issuance. The certificate will be entitled “Transient Parking Medical Facility Exemption Certificate” and must state:
(1) The name of the exempted operator;
(2) The name and address of the parking facility;
(3) The date of issuance of the certificate;
(4) The date of expiration of the certificate;
(5) The statement, “This certificate does not constitute a permit, it signifies that the named facility has met all guidelines as established by the Tax Administrator in accordance with Burbank Municipal Code Section 2-4-1906 and is hereby certified as a Medical Facility as defined in Burbank Municipal Code Section 2-4-1902”. This certificate does not authorize any person to operate a parking facility 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 (6) The statement, “THIS CERTIFICATE IS NOT TRANSFERABLE. A new proprietor of this parking facility must obtain a new Transient Parking Medical Exemption Certificate from the City of Burbank within 30 days of assuming ownership.”
2-4-1909: REPORTING AND REMITTING:
Each operator must report and remit, on or before the last day of the month following the close of each calendar quarter to the Tax Administrator, on forms provided by the Tax Administrator, the total parking fees charged and received, and the amount of tax collected for transient parking occupancies. At the time the return is filed, the full amount of the tax collected, and tax not collected but required to be collected, must be remitted to the Tax Administrator. The Tax Administrator may establish shorter reporting periods for any certificate holder to ensure collection of the tax and may also require further information in the return. Returns and payments are due immediately upon cessation of business for any reason. All taxes collected by operators pursuant to this article must be held in trust for the City until its payment is made to the Tax 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 tax remittance form or in any other 17 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 their 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.
2-4-1910: SECURITY DEPOSIT:
The Tax Administrator may require an operator to deposit security for the payment of the TPT. The type and amount of security deposit may be set by the Tax Administrator but may not exceed a sum or value equal to twice the estimated TPT payable by the operator for any one calendar quarter. To recover TPT, including penalty and interest, remittable by the depositor, the Tax Administrator may apply or sell at public auction the security deposited with the Tax Administrator.
2-4-1911: TRANSFER OF BUSINESS:
A. OPERATOR’S DUTY TO NOTIFY.
An operator who conveys or quits the parking facility 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 before the purchase, transfer, or close of the business, written notice must be provided immediately.
B. SUCCESSOR’S LIABILITY.
If an operator conveys or quits the parking facility business, the operator's assignee or successor in interest must withhold sufficient funds from the purchase price to cover the accrued or outstanding transient parking tax liability of the operator, until such time as the operator produces a Certificate of Non-Liability from the Tax Administrator for payment of transient parking tax. If the assignee or successor in interest knowingly fails to withhold the amount required to pay the tax liability, the assignee or successor in interest is jointly and severally liable with the operator for the payment of any amount required to be withheld by the assignee or successor in interest.
C. CERTIFICATE OF NON-LIABILITY.
Within 30 days from the date of receipt of the application of any operator for a Certificate of Non-Liability for the payment of transient parking tax, the Tax Administrator will issue the certificate if the operator's tax liability has been satisfied to the date of application. If tax has accrued to that date, the Tax Administrator will give notice to the operator of the amount which must be paid as a condition of issuing the certificate.
2-4-1912: PENALTIES AND INTEREST; AUDIT DEFICIENCY:
A. ORIGINAL DELINQUENCY.
Any TPT required to be collected by an operator that is not remitted to the Tax Administrator before the due dates specified in Section 2-4-1909 of this article is delinquent. Any operator who fails to remit any TPT imposed by this article within the time required must pay a 18 penalty of 10 percent of the amount of the TPT due in addition to the amount of the TPT.
B. CONTINUED DELINQUENCY.
If the tax due or any portion thereof is not remitted to the Tax Administrator within 30 days after the due date, the operator must pay a second delinquency penalty of 20 percent of the amount of the TPT due in addition to the amount of the TPT and the 10 percent penalty first imposed.
C. FRAUD.
If the Tax Administrator determines that the nonpayment of tax or portion of any tax due under this article is due to fraud or intentional disregard of this article, a penalty of 25 percent of the amount of the TPT due will be added in addition to the penalties stated in subsections A and B of this section.
D. INTEREST.
In addition to the penalties imposed, any operator who fails to remit any TPT required to be collected by this article must pay interest, compounded monthly, at the rate of one percent per month, or fraction thereof, on the amount of tax due from the date on which the tax first became delinquent until the date the tax is 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 may impose a penalty of $1,000 or 10 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 their return or their remittance or both, the Tax Administrator may immediately assess the operator the amount of the net deficiency plus all applicable penalties and interest on the amount of the net deficiency for each calendar quarter or portion of operator's remittance that was deficient.
G. PENALTIES MERGED WITH TAX.
Every penalty imposed and such interest as accrues under the provisions of this section will become a part of the tax required to be paid.
2-4-1913: FAILURE TO COLLECT, REMIT AND/OR REPORT TAX; DETERMINATION OF TAX; HEARING:
If any operator fails or refuses to collect this transient parking tax or to make, within the time provided in this article, any report and remittance of said tax or any portion thereof required by this article, the Tax Administrator may proceed in such manner as the Tax Administrator deems best to obtain facts and information on which to estimate the tax due, including the use of an accounting, auditing or consulting firm. In case such determination is made, the Tax Administrator will give notice of the amount so assessed by serving the notice personally or by depositing the notice in the United States mail, postage prepaid, addressed 19 to the operator so assessed at the operator's last known address.
If the operator desires to challenge the amount assessed, the operator must, within 10 days after the serving or mailing of such notice, make a written request to the Tax Administrator for a hearing on the amount assessed. If a written request by the operator for a hearing is not made within the time prescribed, the tax, interest, and penalties, if any, will become final and conclusive and immediately due and payable.
If a written request for a hearing is made, the Tax Administrator will give not less than five days written notice according to the notice procedure described above to the operator to show cause at a time and place fixed in the said notice why said 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 may determine the proper tax to be remitted and after will give written notice to the person according to the notice procedure described above of such determination and the amount of such tax, interest, and penalties. The amount determined to be due must be paid within 15 days after the Tax Administrator's decision unless an appeal is taken as provided in Title 2, Chapter 2, Article 15 of this Code.
2-4-1914: RECORDS:
A. RIGHT OF INSPECTION.
The reports or statements of the operator and each of the several items in such reports and statements is subject to audit and verification by the Tax Administrator, their deputies, or authorized agents of the City, who are authorized to examine, audit, and inspect such books and records of any operator as may be necessary in the Tax Administrator's judgment to verify or ascertain the tax due.
B. MAINTENANCE OF RECORDS.
Every operator must keep and preserve for a period of not less than three years all records as may be necessary to determine the amount of any tax liability under this article, which records the Tax Administrator, or their deputies or agents may inspect and copy at all reasonable times upon demand. Each operator within the City must 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 must reimburse the City for the costs of all transportation, lodging, meals, travel time, and other incidental costs reasonably incurred by the City in obtaining the audit.
C. RECORD FORMAT.
Records are to be in accordance with established accounting principles and include information on gross revenues from all parking functions and recorded on a daily and weekly basis and include gross vehicle usage of the parking facility with a gate count, including free occupancy parking, long-term parking, leased parking to other entities, and hourly parking.
D. CONFIDENTIALITY.
Except as specifically provided in this subsection, the information furnished or secured under this article will be treated as confidential. Any unauthorized disclosure or use of such information by any officer, agent, or employee of the City of Burbank is a misdemeanor and such officer, agent, or employee may be punished by the penalty provisions of this code, in 20 addition to any other penalties provided by law. However, this subsection 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. Further, the confidentiality provision of this subsection does not include the monthly or annual gross revenues of an operator taxable under this article, or the amount of tax paid by an operator under this article, or any other information required or permitted to be disclosed under applicable federal, state, or local law.
2-4-1915: REFUNDS:
A. CLAIM MUST BE IN WRITING.
Whenever the amount of any tax, interest, or penalty has been overpaid or has been erroneously or illegally collected or received by the City under this article, such amount may be refunded as provided in subsections B and C of this section if the requester files a written claim, stating under penalty of perjury the specific grounds upon which the claim is founded with the Tax Administrator within 3 years of the date of payment. The written claim must be on forms furnished by the Tax Administrator.
B. OPERATOR’S REFUND; OPTIONS.
An operator may claim a refund or take as a credit against taxes collected and remitted, the amount overpaid, remitted more than 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 liable for the tax. No refund nor credit will be given to operator unless operator has already refunded to the transient occupant or credited to the parking fee subsequently payable by the transient occupant to the operator.
C. TRANSIENT REFUND.
A transient occupant 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 occupant directly to the Tax Administrator, or when the transient occupant having paid the tax to the operator, establishes to the satisfaction of the Tax Administrator that the transient occupant has been unable to obtain a refund from the operator who collected the tax.
D. RECORDS REQUIRED.
No refund will be paid unless the claimant shows proof through written records.
2-4-1916: ACTIONS TO COLLECT:
Any tax required to be paid by any transient occupant under the provisions of this article is a debt owed by the transient occupant to the City. Any such tax collected by an operator which has not been remitted to the City is debt owed by the operator to the City. Any person owing money to the City under the provisions of this article is liable under an action brought in the name of the City for the recovery of such an amount.
2-4-1917: FAILURE TO REGISTER OR FILE REPORTS:
Any person is guilty of a misdemeanor if that person does any of the following:
21 A. Fails or refuses to register as required by this article; B. Fails or refuses to furnish any return required to be made; C. Fails or refuses to furnish a supplemental return or other data required by the Tax Administrator;
D. Renders a false or fraudulent return or claim ;or
E. fails to submit to an examination, audit, and inspection of books and records if required under this article; or
F. If that person is required to make, render, sign or verify any report or claim, 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.
2-4-1918: ADDITIONAL POWERS AND DUTIES OF THE TAX ADMINISTRATOR:
The Tax Administrator has the power to enforce this article and may adopt rules and regulations consistent with the provisions of this article to carry out and enforce the payment, collection, and remittance of the TPT. 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 one 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, the whole amount unpaid, principal together with interest, is immediately due and payable. If legal action is brought by the City to enforce collection of any amount included in the agreement, such person must pay all costs of suit incurred by the City or its assignee, including attorney fees. The execution of such an agreement will not prevent any accrual of penalties and interest on unpaid balances at the rate provided above, but no penalties or additional interest will accrue as provided on account of taxes included in the agreement after the execution of the 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 any other authority, the Tax Administrator, upon the concurrence of the City Attorney, may discontinue the collection of any claim.