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A04718 Summary:

A04718 Actions:

A04718 Floor Votes:

A04718 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          4718
 
                               2009-2010 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 5, 2009
                                       ___________
 
        Introduced by M. of A. P. LOPEZ -- read once and referred to the Commit-
          tee on Ways and Means
 
        AN  ACT  to  amend the tax law, in relation to authorizing the county of
          Schoharie to impose hotel or motel taxes
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 

     1    Section  1.  The tax law is amended by adding a new section 1202-aa to
     2  read as follows:
     3    § 1202-aa. Hotel or motel taxes in Schoharie county. (1) Notwithstand-
     4  ing any other provisions of law to the contrary, the county of Schoharie
     5  is hereby authorized and empowered to adopt and amend local laws  impos-
     6  ing  in  such  county a tax, in addition to any other tax authorized and
     7  imposed pursuant to this article such as the board of supervisors has or
     8  would have the power and authority  to  impose  upon  persons  occupying
     9  hotel  or  motel rooms in such county. For the purposes of this section,
    10  the term "hotel" or "motel" shall mean and include any facility  provid-
    11  ing  lodging  on  an  overnight basis and shall include those facilities

    12  designated and commonly known  as  "bed  and  breakfast"  and  "tourist"
    13  facilities.
    14    The  rates  of  such tax shall not exceed four percent of the per diem
    15  rental rate for each room, provided however, that such tax shall not  be
    16  applicable to a permanent resident of a hotel or motel. For the purposes
    17  of  this section the term "permanent resident" shall mean a person occu-
    18  pying any room or rooms in a hotel or motel for at least thirty  consec-
    19  utive days.
    20    (2) Such tax may be collected and administered by the county treasurer
    21  or  other  fiscal officers of Schoharie county by such means and in such
    22  manner as other taxes which are now collected and administered  by  such

    23  officers or as otherwise may be provided by such local law.
    24    (3)  Such local laws may provide that any tax imposed shall be paid by
    25  the person liable therefor to the owner of the hotel or motel room occu-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04241-01-9
        A. 4718                             2
 
     1  pied or to the person entitled to be paid the rent  or  charge  for  the
     2  hotel  or  motel room occupied for and on account of the county of Scho-
     3  harie imposing the tax and that such owner or person entitled to be paid
     4  the rent or charge shall be liable for the collection and payment of the

     5  tax;  and  that  such  owner  or  person entitled to be paid the rent or
     6  charge shall have the same right in respect to collecting the  tax  from
     7  the  person  occupying the hotel or motel room, or in respect to nonpay-
     8  ment of the tax by the person occupying the hotel or motel room,  as  if
     9  the  tax  were a part of the rent or charge and payable at the same time
    10  as the rent or charge; provided, however, that the county  treasurer  or
    11  other  fiscal officers of the county, specified in such local law, shall
    12  be joined as a party in any action or proceeding brought to collect  the
    13  tax  by  the  owner  or  by  the  person entitled to be paid the rent or
    14  charge.
    15    (4) Such local laws may provide for the  filing  of  returns  and  the

    16  payment  of  the tax on a monthly basis or on the basis of any longer or
    17  shorter period of time.
    18    (5) This section shall not authorize the imposition of such  tax  upon
    19  any  transaction,  by  or  with  any of the following in accordance with
    20  section twelve hundred thirty of this article:
    21    a. The state of New York,  or  any  public  corporation  (including  a
    22  public corporation created pursuant to agreement or compact with another
    23  state  or  the  Dominion of Canada), improvement district or other poli-
    24  tical subdivision of the state;
    25    b. The United States of America, insofar as it is  immune  from  taxa-
    26  tion;
    27    c.  Any corporation or association, or trust, or community chest, fund

    28  or foundation organized and operated exclusively for religious, charita-
    29  ble or educational purposes, or for the prevention of cruelty  to  chil-
    30  dren  or animals, and no part of the net earnings of which inures to the
    31  benefit of any private shareholder or individual and no substantial part
    32  of the activities of which  is  carrying  on  propaganda,  or  otherwise
    33  attempting  to influence legislation; provided, however, that nothing in
    34  this paragraph shall include an organization operated  for  the  primary
    35  purpose  of  carrying  on a trade or business for profit, whether or not
    36  all of its profits are payable to one or more organizations described in
    37  this paragraph.
    38    (6) Any final determination of the amount of any tax payable hereunder

    39  shall be reviewable for error, illegality or unconstitutionality or  any
    40  other  reason  whatsoever by a proceeding under article seventy-eight of
    41  the civil practice law and rules if application therefor is made to  the
    42  supreme  court within thirty days after the giving of the notice of such
    43  final determination, provided, however, that any such  proceeding  under
    44  article  seventy-eight  of the civil practice law and rules shall not be
    45  instituted unless:
    46    a. The amount of any tax sought to be reviewed, with such interest and
    47  penalties thereon as may be provided for  by  local  law  or  regulation
    48  shall  be first deposited and there is filed an undertaking, issued by a
    49  surety company  authorized  to  transact  business  in  this  state  and

    50  approved by the superintendent of insurance of this state as to solvency
    51  and  responsibility,  in  such  amount as a justice of the supreme court
    52  shall approve to the effect that if such proceeding be dismissed or  the
    53  tax  confirmed  the  petitioner will pay all costs and charges which may
    54  accrue in the prosecution of such proceeding; or
    55    b. At the option of the petitioner such undertaking may be  in  a  sum
    56  sufficient  to  cover  the taxes, interests and penalties stated in such
        A. 4718                             3
 
     1  determination plus the costs and charges which may accrue against it  in
     2  the  prosecution  of the proceeding, in which event the petitioner shall

     3  not be required to pay such taxes, interest or penalties as a  condition
     4  precedent to the application.
     5    (7) Where any tax imposed hereunder shall have been erroneously, ille-
     6  gally  or  unconstitutionally  collected  and application for the refund
     7  thereof duly made to the proper fiscal officer  or  officers,  and  such
     8  officer or officers shall have made a determination denying such refund,
     9  such  determination  shall  be  reviewable by a proceeding under article
    10  seventy-eight of the civil practice law and  rules,  provided,  however,
    11  that  such  proceeding is instituted within thirty days after the giving
    12  of the notice of such denial, that a final determination of tax due  was

    13  not  previously  made,  and that an undertaking is filed with the proper
    14  fiscal officer or officers in such amount and with such  sureties  as  a
    15  justice  of  the  supreme court shall approve to the effect that if such
    16  proceeding be dismissed or the tax confirmed, the  petitioner  will  pay
    17  all  costs  and  charges  which  may  accrue  in the prosecution of such
    18  proceeding.
    19    (8) Except in the case of a wilfully false or fraudulent  return  with
    20  intent  to  evade the tax, no assessment of additional tax shall be made
    21  after the expiration of more than three  years  from  the  date  of  the
    22  filing  of  a  return,  provided, however, that where no return has been
    23  filed as provided by law the tax may be assessed at any time.

    24    (9) All revenues resulting from the imposition of the  tax  under  the
    25  local laws shall be paid into the treasury of Schoharie county and shall
    26  be  credited  to  and  deposited  in  the  general  fund  of the county;
    27  provided, however, that such local laws  shall  provide  that:  (a)  the
    28  county  shall  be  authorized  to  dedicate a portion of such revenue to
    29  promote tourism and other forms of business in the county; and  (b)  the
    30  county  shall  be authorized to retain up to a maximum of ten percent of
    31  such revenue to defer the necessary expenses of the county  in  adminis-
    32  tering such tax.
    33    (10)  If  any  provision of this section or the application thereof to
    34  any person or circumstance shall be held invalid, the remainder of  this

    35  section  and  the  application  of  such  provision  to other persons or
    36  circumstances shall not be affected thereby.
    37    (11) Each enactment of such local law may provide for  the  imposition
    38  of  a hotel or motel tax for a period of time no longer than three years
    39  from the date of its enactment. Nothing in this section  shall  prohibit
    40  the  adoption and enactment of local laws, pursuant to the provisions of
    41  this section, upon the expiration of any other local law adopted  pursu-
    42  ant to this section.
    43    §  2.  This  act  shall  take  effect  on  the first of the month next
    44  succeeding the date on which it shall have become a law.