STATE OF NEW YORK
________________________________________________________________________
5844
2009-2010 Regular Sessions
IN SENATE
June 11, 2009
___________
Introduced by Sen. LARKIN -- read twice and ordered printed, and when
printed to be committed to the Committee on Rules
AN ACT to amend the tax law, in relation to authorizing the county of
Orange to establish hotel and 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 Orange county. (1) Notwithstanding
4 any other provisions of law to the contrary, the county of Orange is
5 hereby authorized and empowered to adopt and amend local laws imposing
6 in such county a tax, in addition to any other tax authorized and
7 imposed pursuant to this article such as the county legislature 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 five 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 Orange 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.
LBD10168-05-9
S. 5844 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 Orange
3 imposing the tax and that such owner or person entitled to be paid the
4 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 pursuant
39 to this section shall be reviewable for error, illegality or unconstitu-
40 tionally or any other reason whatsoever by a proceeding under article
41 seventy-eight of the civil practice law and rules if application there-
42 for is made to the supreme court within thirty days after the giving of
43 the notice of such final determination, provided, however, that any such
44 proceeding under article seventy-eight of the civil practice law and
45 rules shall not be 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
S. 5844 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 pursuant to this section shall have been
6 erroneously, illegally or unconstitutionally collected and application
7 for the refund thereof duly made to the proper fiscal officer or offi-
8 cers, and such officer or officers shall have made a determination deny-
9 ing such refund, such determination shall be reviewable by a proceeding
10 under article seventy-eight of the civil practice law and rules,
11 provided, however, that such proceeding is instituted within thirty days
12 after the giving of the notice of such denial, that a final determi-
13 nation of tax due was not previously made, and that an undertaking is
14 filed with the proper fiscal officer or officers in such amount and with
15 such sureties as a justice of the supreme court shall approve to the
16 effect that if such proceeding be dismissed or the tax confirmed, the
17 petitioner will pay all costs and charges which may accrue in the prose-
18 cution of such 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 the county of Orange and
26 shall be credited to and deposited in the general fund of the county.
27 (10) If any provision of this section or the application thereof to
28 any person or circumstance shall be held invalid, the remainder of this
29 section and the application of such provision to other persons or
30 circumstances shall not be affected thereby.
31 (11) Each enactment of such local law may provide for the imposition
32 of a hotel or motel tax for a period of time no longer than three years
33 from the effective date of its enactment. Nothing in this section shall
34 prohibit the adoption and enactment of local laws, pursuant to the
35 provisions of this section, upon the expiration of any other local law
36 adopted pursuant to this section.
37 § 2. This act shall take effect immediately.
