RESOLUTION NO. 179 of 2011 DATED: September 27, 2011

WHEREAS, a proposed Local law for the County of Montgomery, entitled: “A Local Law Establishing A Hotel Or Motel Occupancy Tax In Montgomery County” was presented to the Board of Supervisors for consideration, and

WHEREAS, on September 27, 2011 Resolution No. 164 as adopted authorizing and directing that a Public Hearing be held by the Board of Supervisors on the 27th day of September, 2011, at the time and place appointed,

RESOLVED, that said Local Law, known as Introductory Local Law No. 4 of 2011, entitled:  “A Local Law Establishing A Hotel or Motel Occupancy Tax in Montgomery County” hereby is adopted and is incorporated as follows:

BE IT ENACTED by the Board of Supervisors of Montgomery County, New York, as follows:

SECTION 1. PURPOSE:
The general purpose of this local law is to authorize a hotel or motel occupancy tax in Montgomery County. This local law has been authorized by enabling legislation of an amendment to the Tax Law of the State of New York, which added a new Section 1202 - K. The State Legislature and the Governor enacted such legislation into law during the 1990 Legislative Session and further amended said law during the 2003 Legislative Session.

SECTION 2. JUSTIFICATION:
This local law provides for the imposition of a hotel/motel occupancy tax ("bed tax") in the County not to exceed four percent. Such a tax will be charged to persons occupying any facility providing lodging on an overnight basis, including hotels, motels, bed and breakfast inns and tourist facilities. The bed tax is not applicable to "permanent residents", which are those individuals occupying any room or rooms for at least 30 consecutive days.

All revenues resulting from the imposition of the tax under the local law shall be paid to the Montgomery County Treasurer and shall be credited to and deposited in a special tourism/promotion account, and the collections there from, excluding the cost of administration, shall thereafter be allocated by the Board of Supervisors to enhance and develop the general economy of the County and the towns therein through promotion of tourism, conventions, trade shows, and other directly related and supporting activities.

SECTION 3. DEFINITIONS:
"Hotel" or "Motel" shall mean and include any facility providing lodging on an overnight basis and shall include those facilities designated and commonly known as "bed and breakfast", "inn", and "tourist" facilities and the term "permanent resident" shall means a person occupying any room or rooms in a hotel or motel more than thirty consecutive days.

SECTION 4. RATE:
The rate of such tax shall not exceed four (4) percent of the per diem rental rate for each room, provided however, that such tax shall not be applicable to a permanent resident of a hotel or motel.

SECTION 5. TAX COLLECTION AND ADMINISTRATION:

(a) Such tax shall be collected and administered by the County Treasurer of Montgomery County by such means and in such manner as other taxes, which are now collected and administered by such office;

(b) Any tax imposed shall be paid by the person liable therefore to the owner of the hotel or motel room occupied or to the person entitled to be paid the rent or charge for the hotel or motel room occupied for and on account of the County of Montgomery imposing the tax and that such owner or person entitled to be paid the rent or charge shall be liable for the collection and payment of the tax. Such owner or person entitled to be paid the rent or charge shall have the same right in respect to collecting the tax from the person occupying the hotel or motel room, or in respect to nonpayment of the tax by the person occupying the hotel or motel room, as if the tax were a part of the rent or charge and payable at the same time as the rent or charge; provided, however, that the County Treasurer shall be joined as a party in any action or proceeding brought to collect the tax by the owner or by the person entitled to be paid the rent or charge;

(c) The filing of returns and the payment of the Occupancy taxes for Montgomery County are due on the 20th of the month on a quarterly basis according to the schedule below. Collection of occupancy taxes must be based on these periods only. The schedule follows the same schedule as the New York State Sales and Use Tax collections. In addition, if a payment date falls on either a Saturday or Sunday, payments received on the next business day will be considered on time. Different period collections will result in re-computation of the tax, and penalties and interest charges will be assessed to the hotel.

December l - February 28       Due March 20
March 1 - May 31               Due June 20
June l - August 31             Due September 20
September l - November 30      Due December 20

(d) Notice of Late Payment:
When an occupancy tax payment is not received by its due date, Montgomery County will send a Notice of Late Payment on the first day after the due date (the 21st). If the occupancy tax return is postmarked by the due date and received by Montgomery County with appropriate payment, you may disregard this ''Notice of Late Payment". If payment is postmarked after the due date, penalties and interest will be charged according to the applicable law (s).   If no payment is received within 5 days of the due date of the Notice of Late Payment, an audit will be performed by the Montgomery County Treasurer’s Office.

(e) Auditor's Review:
Hotels/ lodging facilities must furnish complete records of receipts and New York State quarterly tax reports for the auditors. Satisfactory proof of any exemptions claimed must also be produced.

Upon completion of the audit, the hotel operator will be expected to pay the tax due, including any applicable penalties and interest within 5 days. If occupancy taxes are not satisfied within five business days from the completion of the audit, a Notice of Tax Delinquency will be filed immediately.  Failure to produce books and records or otherwise fail to comply with the audit will result in the immediate filing of a Notice of Tax Delinquency followed by the issuance of a tax warrant within 35 days from the date of the Notice of Late Payment. A fine of up to $1,000.00 will be issued if the records are not available at the time of the audit.

If, for any reason, an audit cannot be performed, Montgomery County will determine the appropriate payment for the quarter for which a return has not been filed by taking the highest tax payment for the previous 12 months for the facility.  The estimated tax will be irrevocably fixed unless Montgomery County determines that a different amount is due subsequent to an audit or hearing. Hotel/ lodging facility operators are entitled to a hearing within 35 days from the date of Notice of Payment.

(f) Notice of Tax Delinquency:
A Notice of Tax Delinquency will be filed by the Montgomery County Attorney in the County Clerk's Office:

1)   within two weeks of the Notice of Late Payment if a hotel operator fails to pay delinquent taxes, or

2)   five business days from the completion date of the audit if the tax remains unpaid, or

3)   immediately upon failure of a hotel operator to produce records for inspection or otherwise cooperate with an audit.

(g) Interest and Penalties:
If payment is received with a postmark later than the due date, the lodging facility will receive an additional bill with a five percent (5%) penalty and applicable interest charges added. Interest accumulates at the rate of one percent (1 %) per month, and there is no limit on the amount of interest that can accrue.

If the check for payment is returned to Montgomery County due to insufficient funds, the facility will be required to pay occupancy taxes by certified funds, money order or any guaranteed method of payment.

(h) Tax Warrant:
If the delinquency is not satisfied after 35 days from the filing of the Notice of Delinquency (or in the case of a failure to comply with the audit after 35 days from the date of the Notice of Late Payment) a tax warrant will be issued against the operator(s) or officer(s) of a corporate operator who are, in all cases, personally liable for the tax. The warrant directs the Sheriff to levy against the personal and real property owned by the establishment owner and becomes a lien upon the real and personal property of the person(s) against whom the warrant is issued.

(i) Certificate of Authority:
A Certificate of Authority which permits the hotel operator to collect the occupancy tax on behalf of Montgomery County is issued by the Treasurer’s Office, upon initial registration of the hotel/ lodging facility.  This Certificate must be displayed in an area that is visible to patrons. The County may assess a fine of up to $1,000.00 (one-thousand dollars) for failure to display the Certificate in an acceptable manner.

(j) Permanent Resident Exemption:
Occupancy tax shall not be imposed on any patron residing at least thirty (30) consecutive days at a hotel/ lodging facility. The facility operator may apply to the County Treasurer’s Office for a refund of any tax erroneously paid under this provision within one year (l year) of the payment, providing that the occupant has requested a refund for the tax from the hotel.  A copy of the request from the occupant must be provided with the application for a refund.  Such application may be made by the occupant, operator or other person who has actually paid the tax. Such application may also be made by an operator who has collected and paid over such tax to the County provided that the application is made within one year (1 year) of the payment by the occupant to the operator, but no actual refund of moneys shall be made to such operator until he shall first establish to the satisfaction of the County Treasurer under such regulations as that County official may prescribe, that he has repaid to the occupant the amount for which the application for refund is being made. The County Treasurer may, in lieu of any refund required to be made, allow credit of the payments due from the applicant.

(k) Additional Remedies:
In addition to the measures outlined above, the additional penalties against the hotel operators who are consistently late in the payment of tax, fail to file returns or cooperate with audits may apply. Based upon the discretion of the Board of Supervisors and the County Attorney, these penalties range from requiring that: the operator post a bond or revoking the Certificate of Registration, without which the hotel/lodging facility cannot operate. Criminal sanctions and fines when operators are found to have purposefully avoided payment of the tax, to make false statements concerning the tax, or to fail to keep or produce proper books and records may also apply.

(l) The imposition of such tax upon any transaction, by or with any of the following is not authorized:

(1) The State of New York, or any public corporation (including a public corporation created pursuant to agreement or compact with another state or the dominion of Canada), improvement district or other political subdivision of the state;

(2) The United States of America, insofar as it is immune from taxation;

(3) Any corporation or association or trust, or community chest, fund or foundation organized and operated exclusively for religious, charitable or educational purposes, or for the prevention of cruelty to children or animals, and no part of the net earnings of which inures to the benefit of any private shareholder or individual and no substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation; provided, however, that nothing in this paragraph shall include an organization operated for the primary purpose of carrying on a trade or business for profit, whether or not all of its profits are payable to one or more organizations described in this paragraph.

(m) Any fina1 determination of the amount of any tax payable hereunder shall be reviewed for error, illegality or unconstitutionality or any other reason whatsoever by a proceeding under article seventy-eight of the State civil practice law and rules if application therefore is made to the supreme court within thirty days after the giving of the notice of such final determination, provided, however, that any such proceeding under article seventy-eight of the civil practice law and rules shall not be instituted unless the amount of any tax sought to be reviewed, with such interest and penalties thereon as may be provided for by subsequent local law or regulation shall be first deposited and there is filed an undertaking, issued by a surety company authorized to transact business in the State of New York and approved by the superintendent of insurance of the State as to solvency and responsibility, in such amount as a justice of the supreme court shall approve to the effect that if such proceeding be dismissed or the tax confirmed the petitioner will pay all costs and charges which may accrue in the prosecution of such proceeding.

(n) Where any tax imposed hereunder shall have been erroneously, illegally or unconstitutionally collected and application for the refund thereof duly made to the proper fiscal officer, and such officer shall have made a determination denying such refund, such determination shall be reviewable by a proceeding under article seventy-eight of the civil practice law and rules, provided, however, that such proceeding is instituted within thirty days after the giving of the notice of such denial, that a final determination of tax due was not previously made, and that an undertaking is filed with the proper fiscal officer in such amount and with such sureties as a justice of the supreme court shall approve to the effect that if such proceeding be dismissed or the tax confirmed, the petitioner will pay all costs and charges which may accrue in the prosecution of such proceedings.

(o) Except in the case of a willfully false or fraudulent return with intent to evade the tax, no assessment of additional tax shall be made after the expiration of more than three years from the date of the filing of a return, provided, however, that where no return has been filed as provided by law the tax may be assessed at any time.

SECTION 6. OVERSIGHT AND REPORTING:

(a) The Montgomery County Agriculture, Planning and Development Committee, a standing committee of the Board of Supervisors, shall have oversight over Occupancy Tax Funds.  

(1)   Said Committee shall advise the Board of Supervisors concerning the collection, management and disbursement of revenues generated by the tax imposed by section 1202-k of the NYS Tax Law;

(2)   Said Committee shall identify, review and evaluate and make recommendations to the Board of Supervisors concerning tourism-related issues and the application of such revenues as they impact upon Montgomery County, to enhance and develop the general economy of the County of Montgomery and the towns therein in relation to such issues;

(3)   Said Committee shall carry out such other duties as the Board of Supervisors may determine which are germane to its establishment;

(b) The County Treasurer, in conjunction with Economic Development/ Planning Committee, shall provide all reporting requirements regarding Occupancy Tax Funds.

(1)   In accordance with generally accepted accounting principles, the Treasurer of Montgomery County, as its chief fiscal officer, shall issue an annual report to the Board of Supervisors and to any other entity mandated by the Board of Supervisors of Montgomery County to receive the same.

(2)   Such report shall be issued no later than the date on which the Budget Officer of Montgomery County files his tentative annual budget with the Montgomery County Board of Supervisors, pursuant to section 354 of NYS County Law.

(3) Such report shall:  

a. Reflect a compilation of collections as well as the activities for the immediately preceding twelve months period, generated through the use of such revenues generated pursuant to Section 1202-k of the NYS Tax Law, with particular emphasis on any information compiled from Tourism Promotion Agency reporting and Hospitality Grant Award reporting and any other promotion of tourism, conventions, trade shows, and any other directly related and supporting activities throughout Montgomery County; and

b. Make recommendations concerning other future organizations, implementations and the use of such revenues.

SECTION 7. SAVING CLAUSE:
If any clause, sentence or paragraph of this local law shall be adjudged by any court of competent jurisdiction to be invalid, such judgment, decree or order shall not affect, impair or invalidate the remainder of the local law, which shall as to such remainder remain in effect.

SECTION 8. RESCIND LOCAL LAW 2 OF 1990:
Local Law No. 2 of 1990 “A Local Law Authorizing a Hotel or Motel Occupancy Tax in Montgomery County and Creating a Montgomery County Occupancy Tax Advisory Board” is hereby rescinded.

SECTION 9.  EFFECTIVE DATE:
This Local Law shall take effect when all applicable statutory requirements for its passage and adoption have been fully complied with and it has been filed in the Office of the Secretary of State, and

FURTHER RESOLVED, that the Clerk of the Board of Supervisors hereby is authorized and directed to file one certified copy thereof in the Office of the Secretary of State and to ensure that it is published in the County’s designated legal newspapers, as required by law.

RESOLUTION ADOPTED with Aye(1868). (9/27/2011)