Bill Text: CA SB1102 | 2015-2016 | Regular Session | Amended
Bill Title: Transient occupancy taxes: hosting platforms.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2016-11-30 - From committee without further action. [SB1102 Detail]
Download: California-2015-SB1102-Amended.html
BILL NUMBER: SB 1102 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 6, 2016
INTRODUCED BY Senator McGuire
FEBRUARY 17, 2016
An act to amend Section 53051 of the Government
add Section 7282.5 to the Revenue and Taxation Code,
relating to local government. hosting
platforms.
LEGISLATIVE COUNSEL'S DIGEST
SB 1102, as amended, McGuire. Local government: cities,
counties, and other agencies. Transient occupancy
taxes: hosting platforms.
(1) Existing law authorizes a city, county, or city and county to
impose a tax on the privilege of occupying a room or other living
space in a hotel, inn, tourist home or house, motel, or other lodging
unless the occupancy is for a period of more than 30 days.
This bill, on and after July 1, 2017, would require every
platform, as defined, that elects to assume the responsibility of
collecting and remitting transient occupancy taxes on behalf of an
operator to collect and remit the amount of the tax levied on a
rental transaction facilitated by the platform for a unit that is
offered for tourist or transient use and is located within a city,
county, or city and county that has not elected to retain the
responsibility for directly collecting the tax from operators, as
specified. The bill would authorize a platform to make its election
to assume responsibility, and a city, county, or city and county to
make its election to retain responsibility, by notifying the
Controller of the election on or before April 30, 2017. The bill
would authorize a platform that does not make its election by April
30, 2017, to elect to assume responsibility by notifying the
Controller on or after July 1, 2017, and would make this election
effective 6 months after the Controller's receipt of the notification
or on the date specified in the notice, whichever is later. The bill
would authorize a platform to discontinue an election, and a city,
county, or city and county to make or discontinue an election, by
notifying the Controller on or before June 30, 2019, or June 30 of
any odd-numbered year thereafter, and would make this discontinuance
or election effective on July 1, 2020, or July 1 of the first
even-numbered year after notification.
This bill, commencing on January 1, 2017, and by December 31 of
each year thereafter, would require the Controller to review or audit
a platform's collection and remittance of tax revenue pursuant to
the bill and would prohibit the Controller or any person who obtains
access to information contained in, or derived from, the review or
audit to disclose information pertaining to any platform or other
person required to provide information subject to audit or review, as
specified. The bill would provide that a platform and a city,
county, or city and county that, on or before June 1, 2016, have
entered into a binding legal agreement relating to the collection of
transient occupancy taxes are bound by the agreement and are required
to notify the Controller of the agreement, that any election made to
the Controller by the platform or the city, county, or city and
county is not effective as to any other party to the agreement, and
that the platform's collection and remittance of transient occupancy
taxes pursuant to the agreement are not subject to audit or review by
the Controller pursuant to the bill, unless the platform and the
city, county, and city and county mutually agree to terminate the
agreement.
(2) The California Constitution authorizes a city or county to
make and enforce within its limits all local, police, sanitary, and
other ordinances and regulations not in conflict with general laws.
This bill would find and declare that providing short-term rental
online platforms with uniform transient occupancy tax administration
requirements is a matter of statewide concern, and that the bill
therefore applies to charter cities, charter counties, and charter
cities and counties.
(3) Existing constitutional provisions require that a statute that
limits the right of access to the meetings of public bodies or the
writings of public officials and agencies be adopted with findings
demonstrating the interest protected by the limitation and the need
for protecting that interest.
This bill would make legislative findings to that effect.
(4) The California Constitution requires local agencies, for the
purpose of ensuring public access to the meetings of public bodies
and the writings of public officials and agencies, to comply with a
statutory enactment that amends or enacts laws relating to public
records or open meetings and contains findings demonstrating that the
enactment furthers the constitutional requirements relating to this
purpose.
This bill would make legislative findings to that effect.
Existing law requires the governing body of each public agency, as
defined, within 70 days after the commencement of its legal
existence, to file, with the Secretary of State and the county clerk
of each county in which the public agency maintains an office, a
statement containing specified information about the public agency
and its governing board and officers. Existing law requires, within
10 days after any change in that information, an amended statement to
be filed.
This bill instead would require the statement to be filed within
50 working days after the date of commencement of an agency legal
existence and would require an amended statement to be filed within
10 working days after any change in the information.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 7282.5 is added to the
Revenue and Taxation Code , to read:
7282.5. (a) For purposes of this section, the following terms
have the following meanings:
(1) "Collecting platform" means a platform that elects to assume
the responsibility for collecting and remitting to a city, county, or
city and county on behalf of an operator, the amount of any tax
levied pursuant to an ordinance adopted pursuant to this chapter on a
rental transaction that is facilitated by the platform for a unit
that is offered for occupancy for tourist or transient use for
compensation to the operator.
(2) "Collecting jurisdiction" means a city, county, or city and
county that elects to retain the responsibility for collecting a tax
levied pursuant to an ordinance adopted pursuant to this chapter
directly from operators, rather than having a collecting platform
collect and remit the tax on an operator's behalf pursuant to
subdivision (b).
(3) "Operator" means a person offering, through a platform, to
make a unit available for tourist or transient use.
(4) "Platform" means a marketplace that is created for the primary
purpose of facilitating the rental of a unit offered for occupancy
for tourist or transient use for compensation to the operator of that
unit, and the owner of the marketplace derives revenues, including
booking fees or advertising revenues, from providing or maintaining
that marketplace. "Facilitating" includes, but is not limited to, the
act of allowing the operator of the unit to offer or advertise the
unit on the Internet Web site provided or maintained by the owner of
the platform.
(b) On and after July 1, 2017, every collecting platform shall
collect on behalf of an operator the amount of any tax levied
pursuant to an ordinance adopted pursuant to this chapter on every
rental transaction that is facilitated by the collecting platform for
a unit that is offered for occupancy for tourist or transient use
for compensation to the operator and is not located within a
collecting jurisdiction. The collecting platform shall remit the
amount to the city, county, or city and county that levied the tax
pursuant to applicable requirements of local ordinances governing the
tax.
(c) (1) On or before March 1, 2017, the Controller shall develop
and publicly notice both of the following:
(A) Procedures that a platform shall use to notify the Controller
if the platform elects to become a collecting platform.
(B) Procedures that a city, county, or city and county shall use
to notify the Controller if the city, county, or city and county
elects to become a collecting jurisdiction.
(2) The Controller shall also develop and publicly notice both of
the following:
(A) Procedures that a collecting platform shall use to notify the
Controller if the collecting platform discontinues its election to
become a collecting platform.
(B) Procedures that a collecting jurisdiction shall use to notify
the Controller if the collecting jurisdiction discontinues its
election to become a collecting jurisdiction.
(d) (1) On or before April 30, 2017, a platform may elect to
become a collecting platform by using the procedures developed
pursuant to paragraph (1) of subdivision (c) to notify the Controller
of the platform's election.
(2) On or before April 30, 2017, a city, county, or city and
county may elect to become a collecting jurisdiction by using the
procedures developed pursuant to paragraph (1) of subdivision (c) to
notify the Controller of the city's, county's, or city and county's
election. The legislative body of the city, county, or city and
county shall approve the notice in a public hearing before submitting
the notice to the Controller.
(3) An election made pursuant to this subdivision is effective
upon receipt by the Controller and until discontinued by the platform
or city, county, or city and county pursuant to subdivision (f).
(4) The Controller shall publicly identify, by posting on the
Controller's Internet Web site, each platform and each city, county,
or city and county that has provided a notice to the Controller
pursuant to this subdivision as soon as possible upon receipt, but in
no event later than May 31, 2017.
(e) On or after July 1, 2017, a platform that did not elect to
become a collecting platform pursuant to subdivision (d) may elect to
become a collecting platform by using the procedures developed
pursuant to paragraph (1) of subdivision (c) to notify the Controller
of the platform's election. An election made pursuant to this
subdivision is effective six months after receipt by the Controller
or the date specified in the notice, whichever is later, and until
discontinued by the platform pursuant to subdivision (f). The
Controller shall publicly identify, by posting on the Controller's
Internet Web site, each platform that has provided a notice to the
Controller pursuant to this subdivision as soon as possible upon
receipt.
(f) (1) On or before June 30, 2019, or June 30 of any odd-numbered
year thereafter, a collecting platform may elect to discontinue its
status as a collecting platform by using the procedures developed
pursuant to paragraph (2) of subdivision (c) to notify the Controller
of the collecting platform's election.
(2) On or before June 30, 2019, or June 30 of any odd-numbered
year thereafter, a collecting jurisdiction may elect to discontinue
its status as a collecting jurisdiction, or a city, county, or city
and county may elect to become a collecting jurisdiction, by using
the procedures developed pursuant to subdivision (c) to notify the
Controller of the collecting jurisdiction's or city's, county's, or
city and county's election.
(3) An election made pursuant to this subdivision is effective on
July 1, 2020 or, if the election is submitted on or before June 30 of
an odd-numbered year thereafter, July 1 of the first even-numbered
year after the election, whichever is later.
(g) (1) Commencing on January 1, 2017, and by December 31 of each
year thereafter, the Controller shall review or audit a collecting
platform's collection and remittance of tax revenue pursuant to
subdivision (b). For each collecting platform reviewed or audited,
the Controller shall submit a report to each city, county, or city
and county in which the collecting platform collected and remitted
taxes. The report shall contain a description of the review or audit
findings and identify any errors in the collection and remittance of
tax revenues within each city, county, or city and county that were
determined as a result of the review or audit. The audit or review
shall not reveal any personally identifiable taxpayer or operator
information, including, but not limited, to a taxpayer's or operator'
s name and property address.
(2) It is unlawful for the Controller, any person having an
administrative duty under this section, or any person who obtains
access to information contained in, or derived from, any audit or
review, report, or other records of the Controller pursuant to this
section, to make known in any manner whatever the business affairs,
operations, or any other information pertaining to any platform or
any other person required to provide information subject to audit or
review to the Controller or the amount or source of income, profits,
losses, expenditures, or any particular thereof, set forth or
disclosed in any such information provided to the Controller, or to
permit any audit or review or copy thereof or any book containing any
abstract or particulars thereof to be seen or examined by any
person.
(3) When requested by a city, county, or city and county that is
not a collecting jurisdiction, the Controller shall permit any duly
authorized officer or employee of that city, county, or city and
county to examine the records of the Controller pertaining to the
audit or review of collections by a platform within that city,
county, or city and county. Except as otherwise provided herein, this
paragraph shall not be construed to allow any officer or employee of
that city, county, or city and county to examine any records of any
platform. Information obtained by examination of Controller records
as permitted in this paragraph shall be used only for purposes
related to the collection of local transient occupancy tax.
(4) If the Controller believes that any information obtained
pursuant to paragraph (3) has been disclosed to any person or has
been used for purposes not permitted by paragraph (3), then
notwithstanding paragraph (3), the Controller may impose conditions
on access to the Controller's records that the Controller considers
reasonable in order to protect the confidentiality of those records.
(5) A platform, city, county, or city and county may appeal any
findings identified in a review or audit report submitted pursuant to
paragraph (1) by providing a notice of appeal to the Controller's
General Counsel. The notice of appeal shall be filed within 60 days
from the date of the final review or audit report and shall identify
the issues being appealed and the basis and reason for the appeal.
The Controller's General Counsel shall review the issued appealed and
may hold an informal appeal conference for purposes of taking
additional information and shall issue a determination within 90 days
of receipt of the appeal.
(6) The Controller may recover the reasonable costs, measured by
the Controller's standard rate, of an audit or review conducted
pursuant to paragraph (1) from the collecting platform that was
audited or reviewed.
(h) Unless the platform and the city, county, or city and county
mutually agree to terminate the agreement, all of the following shall
apply to a platform and a city, county, or city and county that, on
or before June 1, 2016, have entered into a binding legal agreement
relating to the collection of any tax levied pursuant to this
chapter:
(1) The platform and the city, county, or city and county shall
continue to be bound by the agreement and any election made by the
platform or the city, county, or city and county pursuant to this
section shall not be effective as to any other party to the
agreement.
(2) The platform and the city, county, or city and county shall
notify the Controller of the agreement.
(3) The platform's collection or remittance of taxes levied
pursuant to this chapter pursuant to the agreement shall not be
subject to review or audit by the Controller pursuant to subdivision
(g).
(i) A collecting platform that complies with review or audit
parameters established by the Controller pursuant to this section
shall not be required to provide to any local jurisdiction, including
a collecting jurisdiction, personally identifiable information
relating to operators using the collecting platform, or concerning
transactions facilitated in the local jurisdiction by the collecting
platform.
(j) This section does not limit the existing authority of a local
jurisdiction to regulate operators, including any local regulation
that requires operators to provide information concerning
transactions conducted in the jurisdiction, provided that the
requirements do not discriminate against transactions facilitated
through a platform.
SEC. 2. The Legislature finds and declares that
providing short-term rental online platforms with uniform transient
occupancy tax administration requirements will establi sh
a level playing field among all providers and decrease the cost of
complying with statutory collection and remittance requirements, and
is therefore a matter of statewide concern and shall apply to charter
cities, charter counties, and charter cities and counties.
SEC. 3. The Legislature finds and declares that
Section 1 of this act, which adds Section 7282.5 to the Revenue and
Taxation Code, imposes a limitation on the public's right of access
to the meetings of public bodies or the writings of public officials
and agencies within the meaning of Section 3 of Article I of the
California Constitution. Pursuant to that constitutional provision,
the Legislature makes the following findings to demonstrate the
interest protected by this limitation and the need for protecting
that interest:
Limiting disclosure of records obtained or generated by the
Controller or a city, county, or city and county pertaining to audits
or reviews of a platform's collection and remittance of transient
occupancy taxes furthers the purposes of Section 3 of Article I of
the California Constitution by appropriately balancing the interest
in public disclosure with the interest in preserving the
confidentiality of taxpayer information and ensuring that this
information is not used for improper purposes.
SEC. 4. The Legislature finds and declares that
Section 1 of this act, which adds Section 7282.5 to the Revenue and
Taxation Code, furthers, within the meaning of paragraph (7) of
subdivision (b) of Section 3 of Article I of the California
Constitution, the purposes of that constitutional section as it
relates to the right of public access to the meetings of local public
bodies or the writings of local public officials and local agencies.
Pursuant to paragraph (7) of subdivision (b) of Section 3 of Article
I of the California Constitution, the Legislature makes the
following findings:
The preservation of the confidentiality of taxpayer information
is furthered by ensuring that cities, counties, and cities and
counties do not disclose information contained in, or derived from,
any audit or review conducted by the Controller of a platform's
collection and remittance of transient occupancy taxes.
SECTION 1. Section 53051 of the Government Code
is amended to read:
53051. (a) Within 50 working days after the date of commencement
of its legal existence, the governing body of each public agency
shall file with the Secretary of State on a form prescribed by the
Secretary of State and also with the county clerk of each county in
which the public agency maintains an office, a statement of the
following facts:
(1) The full, legal name of the public agency.
(2) The official mailing address of the governing body of the
public agency.
(3) The name and residence or business address of each member of
the governing body of the public agency.
(4) The name, title, and residence or business address of the
chairman, president, or other presiding officer, and clerk or
secretary of the governing body of such public agency.
(b) Within 10 working days after any change in the facts required
to be stated pursuant to subdivision (a), an amended statement
containing the information required by subdivision (a) shall be filed
as provided therein. The information submitted to the Secretary of
State shall be on a form prescribed by the Secretary of State.
(c) It shall be the duty of the Secretary of State and of the
county clerk of each county to establish and maintain an indexed
"Roster of Public Agencies," to be so designated, which shall contain
all information filed as required in subdivisions (a) and (b), which
roster is hereby declared to be a public record.
