S T A T E O F N E W Y O R K ________________________________________________________________________ 34 Eighth Extraordinary Session I N S E N A T E June 29, 2009 ___________ Introduced by COMMITTEE ON RULES -- (at request of the Governor) -- 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 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 S 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. EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04241-01-9 S. 34 2 1 (3) SUCH LOCAL LAWS MAY PROVIDE THAT ANY TAX IMPOSED SHALL BE PAID BY 2 THE PERSON LIABLE THEREFOR TO THE OWNER OF THE HOTEL OR MOTEL ROOM OCCU- 3 PIED OR TO THE PERSON ENTITLED TO BE PAID THE RENT OR CHARGE FOR THE 4 HOTEL OR MOTEL ROOM OCCUPIED FOR AND ON ACCOUNT OF THE COUNTY OF SCHO- 5 HARIE IMPOSING THE TAX AND THAT SUCH OWNER OR PERSON ENTITLED TO BE PAID 6 THE RENT OR CHARGE SHALL BE LIABLE FOR THE COLLECTION AND PAYMENT OF THE 7 TAX; AND THAT SUCH OWNER OR PERSON ENTITLED TO BE PAID THE RENT OR 8 CHARGE SHALL HAVE THE SAME RIGHT IN RESPECT TO COLLECTING THE TAX FROM 9 THE PERSON OCCUPYING THE HOTEL OR MOTEL ROOM, OR IN RESPECT TO NONPAY- 10 MENT OF THE TAX BY THE PERSON OCCUPYING THE HOTEL OR MOTEL ROOM, AS IF 11 THE TAX WERE A PART OF THE RENT OR CHARGE AND PAYABLE AT THE SAME TIME 12 AS THE RENT OR CHARGE; PROVIDED, HOWEVER, THAT THE COUNTY TREASURER OR 13 OTHER FISCAL OFFICERS OF THE COUNTY, SPECIFIED IN SUCH LOCAL LAW, SHALL 14 BE JOINED AS A PARTY IN ANY ACTION OR PROCEEDING BROUGHT TO COLLECT THE 15 TAX BY THE OWNER OR BY THE PERSON ENTITLED TO BE PAID THE RENT OR 16 CHARGE. 17 (4) SUCH LOCAL LAWS MAY PROVIDE FOR THE FILING OF RETURNS AND THE 18 PAYMENT OF THE TAX ON A MONTHLY BASIS OR ON THE BASIS OF ANY LONGER OR 19 SHORTER PERIOD OF TIME. 20 (5) THIS SECTION SHALL NOT AUTHORIZE THE IMPOSITION OF SUCH TAX UPON 21 ANY TRANSACTION, BY OR WITH ANY OF THE FOLLOWING IN ACCORDANCE WITH 22 SECTION TWELVE HUNDRED THIRTY OF THIS ARTICLE: 23 A. THE STATE OF NEW YORK, OR ANY PUBLIC CORPORATION (INCLUDING A 24 PUBLIC CORPORATION CREATED PURSUANT TO AGREEMENT OR COMPACT WITH ANOTHER 25 STATE OR THE DOMINION OF CANADA), IMPROVEMENT DISTRICT OR OTHER POLI- 26 TICAL SUBDIVISION OF THE STATE; 27 B. THE UNITED STATES OF AMERICA, INSOFAR AS IT IS IMMUNE FROM TAXA- 28 TION; 29 C. ANY CORPORATION OR ASSOCIATION, OR TRUST, OR COMMUNITY CHEST, FUND 30 OR FOUNDATION ORGANIZED AND OPERATED EXCLUSIVELY FOR RELIGIOUS, CHARITA- 31 BLE OR EDUCATIONAL PURPOSES, OR FOR THE PREVENTION OF CRUELTY TO CHIL- 32 DREN OR ANIMALS, AND NO PART OF THE NET EARNINGS OF WHICH INURES TO THE 33 BENEFIT OF ANY PRIVATE SHAREHOLDER OR INDIVIDUAL AND NO SUBSTANTIAL PART 34 OF THE ACTIVITIES OF WHICH IS CARRYING ON PROPAGANDA, OR OTHERWISE 35 ATTEMPTING TO INFLUENCE LEGISLATION; PROVIDED, HOWEVER, THAT NOTHING IN 36 THIS PARAGRAPH SHALL INCLUDE AN ORGANIZATION OPERATED FOR THE PRIMARY 37 PURPOSE OF CARRYING ON A TRADE OR BUSINESS FOR PROFIT, WHETHER OR NOT 38 ALL OF ITS PROFITS ARE PAYABLE TO ONE OR MORE ORGANIZATIONS DESCRIBED IN 39 THIS PARAGRAPH. 40 (6) ANY FINAL DETERMINATION OF THE AMOUNT OF ANY TAX PAYABLE HEREUNDER 41 SHALL BE REVIEWABLE FOR ERROR, ILLEGALITY OR UNCONSTITUTIONALITY OR ANY 42 OTHER REASON WHATSOEVER BY A PROCEEDING UNDER ARTICLE SEVENTY-EIGHT OF 43 THE CIVIL PRACTICE LAW AND RULES IF APPLICATION THEREFOR IS MADE TO THE 44 SUPREME COURT WITHIN THIRTY DAYS AFTER THE GIVING OF THE NOTICE OF SUCH 45 FINAL DETERMINATION, PROVIDED, HOWEVER, THAT ANY SUCH PROCEEDING UNDER 46 ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES SHALL NOT BE 47 INSTITUTED UNLESS: 48 A. THE AMOUNT OF ANY TAX SOUGHT TO BE REVIEWED, WITH SUCH INTEREST AND 49 PENALTIES THEREON AS MAY BE PROVIDED FOR BY LOCAL LAW OR REGULATION 50 SHALL BE FIRST DEPOSITED AND THERE IS FILED AN UNDERTAKING, ISSUED BY A 51 SURETY COMPANY AUTHORIZED TO TRANSACT BUSINESS IN THIS STATE AND 52 APPROVED BY THE SUPERINTENDENT OF INSURANCE OF THIS STATE AS TO SOLVENCY 53 AND RESPONSIBILITY, IN SUCH AMOUNT AS A JUSTICE OF THE SUPREME COURT 54 SHALL APPROVE TO THE EFFECT THAT IF SUCH PROCEEDING BE DISMISSED OR THE 55 TAX CONFIRMED THE PETITIONER WILL PAY ALL COSTS AND CHARGES WHICH MAY 56 ACCRUE IN THE PROSECUTION OF SUCH PROCEEDING; OR S. 34 3 1 B. AT THE OPTION OF THE PETITIONER SUCH UNDERTAKING MAY BE IN A SUM 2 SUFFICIENT TO COVER THE TAXES, INTERESTS AND PENALTIES STATED IN SUCH 3 DETERMINATION PLUS THE COSTS AND CHARGES WHICH MAY ACCRUE AGAINST IT IN 4 THE PROSECUTION OF THE PROCEEDING, IN WHICH EVENT THE PETITIONER SHALL 5 NOT BE REQUIRED TO PAY SUCH TAXES, INTEREST OR PENALTIES AS A CONDITION 6 PRECEDENT TO THE APPLICATION. 7 (7) WHERE ANY TAX IMPOSED HEREUNDER SHALL HAVE BEEN ERRONEOUSLY, ILLE- 8 GALLY OR UNCONSTITUTIONALLY COLLECTED AND APPLICATION FOR THE REFUND 9 THEREOF DULY MADE TO THE PROPER FISCAL OFFICER OR OFFICERS, AND SUCH 10 OFFICER OR OFFICERS SHALL HAVE MADE A DETERMINATION DENYING SUCH REFUND, 11 SUCH DETERMINATION SHALL BE REVIEWABLE BY A PROCEEDING UNDER ARTICLE 12 SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES, PROVIDED, HOWEVER, 13 THAT SUCH PROCEEDING IS INSTITUTED WITHIN THIRTY DAYS AFTER THE GIVING 14 OF THE NOTICE OF SUCH DENIAL, THAT A FINAL DETERMINATION OF TAX DUE WAS 15 NOT PREVIOUSLY MADE, AND THAT AN UNDERTAKING IS FILED WITH THE PROPER 16 FISCAL OFFICER OR OFFICERS IN SUCH AMOUNT AND WITH SUCH SURETIES AS A 17 JUSTICE OF THE SUPREME COURT SHALL APPROVE TO THE EFFECT THAT IF SUCH 18 PROCEEDING BE DISMISSED OR THE TAX CONFIRMED, THE PETITIONER WILL PAY 19 ALL COSTS AND CHARGES WHICH MAY ACCRUE IN THE PROSECUTION OF SUCH 20 PROCEEDING. 21 (8) EXCEPT IN THE CASE OF A WILFULLY FALSE OR FRAUDULENT RETURN WITH 22 INTENT TO EVADE THE TAX, NO ASSESSMENT OF ADDITIONAL TAX SHALL BE MADE 23 AFTER THE EXPIRATION OF MORE THAN THREE YEARS FROM THE DATE OF THE 24 FILING OF A RETURN, PROVIDED, HOWEVER, THAT WHERE NO RETURN HAS BEEN 25 FILED AS PROVIDED BY LAW THE TAX MAY BE ASSESSED AT ANY TIME. 26 (9) ALL REVENUES RESULTING FROM THE IMPOSITION OF THE TAX UNDER THE 27 LOCAL LAWS SHALL BE PAID INTO THE TREASURY OF SCHOHARIE COUNTY AND SHALL 28 BE CREDITED TO AND DEPOSITED IN THE GENERAL FUND OF THE COUNTY; 29 PROVIDED, HOWEVER, THAT SUCH LOCAL LAWS SHALL PROVIDE THAT: (A) THE 30 COUNTY SHALL BE AUTHORIZED TO DEDICATE A PORTION OF SUCH REVENUE TO 31 PROMOTE TOURISM AND OTHER FORMS OF BUSINESS IN THE COUNTY; AND (B) THE 32 COUNTY SHALL BE AUTHORIZED TO RETAIN UP TO A MAXIMUM OF TEN PERCENT OF 33 SUCH REVENUE TO DEFER THE NECESSARY EXPENSES OF THE COUNTY IN ADMINIS- 34 TERING SUCH TAX. 35 (10) IF ANY PROVISION OF THIS SECTION OR THE APPLICATION THEREOF TO 36 ANY PERSON OR CIRCUMSTANCE SHALL BE HELD INVALID, THE REMAINDER OF THIS 37 SECTION AND THE APPLICATION OF SUCH PROVISION TO OTHER PERSONS OR 38 CIRCUMSTANCES SHALL NOT BE AFFECTED THEREBY. 39 (11) EACH ENACTMENT OF SUCH LOCAL LAW MAY PROVIDE FOR THE IMPOSITION 40 OF A HOTEL OR MOTEL TAX FOR A PERIOD OF TIME NO LONGER THAN THREE YEARS 41 FROM THE DATE OF ITS ENACTMENT. NOTHING IN THIS SECTION SHALL PROHIBIT 42 THE ADOPTION AND ENACTMENT OF LOCAL LAWS, PURSUANT TO THE PROVISIONS OF 43 THIS SECTION, UPON THE EXPIRATION OF ANY OTHER LOCAL LAW ADOPTED PURSU- 44 ANT TO THIS SECTION. 45 S 2. This act shall take effect on the first of the month next 46 succeeding the date on which it shall have become a law.