STATE OF NEW YORK ________________________________________________________________________ 4717 2019-2020 Regular Sessions IN SENATE March 21, 2019 ___________ Introduced by Sen. METZGER -- read twice and ordered printed, and when printed to be committed to the Committee on Investigations and Govern- ment Operations AN ACT to amend the tax law, in relation to allowing for the establish- ment of an occupancy tax in the city of Port Jervis 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-ff to 2 read as follows: 3 § 1202-ff. Occupancy tax in the city of Port Jervis. (1) Notwithstand- 4 ing any other provision of law to the contrary, the city of Port Jervis, 5 in the county of Orange, is hereby authorized and empowered to adopt and 6 amend local laws imposing in such city a tax, in addition to any other 7 tax authorized and imposed pursuant to this article, such as the legis- 8 lature has or would have the power and authority to impose upon persons 9 occupying any room for hire in any hotel. For the purposes of this 10 section, the term "hotel" shall mean a building or portion of it which 11 is regularly used and kept open as such for the lodging of guests. The 12 term "hotel" includes an apartment hotel, a motel or a boarding house, 13 whether or not meals are served. The rate of such tax shall not exceed 14 three percent of the per diem rental rate for each room whether such 15 room is rented on a daily or longer basis. 16 (2) Such taxes may be collected and administered by the chief fiscal 17 officer of the city of Port Jervis by such means and in such manner as 18 other taxes which are now collected and administered by such officer or 19 as otherwise may be provided by such local law. 20 (3) Such local laws may provide that any taxes imposed shall be paid 21 by the person liable therefor to the owner of the room for hire in the 22 tourist home, inn, club, hotel, motel or other similar place of public 23 accommodation occupied or to the person entitled to be paid the rent or 24 charge the room for hire in the tourist home, inn, club, hotel, motel, EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD10035-01-9S. 4717 2 1 or other similar place of public accommodation occupied for and on 2 account of the city of Port Jervis imposing the tax and that such owner 3 or person entitled to be paid the rent or charge shall be liable for the 4 collection and payment of the tax; and that such owner or person enti- 5 tled to be paid the rent or charge shall have the same right in respect 6 to collecting the tax from the person occupying the room for hire in the 7 tourist home, inn, club, hotel, motel or other similar place of public 8 accommodation, or in respect to nonpayment of the tax by the person 9 occupying the room for hire in the tourist home, inn, club, hotel, 10 motel, or similar place of public accommodation, as if the taxes were a 11 part of the rent or charge and payable at the same time as the rent or 12 charge; provided however, that the chief fiscal officer of the city, 13 specified in such local laws, shall be joined as a party in any action 14 or proceeding brought to collect the tax by the owner or by the person 15 entitled to be paid the rent or charge. 16 (4) Such local laws may provide for the filing of returns and the 17 payment of the taxes on a monthly basis or on a basis of any longer or 18 shorter period of time. 19 (5) This section shall not authorize the imposition of such tax upon 20 any of the following: 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 for taxation; 26 or 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 education purposes, or for the prevention of cruelty to children 30 or animals, and no part of the net earnings of which inures to the bene- 31 fit of any private shareholder or individual and no substantial part of 32 the activities of which is carrying on propaganda, or otherwise attempt- 33 ing to influence legislation; provided, however, that nothing in this 34 paragraph shall include an organization operated for the primary purpose 35 of carrying on a trade or business for profit, whether or not all of its 36 profits are payable to one or more organizations described in this para- 37 graph. 38 d. A permanent resident of a hotel or motel. For the purposes of this 39 section, the term "permanent resident" shall mean a natural person occu- 40 pying any room or rooms in a hotel or motel for at least thirty consec- 41 utive days. 42 (6) Any final determination of the amount of any tax payable hereunder 43 shall be reviewable for error, illegality or unconstitutionality or any 44 other reason whatsoever by a proceeding under article seventy-eight of 45 the civil practice law and rules if application therefor is made to the 46 supreme court within thirty days after the giving of notice of such 47 final determination, provided, however, that any such proceeding under 48 article seventy-eight of the civil practice law and rules shall not be 49 instituted unless: 50 a. The amount of any tax sought to be reviewed, with such interest and 51 penalties thereon as may be provided for by local laws or regulations 52 shall be first deposited and there shall be filed an undertaking, issued 53 by a surety company authorized to transact business in this state and 54 approved by the superintendent of financial services of this state as to 55 solvency and responsibility, in such amount as a justice of the supreme 56 court shall approve to the effect that if such proceeding be dismissedS. 4717 3 1 or the tax confirmed the petitioner will pay all costs and charges which 2 may accrue in the prosecution of such proceeding; or 3 b. At the option of the petitioner, such undertaking may be in a sum 4 sufficient to cover the taxes, interests and penalties stated in such 5 determination plus the costs and charges which may accrue against it in 6 the prosecution of the proceeding, in which event the petitioner shall 7 not be required to pay such taxes, interest or penalties as a condition 8 precedent to the application. 9 (7) Where any taxes imposed hereunder shall have been erroneously, 10 illegally or unconstitutionally collected and application for the refund 11 therefor duly made to the proper fiscal officer or officers, and such 12 officer or officers shall have made a determination denying such refund, 13 such determination shall be reviewable by a proceeding under article 14 seventy-eight of the civil practice law and rules, provided, however, 15 that such proceeding is instituted within thirty days after the giving 16 of the notice of such denial, that a final determination of tax due was 17 not previously made, and that an undertaking is filed with the proper 18 fiscal officer or officers in such amount and with such sureties as a 19 justice of the supreme court shall approve to the effect that if such 20 proceeding be dismissed or the taxes confirmed, the petitioner will pay 21 all costs and charges which may accrue in the prosecution of such 22 proceeding. 23 (8) Except in the case of a willfully false or fraudulent return with 24 intent to evade the tax, no assessment of additional tax shall be made 25 after the expiration of more than three years from the date of the 26 filing of a return, provided, however, that where no return has been 27 filed as provided by law the tax may be assessed at any time. 28 (9) All revenues resulting from the imposition of the tax under the 29 local laws shall be paid into the treasury of the city of Port Jervis 30 and shall be credited to and deposited in the hospitality tax fund of 31 such city. Such revenues may be used for infrastructure development, 32 construction, rehabilitation and promotion of designation tourism as so 33 determined by the common council of the city of Port Jervis. 34 (10) Each enactment of such a local law may provide for the imposition 35 of a hotel or motel tax for a period of time no longer than three years 36 from the date of its enactment. Nothing in this section shall prohibit 37 the adoption and enactment of local laws, pursuant to the provisions of 38 this section, upon the expiration of any other local law adopted pursu- 39 ant to this section. 40 (11) If any provision of this section or the application thereof to 41 any person or circumstance shall be held invalid, the remainder of this 42 section and the application of such provision to other persons or 43 circumstances shall not be affected thereby. 44 § 2. This act shall take effect immediately.