Chapter 6.90 HOTEL MOTEL ROOM TAX

 

Article I.  In General

6.90.010  Definitions

 

Article II  Imposition of Tax - Procedures - Regulations

6.90.020  Imposition of Tax

6.90.030  Collection of Tax

6.90.040  Registration Required

6.90.050  Title to Taxes / Taxes Held in Trust

6.90.060  Duty to File Tax Return and Transmit Taxes to Borough

6.90.070  Estimated Taxes / Forced Filing

6.90.080  Confidentiality

6.90.090  Record Keeping Required

6.90.100  Special Provisions for Pre-Existing Contracts

 

Article III. Penalties - Enforcement - Appeals

6.90.110  Penalties and Interest

6.90.120  Civil Action Authorized

6.90.130  Tax Lien

6.90.140  Prohibition of Making Rentals without Registering

6.90.150  Sale of Business

6.90.160  Appeals

6.90.170  Severability

 

 

Article I.  In General

 

6.90.010 Definitions

 

  1. For the purposes of this chapter, unless the context otherwise requires, any word or term not interpreted or defined by this section shall be used with a meaning of common or standard utilization.

     

  2. The following words and phrases shall have the meanings ascribed to them by this section:

     

  1. "Administrative costs of collection" means the actual amount of attorney's fees, litigation costs, costs of appeal, and other expenses incurred by the Borough in collecting any taxes, interest, and/or penalties due under this ordinance or in otherwise enforcing any provisions of this ordinance.
  2. "Guest” means an individual, corporation, partnership, association, or other entity which pay monetary or other consideration for the right to occupy an overnight accommodation. The guest is the taxpayer.
  3. "Guest-night" means one guest who rents or occupies an overnight accommodation for one night. In other words, one guest who rents an overnight accommodation for three nights equals three guest-nights; four guests who rent an overnight accommodation for one night equals four guest nights; six guests


who occupy an overnight accommodation for ten nights equals sixty (60) guest nights; and so on. (Amended by Ordinance 97-06, 11/18/97)

  1. "Merchant" means an individual, corporation, partnership, association, cooperative, joint venture, estate trust, business receivership, or any combination thereof, or any other entity which operates an overnight accommodation and any person who performs, or is under a duty to perform, any of the following actions on behalf of an operator:

     

    1. Exercise custody and control of taxes collected under this ordinance; or
    2. Pay such taxes to the Borough; or
    3. File a tax return with the Borough; or
    4. Keep records required by this ordinance.

       

      An owner of an overnight accommodation who contracts with a third party to operate the overnight accommodation for the benefit of the owner is also a merchant. However, an owner of an overnight accommodation who leases his facility to a third party for it’s (the third party) benefit is not a merchant.

       

  2. "Overnight accommodation" means a structure, portion of a structure, room, or area which is occupied or available for occupancy for compensation for dwelling, lodging, or sleeping purposes and includes any hotel, motel, inn, bed and breakfast, lodge, cabin, campground, or similar facility. (Amended by Ordinance 97-06, 11/18/97)

     

  3. "Rent" means the consideration received by a merchant for the right to occupy an overnight accommodation valued in money, whether received in money or otherwise, including all receipts, cash, credits, property or other services of any kind or nature, and any amount for which credit is allowed by a merchant to a guest. "Rent" does not include the cost of food or entertainment, nor does it include the cost of banquet, conference, or other similar facilities not occupied for dwelling, lodging, or sleeping purposes.

     

  4. "Rental" means the act of purchasing the right to occupy an overnight accommodation. A rental is complete and tax is due thereon when:


 

  1. A guest has registered or "checked in" with a merchant and paid rent in cash, by credit card, or otherwise, regardless of whether the rent is paid in advance, at the time of registration, or at a later date; or

     

  2. A guest who has paid rent in advance fails to register or "check in" with a merchant at the appointed time, and the merchant retains all or any part of the prepaid rent. Tax is due on the amount of prepaid rent retained by the merchant; or

     

  3. A tour operator pays rent on behalf of a guest whether or not the guest has registered or "checked in", and regardless of whether the rent is paid in advance, at the time of registration, or at a later date. Rent paid by a tour operator on behalf of a guest shall be deemed paid by the guest: or

     

  4. A tour operator who has purchased the right to occupy an overnight accommodation for use by a guest who is a member of the tour operated by the tour operator, pays rent even though the overnight accommodation is not in fact occupied by such a guest. Rent paid by the tour operator in such circumstances shall be deemed paid by a guest.


Tax may be due under 1, 2, 3, and/or 4 for rental of the same overnight accommodation to more than one guest for the same period of time.

 

The act of making a reservation to occupy an overnight accommodation in the future is not a completed rental for which tax is due.

 

  1. "Rent Package Plan" means the consideration charged for food, drinks, rent, guided tours, guided hunting or fishing, air taxis, and other services provided by the merchant either directly or indirectly where a single rate is made and charged for the combination of all services.

     

  2. "Tour Operator" means an individual, corporation, partnership, association, or other entity which purchases the right to occupy one or more overnight accommodations for the purposes of re-selling the right to occupy the overnight accommodation to one or more guests who will participate in a vacation travel package or other similar tour operated by the tour operator. When paying rent as provided under subparagraphs 3 and 4 above, a tour operator is a guest.

     

  3. "Transient" means a guest who occupies or has the right to occupy an overnight accommodation for fewer than thirty (30) consecutive days. A guest who purchases the right to occupy an overnight accommodation for use by employees of the guest on a rotating basis is not a transient, if the total period of occupancy of all employees of the guest exceeds thirty


(30)  consecutive  days,  even  though  the  occupancy  of  any  particular employee may be less than thirty (30) consecutive days.

 

 

Article II. Imposition of Tax - Procedures - Regulations

 

6.90.020 Imposition of Tax

 

  1. There is levied on the rental of overnight accommodations to transients within the Borough a tax on the rent for each overnight accommodation. The amount of the tax shall be six percent (6%) of the rent received by the merchant for the rental of the overnight accommodation. The guest shall pay the tax.

     

  2. When a guest pays for overnight accommodation as part of a rent or tour package:
    1. The amount applicable and apportioned to room rent for determination of the Hotel-Motel Room Tax shall be the same charge made for rent when rent is not part of a package plan or in other words, the established or published rate a room would rent for absent a package plan. (Amended by Ordinance 10-03, 3/12/10
    2. The minimum amount of tax paid shall not be less than ten dollars ($10.00) per person, per night.  (Added by Ordinance 97-06, 11/18/97) (Amended by Ordinance 09-09; 11/14/09; Amended by Ordinance 17-07, 4/13/2017)
    3. The minimum amount of tax paid for campgrounds shall be one dollar ($1.00) per person, per night. (Amended by Ordinance 10-03, 3/12/10)

  1. C.Exemptions. No tax shall be imposed:

     

    1. When a person rents a private single family dwelling unit, vacation cabin, or like facility from any owner who rents the structure or facility incidental to his own use thereof and on a casual and isolated basis not done in the regular course of business.
    2. When overnight accommodation is provided as part of employment in the Borough including, but not limited to, bunkhouses operated by fish processors for their employees.


 

 

6.90.030 Collection of Tax

 

  1. Every merchant making a rental subject to taxation under this ordinance shall collect the tax imposed by this ordinance from the guest not later than the time at which the rental is complete. Taxes not collected when due are delinquent.

     

  2. Every merchant shall state the amount of tax due under this ordinance separately from all rent and other charges on any invoice or receipt given to a guest.

     

  3. A merchant shall not advertise or hold out or state to the public or to any guest, directly or indirectly, that the tax or any part thereof imposed by this ordinance will be assumed or absorbed by the merchant, or that it will not be added to the rent, or that it will be refunded. A merchant shall not assume, absorb or fail to add the tax or any part thereof to the rent, or refund the tax or fail to separately state the tax to the guest.


 

 

6.90.040 Registration Required

 

  1. Every merchant shall file with the Borough an application for a certificate of registration on a form provided by the Borough not later than ten days after the date of commencing operation of an overnight accommodation or opening an additional place of business as an overnight accommodation.  The application shall include at a minimum, the name and mailing address of the applicant, the location or locations at which the applicant will conduct business, the location at which transactions subject o this tax will occur, a statement certifying the owner of record of the overnight accommodation facility to be registered, a statement signed by the owner of the overnight accommodation acknowledging that he/she understands that the facility at which the taxes are generated is subject to tax lien in the event of tax delinquency, and other information with respect to description, location, and value of property owned by the merchant within borough boundaries which the manager may require in the best interest of the Borough. The completed application shall be accompanied by a check payable to the Borough for a twenty five dollar ($25.00) annual Application Processing Fee and the merchant’s Accommodation Rate Schedule for the Application Year.  After initial registration with the Borough, merchants shall submit a renewal form supplied by the Borough, the operator’s rate schedule, and the $25.00 registration fee.  The application fee is non-refundable.   (Amended by Ordinance 09-09, November 14, 2009; Ordinance 15-03, May 11, 2015)
  2. Upon receipt of a properly executed application, the Borough shall issue a certificate of registration stating the address of the overnight accommodation to which it is applicable and authorizing such merchant to collect the tax. The certificate must be prominently displayed at the regular place of business named therein.  (Amended by Ordinance 09-09; November 14, 2009)

 

6.90.050  Title to Taxes / Taxes Held in Trust

 

Upon collection by a merchant of taxes imposed by this ordinance, title to and ownership of the collected taxes shall vest in the Borough. Pending transmittal to the Borough, every merchant shall hold the tax funds in trust for the use and benefit of the Borough. Every merchant shall segregate and identify the tax funds on its books and records as being held in trust for the Borough.

 

 

6.90.060 Duty to File Tax Return and Transmit Taxes to the Borough

 

  1. Every merchant making a rental of an overnight accommodation in the Borough in any month shall make out a return for that month and file the return with the Borough on or before the fifteenth (15th) day of the following month. A return not timely filed is delinquent. The return shall be made out upon forms furnished by the Borough and shall contain the following information:

     

    1. The amount of all rents received from rentals of overnight accommodations completed during the preceding month.
    2. The amount of tax due thereon under this ordinance.
    3. The amount of tax actually collected thereon.
    4. Such other information and documentation as may be required by the Borough Manager.

       

      A merchant who makes no taxable rentals in a given month shall, if the merchant made a taxable rental in the preceding month, nonetheless file a return with the Borough establishing that no taxable rentals were made.

       

      Businesses which are only open seasonally may inform the borough of the months of operation as part of their annual registration, and will be sent tax forms for those months only. (Replaced by Ordinance 97-06, 11/18/97; Amended by Ordinance 15-03, 05/11/2015)

       

  2. On or before the due date of the return for each month, every merchant shall transmit the taxes due on rentals completed during that month to the Borough. Regardless of whether a return has been filed, taxes due for a given month which are not transmitted to the Borough on or before the due date of the return for that month are delinquent.

     

  3. As compensation for collecting the tax, a merchant may deduct and retain each month two percent (2%) of the amount of taxes due to be transmitted to the Borough for that month if the merchant has: (Amended by Ordinance 10-03; 3/12/2010)
    1. Timely transmitted all returns and taxes due under this ordinance during the previous month in which there was taxable activity provided that the


merchant does not have any prior tax debts or late returns outstanding or pending. Merchants collecting the tax for the first time may retain this compensation for the first month provided that they are properly registered under this code. (Amended by Ordinance 10-03; 3/12/2010)

  1. Complied with all other provisions of this code during the previous month for which taxable activity occurred. (Amended by Ordinance 10-03; 3/12/2010)

    The amount deducted and retained by the merchant under this subsection shall not exceed three hundred dollars ($300.00) for any month. (Amended by Ordinance 10-03; 3/12/2010)

     

     

  1. For the purposes of this section, taxes and returns are timely transmitted and/or filed only when the taxes and/or returns are actually received in the offices of the Borough, or placed in the US Mail properly addressed to the Borough, with proper postage affixed and postmarked, on or before the date on which the taxes are due to be transmitted and/or the return is due to be filed.


 

 

6.90.070  Estimated Taxes / Forced Filing

 

If the Borough is unable to ascertain the amount of tax due from a merchant in any month because the merchant has failed to file a return as required, or has filed a false, inaccurate, or incomplete return, or because the merchant has failed to keep accurate books and records as required, or has falsified records, the Borough may make an estimate of the amount of tax due based upon any evidence in its possession.

 

The Borough shall mail or deliver to the merchant written notice of the amount of the estimate, and this amount shall be presumed to correctly state the amount of tax due from the merchant to the Borough unless the merchant files an accurate return and transmits the taxes due as shown thereon to the Borough, not later than thirty days after the date on which the Borough mails or delivers the notice. A notice is sufficient under this section if it is either actually delivered to the merchant, or if it is mailed to the merchant by certified mail, return receipt requested, at the merchant's most current address as contained in the Borough's tax records.

 

 

6.90.080  Confidentiality

 

  1. Except as provided below, all returns filed with the Borough for the purpose of complying with the terms of this ordinance and all data obtained from such returns are confidential and shall be kept from inspection of all persons except officers, agents, and employees of the Borough. Provided however, that such returns and/or information obtained therefrom may be discussed by the Assembly in public session, if the merchant affected consents in writing.

     

  2. Information in the possession of the Borough which was obtained by the Borough from a merchant in the administration or enforcement of the provisions of this chapter which discloses the particulars of the business or affairs of the merchant or other person that is not otherwise public information is not a matter of public record. The information shall be kept confidential except when its production is required in an official borough, state, or federal investigation, law enforcement action, or court proceeding. These restrictions do not prohibit the publication of tax lists showing the names of taxpayers or delinquent taxes. Information otherwise protected by this section may be furnished on a reciprocal


basis to other agencies of the state or federal government concerned with the enforcement of tax laws.

 

  1. In the course of a criminal or civil action to enforce any provision of this ordinance, the Borough may allege, prove, publish, and produce for any purpose any return and/or information previously filed with the Borough. The Borough may deliver to a merchant or his/her authorized representative a copy of any return filed by him or on his behalf. The Borough may also publish statistics concerning the information contained in returns, if the publication is done in such a manner that the information contained in a particular return cannot be identified.


 

 

6.90.090 Record Keeping Required

 

  1. Every merchant shall keep and preserve for a period of three years records of all rentals completed, the amount of rent received, the amount of taxes collected, and such other books or accounts as may be necessary to determine the amount of tax for which the merchant is liable hereunder. Each merchant shall permit the Borough or its agent to examine, inspect, and copy said records, books, and accounts at any reasonable time.

     

  2. For the purpose of ascertaining the correctness of any return, or determining the amount of tax collected or which should have been collected by any merchant, the Borough manager or his/her agents may hold audits, investigations, and hearings concerning any matters covered by this ordinance, and may examine any relevant books, papers, records, accounts, or memoranda of any such merchant, and may require the attendance of any person through the issuance of a subpoena which shall be enforced under the Alaska Rules of Civil Procedure in the same manner as subpoenas issued by an officer or agency of the state.


 

 

6.90.100 Special Provisions for Pre-Existing Contracts

 

  1. This section (6.90.100) applies only to taxes levied on rentals occurring during calendar year 1998 under a contract between a merchant and tour operator which was fully executed on or before October 1, 1996. If such a contract covers more than one year, this section applies only to rentals occurring under said contract during 1998, and not to rentals occurring in subsequent years. This section only applies if a merchant has registered in the manner prescribed in this section.

     

  2. Upon request by a merchant, the manager may permit the merchant to register to transmit to the Borough, in the manner prescribed in the section, taxes levied on rentals occurring under pre-existing contracts to which this section applies. Such registration shall be separate and in addition to the registration otherwise required by this ordinance. The merchant shall apply for registration under this section on a form provided by the Borough. The application shall contain the following information:

     

    1. The name and address of the parties to the pre-existing contract and the dates on which each party signed the contract.
    2. The number of motel rooms, campground spaces, or other overnight accommodations covered by the contract during 1998.

  1. The number of days for which each overnight accommodation is rented under the terms of the contract for 1998.
  2. The dollar amount of the daily rent to be received by the merchant under the contract during 1998 for each such overnight accommodation.
  3. Proof satisfactory to the manager that the information contained in items 1-4 is accurate including, but not limited to, a copy of the contract.
  4. Any other information required by the manager.

     

    In addition, the manager is authorized to impose as conditions of registration, such other requirements as he/she deems necessary to protect the legal interests of the Borough. The provisions of Section 6.90.080 shall apply to the information required by this subsection.

     

  1. Section 6.90.030 (C) shall not apply to taxes levied on rentals occurring under pre-existing contracts to which this section applies.

     

  2. Every merchant registered under this section shall file a monthly tax return in the manner provided for in Section 6.90.060. The tax return shall include both taxes levied on rentals occurring under pre-existing contracts, and all other taxes. In addition to the information required by Section 6.90.060, the tax return shall also contain the following:

     

    1. The amount of  all  rents  received  from rentals completed during the month which occurred under pre-existing contracts.
    2. The amount of tax due on those rentals.

      Notwithstanding any other contrary provision of this ordinance, every merchant registered under this section shall transmit to the Borough the taxes levied on rentals occurring under a pre-existing contract to which this section applies, not later than December 31, 1998. If taxes are not timely transmitted to the Borough by that date, in the manner required by this ordinance, they are delinquent.

       

  3. The provisions of Section 6.90.060 (C) shall not apply to taxes levied on rentals occurring under pre-existing contracts to which this section applies. The amount of said taxes shall not be included when calculating the credit due to a merchant under 6.90.060 (C).

     

  4. Except as otherwise provided in this section, all other provisions of this ordinance, including but not limited to, those sections which impose liability for penalties, interest, and the Borough's administrative costs of collection, as well as those sections authorizing the Borough to enforce this ordinance, apply to merchants registered under this section and to the taxes levied on rentals occurring under pre-existing contracts to which this section applies.


 

 

Article III. - Penalties - Enforcement - Appeals

 

6.90.110    Penalties and Interest

 

  1.  A merchant who fails to file a return as required under this chapter or who fails to remit all the taxes due the Borough by that person shall pay a penalty of five percent (5%) of the taxes due with a minimum penalty of $500.00 if no return is filed.  The penalty is imposed for each month or part of a month during which the delinquency of failure to file exists up to a maximum total penalty for a single calendar quarter shall not exceed three thousand dollars ($3000).  The filing of an incomplete return shall be treated as the filing of no return. (Replaced by Ordinance 97-06, 11/18/97) (Replaced by Ordinance 17-08; 1/17/2017)

     

  2. Interest at the rate of eighteen (18%) per annum shall be paid on all amounts due the Borough that are not received by the Borough as required under this chapter except interest does not accrue on penalties. (Replaced by Ordinance 17-08; 1/17/2017)

     

  3. A Merchant who fails to apply for a certificate of registration as required by this chapter shall pay a penalty of five hundred dollars ($500.00). Such penalty must be paid before the license is issued or, if the original license was issued before the determination that a penalty was due or before a renewal or amended license is issued if the original license was issued before the determination that a penalty was due. A person who fails to apply for a certificate of registration, who engages in taxable transactions after being informed in writing that a certificate of registration is required, shall pay a penalty of one thousand dollars ($1,000) before the license is issued or before a renewal or amended license is issued if the original license was issued before the determination that a penalty was due. (Replaced by Ordinance 17-08; 1/17/2017)

     

  4. A failure of or refusal of a person required to collect a tax under this chapter to produce records or allow inspection at such reasonable times as requested or demanded by the sales tax administrator shall pay to the Borough a penalty equal to three times any deficiency found or estimated to have occurred by the sales tax administrator; provided, the minimum penalty payment is three thousand dollars ($3000). . (Replaced by Ordinance 17-08; 1/17/2017)

     

  5. A person required to maintain records under the provisions of this chapter shall immediately notify the Borough of any fire, theft or other casualty that would prevent the person from complying with the provisions of this chapter. Such casualty is a defense to a civil penalty levied under subsection E. of this section, but does not excuse the person from the liability for payment to the Borough of taxes required to be collected. Accidental or unexplained loss of funds or records does not excuse a person from the performance of any of the requirements under this chapter. (Ordinance 17-08, 1/17/2017)
  6. The Borough shall apply payments received on a delinquency first to the payment of penalties, then to the payment of administrative costs of collection, then to the payment of interest, and then to the payment of delinquent taxes. (Ordinance 17-08; 1/17/2017)


 

 

6.90.120 Civil Action Authorized

 

  1. The Borough may institute a civil action against a guest to collect taxes due but not paid, the Borough's administrative costs of collection, and the civil penalty provided below. The Borough may institute a civil action against a merchant to recover taxes which the merchant failed to collect, or which the merchant collected and failed to transmit to the Borough, together with the penalties, interest, and administrative costs of collection. In any such action, a tax return or estimated tax under section 6.90.070 shall constitute prima facie evidence of the amount of tax which was, or should have been collected.

     

  2. The Borough may institute a civil action against a merchant who fails to file a return in a timely manner to recover the penalties and administrative costs of collection.

     

  3. The Borough may institute a civil action against any person who violates a provision of this ordinance. In addition to injunctive relief and compensatory relief, the Borough may recover its administrative costs of collection and a civil penalty not to exceed one thousand five hundred dollars ($1,500.00) for each violation. Each act of violation and every day upon which said violation shall occur shall constitute a separate offense. The Borough may bring an action to enjoin a violation or to recover a civil penalty notwithstanding the availability of any other remedy. Nothing in this section precludes the Borough from taking any other lawful actions to recover delinquent taxes, penalties, interest, and administrative costs.  (amended by Ordinance 17-08; 1/17/2017)


 

 

6.90.130 Tax Lien

 

  1. The tax, penalties, interest, administrative costs of collection, and other costs due and owing under this chapter shall constitute a lien in favor of the Borough upon the property and other assets of the merchant and taxpayers liable for the payment of the tax, penalties, interests, and other costs.

     

  2. The lien imposed by this section arises and attaches at the time payment of the tax to the merchant is made and continues until the entire amount due has been paid to the Borough.

     

  3. If delinquent taxes, including interest and penalties, are not paid within ten (10) days from the mailing of notice and demand for payment thereof, a notice of lien may be recorded in the appropriate district recorder's office, and upon recording, a lien arising under this section has priority over any other liens except those for special assessments or those granted priority by state or federal law.

     

  4. Any corporate officer or other person having control or supervision of tax funds collected and held in trust or who is charged with the responsibility for the filing of returns or the payment of the tax funds collected, segregated, and held in trust, shall be personally liable for any unpaid taxes, interest and penalties due from the corporation or business at the moment the taxes become delinquent. The officer or other person shall be liable only for taxes collected or required to be collected or which became due and payable to the Borough during the period he or she had the control, supervision, responsibility, or duty to act for the corporation or business. Personal liability shall include interest, penalties, and the administrative costs of collection.

     

    This section does not relieve the corporation of its liability for payment of the tax due under this chapter or otherwise impair other tax collection remedies afforded by law. Collection authority and procedures prescribed in this chapter apply to collections under this section.

     

  5. An action to foreclose the lien created by this section shall be commenced and pursued in the manner provided for the foreclosure of liens in AS 09.45.170- 09.45.220.

     

  6. The remedy provided in this section is not exclusive and shall be in addition to all other remedies available to collect the taxes, penalties, interests, and cost due under this chapter.

     

  7. The failure to record a lien does not constitute a waiver or abrogation of any priorities, rights, or interests of the Borough at law and in equity.

     

  8. Fees for the administrative costs of filing notices of liens and releasing of liens shall be:
    1. Filing of notices of lien: twenty five dollars ($25), plus recorder's office filing fee.
    2. Release of liens: twenty five dollars ($25), plus recorder's office fee.


 

6.90.140 Prohibition of Making Rentals without Registering.

 

  1. A merchant who is required to register shall not engage in the rental of overnight accommodations within the Borough if the merchant has not previously registered in the manner required by section 6.90.040.

     

  2. The Borough may institute a civil action to enjoin a merchant from engaging in the rental of overnight accommodations in the Borough until the merchant has registered. The Borough may also recover from the merchant any civil penalty imposed and the Borough administrative costs of collection incurred in enforcing this section.

     

  3. A person who fails to apply for a certificate of registration as required by this chapter shall pay a penalty of five hundred dollars ($500). Such penalty must be paid before the license is issued. A person who fails to apply for a certificate of registration, who engages in taxable transactions after being informed in writing that a certificate of registration is required, shall pay a penalty of one thousand dollars ($1,000) before the license is issued or before a renewal or amended license is issued. (amended by Ordinance 17-08; 1/17/2017)


 

 

6.90.150 Sale of Business

 

If any merchant sells his overnight accommodations business to another person or entity, the merchant shall file a final tax return within fifteen days after the closing date of the sale. The purchaser shall withhold a sufficient portion of the purchase money to pay the taxes due on the final return, and any other taxes, penalties, interest, and administrative costs of collection which may be due or past due from the merchant, and shall pay this amount to the Borough on or before the due date of the final return. If the purchaser of an overnight accommodation business fails to withhold and pay these amounts as provided above, the purchaser shall be personally liable to the Borough for the payment of these amounts as if the purchaser had been a merchant at the time the amounts initially became due. The Borough may collect these amounts in the manner provided in this ordinance for the collection of taxes, penalties, interest, and administrative costs of collection.

 

 

6.90.160 Appeals

 

  1. If a tax collector (merchant) believes that a transaction is exempt or otherwise not subject to the tax imposed under this chapter or believes that a penalty, interest, or other charge is not owing, but has been informed by the Borough that such transaction is subject to the tax imposed under this chapter or such penalty, interest, or charge is owing, the collector may protest the tax by paying the tax owed to the Borough on or before the due date and filing with the Borough at the time of payment a statement of protest setting out all relevant facts and clearly explaining why the transaction taxed or the penalty, interest, or charge made is exempt, not otherwise subject to the tax levied by this chapter or not owing. The payment and statement of protest must be received not later than the forty fifth (45th) day following the date the tax was required to be collected from the taxpayer; or, if no tax was collected, the later of the

    occurrence of the challenged transaction or the date of the notice from the Borough that the transaction is taxable; or, if the protest is of a disallowance, charge levied, or similar action by the Borough, the date of the notice to the collector of the Borough determination. Failure to file a statement of protest and to pay the amount claimed by the Borough as owing within the time permitted under this subsection or other section of this chapter constitutes a waiver of the right to protest to the Manager or to appeal or otherwise challenge the tax, charge, or determination in any judicial or other proceeding.

     

  2. The tax administrator shall issue a written ruling on each collector protest within thirty (30) days of receipt of the protest or on such later date as may be required to insure full consideration of the issues raised in the protest. The collector has the burden of proof. The sales tax administrator may permit or require the collector to provide additional information relevant to the protest. The sales tax administrator may seek the advice of the Borough attorney on any protest. The ruling on the protest must set forth the reason for the grant or denial of the protest. The ruling will be sent to the collector at the address given on the protest documents.

     

  3. If a protest is granted, the tax administrator shall refund to the collector the penalty, interest, or charge levied or the tax collected and paid over to the Borough that was on an exempt transaction or otherwise not subject to the tax levied or the interest, penalty or charge under this chapter. The collector shall immediately refund to each taxpayer from whom the tax was collected the amount of the tax improperly collected; provided, if the collector has failed to directly or indirectly collect the tax but has paid the tax to the Borough from its own account, the collector may retain the tax refund.

     

  4. In the event a protest is denied, the collector may, within thirty (30) days of the date of the notice of denial, appeal the denial to the Manager if the Manager was not acting as the tax administrator on the protest. The Manager shall receive such additional information whether written or oral, as the collector may desire to present. The Manager may also receive such additional testimony and material as the tax administrator may present. The Manager shall render a decision in writing and give notice of the decision to the collector. The decision of the Manager, whether acting as the Manager or the tax administrator, is final and is subject to judicial review by an appeal to the superior court under applicable appellate court rules.

     

  5. Failure to file an appeal or protest as authorized under this section within the time permitted constitutes a waiver of the appeal or protest and any other rights of the collector to challenge the tax, interest, penalty, or other charge directly or collaterally.


 

 

6.90.170  Severability

 

If a court of competent jurisdiction determines that any provision of this ordinance or any application thereof to any person or circumstance is invalid, the remainder of this ordinance and its application to other persons or circumstances shall not be affected thereby.

 

(Chapter 6.90 Added 8/20/96 by Ordinance 96-04)