N.Y. Tax Law § 1202-e: Hotel or motel taxes in Schenectady county

§ 1202-e. Hotel or motel taxes in Schenectady county. (1)

Notwithstanding any other provisions of law to the contrary, the county

of Schenectady is hereby authorized and empowered to adopt and amend

local laws imposing in such county a tax, in addition to any other tax

authorized and imposed pursuant to this article, such as the legislature

has or would have the power and authority to impose upon persons

occupying hotel or motel rooms in such county. The rates of such tax

shall be five percent of the per diem rental rate for each room

provided, however, such tax shall not be applicable to a permanent

resident of such hotel or motel. For the purposes of this section the

term "permanent resident" shall mean a person occupying any room or

rooms in a hotel or motel for at least ninety consecutive days.

(2) Such tax may be collected and administered by the county

commissioner of finance or other fiscal officers of Schenectady county

by such means and in such manner as other taxes which are now collected

and administered by such officers or as otherwise may be provided by

such local law.

(3) Such local laws may provide that any tax imposed shall be paid by

the person liable therefor 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

Schenectady 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; and that 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

commissioner of finance or other fiscal officers of the county,

specified in such local law, 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.

(4) Such local laws may provide for the filing of returns and the

payment of the tax on a monthly basis or on the basis of any longer or

shorter period of time.

(5) This section shall not authorize the imposition of such tax upon

any of the following:

a. 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;

b. The United States of America, insofar as it is immune from

taxation;

c. 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.

(6) Any final determination of the amount of any tax payable hereunder

shall be reviewable for error, illegality or unconstitutionality or any

other reason whatsoever by a proceeding under article seventy-eight of

the civil practice law and rules if application therefor 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:

a. The amount of any tax sought to be reviewed, with such interest and

penalties thereon as may be provided for by local law or regulation

shall be first deposited and there is filed an undertaking, issued by a

surety company authorized to transact business in this state and

approved by the superintendent of financial services of this 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 or;

b. At the option of the petitioner such undertaking may be in a sum

sufficient to cover the taxes, interests and penalties stated in such

determination plus the costs and charges which may accrue against it in

the prosecution of the proceeding, in which event the petitioner shall

not be required to pay such taxes, interest or penalties as a condition

precedent to the application.

(7) 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 or officers, and such

officer or officers 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 or officers 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

proceeding.

(8) Except in the case of a wilfully 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.

(9) Revenues resulting from the imposition of tax authorized by this

section shall be paid into the treasury of the county of Schenectady and

shall be credited to and deposited in the general fund of the county;

the net collections therefrom shall thereafter be allocated by the board

of representatives of Schenectady county only for direct tourism

promotional activities, and for the promotion and development of the

performing and visual arts in the county of Schenectady, as the

cornerstone of the visitor and tourism industry in Schenectady county.

(10) If any provision of this section or the application thereof to

any person or circumstance shall be held invalid, the remainder of this

section and the application of such provision to other persons or

circumstances shall not be affected thereby.