N.Y. Tax Law § 1202-h: Hotel or motel taxes in Chemung county

* § 1202-h. Hotel or motel taxes in Chemung county. (1)

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

of Chemung 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. For the purposes of this

section, the term "hotel" or "motel" shall mean and include any facility

providing lodging on an overnight basis and shall include those

facilities designated and commonly known as "bed and breakfast" and

"tourist" facilities.

The rates of such tax shall not exceed four percent of the per diem

rental rate for each room provided, however, that such tax shall not be

applicable to a permanent resident of a 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 thirty

consecutive days.

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

legislature, or other fiscal officers of Chemung 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 Chemung

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 Chemung county

treasurer, 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 transaction, by or with any of the following in accordance with

section twelve hundred thirty of this chapter:

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 the 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 willfully 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) All revenues resulting from the imposition of the tax under the

local laws shall be paid into the treasury of the county of Chemung and

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

thereafter to be allocated for tourist and convention development in the

county of Chemung and the surrounding tourist region; provided, however,

that such local laws shall provide that the county shall be authorized

to retain up to a maximum of five percent of such revenue to defer the

necessary expenses of the county in administering such tax. The revenue

derived from the tax, after deducting the amount provided for

administering such tax, as so authorized by local law, shall be

appropriated annually by the county legislature upon adoption of the

budget for the county of Chemung to enhance the general economy of the

county of Chemung, its city, towns and villages, and the general economy

of the tourist region in which the county of Chemung is located, through

the promotion of regional tourism, tourist activities, conventions,

trade shows, special events, tourist attractions and other directly

related and supporting activities.

(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.

* NB There are 2 § 1202-h's