N.Y. Tax Law § 1202-k: Hotel or motel taxes in Montgomery county

* § 1202-k. Hotel or motel taxes in Montgomery county. (1)

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

of Montgomery 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", "inn"

and "tourist" facilities and the term "permanent resident" shall mean a

person occupying any room or rooms in a hotel or motel more than thirty

consecutive days. 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.

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

or other fiscal officers of Montgomery 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

Montgomery 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 treasurer

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

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

shall be credited to and deposited in a special tourism/convention

account, and the collections therefrom, excluding the cost of

administration, shall thereafter be allocated by the board of

supervisors of Montgomery county to enhance and develop the general

economy of the county of Montgomery and the towns therein through

promotion of tourism, conventions, trade shows, 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-k's