N.Y. Tax Law § 1202-o: Hotel and motel taxes in Suffolk county

* § 1202-o. Hotel and motel taxes in Suffolk county. (1)

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

of Suffolk 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, (i) "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", inns,

cabins, cottages, campgrounds, tourist homes and convention centers, and

(ii) "cultural programs and activities" shall mean events, forums, or

actions of benefit to the general public that are thematically related

to art, music, performing arts or music, or historic or environmental

preservation or education.

The rates of such tax shall not exceed five and one-half percent of

the per diem rental rate for each room, provided, however, that 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 thirty consecutive days.

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

or other fiscal officers of Suffolk 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 Suffolk

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 law may provide for the filing of returns and the

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

period of time.

(5) Such local law shall provide for the county of Suffolk to enter

into a contract with a tourism promotion agency to administer programs

designed to develop, encourage, solicit and promote convention business

and tourism within the county. The promotion of convention business and

tourism shall include any service, function or activity, whether or not

performed, sponsored or advertised by the tourism promotion agency with

the intent to attract transient guests to the county.

(6) Such local law shall provide that all revenues resulting from the

imposition of the tax payable hereunder shall be paid into the treasury

of the county of Suffolk and shall be distributed by the county

proportional to the annual amount due under the following formula: (a)

four million five hundred thousand dollars per fiscal year, shall be

delivered to a not-for-profit tourism promotion agency for the purpose

of tourism promotion in the county of Suffolk pursuant to a contract in

accordance with the provisions of subdivision five of this section and

subject to an awarding of contract through request for proposal; (a-1)

one hundred fifty thousand dollars per fiscal year shall be delivered to

a not-for-profit agency that represents the hospitality sector to be

used to promote and support the hospitality sector in the county of

Suffolk; (b) two million eight hundred fifty thousand dollars per fiscal

year shall be utilized by the county of Suffolk in support of cultural

programs and activities relevant to the continuation and enhancement of

the tourism industry, provided that one million six hundred thousand

dollars per fiscal year shall be utilized in support of cultural

programs and activities in the towns of Babylon, Brookhaven, Huntington,

Islip and Smithtown; one million dollars per fiscal year shall be

utilized in support of cultural programs and activities in the towns of

Riverhead, Southold, Shelter Island, Southampton and East Hampton and

two hundred fifty thousand dollars per fiscal year shall fund cultural

grant programs administered by the county department of economic

development and planning; (c) one million five hundred thousand dollars

per fiscal year shall be utilized by the county of Suffolk for the

support of any museum accredited by the American Association of Museums,

which is located in such county's first dedicated park and is also

listed on the National Register of Historic Places; (d) one million

dollars per fiscal year shall be utilized by the county of Suffolk for

the support of other museums, and historical societies, historic

residences and historic birthplaces; (d-1) two hundred fifty thousand

dollars per fiscal year shall be utilized by the county of Suffolk for

program support of a not-for-profit museum organization that manages a

National Register of Historic Places site in Suffolk county that has

been named a National Treasure, is part of a National Recreational Trail

and is a New York state historic site; (e) two million five hundred

thousand dollars per fiscal year shall be utilized by the county of

Suffolk for the care, maintenance, and interpretation for the general

public of the historic structures, sites and unique natural areas that

are managed by the Suffolk county department of parks and recreation for

sites and activities that are open to tourists on a regular and

predictable basis; (f) two hundred fifty thousand dollars per fiscal

year shall be utilized by the county of Suffolk for the promotion of the

county of Suffolk as a film friendly location through the county

department of economic development and planning; (f-1) three million two

hundred fifty thousand dollars per fiscal year shall be deposited into

the general fund of the county of Suffolk to be utilized for general

park purposes; (g) five hundred thousand dollars per fiscal year shall

be utilized by the county of Suffolk for regional marketing and

promotion provided that two hundred fifty thousand dollars is delivered

to a Long Island regional commercial airport, designated as an official

metro airport that does not operate in the same airspace as airports

located in New York city and two hundred fifty thousand dollars to an

east end tourism agency which the county of Suffolk contracts with to

administer programs designed to develop, encourage, solicit and enhance

business and tourism on the east end of the county of Suffolk; (g-1) two

hundred fifty thousand dollars per fiscal year shall be utilized by the

county of Suffolk for program support of a not-for-profit organization

that manages and owns the first lighthouse built in New York, a national

register of historic places site in Suffolk county that has been named a

national historic landmark and is a New York state historic site; and

(h) all remaining revenue collected by the county of Suffolk shall be

deposited into a special fund to be designated as the "Suffolk County

Infrastructure Fund," to be created by said county therefore separate

and apart from any other funds and accounts of the county. Monies in

such fund shall be deposited and secured in the manner provided by

section ten of the general municipal law, and, pending expenditure, may

be invested in the manner provided by section ten of the general

municipal law. Any interest earned or capital gain realized on monies

deposited shall accrue to and become part of the fund. In no event shall

monies deposited in the fund be transferred to any other fund except as

set forth in this subdivision. Monies in such fund may be appropriated

from and transferred or expended in any fiscal year for the planning,

design, and construction of projects that enhance tourism that meet one

of the following criteria: (i) a convention center and surrounding

infrastructure, including but not limited to, utilities, underground

infrastructure, wastewater improvements, parking facilities, traffic

improvements, pedestrian access and multi-modal projects, community

impact projects, transportation facilities and related improvements and

to repay any indebtedness or obligations incurred, pursuant to local

finance law, for these purposes; and (ii) except that from January

first, two thousand twenty-six through December thirty-first, two

thousand twenty-nine remaining revenue may also be expended on such

purposes as capital improvements of (A) historic designated structures,

parks, marinas, golf courses and campgrounds used to promote tourism on

county-owned properties; (B) not-for-profit owned accredited museums and

performance venues; (C) the Smith Point and Ponquogue bridge

reconstruction projects; (D) Shinnecock canal infrastructure; (E) new or

expanded wastewater treatment infrastructure or shoreline protection and

coastal resiliency projects that protects and enhances water quality,

improves coastal resiliency, and preserves or expands occupancy capacity

at beach destinations; provided during such period the Suffolk county

infrastructure fund retains a minimum balance of five million dollars.

As applicable, funds disbursed for construction shall comply with

article eight of the labor law; and (i) the funding amounts identified

in paragraphs (a) through (g-1) of this subdivision shall be increased

by one percent over the prior fiscal years' funding each fiscal year,

except that the funding for the support of any museum accredited by the

American Association of Museums, which is located in such county's first

dedicated park and is also listed on the National Register of Historic

Places; for the support of a not-for-profit museum organization that

manages a National Register of Historic Places site in Suffolk county

that has been named a National Treasure, is part of a National

Recreational Trail and is a New York state historic site; and for the

support of a not-for-profit organization that manages and owns the first

lighthouse built in New York shall be increased by a percentage over the

prior years' funding each fiscal year to be determined by resolution of

the Suffolk county legislature by a minimum of one percent but not to

exceed five percent in any given fiscal year.

In the event that revenues resulting from the imposition of the tax

payable hereunder are insufficient to fund according to the amounts

identified in paragraphs (a) through (g-1) of this subdivision, the

county of Suffolk shall utilize funds from the Suffolk County

Infrastructure Fund to fund according to the amounts identified in

paragraphs (a) through (g-1) of this subdivision, however, if the funds

from the Suffolk County Infrastructure Fund are still insufficient to

provide funding according to paragraphs (a) through (g-1), distributions

set forth in paragraphs (a) through (g-1) of this subdivision shall be

reduced on a proportional basis.

Schedules of availability of all historic and cultural activities and

events funded from any part of these revenues shall be provided to the

aforementioned tourism promotion agency which is contracted with by the

county of Suffolk so as to enhance tourism promotion and tourist

visitation.

Annually, the department of economic development and planning of the

county of Suffolk shall submit, to the county executive and the county

legislature of such county, a report on such department's progress on

the promotion of the county of Suffolk as a film friendly location, and

annual statistics of the revenue generated pursuant to paragraph (f) of

this subdivision.

(7) Such local law shall provide for the imposition of a hotel or

motel tax in perpetuity.

(8) 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.

(9) 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 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, interest 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.

(10) 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.

(11) Except in the case of 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.

(12) 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 3 §1202-o's