N.Y. Tax Law § 1202-o*2: Hotel or motel taxes in the city of Lockport, Niagara county

* § 1202-o. Hotel or motel taxes in the city of Lockport, Niagara

county. (1) Notwithstanding any other provisions of law to the contrary,

the city of Lockport, Niagara county 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", inns,

and tourist homes. The rates of such tax shall not exceed five percent

(5%) 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 fourteen consecutive days.

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

or other fiscal officers of the city of Lockport 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 city of Lockport

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 city treasurer

or other fiscal officers of the city, 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

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 pub-

lic 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 the city of Lockport and

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

thereafter to be allocated at the discretion of the common council of

the city of Lockport for the purposes of tourism and economic

development; provided, however, that such local laws shall provide that

the city shall be authorized to retain the necessary revenue to defer

necessary expenses of the city 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

allocated to enhance the general economy of the city of Lockport as

follows: (a) from the first four percent (4%), twenty-five percent of

such revenue from this tax shall be used for the promotion of community

and economic development in the city of Lockport; and the remaining

seventy-five percent of the first four percent (4%) of said revenue

shall be allocated and paid to a not-for-profit corporation under

contract with the county for the promotion of tourism in the county; (b)

the additional one percent (1%) of such revenue from this tax shall be

dedicated to the operation of the discover Niagara shuttle.

(10) Each enactment of such a local law may provide for the imposition

of a hotel or motel tax for a period of time no longer than three years

from the date of its enactment. Nothing in this section shall prohibit

the adoption and enactment of local laws, pursuant to the provisions of

this section, upon the expiration of any other local law adopted

pursuant to this section.

(11) 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