N.Y. Tax Law § 1202-s: Hotel or motel taxes in Essex county

§ 1202-s. Hotel or motel taxes in Essex county. (1) Notwithstanding

any other provisions of law to the contrary, the county of Essex 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 board of supervisors 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 five 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) 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, continuing or imposing such a tax after the expiration of

a previous local law adopted pursuant to this section.

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

or other fiscal officers of Essex 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.

(4) 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 Essex

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.

(5) 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.

(6) 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 article:

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.

(7) Any final determination of the amount of any tax payable pursuant

to this section 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.

(8) Where any tax imposed pursuant to this section 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.

(9) 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.

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

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

shall be credited and deposited into the general fund of the county

thereby to be allocated at the discretion of the county legislature of

the county of Essex for the purposes of tourism promotion and

development and economic development which supports tourism promotion

and development, provided, however, 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

allocated exclusively to the promotion and development of tourism and

economic development which supports tourism promotion and development of

Essex county, its cities, towns and villages, and other directly related

and supporting activities, and shall not be used for any other purpose.

In soliciting contracts for services and in the expenditure of monies

under this law, the county of Essex shall follow all applicable federal,

state and county procurement laws, policies, rules and procedures.

(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.