N.Y. Tax Law § 1202-u*4: Hotel and motel taxes in Cattaraugus county

* § 1202-u. Hotel and motel taxes in Cattaraugus county. (1)

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

of Cattaraugus 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,

cabins, condominiums, cottages, campgrounds, lodges, tourist homes and

convention centers. For the purpose of this section, the term

"condominium" shall mean and include those units rented or leased

directly by the owner or through a real estate agency or rental

management agency. The provisions of this section relating to

campgrounds, shall only apply to those leases and rentals in which the

campground provides overnight shelter or lodging, and shall not apply to

the provision of services by a campground when the customer provides his

or her own shelter or lodging.

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 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

sixty consecutive days.

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

or other fiscal officers of Cattaraugus 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

Cattaraugus 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 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.

(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, 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.

(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 Cattaraugus county and

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

thereafter to be allocated at the discretion of the county legislature

of the county of Cattaraugus for the purposes of tourism and economic

development; 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 allocated to enhance the general

economy of Cattaraugus county, its cities, towns, and villages, through

promotion of tourist activities, conventions, trade shows, special

events, and other directly related and supporting activities.

(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 act or the application thereof to any

person or circumstance shall be held invalid, the remainder of this act

and the application of such provision to other persons or circumstances

shall not be affected thereby.

* NB There are 4 § 1202-u's