STATE OF NEW YORK ________________________________________________________________________ 4654 2019-2020 Regular Sessions IN SENATE March 19, 2019 ___________ Introduced by Sen. METZGER -- read twice and ordered printed, and when printed to be committed to the Committee on Investigations and Govern- ment Operations AN ACT to amend the tax law, in relation to authorizing the town of Wallkill to adopt a hotel or motel tax of up to 5%; and providing for the repeal of such provisions upon expiration thereof The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The tax law is amended by adding a new section 1202-ff to 2 read as follows: 3 § 1202-ff. Hotel or motel taxes in the town of Wallkill. (1) Notwith- 4 standing any other provision of law to the contrary, the town of Wall- 5 kill, in the county of Orange, is hereby authorized and empowered to 6 adopt and amend local laws imposing in such town a tax, in addition to 7 any other tax authorized and imposed pursuant to this article such as 8 the legislature has or would have the power and authority to impose upon 9 persons occupying hotel or motel rooms in such town. For the purposes of 10 this section, the term "hotel" or "motel" shall mean and include any 11 facility consisting of rentable units and providing lodging on an over- 12 night basis and shall include those facilities designated and commonly 13 known as "bed and breakfast" and "tourist" facilities. The rates of such 14 tax shall not exceed five percent of the per diem rental rate for each 15 room, provided however, that such tax shall not be applicable to a 16 permanent resident of a hotel or motel. For the purposes of this section 17 the term "permanent resident" shall mean a person occupying any room or 18 rooms in a hotel or motel for at least ninety consecutive days. 19 (2) Such tax may be collected and administered by the chief fiscal 20 officer of the town of Wallkill by such means and in such manner as 21 other taxes which are now collected and administered by such officer or 22 as otherwise may be provided by such local laws. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01774-01-9S. 4654 2 1 (3) Such local laws may provide that any tax imposed shall be paid by 2 the person liable therefor to the owner of the hotel or motel room occu- 3 pied or to the person entitled to be paid the rent or charge for the 4 hotel or motel room occupied for and on account of the town of Wallkill 5 imposing the tax and that such owner or person entitled to be paid the 6 rent or charge shall be liable for the collection and payment of the 7 tax; and that such owner or person entitled to be paid the rent or 8 charge shall have the same right in respect to collecting the tax from 9 the person occupying the hotel or motel room, or in respect to nonpay- 10 ment of the tax by the person occupying the hotel or motel room, as if 11 the tax were a part of the rent or charge and payable at the same time 12 as the rent or charge; provided, however, that the chief fiscal officer 13 of the town, specified in such local laws, shall be joined as a party in 14 any action or proceeding brought to collect the tax by the owner or by 15 the person entitled to be paid the rent or charge. 16 (4) Such local laws may provide for the filing of returns and the 17 payment of the tax on a monthly basis or on the basis of any longer or 18 shorter period of time. 19 (5) This section shall not authorize the imposition of such tax upon 20 any transaction, by or with any of the following in accordance with 21 section twelve hundred thirty of this article: 22 a. The state of New York, or any public corporation (including a 23 public corporation created pursuant to agreement or compact with another 24 state or the Dominion of Canada), improvement district or other poli- 25 tical subdivision of the state; 26 b. The United States of America, insofar as it is immune from taxa- 27 tion; 28 c. Any corporation or association, or trust, or community chest, fund 29 or foundation organized and operated exclusively for religious, charita- 30 ble or educational purposes, or for the prevention of cruelty to chil- 31 dren or animals, and no part of the net earnings of which inures to the 32 benefit of any private shareholder or individual and no substantial part 33 of the activities of which is carrying on propaganda, or otherwise 34 attempting to influence legislation; provided, however, that nothing in 35 this paragraph shall include an organization operated for the primary 36 purpose of carrying on a trade or business for profit, whether or not 37 all of its profits are payable to one or more organizations described in 38 this paragraph. 39 (6) Any final determination of the amount of any tax payable under 40 this section shall be reviewable for error, illegality or unconstitu- 41 tionality or any other reason whatsoever by a proceeding under article 42 seventy-eight of the civil practice law and rules if application there- 43 for is made to the supreme court within thirty days after the giving of 44 the notice of such final determination, provided, however, that any such 45 proceeding under article seventy-eight of the civil practice law and 46 rules shall not be instituted unless: 47 a. The amount of any tax sought to be reviewed, with such interest and 48 penalties thereon as may be provided for by local law shall be first 49 deposited and there is filed an undertaking, issued by a surety company 50 authorized to transact business in this state and approved by the super- 51 intendent of financial services of this state as to solvency and respon- 52 sibility, in such amount as a justice of the supreme court shall approve 53 to the effect that if such proceeding be dismissed or the tax confirmed 54 the petitioner will pay all costs and charges which may accrue in the 55 prosecution of such proceeding; orS. 4654 3 1 b. At the option of the petitioner such undertaking may be in a sum 2 sufficient to cover the taxes, interests and penalties stated in such 3 determination plus the costs and charges which may accrue against it in 4 the prosecution of the proceeding, in which event the petitioner shall 5 not be required to pay such taxes, interest or penalties as a condition 6 precedent to the application. 7 (7) Where any tax imposed under this section shall have been erro- 8 neously, illegally or unconstitutionally collected and application for 9 the refund thereof duly made to the proper fiscal officer or officers, 10 and such officer or officers shall have made a determination denying 11 such refund, such determination shall be reviewable by a proceeding 12 under article seventy-eight of the civil practice law and rules, 13 provided, however, that such proceeding is instituted within thirty days 14 after the giving of the notice of such denial, that a final determi- 15 nation of tax due was not previously made, and that an undertaking is 16 filed with the proper fiscal officer or officers in such amount and with 17 such sureties as a justice of the supreme court shall approve to the 18 effect that if such proceeding be dismissed or the tax confirmed, the 19 petitioner will pay all costs and charges which may accrue in the prose- 20 cution of such proceeding. 21 (8) Except in the case of a wilfully false or fraudulent return with 22 intent to evade the tax, no assessment of additional tax shall be made 23 after the expiration of more than three years from the date of the 24 filing of a return, provided, however, that where no return has been 25 filed as provided by law the tax may be assessed at any time. 26 (9) All revenues resulting from the imposition of the tax under the 27 local laws shall be paid into the treasury of the town of Wallkill and 28 shall be credited to and deposited in the general fund of the town. Such 29 revenues may be used for any lawful purpose. 30 (10) Each enactment of such a local law may provide for the imposition 31 of a hotel or motel tax for a period of time no longer than three years 32 from the date of its enactment. Nothing in this section shall prohibit 33 the adoption and enactment of local laws, pursuant to the provisions of 34 this section, upon the expiration of any other local law adopted pursu- 35 ant to this section. 36 (11) If any provision of this section or the application thereof to 37 any person or circumstance shall be held invalid, the remainder of this 38 section and the application of such provision to other persons or 39 circumstances shall not be affected thereby. 40 § 2. This act shall take effect immediately and shall expire and be 41 deemed repealed September 1, 2022.