S T A T E   O F   N E W   Y O R K
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                                  1073

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            January 23, 2009
                               ___________

Introduced  by  Sen.  SEWARD -- 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  county  of
  Schoharie to impose hotel or motel taxes

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The tax law is amended by adding a new section  1202-aa  to
read as follows:
  S 1202-AA. HOTEL OR MOTEL TAXES IN SCHOHARIE COUNTY. (1) NOTWITHSTAND-
ING ANY OTHER PROVISIONS OF LAW TO THE CONTRARY, THE COUNTY OF SCHOHARIE
IS  HEREBY AUTHORIZED AND EMPOWERED TO ADOPT AND AMEND LOCAL LAWS IMPOS-
ING 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 PROVID-
ING 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 FOUR 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  OCCU-
PYING  ANY ROOM OR ROOMS IN A HOTEL OR MOTEL FOR AT LEAST THIRTY CONSEC-
UTIVE DAYS.
  (2) SUCH TAX MAY BE COLLECTED AND ADMINISTERED BY THE COUNTY TREASURER
OR OTHER FISCAL OFFICERS OF SCHOHARIE 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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04241-01-9

              

S. 1073                             2

  (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 OCCU-
PIED  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  SCHO-
HARIE 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 NONPAY-
MENT 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 POLI-
TICAL SUBDIVISION OF THE STATE;
  B. THE UNITED STATES OF AMERICA, INSOFAR AS IT IS  IMMUNE  FROM  TAXA-
TION;
  C.  ANY CORPORATION OR ASSOCIATION, OR TRUST, OR COMMUNITY CHEST, FUND
OR FOUNDATION ORGANIZED AND OPERATED EXCLUSIVELY FOR RELIGIOUS, CHARITA-
BLE OR EDUCATIONAL PURPOSES, OR FOR THE PREVENTION OF CRUELTY  TO  CHIL-
DREN  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 INSURANCE 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

S. 1073                             3

  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, ILLE-
GALLY 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 SCHOHARIE COUNTY AND SHALL
BE CREDITED TO  AND  DEPOSITED  IN  THE  GENERAL  FUND  OF  THE  COUNTY;
PROVIDED,  HOWEVER,  THAT  SUCH  LOCAL  LAWS SHALL PROVIDE THAT: (A) THE
COUNTY SHALL BE AUTHORIZED TO DEDICATE A  PORTION  OF  SUCH  REVENUE  TO
PROMOTE  TOURISM  AND OTHER FORMS OF BUSINESS IN THE COUNTY; AND (B) THE
COUNTY SHALL BE AUTHORIZED TO RETAIN UP TO A MAXIMUM OF TEN  PERCENT  OF
SUCH  REVENUE  TO DEFER THE NECESSARY EXPENSES OF THE COUNTY IN ADMINIS-
TERING SUCH TAX.
  (10) 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.
  (11)  EACH  ENACTMENT OF SUCH 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 PURSU-
ANT TO THIS SECTION.
  S 2. This act shall take  effect  on  the  first  of  the  month  next
succeeding the date on which it shall have become a law.