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

                                  11278

                          I N  A S S E M B L Y

                              May 25, 2010
                               ___________

Introduced by M. of A. GIGLIO -- read once and referred to the Committee
  on Ways and Means

AN  ACT  to  amend  the  tax law, in relation to authorizing the town of
  Allegany, in the county of Cattaraugus,  to  impose  hotel  and  motel
  taxes; 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:

  Section 1. The article heading of article 29 of the tax law, as  added
by chapter 93 of the laws of 1965, is amended to read as follows:
                    TAXES AUTHORIZED FOR CITIES, TOWNS,
                      COUNTIES AND SCHOOL DISTRICTS
  S  2. The subpart A heading of part 1 of article 29 of the tax law, as
added by chapter 93 of the laws of 1965, is amended to read as follows:
                  TAXES ADMINISTERED BY CITIES, TOWNS,
                      COUNTIES AND SCHOOL DISTRICTS
  S 3. The tax law is amended by adding a new section 1202-bb to read as
follows:
  S 1202-BB. HOTEL OR MOTEL TAXES IN THE TOWN OF ALLEGANY. (1)  NOTWITH-
STANDING ANY OTHER PROVISION OF LAW, THE TOWN OF ALLEGANY, IN THE COUNTY
OF  CATTARAUGUS,  IS  HEREBY AUTHORIZED AND EMPOWERED TO ADOPT AND AMEND
LOCAL LAWS IMPOSING IN SUCH TOWN A TAX, IN ADDITION TO ANY  OTHER  TAXES
AUTHORIZED  AND IMPOSED PURSUANT TO THIS ARTICLE SUCH AS THE LEGISLATURE
HAS OR WOULD HAVE THE POWER AND AUTHORITY TO IMPOSE UPON PERSONS OCCUPY-
ING HOTEL OR MOTEL ROOMS IN SUCH TOWN. FOR THE PURPOSES OF THIS SECTION,
THE TERM "HOTEL" OR "MOTEL" SHALL MEAN AND  INCLUDE  ANY  PROFESSIONALLY
MANAGED  REAL PROPERTY PROVIDING LODGING ON AN OVERNIGHT BASIS AND SHALL
INCLUDE THOSE FACILITIES DESIGNATED AND COMMONLY  KNOWN  AS  "COTTAGES",
"APARTMENTS",  "CONDOMINIUMS", "BED AND BREAKFAST" AND "TOURIST" FACILI-
TIES. THE RATES OF SUCH TAX SHALL NOT EXCEED THREE 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  HAVING
LESS  THAN  FIVE  RENTABLE  UNITS. FOR THE PURPOSES OF THIS SECTION, THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD16342-02-0
              

A. 11278                            2

TERM "PERMANENT RESIDENT" SHALL MEAN A  PERSON  OCCUPYING  ANY  ROOM  OR
ROOMS IN A HOTEL OR MOTEL FOR AT LEAST THIRTY CONSECUTIVE DAYS.
  (2)  SUCH  TAX  MAY  BE COLLECTED AND ADMINISTERED BY THE CHIEF FISCAL
OFFICER OF THE TOWN OF ALLEGANY BY SUCH MEANS  AND  IN  SUCH  MANNER  AS
OTHER  TAXES WHICH ARE NOW COLLECTED AND ADMINISTERED BY SUCH OFFICER OR
AS OTHERWISE MAY BE PROVIDED BY SUCH LOCAL LAW.
  (3) SUCH LOCAL LAW MAY PROVIDE THAT ANY TAX IMPOSED  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 RENTOR CHARGE FOR THE HOTEL  OR
MOTEL  ROOM OCCUPIED FOR AND ON ACCOUNT OF THE TOWN OF ALLEGANY IMPOSING
THE TAX AND THAT SUCH OWNER OR PERSON ENTITLED TO BE PAID  THE  RENT  OR
CHARGE  SHALL  BE LIABLE FOR 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 OCCUPY-
ING 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 CHIEF FISCAL OFFICER OF THE TOWN,
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 CHAPTER:
  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 PURSUANT
TO THIS SECTION SHALL BE REVIEWABLE FOR ERROR, ILLEGALITY OR UNCONSTITU-
TIONALITY OR ANY OTHER REASON WHATSOEVER BY A PROCEEDING  UNDER  ARTICLE
SEVENTY-EIGHT  OF THE CIVIL PRACTICE LAW AND RULES IF APPLICATION THERE-
FOR 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  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 SUPER-

A. 11278                            3

INTENDENT 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 PROSE-
CUTION 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 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  OFFI-
CERS, AND SUCH OFFICER OR OFFICERS SHALL HAVE MADE A DETERMINATION DENY-
ING  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 DETERMI-
NATION 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 PROSE-
CUTION 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 LOCAL
LAWS SHALL BE PAID INTO THE TREASURY OF THE TOWN OF ALLEGANY  AND  SHALL
BE  CREDITED  AND  DEPOSITED IN A SPECIAL MUNICIPAL BUILDING MAINTENANCE
FUND ESTABLISHED BY LOCAL LAW; AND THE LOCAL LAW SHALL PROVIDE THAT  THE
TOWN  SHALL  BE  AUTHORIZED  TO  RETAIN NOT MORE THAN TEN PERCENT OF THE
REVENUE TO DEFER THE EXPENSES OF THE TOWN IN ADMINISTERING SUCH TAX  AND
THE  BALANCE  OF  SUCH  REVENUES  IN  SUCH  FUND  SHALL BE ALLOCATED AND
DISBURSED BY THE TOWN BOARD ONLY FOR THE PURPOSES OF TOWN BUILDING MAIN-
TENANCE, OPERATIONS, EXPANSION AND CONSTRUCTION; AND SUCH OTHER PROGRAMS
AS SHALL BE AUTHORIZED BY LOCAL LAW.
  (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.
  S  4. This act shall take effect December 1, 2010 and shall expire and
be deemed repealed November 30, 2011.