S T A T E O F N E W Y O R K
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1086
2009-2010 Regular Sessions
I N S E N A T E
January 26, 2009
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Introduced by Sen. OPPENHEIMER -- read twice and ordered printed, and
when printed to be committed to the Committee on Investigations and
Government Operations
AN ACT to amend the tax law, in relation to authorizing the city of
White Plains to impose an occupancy tax
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. OCCUPANCY TAX IN THE CITY OF WHITE PLAINS. (1) NOTWITH-
STANDING ANY OTHER PROVISIONS OF LAW TO THE CONTRARY, THE CITY OF WHITE
PLAINS, IN THE COUNTY OF WESTCHESTER, IS HEREBY AUTHORIZED AND EMPOWERED
TO ADOPT AND AMEND LOCAL LAWS IMPOSING IN SUCH CITY 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 ANY ROOM FOR HIRE IN ANY HOTEL. FOR THE PURPOSES
OF THIS SECTION, THE TERM "HOTEL" SHALL MEAN A BUILDING OR PORTION OF IT
WHICH IS REGULARLY USED AND KEPT OPEN AS SUCH FOR THE LODGING OF GUESTS.
THE TERM "HOTEL" INCLUDES AN APARTMENT HOTEL, A MOTEL OR A BOARDING
HOUSE, WHETHER OR NOT MEALS ARE SERVED. THE RATE OF SUCH TAX SHALL NOT
EXCEED THREE PERCENT OF THE PER DIEM RENTAL RATE FOR EACH ROOM WHETHER
SUCH ROOM IS RENTED ON A DAILY OR LONGER BASIS.
(2) SUCH TAX MAY BE COLLECTED AND ADMINISTERED BY THE CHIEF FISCAL
OFFICER OF THE CITY OF WHITE PLAINS 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 LAWS.
(3) SUCH LOCAL LAWS MAY PROVIDE THAT ANY TAX IMPOSED SHALL BE PAID BY
THE PERSON LIABLE THEREFOR TO THE OWNER OF THE ROOM FOR HIRE IN THE
HOTEL OR TO THE PERSON ENTITLED TO BE PAID THE RENT OR CHARGE FOR THE
ROOM FOR HIRE IN THE HOTEL OCCUPIED FOR AND ON ACCOUNT OF THE CITY OF
WHITE PLAINS IMPOSING THE TAX AND THAT SUCH OWNER OR PERSON ENTITLED TO
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03531-01-9
S. 1086 2
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 ROOM FOR HIRE IN THE HOTEL, OR IN
RESPECT TO NONPAYMENT OF THE TAX BY THE PERSON OCCUPYING THE ROOM FOR
HIRE IN THE HOTEL, 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 CITY OF WHITE PLAINS, SPECIFIED IN SUCH
LOCAL LAWS, 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 OF THE FOLLOWING:
A. THE STATE OF NEW YORK, OR ANY PUBLIC CORPORATION (INCLUDING A
PUBLIC CORPORATION CREATED PURSUANT TO AGREEMENT OR COMPACT WITH ANOTHER
STATE OR CANADA), IMPROVEMENT DISTRICT OR OTHER POLITICAL 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; OR
D. A PERMANENT RESIDENT OF A HOTEL. FOR THE PURPOSES OF THIS SECTION,
THE TERM "PERMANENT RESIDENT" SHALL MEAN A NATURAL PERSON OCCUPYING ANY
ROOM OR ROOMS IN A HOTEL FOR AT LEAST THIRTY CONSECUTIVE DAYS.
(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 NOTICE OF SUCH
FINAL DETERMINATION, PROVIDED, HOWEVER, THAT ANY SUCH PROCEEDING UNDER
SUCH ARTICLE SEVENTY-EIGHT 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 LAWS OR REGULATIONS
SHALL BE FIRST DEPOSITED AND THERE SHALL BE 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
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
S. 1086 3
NOT BE REQUIRED TO PAY SUCH TAXES, INTEREST OR PENALTIES AS A CONDITION
PRECEDENT TO THE APPLICATION.
(7) WHERE ANY TAXES IMPOSED HEREUNDER SHALL HAVE BEEN ERRONEOUSLY,
ILLEGALLY OR UNCONSTITUTIONALLY COLLECTED AND APPLICATION FOR THE REFUND
THEREFOR 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 TAXES 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 WILLFULLY 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 THE CITY OF WHITE PLAINS
AND SHALL BE CREDITED TO AND DEPOSITED IN THE GENERAL FUND OF THE CITY.
SUCH REVENUES MAY BE USED FOR ANY LAWFUL PURPOSE.
(10) EACH ENACTMENT OF SUCH A LOCAL LAW MAY PROVIDE FOR THE IMPOSITION
OF A HOTEL TAX FOR A PERIOD TO EXPIRE ON DECEMBER THIRTY-FIRST, TWO
THOUSAND TWELVE. 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 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 2. This act shall take effect immediately.
