S T A T E   O F   N E W   Y O R K
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                                  2846

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 2, 2011
                               ___________

Introduced  by  Sen.  STEWART-COUSINS -- 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 town of
  Greenburgh to adopt a local law to impose a hotel/motel occupancy  tax
  for  hotels not located in a village; authorizing villages in the town
  of Greenburgh to adopt a local law to impose a  hotel/motel  occupancy
  tax in such villages

  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-cc  to
read as follows:
  S 1202-CC. HOTEL OR MOTEL TAXES IN THE TOWN AND THE VILLAGES OF GREEN-
BURGH.  (1) NOTWITHSTANDING ANY OTHER PROVISIONS OF LAW TO THE CONTRARY,
THE TOWN OF GREENBURGH, WESTCHESTER COUNTY,  IS  HEREBY  AUTHORIZED  AND
EMPOWERED  TO  ADOPT  AND AMEND LOCAL LAWS IMPOSING IN THOSE PORTIONS OF
SUCH TOWN NOT LOCATED WITHIN A VILLAGE, AND EACH VILLAGE IN SUCH TOWN IS
HEREBY AUTHORIZED AND EMPOWERED TO ADOPT AND AMEND LOCAL  LAWS  IMPOSING
IN  SUCH  VILLAGE  A  TAX,  IN  ADDITION TO ANY OTHER TAX AUTHORIZED AND
IMPOSED PURSUANT TO THIS ARTICLE, AS THE LEGISLATURE HAS OR  WOULD  HAVE
THE POWER AND AUTHORITY TO IMPOSE UPON PERSONS OCCUPYING ROOMS IN HOTELS
OR  MOTELS  IN  SUCH  TOWN  OR VILLAGE THEREIN. 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 COMMISSIONER OF
FINANCE OR OTHER FISCAL OFFICER OF THE TOWN  OF  GREENBURGH  OR  OF  ANY
VILLAGE THEREIN, AS THE CASE MAY BE, BY SUCH MEANS AND IN SUCH MANNER AS
OTHER TAXES WHICH ARE NOW COLLECTED AND ADMINISTERED BY SUCH OFFICERS IN
ACCORDANCE  WITH  THE  TOWN  OR  VILLAGE  CHARTER 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.
                                                           LBD08252-01-1

S. 2846                             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  TOWN  OF  GREEN-
BURGH OR OF ANY VILLAGE THEREIN 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  ENTI-
TLED  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 PAYA-
BLE AT THE SAME TIME AS THE RENT OR CHARGE; PROVIDED, HOWEVER, THAT  THE
COMMISSIONER  OF  FINANCE  OR  OTHER  FISCAL OFFICERS OF THE TOWN OR THE
VILLAGE, 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
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 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  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; AND
  D. A PERMANENT RESIDENT OF A HOTEL OR MOTEL. FOR THE PURPOSES OF  THIS
SECTION, THE TERM "PERMANENT RESIDENT" SHALL MEAN A NATURAL PERSON OCCU-
PYING  ANY ROOM OR ROOMS IN A HOTEL OR MOTEL FOR AT LEAST THIRTY CONSEC-
UTIVE 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 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

S. 2846                             3

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 TAXES, INTEREST AND PENALTIES STATED IN SUCH  DETER-
MINATION  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 ACCRUE IN THE PROSECUTION OF  SUCH  PROCEED-
ING.
  (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)  REVENUES  RESULTING FROM THE IMPOSITION OF TAX AUTHORIZED BY THIS
SECTION SHALL BE PAID INTO THE TREASURY OF THE TOWN OF GREENBURGH OR  OF
THE  VILLAGE  THEREIN,  AND  SHALL  BE  CREDITED TO AND DEPOSITED IN THE
GENERAL FUND OF THE TOWN OR VILLAGE; AND MAY THEREAFTER BE ALLOCATED  AT
THE  DISCRETION OF THE BOARD OF LEGISLATORS OF THE TOWN OF GREENBURGH OR
OF THE VILLAGE THEREIN FOR ANY TOWN OR VILLAGE PURPOSE.
  (10) THE BOARD OF LEGISLATORS OF THE TOWN  OF  GREENBURGH  OR  OF  THE
VILLAGE THEREIN SHALL ALLOCATE ONE-THIRD OF SUCH REVENUES RESULTING FROM
THE IMPOSITION OF TAX AUTHORIZED BY THIS SECTION, TO THE SCHOOL DISTRICT
OR DISTRICTS LOCATED IN SUCH TOWN OR VILLAGE THEREIN.
  (11)  THE  REVENUE  RESERVED  FOR  SCHOOL  DISTRICTS  SHALL BE DIVIDED
PROPORTIONALLY BETWEEN SCHOOL DISTRICTS WHOLLY OR PARTIALLY  WITHIN  THE
MUNICIPALITY  BASED UPON THE NUMBER OF STUDENTS IN EACH SCHOOL DISTRICT.
THAT IS, THE MUNICIPALITY SHALL DISTRIBUTE THE  TAX  REVENUE  TO  SCHOOL
DISTRICTS  BASED  UPON  EACH DIVIDED SCHOOL DISTRICT'S PROPORTION OF THE
MUNICIPALITY'S PUBLIC SCHOOL STUDENTS;  SCHOOL  DISTRICTS  MUST  HAVE  A
MINIMUM OF FIVE STUDENTS FROM THE MUNICIPALITY TO RECEIVE A PROPORTIONAL
DISTRIBUTION.  EACH  SCHOOL  DISTRICT  SHALL  DETERMINE  THE  NUMBER  OF
FULL-TIME, NON-TUITION STUDENTS WHO   RESIDE  IN  THE  MUNICIPALITY  AND
SUBMIT  SUCH  DATA  TO  THE  MUNICIPALITY, WHICH DATA WILL BE SUBJECT TO
REVIEW BY THE MUNICIPALITY.
  (12) 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.