S T A T E   O F   N E W   Y O R K
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                                  5742

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              June 11, 2013
                               ___________

Introduced  by  Sen.  LITTLE -- 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
  Franklin to establish hotel and 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-cc  to
read as follows:
  S  1202-CC. HOTEL OR MOTEL TAXES IN FRANKLIN COUNTY. (1) NOTWITHSTAND-
ING ANY OTHER PROVISIONS OF LAW TO THE CONTRARY, THE COUNTY OF  FRANKLIN
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 COUNTY LEGISLATURE 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 FIVE 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 FRANKLIN 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.
                                                           LBD11436-02-3

              

S. 5742                             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 FRANK-
LIN  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 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  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 FINANCIAL SERVICES 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. 5742                             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 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 THE
LOCAL LAWS SHALL BE PAID INTO THE TREASURY OF THE COUNTY OF FRANKLIN AND
SHALL BE CREDITED TO AND DEPOSITED IN THE GENERAL FUND  OF  THE  COUNTY,
THEREAFTER  TO  BE  ALLOCATED  FOR THE PROMOTION OF TOURISM DEVELOPMENT,
ECONOMIC DEVELOPMENT, AND OTHER DIRECTLY RELATED AND  SUPPORTING  ACTIV-
ITIES;  PROVIDED,  HOWEVER,  THAT SUCH LOCAL LAWS SHALL PROVIDE THAT THE
COUNTY OF FRANKLIN SHALL BE AUTHORIZED TO RETAIN UP TO A MAXIMUM OF  TEN
PERCENT  OF SUCH REVENUES TO DEFER THE NECESSARY EXPENSES OF SUCH COUNTY
IN ADMINISTERING 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 EFFECTIVE 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 PURSUANT TO THIS SECTION.
  S 2. This act shall take effect immediately.