INTRODUCTION OF LOCAL LAW & NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN that there has been introduced before the Board of Supervisors of the County of Livingston, New York, on February 8, 2023, local law entitled “Local Law No. A–2023 Adopting the Livingston County Guest Room Occupancy Tax
NOTICE IS FURTHER GIVEN, that the Board of Supervisors will conduct a public hearing on the proposed Local Law at the Livingston County Government Center, Board of Supervisors Assembly Room, Third Floor, Geneseo, New York at 1:35 pm on March 8, 2023, at which time all persons interested will be heard.
Dated at Geneseo, New York
February 13, 2023
Michele R. Rees, IIMC-CMC
Clerk of the Board
LIVINGSTON COUNTY BOARD OF SUPERVISORS
INTRODUCTION OF LOCAL LAW
LOCAL LAW NO. A OF THE YEAR 2023 ADOPTING THE LIVINGSTON COUNTY GUEST ROOM OCCUPANCY TAX
BE IT ENACTED BY THE LIVINGSTON COUNTY BOARD OF SUPERVISORS AS FOLLOWS:
TITLE 100 ‑ GENERAL PROVISIONS:
101. Short Title: This Local Law shall be known as the Livingston County Guest Room Occupancy Tax.
102. Intent: This Local Law is adopted to implement the provisions of Chapter 290 of the Laws of 1993, effective July 21, 1993, enacting Section 1202‑m of the Tax Law of the State of New York.
103. Definitions: Unless the context requires a different meaning, when used in this Local Law, the following terms shall mean:
a. "County" shall mean the County of Livingston.
b. "Person" shall mean an individual, partnership, society, association, joint stock company, corporation, estate, receiver, trustee, assignee, referee, and any other person acting in a fiduciary or representative capacity, whether appointed by a court or otherwise, and any combination of the foregoing.
c. "Operator" shall mean any person operating a hotel, motel, tourist home, cottage, cabin, condominium, bed and breakfast, and short term or vacation rental in the County of Livingston, including but not limited to the owner or proprietor of such premises, lessee, sublessee, mortgagee in possession, licensee or any other person otherwise operating such hotel, motel, tourist home, cottage, condominium, bed and breakfast, and short term or vacation rental.
d. "Hotel, motel, tourist home, cottage, cabin, condominium, bed and breakfast, and short term or vacation rental" or such terms singly shall mean any facility or portion thereof providing lodging on an overnight basis. Such terms include an apartment, hotel, motor court or inn, boarding house, cabin, cottage or club, or similar hotel or motel type of accommodations by whatever name designated, whether or not meals are served and shall include those facilities commonly known as "bed and breakfast" and "tourist" facilities. “Short term or vacation rental” includes those units rented or leased to occupants, including furnished apartments or rooms in or consisting of a dwelling place ordinarily occupied for residential purposes, directly by the owner or through the owner’s agent or hosting platform.
e. "Occupancy" shall mean the use or possession, or the right to use or have possession of, any room in a hotel, motel, tourist home, cottage, cabin, condominium, bed and breakfast, and short term or vacation rental.
f. "Occupant" shall mean a person who, for a consideration, uses, possesses, or has the right to use or possess, any room in a hotel, motel, tourist home, cottage, cabin, condominium, bed and breakfast, and short term or vacation rental under any lease, concession, permit, right of access, license to use or other agreement, or otherwise.
g. "Permanent Resident" shall mean any occupant of any room or rooms in a hotel, motel, tourist home, cottage, cabin, condominium, bed and breakfast, and short term or vacation rental for a period in excess of fourteen (14) consecutive days.
h. "Rent" shall mean the total consideration received by an operator for occupancy, including all charges by whatever term designated, valued in money, whether received in money or otherwise.
i. "Room" shall mean any room of any kind in any part or portion of a hotel, motel, tourist home, cottage, cabin, condominium, bed and breakfast, and short term or vacation rental, which is available for or let out for any purpose other than a place of assembly.
j. "Return" shall mean any return filed or required to be filed as herein provided.
k. "Tax" shall mean the tax imposed pursuant to this Local Law and any increase, reduction or modification hereafter authorized.
l. "Treasurer" shall mean the Treasurer of Livingston County or the Treasurer's designee.
104. Territorial Limitations: A tax imposed by this Local Law shall apply only within the territorial limits of the County of Livingston.
105. Reference to Tax: Wherever reference is made in placards, advertisements or other publications to the tax imposed by this Local Law, such reference shall be substantially in the following form: "Tax on occupancy of guest rooms", except that in any bill, receipt, statement or other agreement or memorandum of occupancy or rent charge issued or employed by an operator, the words "occupancy tax" shall suffice.
TITLE 200 ‑ ADMINISTRATION OF TAX LAW
201. Administration: The tax imposed by this Local Law shall be administered and collected by the Treasurer or other fiscal officers of the County as he/she may designate by such means and in such manner as are other taxes which are now collected and administered by such officers or as otherwise provided by this Local Law.
202. General Powers of the Treasurer: In addition to the powers granted to the Treasurer in this Local Law, the Treasurer is hereby authorized and empowered to:
a. Make, adopt and amend rules and regulations appropriate to the carrying out of this Local Law and the purposes thereof, provided, however, that no rule or regulation shall become effective until thirty (30) days after such rule or regulation shall have been filed with the Clerk of the Board of Supervisors;
b. Extend for cause shown, the time of filing any return for a period not exceeding three (3) months, provided not less than ninety (90) percent of the estimated tax for the period for which the return is required to be filed shall be paid together with the request for such extension on or before the due date; and for cause shown to remit penalties but not interest computed at the rate and in the manner provided in Section 924‑a of the Real Property Tax Law on taxes not paid; and to compromise disputed claims in connection with the tax imposed by this Local Law;
c. Request information from the New York State Department of Taxation and Finance or the United States Treasury Department relative to any person; and to afford information to such Taxation Department or Treasury Department relative to any person, any other provision of this Local Law to the contrary notwithstanding;
d. Delegate his/her functions hereunder to a deputy treasurer or any employee or employees of the Treasurer;
e. Prescribe methods for determining the rents for occupancy and to determine the taxable and non‑taxable rents;
f. Require any operator within the County to keep detailed records of the nature and type of hotel, motel, tourist home, cottage, cabin, condominium, bed and breakfast, and short term or vacation rental maintained; nature and type of service rendered; rooms available and rooms occupied daily; leases or occupancy contracts or arrangements; rents received, charged and accrued; the names and addresses of the occupants, whether or not any occupancy is claimed to be subject to the tax and to furnish such information upon request to the Treasurer;
g. Assess, determine, revise and readjust the taxes imposed under this Local Law, and require the filing of estimated tax returns and payment of estimated tax where necessary;
h. Direct the County Attorney to take such action as may be required to enforce this Local Law, including but not limited to providing representation in any administrative proceeding conducted by the Treasurer for enforcement of this Local Law brought in the name of the County in any court of appropriate jurisdiction without any further authorization of the Board of Supervisors.
203. Administration of Oaths and Compelling Testimony:
a. The Treasurer or his/her employees or agents duly designated and authorized by him/her shall have power to administer oaths and take affidavits in relation to any matter or proceeding in the exercise of their powers and duties under this Local Law. The Treasurer shall have power to subpoena and require the attendance of witnesses and the production of books, papers, and documents to secure information pertinent to the performance of his/her duties hereunder and of the enforcement of this Local Law and to examine them in relation thereto, and to issue commissions for the examination of witnesses who are out of the state or unable to attend before him/her or excused from attendance.
b. A justice of the supreme court either in court or at chambers shall have power summarily to enforce by proper proceedings the attendance and testimony of witnesses and the production and examination of books, papers and documents called for by the subpoena of the Treasurer under this Local Law.
c. Any person who shall refuse to testify or to produce books or records or who shall testify falsely in any material matter pending before the Treasurer under this Local Law shall be guilty of a misdemeanor, punishment for which shall be a fine of not more than one thousand dollars ($1,000.00) or imprisonment for not more than one (1) year, or both such fine and imprisonment.
d. The officers who serve the summons or subpoena of the Treasurer and witnesses attending in response thereto shall be entitled to the same fees as are allowed to officers and witnesses in civil cases in courts of record, except as herein otherwise provided. Such officers shall be the County Sheriff and his/her duly appointed deputies or any officers or employees of the Treasurer, designated to serve such process.
TITLE 300 ‑ TAX RATE, PERSONS LIABLE, TAXABLE RENT, EXEMPTIONS
301. Imposition of Tax: On and after the 1st day of April, 2023, there is hereby imposed and there shall be paid a tax of three percent (3%) upon the rent for every occupancy of a room or rooms in a hotel, motel, tourist home, cottage, cabin, condominium, bed and breakfast, and short term or vacation rental in this County except that the tax shall not be imposed upon:
a. Permanent residents for the period of occupancy in excess of fourteen (14) days, or
b. Exempt organizations as hereinafter set forth.
302. Statement of Tax to be Collected; Person Liable for Payment of Tax:
a. The tax to be collected shall be stated and charged separately from the rent and shown separately on any record thereof, at the time when the occupancy is arranged or contracted for and charged for, and upon every evidence of occupancy or any bill or statement or charge made for said occupancy issued or delivered by the operator, and the tax shall be paid by the occupant to the operator as trustee for and on account of the County, and the operator shall be liable for the collection thereof and for the tax. The operator and any officer of any corporate operator shall be personally liable for the tax collected or required to be collected under this Local Law, and the operator shall have the same right in respect to collecting the tax from the occupant, or in respect to nonpayment of the tax by the occupant as if the tax were a part of the rent for the occupancy payable at the time such tax shall become due and owing, including all rights of eviction, dispossession, repossession and enforcement of any innkeeper's lien that he/she may have in the event of non‑payment of rent by the occupant; provided, however, that the Treasurer or other fiscal officer or officers, employees or agents duly designated by him/her shall be joined as a party in any action or proceeding brought by the operator to collect or enforce collection of the tax.
b. Where the occupant has failed to pay and the operator has failed to collect a tax as imposed by this Local Law, then in addition to all other rights, obligations and remedies provided, such tax shall be payable by the occupant directly to the Treasurer, and it shall be the duty of the occupant to file a return thereof with the Treasurer and to pay the tax imposed thereon to the County Treasurer within fifteen (15) days after such tax was due.
c. The Treasurer may, whenever he/she deems it necessary for the proper enforcement of this Local Law, provide by regulation that the occupant shall file returns and pay directly to the Treasurer the tax herein imposed, at such times as returns are required to be filed and payment made over by the operator.
d. The tax imposed by this Local Law shall be paid upon any occupancy on and after April 1, 2023, although such occupancy is had pursuant to a contract, lease or other arrangement made prior to such date. Where rent is paid or charged or billed, or falls due on either a weekly, monthly or other term basis, the rent so paid charged, billed or falling due shall be subject to the tax herein imposed to the extent that it covers any portion of the period on and after April 1, 2023. Where any tax has been paid hereunder upon any rent which has been ascertained to be worthless, the Treasurer may by regulation provide for credit and/or refund of the amount of such tax upon application therefor as provided in section 406 of this Local Law.
e. For the purpose of the proper administration of this Local Law and to prevent evasion of the tax hereby imposed, it shall be presumed that all rents are subject to tax until the contrary is established, and the burden of providing that a rent for occupancy is not taxable hereunder shall be upon the operator, except that, where by regulation pursuant to Section 302(d) an occupant is required to file returns and pay directly to the Treasurer the tax herein imposed, the burden of proving that a rent for occupancy is not taxable shall be upon the occupant. Where an occupant claims exemption from the tax under the provisions of Section 304, the rent shall be deemed taxable hereunder unless the operator shall receive from the occupant claiming such exemption a certificate duly executed by an exempt corporation or association certifying that the occupant is its agent, representative, or employee, together with a certificate executed by the occupant that his/her occupancy is paid or to be paid by such exempt corporation or association, and is necessary or required in the course of or in connection with the occupant's duties as a representative of such corporation or association. Where deemed necessary by the operator, he/she may further require that any occupant claiming exemption from the tax furnish a copy of a certificate issued by the Treasurer certifying that the corporation or association therein named is exempt from the tax under Section 304.
303. Determination of Taxable Rent:
a. The tax shall be imposed upon the total consideration received for occupancy of a room or rooms in a hotel, motel, tourist home, cottage, cabin, condominium, bed and breakfast, and short term or vacation rental, including all charges by whatever term designated, valued in money, whether received in money or otherwise.
b. When the occupant becomes a permanent resident, the operator shall discontinue collection of the tax.
304. Exempt Organizations:
a. Except as otherwise provided in this section, any use or occupancy by any of the following shall not be subject to the tax imposed by this Local Law:
I. 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 political subdivision of the state;
ii. The United States of America, insofar as it is immune for taxation;
iii. Any corporation or association, or trust, or community chest, fund or foundation organized and operated exclusively for religious, charitable or education purposes, or for the prevention of cruelty to children 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 section 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 section.
b. Where any organization described in Section 304(a)(iii) carries on its activities in furtherance of the purposes for which it was organized, in premises in which, as part of said activities, it operates a hotel, motel, tourist home, cottage, cabin, condominium, bed and breakfast, and short term or vacation rental, occupancy of rooms in the premises and rents therefrom received by such corporation or association shall not be subject to tax hereunder.
TITLE 400 ‑ REGISTRATION, RECORDS, RETURNS, PAYMENT, REFUNDS
401. Registration: Within ten (10) days after the effective date of this Local Law, or in the case of operators commencing business after such effective date of this Local Law, within three (3) days after such commencement or opening, every operator shall file with the Treasurer an application for a certificate of authority empowering such operator to collect the tax from the occupant. Upon receipt of such application, the Treasurer shall issue a certificate of authority to such operator which when authenticated shall constitute the authority for the purposes of this Local Law. Each application for a certificate of authority shall state the hotel or motel to which it is applicable; the name of the operator of such hotel, motel, tourist home, cottage, cabin, condominium, bed and breakfast, and short term or vacation rental, the address of such operator, the taxpayer identification number assigned to such operator, the state of incorporation and the date upon which such corporation obtained authority to do business in this state, if not organized in this state, the names of each partner, if a partnership, and such other information as the Treasurer may by rule require. Such certificates of authority shall be prominently displayed by the operator in such manner that it may be seen and come to the notice of all occupants and persons seeking occupancy. Such certificates shall be non‑assignable and non‑transferable and shall be surrendered immediately to the Treasurer upon the cessation of business at the hotel or motel named or upon its sale or transfer.
402. Records To Be Maintained: Every operator shall keep records of every occupancy and of all rent paid, charged, or due thereon and of the tax payable thereon, in such form as the Treasurer by regulation requires. Such records shall be available for inspection and examination at any time upon demand by the Treasurer or his/her duly authorized agent or employee and shall be preserved for a period of three (3) years, except that the Treasurer may consent to their destruction within that period or may require that they be kept longer.
a. Every operator shall file with the Treasurer a return of occupancy and of rents, and of the taxes payable thereon for the quarterly periods ending March 31, June 30, September 30 and December 31 of each year, on and after the first day of April, 2023. Such returns shall be filed within thirty (30) days from the expiration of the period covered thereby. The Treasurer may permit or require returns to be made by other periods and upon such dates as he/she may specify. If the Treasurer deems it necessary in order to ensure the payment of the tax imposed by this Local Law, he/she may require returns to be made for shorter periods than those prescribed pursuant to the foregoing provisions of this section and upon such dates as he/she may specify.
b. The forms of returns shall be prescribed by the Treasurer and shall contain such information as he/she may deem for the proper administration of this Local Law. The Treasurer may require amended returns to be filed within twenty (20) days after notice and to contain the information specified in the notice.
c. If a return required by this Local Law is not filed, or a return filed is incorrect or insufficient on its face, the Treasurer shall take the necessary steps to enforce the filing of such a return or of a corrected return.
404. Payment of Tax: At the time of filing a return of occupancy and of rents each operator shall pay to the Treasurer the taxes imposed by this Local Law upon the rents required to be included in such return, as well as all other moneys collected by the operator acting or purporting to act under the provisions of this Local Law. Where the Treasurer, in his/her discretion, deems it necessary to protect revenues to be obtained under this Local Law, the Treasurer may require an operator to file with him/her a bond, 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 the Treasurer may fix to secure the payment of any tax and/or penalties and interest due or which may become due from such operator. In the event that the Treasurer determines that an operator is to file such bond he/she shall give notice to such operator to that effect specifying the amount of the bond required. The operator shall file such bond within five (5) days after the giving of such notice unless within such five (5) days the operator shall request in writing a hearing before the Treasurer at which the necessity, propriety and amount of the bond shall be determined by the Treasurer. Such determination shall be final and shall be complied with within fifteen (15) days after the giving of such notice thereof. In lieu of such bond, securities approved by the Treasurer or cash in such amount as he may prescribe, may be deposited which shall be kept in the custody of the Treasurer who may at any time without notice to the depositor apply them to any tax and/or interest or penalties due, and for that purpose the securities may be sold by him/her at public or private sale without notice to the depositor thereof.
405. Determination of Tax: If a return required by this Local Law is not filed, or if a return when filed is incorrect or insufficient, the amount of tax due shall be determined by the Treasurer from such information as may be obtainable and, if necessary, the tax may be estimated on the basis of external indices, such as number of rooms, location, scale of rents, comparable rents, type of accommodations and service, number of employees and/or other factors. Notice of such determination shall finally and irrevocably fix the tax unless the person against whom it is assessed, within thirty (30) days after giving of notice of such determination, shall apply to the Treasurer for a hearing, or unless the Treasurer of his/her own motion shall re‑determine the same. After such hearing, the treasurer shall give notice of his/her determination to the person against whom the tax is assessed. The determination of the Treasurer shall be reviewable for error, illegality or unconstitutionality or any other reason whatsoever by proceeding under Article 78 of the Civil Practice Law and Rules if application therefor is made to the supreme court within thirty (30) days after the giving of the notice of such determination. A proceeding under Article 78 of the Civil Practice Law and Rules shall not be instituted unless:
a. The amount of any tax sought to be reviewed, with penalties and interest thereof, if any, shall be first deposited with the Treasurer and there shall be filed with the Treasurer 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 the proceeding, or
b. At the option of the applicant such undertaking filed with the Treasurer may be in a sum sufficient to cover the taxes, penalties and interest thereon stated in such determination plus the costs and charges which may accrue against it in the prosecution of the proceeding, in which event the applicant shall not be required to deposit such taxes, penalties and interest as a condition precedent to the application.
a. In the manner provided in this section the Treasurer shall refund or credit, without interest, any tax, penalty or interest erroneously, illegally or unconstitutionally collected or paid if application to the Treasurer for such refund shall be made within one (1) year from the payment thereof. Whenever a refund is made by the Treasurer, he/she shall state his/her reason therefor in writing. Such application may be made by the occupant, operator or other person who has actually paid the tax. Such application may also be made by an operator who has collected and paid over such tax to the Treasurer provided the application is made within one (1) year of the payment by the occupant to the operator, but no actual refund of money shall be to such operator until he/she shall first establish to the satisfaction of the Treasurer, under such regulations as the Treasurer may prescribe, that he/she has repaid to the occupant the amount for which the application for refund is made. The Treasurer may in lieu of any refund required to be made, allow credit therefor on payments due from the applicant.
b. An application for a refund or credit made as herein provided shall be deemed an application for a revision of any tax, penalty or interest complained of and the Treasurer may receive evidence with respect thereto. After making his/her determination the Treasurer shall give notice thereof to the applicant, who shall be entitled to review said determination by a proceeding pursuant to Article 78 of the Civil Practice Law and Rules, provided the proceeding is instituted within thirty (30) days after the giving of the notice of determination and provided a final determination of tax due was not previously made. Such a proceeding shall not be instituted unless an undertaking is filed with the County Treasurer in such amount and with such sureties as a justice of the supreme court shall approve to the effect that if such proceedings be dismissed or the tax confirmed, the petitioner will pay all costs and charges which may accrue in the prosecution of such proceeding.
c. A person shall not be entitled to a revision, refund or credit under this section of a tax, interest or penalty which had been determined to be due pursuant to the provisions of section 405 of this Local Law where he/she has had a hearing or an opportunity for a hearing, as provided in said section or has failed to avail himself/herself of the remedies therein provided. No refund or credit shall be made of the tax, interest or penalty paid after a determination by the Treasurer made pursuant to section 405 of this Local Law unless it is found that such determination was erroneous, illegal or unconstitutional or otherwise improper by the Treasurer after a hearing on the petition of a person liable for payment of the tax brought within thirty (30) days after the filing of a determination of the Treasurer after a hearing pursuant to section 405 of this Local Law, or upon his/her own motion, or in a proceeding under Article 78 of the Civil Practice Law and Rules, pursuant to the provisions of said section. In that event a refund or credit without interest shall be made of the tax, credit or penalty found to have been overpaid.
407. Reserves: In cases where the occupant or operator has applied for a refund and has instituted a proceeding under Article 78 of the Civil Practice Law and Rules to review a determination adverse to him/her on his/her application for refund, the Treasurer shall set up appropriate reserves to meet any decision adverse to the County.
408. Remedies Exclusive: The remedies provided by section 405 and 406 of this Local Law shall be exclusive remedies available to any person for the review of tax liability imposed by this Local Law, and no determination or proposed determination on any application for refund shall be enjoined or reviewed by an action for declaratory judgment, an action for money had and received or by an action or proceeding in a nature of a certiorari proceeding under Article 78 of the Civil Practice Law and Rules; provided, however, that a taxpayer may proceed by declaratory judgment if he/she institutes suit within thirty (30) days after a deficiency assessment is made and pays the amount of the deficiency assessment to the Treasurer prior to the institution of such suit and posts a bond for costs as provided in section 405 of this Local Law.
TITLE 500 ‑ ENFORCEMENT OF COLLECTION OF TAX, PENALTIES AND INTEREST
501. Proceedings to Recover Tax:
a. Whenever any operator or any officer of a corporate operator or any occupant or other person shall fail to collect and pay over any tax and/or to pay any tax, penalty or interest imposed by this Local Law as therein provided, the County Attorney shall, upon the request of the Treasurer, bring or cause to be brought an action to enforce the payment of the same on behalf of the County of Livingston in any court of the State of New York or of any other state of the United States. If, however, the Treasurer in his/her discretion believes that any such operator, officer, occupant or other person is about to cease business, leave the state or remove or dissipate the assets out of which the tax or penalties might be satisfied, and that any such tax or penalty will not be paid when due, he/she may declare such tax or penalty to be immediately due and payable and may issue a warrant immediately.
b. As an additional or alternate remedy, the Treasurer may issue a warrant, directed to the Sheriff commanding him/her to levy upon and sell the real and personal property of the operator or officer of a corporate operator or other person liable for the tax, which may be found within the County for the payment of the amount thereof, with any penalties and interest and the cost of executing the warrant, and to return such warrant to the Treasurer and to pay to him/her the money collected by virtue thereof within sixty (60) days after the receipt of such warrant. The Sheriff shall, within five (5) days after the receipt of the warrant, file with the County Clerk a copy thereof, and thereupon such Clerk shall enter in the judgment docket the name of the person mentioned in the warrant and the amount of the tax, penalties and interest for which the warrant is issued and the date when such copy is filed. Thereupon the amount of such warrant so docketed shall become a lien upon the interest in real and personal property of the person against whom the warrant is issued. The Sheriff shall then proceed upon the warrant, in the same manner, and with like effect, as that provided by law in respect to executions issued against property judgments of a court of record and for services in executing the warrant he/she shall be entitled to the same fees, which he/she may collect in the same manner. In the discretion of the Treasurer, a warrant of like terms, force and effect may be issued and directed to any officer or employee of the Treasurer and in the execution thereof such officer or employee shall have all the powers conferred by law upon sheriffs, but shall be paid in the performance of such duty. If a warrant is returned not satisfied in full, the Treasurer may from time-to-time issue new warrants and shall also have the same remedies to enforce the amount due thereunder as if the County has recovered judgment therefor and execution thereon has been returned unsatisfied.
c. Whenever an operator shall make a sale, transfer, or assignment in bulk of any part or the whole of his/her hotel or motel or his/her lease, license or other agreement or right to possess or operate such hotel or motel or of the equipment, furnishings, fixtures, supplies or stock of merchandise, or the said premises or lease, license or other agreement or right to possess or operate such hotel or motel and the equipment, furnishings, fixtures, supplies and stock of merchandise pertaining to the conduct or operation of said hotel or motel, otherwise than in the ordinary and regular prosecution of business, the purchaser, transferee or assignee shall at least ten (10) days before taking possession of the subject of the sale, transfer or assignment, or paying therefor, notify the Treasurer by registered or certified mail, return receipt requested, of the proposed sale and of the price, terms and conditions thereof whether or not the seller, transferor or assignor, has represented to or informed the purchaser, transferee or assignee that it owes any tax pursuant to this Local Law, and whether or not the purchaser, transferee or assignee has knowledge that such taxes are owing, and whether any such taxes are in fact owing.
d. Whenever the purchaser, transferee or assignee shall fail to give notice to the Treasurer as required by the preceding paragraph or whenever the Treasurer informs the purchaser, transferee or assignee that a possible claim for such tax or taxes exists, any sums of money, property or chooses in action, or other consideration, which the purchaser, transferee or assignee is required to transfer over to the seller, transferor or assignor shall be subject to a first priority right and lien for any such taxes theretofore or thereafter determined to be due from the seller, transferor or assignor to the County, and the purchaser, transferee or assignee is forbidden to transfer to the seller, transferor or assignor any such sums of money, property or chooses in action to the extent of the amount of the County's claim. For failure to comply with the provisions of this subdivision, the purchaser, transferee or assignee, in addition to being subject to the liabilities and remedies imposed under the provisions of Article 6 of the Uniform Commercial Code, shall be personally liable for the payment to the County of any such taxes theretofore or thereafter determined to be due to the County from the seller, transferor, or assignor, and such liability may be assessed and enforced in the same manner as the liability for tax under this Local Law.
502. Penalties and Interest:
a. Any person failing to file a return or to pay over any tax to the Treasurer within the time required by this Local Law shall be subject to a penalty of five percent (5%) of the amount of tax due for each month or portion thereof during which such tax due shall remain unpaid but in no event shall such penalty exceed twenty‑five percent (25%) of the tax due; plus interest computed at the rate and in the manner provided in Section 924‑a of the Real Property Tax Law, but in no event shall such interest be less than one percent (1%) of such tax for each month of delay; but the Treasurer, if satisfied that the delay was excusable, may remit all or part of the penalty, but not interest computed at the rate of six percent (6%) per year. Such penalties and interest shall be paid and disposed of in the same manner as other revenues of such tax. Unpaid penalties and interest may be enforced in the same manner as the tax imposed by this Local Law.
b. Any operator or occupant and any officer of a corporate operator or occupant failing to file a return required by this Local Law, or filing or causing to be filed, or making or causing to be made or giving a causing to be given any return, certificate, affidavit, representation, information, testimony or statement required or authorized by this Local Law, which is willfully false, and any operator and any officer of a corporate operator willfully failing to file a bond required to be filed pursuant to section 405 of this Local Law, or failing to file a registration certificate and such date in connection therewith as the Treasurer may by regulation or otherwise require or to display or surrender the certificate of authority as required by this Local Law or assigning or transferring such certificate of authority and any operator and any officer of a corporate operator willfully failing to charge separately from the rent the tax herein imposed, or willfully failing to state such tax separately on any evidence or occupancy and on any bill or statement or receipt or rent issued or employed by the operator, or willfully failing or refusing to collect such tax from the occupant, and any operator and any officer of a corporate operator who shall refer or cause reference to be made to this tax in a form or manner other than that required by this Local Law, and any operator failing to keep the records required by section 402 of this Local Law, shall, in addition to the penalties herein or elsewhere prescribed, be guilty of a misdemeanor, punishment for which shall be a fine of not more than one thousand dollars ($1,000.00), or imprisonment for not more than one (1) year, or both such fine and imprisonment. Officers of a corporate operator shall be personally liable for the tax collected or required to be collected by such corporation under this Local Law, and subject to the penalties herein above imposed.
503. Returns to be Secret:
a. Except in accordance with proper judicial order, or as otherwise provided by law, it shall be unlawful for the Treasurer or any officer or employee of the Treasurer to divulge or make known in any manner the rents or other information relating to the business of a taxpayer contained in any return required to be filed pursuant to this Local Law. The officers charged with the custody of such returns shall not be required to produce any of them or evidence of anything contained in them in any action or proceeding under the provisions of this Local Law, or on behalf of any party to the action or proceeding under the provisions of this Local Law when the proceeding, in either of which events the court may require the production of, and may admit in evidence, so much of said returns or of the fact shown thereby, as are pertinent to the action or proceeding and no more. Nothing herein shall be construed to prohibit the delivery to a taxpayer or his/her duly authorized representative a certified copy of any return filed in connection with his/her tax nor to prohibit the publication of statistics so classified as to prevent the identification of particular returns and the items thereof, or the inspection by the County Attorney or other legal representatives of the County of the return of any taxpayer who shall bring action to set aside or review the tax based thereon, or against whom an action or proceeding has been instituted for the collection of a tax or penalty. Returns shall be preserved for three (3) years and thereafter until the Treasurer permits them to be destroyed.
b. Any violation of section 503(a) shall be punishable by a fine not exceeding one thousand dollars ($1,000.00), or by imprisonment not exceeding one (1) year or both, in the discretion of the court, and if the offender be an officer or employee of the County he/she shall be dismissed from office and be incapable of holding any public office for a period of five (5) years thereafter.
504. Notices and Limitations of Time:
a. Any notice authorized or required under the provisions of this Local Law may be given by mailing the same to the person for whom it is intended in a postpaid envelope addressed to such person at the address given in the last return filed by him/her pursuant to the provisions of this Local Law, or in any application made by him/her, or if no return has been filed or application made, then to such address as may be obtainable. The mailing of such notice shall be presumptive evidence of the receipt of the same by the person to whom addressed. Any period of time which is determined according to the provisions of this Local Law by giving the notice shall commence to run from the date of mailing of such notice.
b. The provisions of the Civil Practice Law and Rules or any other law relative to limitations of time for the enforcement of a civil remedy shall not apply to any proceeding or action taken by the County to levy, appraise, assess, determine or enforce the collection of any tax or penalty provided by this Local Law. 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 (3) years from the date of 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.
c. Where, before the expiration of the period prescribed herein for the assessment of an additional tax, a taxpayer has consented in writing that such period be extended, the amount of such additional tax due may be determined at any time within such extended period. The period so extended may be further extended by subsequent consents in writing made before the expiration of the extended period.
TITLE 600 ‑ DISPOSITION OF REVENUES
601. Disposition of Revenues: All revenues resulting from the imposition of the tax under this Local Law shall be paid into the treasury of Livingston County and shall be credited to and deposited in the general fund of such County and shall be available thereafter for the promotion of tourism and tourist attractions in Livingston County, as well as the promotion of tourism and tourist attractions of the larger region of which Livingston County is a part provided that funding for regional promotion shall not exceed fifty percent (50%) of the revenue received hereunder in any year and that not more than five percent (5%) of such revenue shall be used for the cost of administering such tax. Such promotion may be carried out by an appropriate organization or organizations as designated by the Livingston County Board of Supervisors.
TITLE 700 ‑ SEPARABILITY AND EFFECTIVE DATE
701. Separability: If any clause, sentence, paragraph, section or part of this Local Law shall be adjudged by any court of competent jurisdiction to be invalid, such judgment, decree or order shall not affect, impair or invalidate the remainder thereof but shall be confined in its operation to the clause, sentence, paragraph, subdivision section or part thereof directly involved in the controversy in which such judgment, decree or order shall have been rendered and the remainder of this Local Law shall not be affected thereby and shall remain in full force and effect.
702. Effective Date: This Local Law shall take effect on April 1, 2023, and expire on March 31, 2026 except that the provisions of this Local Law relating to registration and the authority of the Treasurer to adopt regulations and take all necessary action to prepare for the implementation and enforcement of this Local Law shall take effect immediately.
Dated at Geneseo, New York
February 8, 2023 (Introduced)
_______________, 2023 (Adopted)
Michele R. Rees, IIMC-CMC
Clerk of the Board