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

                                  1886

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 9, 2009
                               ___________

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 the imposition of an occu-
  pancy tax in the city of New Rochelle; 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 tax law is amended by adding a new section 1202-aa to
read as follows:
  S 1202-AA. OCCUPANCY TAX IN THE CITY OF  NEW  ROCHELLE.  (1)  NOTWITH-
STANDING  ANY  OTHER  PROVISION  OF LAW TO THE CONTRARY, THE CITY OF NEW
ROCHELLE, 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  ARTI-
CLE,  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  THEREOF WHICH IS REGULARLY UTILIZED AND KEPT OPEN FOR THE LODG-
ING 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 PERIOD OF TIME.
  (2)  SUCH  TAXES MAY BE COLLECTED AND ADMINISTERED BY THE CHIEF FISCAL
OFFICER OF THE CITY OF NEW ROCHELLE 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 LAWS MAY PROVIDE THAT ANY TAXES IMPOSED SHALL  BE  PAID
BY  THE  PERSON LIABLE THEREFOR TO THE OWNER OF THE ROOM FOR HIRE IN THE
HOTEL OR OTHER SIMILAR PLACE OF PUBLIC ACCOMMODATION OCCUPIED OR TO  THE
PERSON  ENTITLED  TO BE PAID THE RENT OR CHARGE FOR THE ROOM FOR HIRE IN

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01124-01-9
              

S. 1886                             2

THE HOTEL OR OTHER SIMILAR PLACE OF PUBLIC  ACCOMMODATION  OCCUPIED  FOR
AND  ON  ACCOUNT  OF  THE CITY OF NEW ROCHELLE 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 SUCH 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 OTHER SIMILAR  PLACE  OF  PUBLIC  ACCOMMO-
DATION,  OR  IN RESPECT TO NONPAYMENT OF THE TAX BY THE PERSON OCCUPYING
THE ROOM FOR HIRE IN THE HOTEL OR SIMILAR PLACE OF PUBLIC ACCOMMODATION,
AS IF THE TAXES 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, 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 TAXES 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 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; OR
  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 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

S. 1886                             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 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  NEW  ROCHELLE
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 OR MOTEL TAX FOR A PERIOD OF TIME NO LONGER THAN THREE  YEARS
FROM  THE  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 PURSU-
ANT 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 and shall expire and be
deemed repealed three years after such date.