S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5544
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 19, 2021
                                ___________
 
 Introduced  by M. of A. DARLING -- read once and referred to the Commit-
   tee on Ways and Means
 
 AN ACT to amend the tax law, in relation to short-term rental taxes
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. Subdivision (c) of section 1101 of the tax law, as added by
 chapter  93  of the laws of 1965, paragraphs 2, 3, 4 and 6 as amended by
 section 2 of part AA of chapter 57 of the laws of 2010, paragraph  5  as
 amended  by chapter 575 of the laws of 1965, and paragraph 8 as added by
 section 3 of part AA of chapter 57 of the laws of 2010,  is  amended  to
 read as follows:
   (c)  When  used  in  this  article for the purposes of the tax imposed
 under subdivision (e) of section  eleven  hundred  five,  the  following
 terms shall mean:
   (1)  Hotel.  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] A hotel, a motel, boarding house or club, whether or not
 meals are served. THIS TERM SHALL NOT INCLUDE A SHORT-TERM  RENTAL  UNIT
 AS DEFINED IN PARAGRAPH NINE OF THIS SUBDIVISION.
   (2)  Occupancy.  The  use  or  possession,  or the right to the use or
 possession, of any room in a hotel OR SHORT-TERM RENTAL UNIT. "Right  to
 the  use  or  possession"  includes  the  rights of a room remarketer as
 described in paragraph eight of this subdivision.
   (3) Occupant. A person who, for a consideration, uses,  possesses,  or
 has  the  right  to  use  or  possess, any room in a hotel OR SHORT-TERM
 RENTAL UNIT under  any  lease,  concession,  permit,  right  of  access,
 license  to  use  or  other  agreement,  or  otherwise. "Right to use or
 possess" includes the rights of a room remarketer as described in  para-
 graph eight of this subdivision.
   (4)  Operator. Any person operating a hotel. Such term shall include a
 room remarketer and such room remarketer shall be deemed  to  operate  a
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD09698-01-1

 A. 5544                             2
 
 hotel,  or  portion  thereof,  with respect to which such person has the
 rights of a room remarketer. THIS TERM SHALL NOT INCLUDE A HOSTING PLAT-
 FORM AS DEFINED IN PARAGRAPH TEN OF THIS SUBDIVISION.
   (5)  Permanent  resident. Any occupant of any room or rooms in a hotel
 OR SHORT-TERM RENTAL UNIT for at least ninety consecutive days shall  be
 considered  a permanent resident with regard to the period of such occu-
 pancy.
   (6) Rent. The consideration  received  for  occupancy,  including  any
 service or other charge or amount required BY THE OPERATOR OR SHORT-TERM
 RENTAL  HOST  to  be paid as a condition for occupancy, valued in money,
 whether received in money or otherwise and whether [received]  COLLECTED
 by  the  operator [or a], SHORT-TERM RENTAL HOST, HOSTING PLATFORM, room
 remarketer or another person on behalf of [either] ANY of them.
   (7) Room. Any room or rooms of any kind in any part or  portion  of  a
 hotel  OR  SHORT-TERM RENTAL UNIT, which is available for or let out for
 any purpose other than a place of assembly.
   (8) Room remarketer. A person who reserves, arranges for, conveys,  or
 furnishes  occupancy, whether directly or indirectly, to an occupant for
 rent in an amount determined by the room remarketer, directly  or  indi-
 rectly,  whether pursuant to a written or other agreement. Such person's
 ability or authority to reserve, arrange for, convey, or  furnish  occu-
 pancy,  directly or indirectly, and to determine rent therefor, shall be
 the "rights of a room remarketer". A room remarketer is not a  permanent
 resident  with respect to a room for which such person has the rights of
 a room remarketer.
   (9) SHORT-TERM RENTAL UNIT. A ROOM, GROUP OF ROOMS, OR OTHER LIVING OR
 SLEEPING SPACE, OR ANY OTHER SPACE LET TO OCCUPANTS, INCLUDING  BUT  NOT
 LIMITED  TO  PRIVATE  DWELLINGS,  RESIDENCES, OR BUILDINGS USED AS RESI-
 DENCES. THE TERM DOES NOT INCLUDE A HOTEL.
   (10) HOSTING PLATFORM. A PERSON OR ENTITY WHO, PURSUANT TO  AN  AGREE-
 MENT  WITH  AN OPERATOR OR SHORT-TERM RENTAL HOST, FACILITATES THE OCCU-
 PANCY OF A HOTEL OR SHORT-TERM RENTAL UNIT. A  PERSON  "FACILITATES  THE
 OCCUPANCY" BY, IN EXCHANGE FOR A FEE, EITHER: (A) PROVIDING THE FORUM IN
 WHICH AN OPERATOR OR SHORT-TERM RENTAL HOST CAN LIST OR ADVERTISE A ROOM
 FOR  OCCUPANCY;  OR  (B)  PROVIDING  THE  FORUM IN WHICH, OR BY MEANS OF
 WHICH, THE OFFER FOR OCCUPANCY IS ACCEPTED.
   (11) SHORT-TERM RENTAL HOST. AN OWNER, TENANT, OR OCCUPANT OF A SHORT-
 TERM RENTAL UNIT WHO OFFERS OCCUPANCY IN SUCH A SHORT-TERM  RENTAL  UNIT
 FOR RENT.
   §  2.  Subdivision  (e)  of  section 1105 of the tax law is amended by
 adding a new paragraph 3 to read as follows:
   (3) EXCEPT WITHIN CITIES WITH A POPULATION OF ONE MILLION OR MORE, THE
 RENT FOR EVERY OCCUPANCY OF A ROOM OR ROOMS IN A SHORT-TERM RENTAL UNIT,
 EXCEPT FOR A PERMANENT RESIDENT OR WHERE THE RENT IS NOT  MORE  THAN  AT
 THE RATE OF TWO DOLLARS PER DAY.
   §  3.  Subdivision  1  of  section  1131 of the tax law, as amended by
 section 2 of part G of chapter 59 of the laws of  2019,  is  amended  to
 read as follows:
   (1)  "Persons  required to collect tax" or "person required to collect
 any tax imposed by this article" shall include: every vendor of tangible
 personal property or services; every  recipient  of  amusement  charges;
 EVERY  HOSTING  PLATFORM  WITH  RESPECT TO OCCUPANCIES IT FACILITATES AS
 DESCRIBED IN PARAGRAPH TEN OF SUBDIVISION (C) OF SECTION ELEVEN  HUNDRED
 ONE  OF  THIS  ARTICLE;  every  operator of a hotel OR SHORT-TERM RENTAL
 HOST, EXCEPT WITH RESPECT TO OCCUPANCIES FACILITATED BY A HOSTING  PLAT-
 FORM;  and  every marketplace provider with respect to sales of tangible

 A. 5544                             3
 
 personal property it facilitates as described in paragraph one of subdi-
 vision (e) of section eleven hundred one of  this  article.  Said  terms
 shall also include any officer, director or employee of a corporation or
 of  a dissolved corporation, any employee of a partnership, any employee
 or manager of a limited liability company, or any employee of  an  indi-
 vidual proprietorship who as such officer, director, employee or manager
 is  under  a  duty  to  act  for  such corporation, partnership, limited
 liability company or individual proprietorship  in  complying  with  any
 requirement  of this article, or has so acted; and any member of a part-
 nership or limited liability  company.    Provided,  however,  that  any
 person who is a vendor solely by reason of clause (D) or (E) of subpara-
 graph  (i) of paragraph (8) of subdivision (b) of section eleven hundred
 one of this article shall not be a "person required to collect  any  tax
 imposed  by this article" until twenty days after the date by which such
 person is required to file a certificate  of  registration  pursuant  to
 section eleven hundred thirty-four of this part.
   §  4.  Section 1132 of the tax law is amended by adding a new subdivi-
 sion (m) to read as follows:
   (M) IN CARRYING OUT THE OBLIGATIONS  IMPOSED  UNDER  THIS  SECTION,  A
 HOSTING  PLATFORM  SHALL HAVE ALL THE DUTIES, BENEFITS, AND ENTITLEMENTS
 OF A PERSON REQUIRED TO COLLECT TAX UNDER THIS ARTICLE AND ARTICLE TWEN-
 TY-NINE OF THIS CHAPTER WITH RESPECT TO THE OCCUPANCIES GIVING  RISE  TO
 THE TAX OBLIGATION, INCLUDING THE RIGHT TO ACCEPT A CERTIFICATE OR OTHER
 DOCUMENTATION  FROM AN OCCUPANT SUBSTANTIATING AN EXEMPTION OR EXCLUSION
 FROM TAX, AS IF SUCH HOSTING PLATFORM WERE THE OPERATOR OF THE HOTEL  OR
 SHORT-TERM  RENTAL  HOST  OF  THE SHORT-TERM RENTAL UNIT WITH RESPECT TO
 SUCH OCCUPANCY, INCLUDING THE RIGHT TO RECEIVE THE REFUND AUTHORIZED  BY
 SUBDIVISION  (E)  OF  THIS SECTION AND THE CREDIT ALLOWED BY SUBDIVISION
 (F) OF SECTION ELEVEN HUNDRED THIRTY-SEVEN OF THIS PART.
   § 5. Section 1133 of the tax law is amended by adding a  new  subdivi-
 sion (g) to read as follows:
   (G) A HOSTING PLATFORM IS RELIEVED OF LIABILITY UNDER THIS ARTICLE FOR
 FAILURE  TO  COLLECT  THE  CORRECT  AMOUNT OF TAX TO THE EXTENT THAT THE
 HOSTING PLATFORM CAN SHOW THAT THE ERROR WAS DUE TO INCORRECT OR  INSUF-
 FICIENT  INFORMATION  GIVEN  TO  THE HOSTING PLATFORM BY THE OPERATOR OR
 SHORT-TERM RENTAL HOST, WHETHER INTENTIONAL OR UNINTENTIONAL.
   § 6. Section 1137 of the tax law is amended by adding a  new  subdivi-
 sion (g) to read as follows:
   (G)  A  HOSTING  PLATFORM  WHO FACILITATES THE OCCUPANCY OF A HOTEL OR
 SHORT-TERM RENTAL UNIT IS RELIEVED FROM THE DUTY TO REMIT TO THE COMMIS-
 SIONER THE TAX IMPOSED BY THIS ARTICLE IN REGARD TO A  PARTICULAR  OCCU-
 PANCY IF, PURSUANT TO AN AGREEMENT WITH AN OPERATOR OR SHORT-TERM RENTAL
 HOST  REGISTERED  WITH  THE  COMMISSION  AS  REQUIRED  BY SECTION ELEVEN
 HUNDRED THIRTY-FOUR OF THIS PART, THE HOSTING PLATFORM AND  OPERATOR  OR
 SHORT-TERM RENTAL HOST AGREE THAT THE OPERATOR OR SHORT-TERM RENTAL HOST
 IS REQUIRED TO REMIT THE TAX DIRECTLY TO THE COMMISSIONER. IN SUCH SITU-
 ATION,  THE OPERATOR OR SHORT-TERM RENTAL HOST SHALL BE TREATED AS IF IT
 COLLECTED THE TAX AND SHALL HAVE  ALL  OF  THE  RIGHTS  AND  OBLIGATIONS
 IMPOSED  BY  LAW  ON  PERSONS REQUIRED TO COLLECT TAX, INCLUDING BUT NOT
 LIMITED TO THE LIABILITY IMPOSED BY SECTION ELEVEN HUNDRED  THIRTY-THREE
 OF THIS PART.
   §  7.  Section 1142 of the tax law is amended by adding a new subdivi-
 sion 16 to read as follows:
   16. NOTWITHSTANDING ANY PROVISION OF LAW TO  THE  CONTRARY,  INCLUDING
 BUT  NOT LIMITED TO SUBDIVISIONS FOUR, FIVE, AND SIX OF THIS SECTION, NO
 HOSTING PLATFORM SHALL BE REQUIRED TO LIST ANY OPERATOR OF  A  HOTEL  OR

 A. 5544                             4
 
 SHORT-TERM  RENTAL  HOST  OF  A  SHORT-TERM  RENTAL  UNIT  ON ANY RETURN
 REQUIRED TO BE FILED WITH THE COMMISSIONER UNDER THE APPLICABLE TAX LAWS
 AND ANY REGULATIONS ADOPTED PURSUANT THERETO. INFORMATION PROVIDED BY  A
 HOSTING  PLATFORM TO THE COMMISSIONER SHALL BE CONFIDENTIAL. SUCH CONFI-
 DENTIAL INFORMATION SHALL NOT BE DISCLOSED BY  THE  COMMISSIONER  UNLESS
 THE  HOSTING  PLATFORM HAS GIVEN WRITTEN CONSENT TO MAKE SUCH DISCLOSURE
 OR THERE IS AN AGREEMENT BETWEEN THE HOSTING PLATFORM  AND  THE  COMMIS-
 SIONER TO MAKE SUCH DISCLOSURE. NOTWITHSTANDING ANY LAW TO THE CONTRARY,
 INFORMATION PROVIDED BY A HOSTING PLATFORM SHALL NOT BE SUBJECT TO ARTI-
 CLE  SIX  OF  THE  PUBLIC  OFFICERS LAW AND SHALL NOT BE PROVIDED TO ANY
 OTHER AGENCY OF THE STATE, LOCALITY, OR ANY OTHER GOVERNMENT  ENTITY  OR
 POLITICAL SUBDIVISION. AUDITS OF ANY HOSTING PLATFORM SHALL BE CONDUCTED
 SOLELY  ON  THE  BASIS  OF THE TAX IDENTIFICATION NUMBER ASSOCIATED WITH
 EACH HOSTING PLATFORM AND SHALL NOT BE CONDUCTED DIRECTLY OR  INDIRECTLY
 ON  ANY  OPERATOR  OF  A  HOTEL,  SHORT-TERM RENTAL HOST OF A SHORT-TERM
 RENTAL UNIT, OR ANY OCCUPANT TO WHOM OCCUPANCY IS RENTED FROM AN  OPERA-
 TOR  OF  A  HOTEL OR SHORT-TERM RENTAL UNIT OF A SHORT-TERM RENTAL HOST,
 NOR SHALL ANY HOSTING PLATFORM BE REQUIRED TO  DISCLOSE  ANY  PERSONALLY
 IDENTIFIABLE INFORMATION RELATING TO ANY OPERATOR OF A HOTEL, SHORT-TERM
 RENTAL  HOST  OF A SHORT-TERM RENTAL UNIT, OR OCCUPANT TO WHOM OCCUPANCY
 IS RENTED FROM AN OPERATOR OF A HOTEL OR SHORT-TERM  RENTAL  HOST  OF  A
 SHORT-TERM  RENTAL  UNIT.  PROVIDED, HOWEVER, THAT IF A HOSTING PLATFORM
 AND OPERATOR OR SHORT-TERM RENTAL HOST HAVE ENTERED  INTO  AN  AGREEMENT
 PURSUANT  TO  SECTION  ELEVEN  HUNDRED THIRTY-SIX OF THIS PART, ONLY THE
 OPERATOR OR SHORT-TERM RENTAL HOST SHALL BE  SUBJECT  TO  AUDIT  BY  THE
 COMMISSIONER.
   § 8.  Clause 1 of subparagraph (i) of the opening paragraph of section
 1210  of  the tax law, as amended by chapter 200 of the laws of 2009, is
 amended to read as follows:
   (1) any such city having a population of one million or more is hereby
 authorized and empowered to adopt and amend local  laws,  ordinances  or
 resolutions  imposing  such  taxes in any such city, at the rate of four
 and one-half percent, EXCEPT THAT TAX SHALL NOT BE IMPOSED ON SHORT-TERM
 RENTAL UNITS AS DEFINED IN PARAGRAPH NINE OF SUBDIVISION (C) OF  SECTION
 ELEVEN HUNDRED ONE OF THIS CHAPTER;
   §  9.  Section 1243 of the tax law is amended by adding a new subdivi-
 sion (c) to read as follows:
   (C) NO DETERMINATION OR PROPOSED DETERMINATION OF TAX OR 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
 ANY  ACTION OR PROCEEDING OTHER THAN A PROCEEDING UNDER ARTICLE SEVENTY-
 EIGHT OF THE CIVIL PRACTICE LAW AND RULES, EXCEPT AS OTHERWISE  PROVIDED
 IN SUBDIVISION (A) OR (B) OF THIS SECTION.
   §  10. This act shall take effect immediately and shall apply to taxa-
 ble years beginning on or after January 1, 2022.