Actions

Text

STATE OF NEW YORK
________________________________________________________________________

8584

2011-2012 Regular Sessions

IN ASSEMBLY

September 21, 2011
___________

Introduced  by M. of A. GUNTHER -- read once and referred to the Commit-
  tee on Ways and Means

AN ACT to amend the tax law, in relation to facilitating the  compliance
  of  room  remarketers  with  their  obligation to collect sales tax on
  their sales of occupancy

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Subdivision (e) of section 1105 of the tax law, as amended
by section 4 of part AA of chapter 57 of the laws of 2010, is amended to
read as follows:
  (e) (1) The rent for every occupancy of a room or rooms in a hotel  in
this  state,  except that the tax shall not be imposed upon (i) a perma-
nent resident, or (ii) where the rent is not more than at  the  rate  of
two dollars per day.
  (2)  [When]  EXCEPT  AS  PROVIDED IN SUBDIVISION (R) OF SECTION ELEVEN
HUNDRED ELEVEN OF THIS PART, WHEN occupancy is provided,  for  a  single
consideration,  with property, services, amusement charges, or any other
items, the separate sale of which is not subject to tax under this arti-
cle, the entire consideration shall be treated as rent  subject  to  tax
under  paragraph  one of this subdivision; provided, however, that where
the amount of the rent for occupancy is stated separately from the price
of such property, services, amusement charges, or other  items,  on  any
sales slip, invoice, receipt, or other statement given the occupant, and
such  rent  is  reasonable  in  relation  to the value of such property,
services, amusement charges or other items, only such separately  stated
rent will be subject to tax under paragraph one of this subdivision.
  S  2.  Section 1111 of the tax law is amended by adding a new subdivi-
sion (r) to read as follows:
  (R) (1) IN REGARD TO THE COLLECTION OF SALES  TAX  ON  OCCUPANCIES  BY
ROOM  REMARKETERS, WHEN OCCUPANCY IS PROVIDED FOR A SINGLE CONSIDERATION
WITH PROPERTY, SERVICES, AMUSEMENT CHARGES, OR ANY OTHER ITEMS,  WHETHER

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13095-04-1
A. 8584                             2

OR  NOT  SUCH OTHER ITEMS ARE TAXABLE, THE RENT PORTION OF THE CONSIDER-
ATION FOR SUCH TRANSACTION SHALL BE  COMPUTED  AS  FOLLOWS:  EITHER  THE
TOTAL  CONSIDERATION  RECEIVED  BY  THE  ROOM REMARKETER MULTIPLIED BY A
FRACTION,  THE NUMERATOR OF WHICH SHALL BE THE CONSIDERATION PAYABLE FOR
THE OCCUPANCY BY THE ROOM REMARKETER AND THE DENOMINATOR OF WHICH  SHALL
BE  SUCH  CONSIDERATION PAYABLE FOR THE OCCUPANCY PLUS THE CONSIDERATION
PAYABLE BY THE REMARKETER FOR THE OTHER ITEMS  BEING  SOLD,  OR  BY  ANY
OTHER  METHOD  AS  MAY  BE  AUTHORIZED  BY THE COMMISSIONER. IF THE ROOM
REMARKETER FAILS TO SEPARATELY STATE THE TAX ON THE RENT SO COMPUTED  ON
A SALES SLIP, INVOICE, RECEIPT, OR OTHER STATEMENT GIVEN TO THE OCCUPANT
IN  THE  MANNER PRESCRIBED BY PARAGRAPH TWO OF THIS SUBDIVISION OR FAILS
TO MAINTAIN RECORDS OF THE PRICES OF ALL  COMPONENTS  OF  A  TRANSACTION
COVERED  BY THIS PARAGRAPH, THE ENTIRE CONSIDERATION SHALL BE TREATED AS
RENT SUBJECT TO TAX UNDER PARAGRAPH ONE OF SUBDIVISION  (E)  OF  SECTION
ELEVEN  HUNDRED  FIVE OF THIS PART. NOTHING HEREIN SHALL BE CONSTRUED TO
SUBJECT TO TAX OR EXEMPT FROM TAX ANY SERVICE OR PROPERTY  OR  AMUSEMENT
CHARGE  OR OTHER ITEMS OTHERWISE SUBJECT TO TAX OR EXEMPT FROM TAX UNDER
THIS ARTICLE OR PURSUANT TO THE AUTHORITY OF ARTICLE TWENTY-NINE OF THIS
CHAPTER. A ROOM REMARKETER'S RECORDS OF THE  CONSIDERATION  PAYABLE  FOR
ALL  COMPONENTS  OF  A TRANSACTION COVERED BY THIS PARAGRAPH ARE RECORDS
REQUIRED TO BE MAINTAINED FOR PURPOSES OF  SUBDIVISION  (A)  OF  SECTION
ELEVEN HUNDRED THIRTY-FIVE OF THIS ARTICLE.
  (2)  IN  REGARD  TO THE COLLECTION OF SALES TAX ON OCCUPANCIES BY ROOM
REMARKETERS, INCLUDING A TRANSACTION DESCRIBED IN PARAGRAPH ONE OF  THIS
SUBDIVISION, THE REQUIREMENTS OF THE SECOND SENTENCE OF PARAGRAPH ONE OF
SUBDIVISION  (A)  OF  SECTION  ELEVEN HUNDRED THIRTY-TWO OF THIS ARTICLE
SHALL BE DEEMED SATISFIED IF THE REMARKETER GIVES THE CUSTOMER  A  SALES
SLIP,  INVOICE,  RECEIPT,  OR  OTHER  STATEMENT OF THE PRICE ("INVOICE")
PRIOR TO THE CUSTOMER'S COMPLETION OF HIS OR HER OCCUPANCY, ON WHICH THE
AMOUNT OF TAX DUE UNDER THIS ARTICLE AND PURSUANT TO  THE  AUTHORITY  OF
ARTICLE  TWENTY-NINE OF THIS CHAPTER IS STATED. THE ROOM REMARKETER MUST
KEEP EITHER A COPY OF THE INVOICE AS  REQUIRED  BY  SUBDIVISION  (A)  OF
SECTION  ELEVEN  HUNDRED  THIRTY-FIVE  OF  THIS  ARTICLE,  OR ELECTRONIC
RECORDS THAT ACCURATELY REFLECT THE INFORMATION THAT IS ON  THE  INVOICE
PROVIDED TO THE CUSTOMER.
  (3)  IN REGARD TO THE REPORTING AND THE PAYMENT TO THE COMMISSIONER BY
ROOM REMARKETERS OF SALES TAX DUE ON  OCCUPANCIES,  SUBDIVISION  (A)  OF
SECTION  ELEVEN  HUNDRED  THIRTY-SEVEN  OF THIS ARTICLE SHALL BE READ TO
REQUIRE A ROOM REMARKETER TO REPORT SUCH SALES  TAX  DUE,  INCLUDING  IN
REGARD  TO A TRANSACTION DESCRIBED IN PARAGRAPH ONE OF THIS SUBDIVISION,
ON THE RETURN DUE FOR THE FILING PERIOD IN WHICH THE OCCUPANCY ENDS AND,
AT THE TIME OF FILING SUCH RETURN, TO PAY TO THE COMMISSIONER THE  TOTAL
AMOUNT DESCRIBED BY SUCH SUBDIVISION (A).
  S  3.  Subdivision  (e)  of  section  1119 of the tax law, as added by
section 5 of part AA of chapter 57 of the laws of 2010,  is  amended  to
read as follows:
  (e)  Subject  to  conditions and limitations provided in this subdivi-
sion, a room remarketer shall be allowed a refund or credit against  the
amount of tax collected and required to be remitted under section eleven
hundred thirty-seven of this article in the amount of the tax it paid to
an  operator  of a hotel under section eleven hundred four of this arti-
cle, where applicable, and subdivision (e)  of  section  eleven  hundred
five of this article. Provided, however, that, in order to qualify for a
refund  or  credit  under  this  subdivision for any sales tax quarterly
period, the room remarketer must, for that quarter,  (1)  be  registered
for  sales tax purposes under section eleven hundred thirty-four of this
A. 8584                             3

article; (2) collect the taxes imposed by section eleven hundred four of
this article, where applicable, and subdivision (e)  of  section  eleven
hundred five of this article; and (3) furnish the certificate of author-
ity  number  of  the  operator to whom the applicant paid the tax in its
application for refund or credit  if  required  on  that  form  or  upon
request.    PROVIDED THAT IF THE ROOM REMARKETER REQUESTS THE OPERATOR'S
CERTIFICATE OF AUTHORITY NUMBER AND IS NOT PROVIDED  WITH  THAT  NUMBER,
THE ROOM REMARKETER MAY SATISFY THIS REQUIREMENT BY PROVIDING THE OPERA-
TOR'S  NAME,  BUSINESS ADDRESS, TELEPHONE NUMBER, AND THE ADDRESS OF THE
HOTEL WHERE THE OCCUPANCY TOOK PLACE. An application for refund or cred-
it under this subdivision must be filed with the commissioner within the
time provided by subdivision (a) of section eleven  hundred  thirty-nine
of  this  article. The application must be in the form prescribed by the
commissioner. Where an application for credit has been filed, the appli-
cant may immediately take the credit on the return that is  due  coinci-
dent with or immediately subsequent to the time that the applicant files
the  application  for  credit.  However, the taking of the credit on the
return is deemed to be part of the application for credit. The procedure
for granting or denying the applications for refund or credit and review
of those determinations shall be  as  provided  in  subdivision  (e)  of
section eleven hundred thirty-nine of this article. An operator, includ-
ing  a  room  remarketer, who is paid tax by a room remarketer must upon
request provide the remarketer with its certificate of authority number,
provided that the operator's failure  to  do  so  does  not  change  the
requirement set forth in paragraph three of this subdivision.
  S  4.  Paragraph 4 of subdivision a of section 11-2502 of the adminis-
trative code of the city of New York, as amended by section 8 of part AA
of chapter 57 of the laws of 2010, is amended to read as follows:
  (4) (I) When occupancy is provided, for a single  consideration,  with
property,  services, amusement charges, or any other items, the separate
sale of which is not subject to  tax  under  this  chapter,  the  entire
consideration  shall  be  treated as rent subject to tax under paragraph
one of this subdivision; provided, however, that where the amount of the
rent for occupancy is stated separately from the price of such property,
services, amusement charges or other items on any sales  slip,  invoice,
receipt,  or other statement given the occupant and such rent is reason-
able in relation to the value  of  such  property,  services,  amusement
charges,  or  other  items,  only  such  separately  stated rent will be
subject to tax under [paragraph one of] this subdivision.
  (II) IN REGARD TO THE COLLECTION OF TAX ON OCCUPANCIES BY REMARKETERS,
WHEN OCCUPANCY IS PROVIDED, FOR A SINGLE CONSIDERATION,  WITH  PROPERTY,
SERVICES,  AMUSEMENT  CHARGES,  OR  ANY OTHER ITEMS, WHETHER OR NOT SUCH
OTHER ITEMS ARE TAXABLE, THE RENT PORTION OF THE CONSIDERATION FOR  SUCH
SALE  SHALL BE COMPUTED AS FOLLOWS: THE TOTAL CONSIDERATION FOR THE SALE
MULTIPLIED BY A FRACTION, THE NUMERATOR OF WHICH SHALL BE THE  CONSIDER-
ATION  PAID  TO THE HOTEL FOR THE OCCUPANCY AND THE DENOMINATOR OF WHICH
SHALL BE THE CONSIDERATION PAID TO THE HOTEL FOR THE OCCUPANCY PLUS  THE
CONSIDERATION PAID TO THE PROVIDERS OF THE OTHER ITEMS BEING SOLD, OR BY
ANY  OTHER  REASONABLE  METHOD  PURSUANT  TO  WHICH  THE RENT PORTION OF
CONSIDERATION WOULD BE NO LESS THAN THE COMPUTATION OF RENT  PORTION  OF
CONSIDERATION  UNDER SUBPARAGRAPH (I) OF THIS PARAGRAPH.  NOTHING HEREIN
SHALL BE CONSTRUED TO SUBJECT TO TAX OR EXEMPT FROM TAX ANY  SERVICE  OR
PROPERTY  OR AMUSEMENT CHARGE OR OTHER ITEMS OTHERWISE SUBJECT TO TAX OR
EXEMPT FROM TAX UNDER THIS CHAPTER.
A. 8584                             4

  S 5. Paragraph 5 of subdivision a of section 11-2502 of  the  adminis-
trative code of the city of New York, as amended by section 8 of part AA
of chapter 57 of the laws of 2010, is amended to read as follows:
  (5)  A room remarketer shall be allowed a refund or credit against the
taxes collected and required to be remitted pursuant to section  11-2505
of  this chapter in the amount of the tax it paid to the operator of the
hotel or another room remarketer under [paragraph three of] this  subdi-
vision.  Provided,  however,  that  in  order to qualify for a refund or
credit under this paragraph with respect to  any  quarterly  period,  as
described  in subdivision a of section 11-2504 of this chapter, the room
remarketer must, with respect to such quarter,  (i)  be  registered  for
hotel room occupancy tax purposes under section 11-2514 of this chapter,
and  (ii)  collect the taxes imposed by paragraphs two and three of this
subdivision. Subject to the conditions and  limitations  of  this  para-
graph,  the provisions of section 11-2507 of this chapter shall apply to
refunds or credits under this paragraph.
  S 6. Subdivision f of section 11-2502 of the  administrative  code  of
the  city  of New York, as amended by local law number 43 of the city of
New York for the year 2009 and paragraph 2 as renumbered by section 9 of
part AA of chapter 57 of the  laws  of  2010,  is  amended  to  read  as
follows:
  f.  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 or room remarket-
er] ON A SALES SLIP, INVOICE, RECEIPT, OR OTHER STATEMENT OF  THE  PRICE
("INVOICE")  GIVEN TO THE OCCUPANT PRIOR TO THE OCCUPANT'S COMPLETION OF
HIS OR HER OCCUPANCY AND BE VERIFIABLE FROM THE BOOKS AND RECORDS OF  AN
OPERATOR OR ROOM REMARKETER RESPONSIBLE FOR COLLECTING AND REMITTING THE
TAX.
  (1)  Where an occupant rents a room directly from an operator, the tax
shall be paid by the occupant to the operator  as  trustee  for  and  on
account of the city, and the operator shall be liable for the collection
of the tax on the rent and for the payment of the tax on the rent.
  (2)  The  operator or room remarketer and any officer of any corporate
operator or room remarketer shall be personally liable for  the  portion
of the tax collected or required to be collected under this chapter, 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  occu-
pant  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 or she may have in the event of nonpayment of rent by the
occupant; provided however, that the commissioner of  finance  shall  be
joined as a party in any action or proceeding brought by the operator to
collect or enforce collection of the tax.
  S  7.  This act shall take effect September 1, 2012 and shall apply to
occupancies that commence on or after such date.