S T A T E   O F   N E W   Y O R K
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                                  4096

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             March 17, 2011
                               ___________

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 Village of Port Chester; 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-cc to
read as follows:
  S 1202-CC. OCCUPANCY TAX IN THE VILLAGE OF PORT CHESTER. (1)  NOTWITH-
STANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE VILLAGE OF PORT
CHESTER,  IN  THE  COUNTY  OF  WESTCHESTER,  IS  HEREBY  AUTHORIZED  AND
EMPOWERED TO ADOPT AND AMEND LOCAL LAWS IMPOSING IN SUCH VILLAGE A  TAX,
IN  ADDITION  TO  ANY  OTHER TAX AUTHORIZED AND IMPOSED PURSUANT TO THIS
ARTICLE, SUCH AS THE LEGISLATURE HAS OR WOULD HAVE THE POWER AND AUTHOR-
ITY 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  OF IT WHICH IS REGULARLY USED AND KEPT OPEN AS SUCH FOR THE
LODGING 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.
  (2) SUCH TAXES MAY BE COLLECTED AND ADMINISTERED BY THE  CHIEF  FISCAL
OFFICER  OF THE VILLAGE OF PORT CHESTER 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 THEREFORE TO THE OWNER OF THE ROOM FOR HIRE IN  THE
TOURIST  HOME,  INN, CLUB, HOTEL, MOTEL OR OTHER SIMILAR PLACE OF PUBLIC
ACCOMMODATION OCCUPIED OR TO THE PERSON ENTITLED TO BE PAID THE RENT  OR

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06482-01-1
              

S. 4096                             2

CHARGE  FOR  THE  ROOM  FOR  HIRE IN THE TOURIST HOME, INN, CLUB, HOTEL,
MOTEL OR OTHER SIMILAR PLACE OF PUBLIC ACCOMMODATION OCCUPIED FOR AND ON
ACCOUNT OF THE VILLAGE OF PORT CHESTER 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 ROOM FOR
HIRE IN THE TOURIST HOME, INN, CLUB, HOTEL, MOTEL OR OTHER SIMILAR PLACE
OF PUBLIC ACCOMMODATION, OR IN RESPECT TO NONPAYMENT OF THE TAX  BY  THE
PERSON  OCCUPYING  THE  ROOM  FOR  HIRE  IN THE TOURIST HOME, INN, CLUB,
HOTEL, MOTEL 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
VILLAGE, 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; OR
  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.
  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
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  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

S. 4096                             3

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
  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 VILLAGE OF PORT  CHES-
TER  AND  SHALL  BE CREDITED TO AND DEPOSITED IN THE GENERAL FUND OF THE
VILLAGE. 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.