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

                                  4779

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            February 7, 2011
                               ___________

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

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
CHARGE FOR THE ROOM FOR HIRE IN THE  TOURIST  HOME,  INN,  CLUB,  HOTEL,

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

A. 4779                             2

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
SHALL APPROVE TO THE EFFECT THAT IF SUCH PROCEEDING BE DISMISSED OR  THE

A. 4779                             3

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.