Section
General Provisions
36.01 Costs for collecting delinquent amounts due municipality
Publication or Disclosure of Delinquent Fee Information
36.15 Purpose and intent
36.16 Publication procedures
36.17 Effect of irregularity as to delinquent loans
36.18 Effect on other collection methods
Public Utility Service Tax
36.30 Definitions
36.31 Imposed; amount
36.32 Collection; time of payment; accounting; reports
36.33 Maintenance and inspection of records
36.34 Exemptions
36.35 Liability; enforcement authority
36.36 Enforcement provisions
36.37 Notice to utilities
Hotel/Motel Tax
36.50 Imposition of tax
36.51 Tax on consumer
36.52 Rate
36.53 Definitions
36.54 Payment
36.55 Governmental exemptions
36.56 Credit transactions
36.57 Bankruptcy
36.58 Liability
36.59 Remittance to city
36.60 Records
36.61 Corporate ownership
36.62 Disposition of proceeds
36.99 Penalty
Statutory reference:
Authority of city to levy and collect an excise tax on the privilege of purchasing, using or consuming public utility services and tangible personal property from public utilities and the like, see W.Va. Code § 8-13-5a
GENERAL PROVISIONS
If any person responsible for paying or remitting any municipal tax, fee or other charge fails to timely pay and remit amounts due the municipality, such person shall be liable and shall pay to the municipality all reasonable costs and amounts incurred by the municipality in collecting the delinquent amounts. The municipal official responsible for collecting the tax, fee or charge is authorized to collect such costs and amounts in the same manner as the tax, fee or charge. Without limiting the generality of the foregoing, reasonable costs and amounts for which a delinquent person shall be liable include, but are not limited to, filing and recording fees, release fees, court costs, bad check charges, postage, copy charges, court reporter charges, search costs and similar items incurred by the municipality reasonably attributable to the delinquency as determined by the responsible municipal official. (Alternative: the responsible municipal official may waive collection of all or any party of such costs for good cause shown.)
(Ord. 065, passed 10-18-2007) Penalty, see § 36.99
PUBLICATION OR DISCLOSURE OF DELINQUENT FEE INFORMATION
The Treasurer of the city collects fees. It is a goal of the office of the Treasurer to achieve the effective collection of current and delinquent fees while providing quality customer service. This policy provides procedures for collecting delinquent municipal fee accounts by publishing or disclosing delinquent account information to aid in the collection of fees enacted by city ordinance, authorized by W.Va. Code § 8-13-13 and any other operative laws of the state.
(Ord. 066, passed 9-20-2007)
(A) The Treasurer of the city may, from time to time in his or her discretion, prepare one or more lists of those certain service fee accounts for the previous period(s) which are reflected as delinquent in the city’s records and to be included for publication, which list shall be published as a Class I legal advertisement in compliance with W.Va. Code §§ 59-3-1 et seq., and the publication area for such publication shall be the county.
(B) The delinquent account information published or disclosed pursuant to this policy may show the name of any person(s) associated with the delinquent account, including business name and owners thereof (if applicable), address of, and the amount or amounts due from each delinquent account in the aggregate or by period. The published list shall display the applicable period(s) to which the delinquency relates. The list may be presented in any sequence, format or grouping the Treasurer may determine and may omit accounts with de minimus delinquencies.
(C) The Treasurer, after ascertaining which accounts are delinquent, shall, at least ten days prior to publication or release of a list, send notice to the last known name and address on record with the city associated with the account. The notice shall identify the delinquent account and/or responsible person(s) of last record, the applicable period(s) covered, aggregate amount due and the procedures for settling the account. Any account that is delinquent may be removed from the delinquent list prior to publication or release by paying the city the full amount of fees and all related costs owed by such account before the list is delivered for publication or release. Notwithstanding anything to the contrary herein, a regular fee billing statement showing that an account is more than 60 days overdue shall satisfy the notice requirement of this division (C).
(D) The Treasurer, prior to the delivering a delinquent list to the newspaper or otherwise releasing such list, shall review the same and be satisfied that the list is correct.
(Ord. 066, passed 9-20-2007)
No irregularity, error, omission or mistake in respect to anything provided by this policy to be done concerning the delinquent lists shall invalidate any fee administered by the city. No irregularity, error, omission or mistake shall invalidate any collection or enforcement procedures used by the city with respect to any delinquent account. Nor shall any person be allowed to enjoin or otherwise question the validity of any subsequent step in the collection and enforcement procedures by reason of any irregularity, error, omission or mistake. Any action by the Treasurer in good faith reliance on this policy shall relieve the Treasurer and the city from any claim by any person aggrieved by any publication or disclosure hereunder. The Treasurer may, without any investigation or inquiry, rely upon the city’s existing and future regular procedures and systems, including computerized collection systems, in determining the name(s), amounts, periods and nature of purported delinquent accounts for purposes of this policy.
(Ord. 066, passed 9-20-2007)
The promulgation of this policy does not in any way limit the city from utilizing other methods of collection, including without limitation, administrative or judicial actions, liens, boot/tow orders, cease and desist orders, payment plans, collection agencies and credit bureaus and all other methods permitted by law.
(Ord. 066, passed 9-20-2007)
PUBLIC UTILITY SERVICE TAX
For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
PUBLIC UTILITY SERVICE. Any service or tangible personal property purchased within this city from a seller, as hereinafter in this section defined, namely: telephone service; electric service; gas service, including bottled or liquid gas, if the seller thereof is classified as a public utility subject to the jurisdiction of the State Public Service Commission; water service and sanitary sewer service if purchased, used or consumed within the corporate limits of this city.
PURCHASER. Any person who purchases, uses or consumes a public utility service.
SELLER. Any person, whether a public service corporation, a municipality or private corporation, classified as a public utility and subject to the jurisdiction of the State Public Service Commission, who sells, furnishes or supplies a public utility service.
USER. The owner or tenant of private residential property or the owner or tenant of property used for commercial or industrial purposes, and every combination thereof, of every kind.
(1991 Code, § 15-1) (Ord. passed 5-3-1971)
There is hereby imposed and levied upon every purchaser of a public utility service an excise tax upon the privilege of purchasing, using or consuming, within the corporate limits of the city, such public utility service. Such tax shall be in the amount of 2% of the charge, exclusive of any federal or state tax thereon imposed upon the purchaser, made by the seller against the purchaser with respect to each public utility service, which tax, in every case, shall be collected by the seller and paid by the purchaser upon the amount of each periodic statement rendered such purchaser by the seller, and shall be paid by the purchaser to the seller at the time the purchase price or such charge shall become due and payable under the agreement between the purchaser and the seller. The tax imposed and levied by this subchapter is in addition to all other taxes imposed and levied by this city. In the event the amount of the charge for any single public utility service exceeds an amount set by Council from time to time in any given calendar month to any single purchaser, no tax shall be imposed for such additional purchase, use or consumption in excess of an amount set by Council from time to time. In the event more than one public utility shall furnish the identical public utility service to the same purchaser, the purchaser shall be entitled to group such services as a single public utility service in calculating the amount of the charges in any calendar month for such public utility service.
(1991 Code, § 15-2) (Ord. passed 5-3-1971)
It shall be the duty of every seller, in acting as the tax-collecting medium or agency for the city, to collect from each purchaser for the use of the city the tax hereby imposed and levied at the time of collecting the purchase price charged for its public utility service, and the amount of tax actually collected during each calendar month shall be reported by each seller to the city, and each seller shall remit the amount of tax shown by such report to have been collected by the city on or before the last day of the second calendar month following the month in which collected, as well as the name and address of any purchaser who has failed or refused to pay the tax so imposed and levied. The required reports shall be in the form prescribed by the City Collector and Treasurer.
(1991 Code, § 15-3) (Ord. passed 5-3-1971)
Every seller shall maintain complete records showing all purchases of public utility service within the corporate limits of the city, which records shall show the charge made against each purchaser, the dates such public utility service was furnished, the date of payment therefor and the amount of tax imposed hereunder, and such records shall be kept open for inspection by the duly authorized agents of the city at reasonable times, and the duly authorized agents of the city shall have the right, power and authority to make, at the expense of the city, such transcripts thereof during such times as they may desire.
(1991 Code, § 15-4) (Ord. passed 5-3-1971)
The tax hereby imposed and levied shall not apply to the following transactions, which transactions are hereby exempted from such tax:
(A) Purchases of public utility service for resale;
(B) Purchases of public utility service by the United States of America, the state and the political subdivisions, municipalities, boards, commissions, authorities and public corporations thereof;
(C) Purchases of tangible personal property, such as appliances, as distinguished from the public service supplied;
(D) Charges for telephone services which are paid by the insertion of coins into coin-operated telephones and specific charges or tolls for telephone calls to points outside the corporate limits of the city; and
(E) Nonrecurring charges incidental to the furnishing of public utility service.
(1991 Code, § 15-5) (Ord. passed 5-3-1971)
(A) (1) There shall be no liability upon the seller for erroneously collecting the tax hereby imposed and levied or for erroneously failing to bill for such tax as a result of a good-faith mistake on the part of the seller.
(2) When any purchaser contends that such tax is not owed by such purchaser on the ground that the public utility service was not purchased, used or consumed within the corporate limits of the city, the seller shall refer the question to the City Collector and Treasurer, and such seller shall thereafter collect or refrain from collecting such tax from such purchaser for such public utility service, as instructed, in writing, by such city officer.
(3) Any claim for refunds of any such tax shall be presented to the city and not to the seller.
(B) The City Collector and Treasurer shall have the authority to promulgate and enforce reasonable rules and regulations necessary for the administration and enforcement of this chapter.
(1991 Code, § 15-6) (Ord. passed 5-3-1971)
Any amount of tax due and unpaid under this subchapter shall be a debt due the city. Such debt shall be a personal obligation of the purchaser, which shall be enforceable as provided by W.Va. Code § 8-13-15, or in any other manner provided by law for compelling the payment of taxes due municipalities.
(1991 Code, § 15-7) (Ord. passed 5-3-1971) Penalty, see § 36.99
The tax hereby imposed and levied shall not be effective until the city gives 60 days’ written notice by certified mail of the effective date of this chapter to any public utility doing business within the city, which is required to collect the tax imposed and levied hereby.
(1991 Code, § 15-8) (Ord. passed 5-3-1971)
Statutory reference:
Authority of city to levy and collect an excise tax on the privilege of purchasing, using or consuming public utility services and tangible personal property from public utilities and the like, see W.Va. Code § 8-13-5a
HOTEL/MOTEL TAX
There is hereby imposed a tax upon the occupancy of hotel rooms located within the city including, but not limited to, hotels owned by the state or any political subdivision of the state.
(Ord. 097-01, passed 2-4-1997; Ord. 064, passed 10-18-2007; Ord. 180, passed 9-4-2014)
The tax imposed by this subchapter shall be a tax upon the consumer and shall be collected by the hotel operator as a part of the consideration paid for the occupancy of a hotel room; provided, that the tax shall not be imposed on any consumer occupying a hotel room for 30 or more consecutive days.
(Ord. 180, passed 9-4-2014; Ord. 247, passed 12-7-2017)
The rate of tax imposed by this subchapter shall be 6% of the consideration paid for the use or occupancy of the hotel room. The consideration paid for the use or occupancy of the hotel room shall not include the amount of tax imposed on the transaction under W.Va. Code §§ 11-15-1 et seq., or charges for meals, valet service, room service, telephone service or other charges or consideration not paid for the use or occupancy of a hotel room.
(Ord. 180, passed 9-4-2014)
For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
CONSIDERATION PAID or CONSIDERATION. The amount received in money, credits, property or other consideration for or in exchange for the right to occupy a hotel room as herein defined.
CONSUMER. A person who pays the consideration for the use or occupancy of a hotel room. The term CONSUMER shall not be construed to mean the government of the United States of America, its agencies or instrumentalities, or the government of the state or political subdivisions thereof.
HOTEL. Any facility, building or buildings, publicly or privately owned (including a facility located in a state, county or municipal park), in which the public may, for a consideration, obtain sleeping accommodations. The term shall include, but not be limited to, boarding houses, hotels, motels, inns, courts, condominiums, lodges, cabins and tourist homes. The term HOTEL shall include state, county and city parks offering accommodations as herein set forth. The term HOTEL shall not be construed to mean any hospital, sanitarium, extended care facility, nursing home or university or college housing unit, or any facility providing fewer than three rooms in private homes, not exceeding a total of ten days in a calendar year, nor any tent, trailer or camper campsites; provided, that where a university or college housing unit provides sleeping accommodations for the general nonstudent public for a consideration, the term HOTEL shall, if otherwise applicable, apply to such accommodations for the purposes of this tax.
HOTEL OPERATOR. The person who is proprietor of a hotel, whether in the capacity of owner, lessee, mortgagee in possession, licensee, trustee in possession, trustee in bankruptcy, receiver, executor or in any other capacity. Where the HOTEL OPERATOR performs his or her functions through a managing agent of any type or character other than an employee, the managing agent shall also be deemed a HOTEL OPERATOR for the purposes of this subchapter and shall have the same duties and liabilities as his or her principal. Compliance with the provisions of this subchapter by either the principal or the managing agent shall, however, be considered to be compliance by both.
HOTEL ROOM.
(1) Any room or suite of rooms or other facility affording sleeping accommodations to the general public and situated within a hotel.
(2) The term HOTEL ROOM does not include:
(a) A banquet room, meeting room or any other room not primarily used for, or in conjunction with, sleeping accommodations; or
(b) Sleeping accommodations rented on a month-to-month basis or other rental arrangement for 30 days or longer at the inception at a boarding house, condominium, cabin, tourist home, apartment or home; and
(c) Sleeping accommodations rented by a hotel operator to those persons directly employed by the hotel operator for the purposes of performing duties in support of the operation of the hotel or related operations.
PERSON. Any individual, firm, partnership, joint venture, association, syndicate, social club, fraternal organization, joint stock company, receiver, corporation, guardian, trust, business trust, trustee, committee, estate, executor, administrator of any other group or combination acting as a unit.
STATE PARK. Any state-owned facility which is part of this state’s park and recreation system established pursuant to this code. For purposes of this subchapter, any recreational facility otherwise qualifying as a hotel and situated within a STATE PARK shall be deemed to be solely within the county in which the building or buildings comprising said facility are physically situated, notwithstanding the fact that the STATE PARK within which said facility is located may lie within the jurisdiction of more than one county.
TAX, TAXES or THIS TAX. The hotel occupancy tax authorized by this subchapter.
TAXPAYER. Any person liable for the tax authorized by this subchapter.
(Ord. 097-01, passed 2-4-1997; Ord. 064, passed 10-18-2007; Ord. 180, passed 9-4-2014; Ord. 247, passed 12-7-2017)
(A) The consumer shall pay to the hotel operator the amount of tax imposed by this subchapter, which tax shall be added to and shall constitute a part of the consideration paid for the use and occupancy of the hotel room, and which tax shall be collectible as such by the hotel operator who shall account for, and remit to the city, all taxes paid by consumers. The hotel operator shall separately state the tax authorized by this subchapter on all bills, invoices, accounts, books of account and records relating to consideration paid for occupancy or use of a hotel room. The hotel operator may commingle taxes collected hereunder with the proceeds of the rental of hotel accommodations. All taxes collected pursuant to the provisions of this subchapter shall be deemed to be held in trust by the hotel until the same shall have been remitted to the city as hereinafter provided.
(B) A hotel or hotel operator shall not represent to the public in any manner, directly or indirectly, that it will absorb all or any part of the tax or that the tax is not to be considered an element in the price to be collected from the consumer.
(Ord. 180, passed 9-4-2014)
(A) Hotel room occupancy billed directly to the federal government shall be exempt from this tax; provided, that rooms paid for a federal government employee for which reimbursement is made shall be subject to this tax.
(B) Hotel room occupancy billed directly to this state or its political subdivisions shall be exempt from this tax; provided, that rooms paid for by an employee of this state for which reimbursement is made shall be subject to this tax.
(Ord. 180, passed 9-4-2014)
In the distribution, voluntary or compulsory, in receivership, bankruptcy or otherwise, of the property or estate of any person, all taxes due and unpaid authorized under this subchapter shall be paid from the first money available for distribution in priority to all claims and liens except taxes and debts due to the United States which under federal law are given priority over the debts and liens created by this subchapter for this tax and taxes and debts due to the state. Any person charged with the administration or distribution of any such property or estate who shall violate the provisions of this section shall be personally liable for any taxes accrued and unpaid which are chargeable against the person whose property or estate is in administration or distribution.
(Ord. 180, passed 9-4-2014)
If any hotel operator fails to collect the tax authorized by this subchapter and levied pursuant to this subchapter or shall fail to properly remit such tax to the taxing authority, he or she shall be personally liable for such amount as he or she failed to collect or remit; provided, that such hotel operator shall not be held liable for failure to collect such tax if the hotel operator can by good and substantial evidence prove the refusal of the purchaser to pay this tax despite the diligent effort in good faith of the hotel operator to collect the tax.
(Ord. 180, passed 9-4-2014) Penalty, see § 36.99
(A) A profit may not accrue to any person as a result of the collection of the tax authorized under this subchapter. Notwithstanding that the total amount of taxes collected by a hotel operator may be in excess of the amount for which a consumer would be liable by the application of the levy imposed under this subchapter for the occupancy of a hotel room or rooms, the total amount of all taxes collected by any hotel operator shall be remitted to the city as hereinafter provided.
(B) (1) The tax authorized by this subchapter shall be due and payable in monthly installments on or before the fifteenth day of the calendar month next succeeding the month in which the tax accrued; provided, that for credit sales in which the tax authorized by this subchapter is not collected by the hotel operator at the time of such sales, such tax shall not, for purposes of this subchapter, be regarded as having accrued until the date on which it is either received by the hotel operator or upon the expiration of the 30-day payment period set forth in this subchapter. The hotel operator shall, on or before the fifteenth day of each month, prepare and deliver to the city a return for the preceding month, in the form prescribed by the city. Each return shall be signed by the hotel operator or his or her duly authorized agent.
(2) For the first month that the tax is delinquent, there shall be assessed by the Treasurer a penalty in the amount of 10% of the tax due for the delinquent period. No payment for a subsequent period shall be collected until all prior delinquent taxes have been paid in full with all penalties assessed thereto.
(Ord. 180, passed 9-4-2014)
Each hotel operator shall keep complete and accurate records of taxable sales and of charges, together with a record of the tax collected thereon, and shall keep all invoices and other pertinent documents in such form as the city may require. Such records and other documents shall be preserved for a period of not less than three years, unless the city shall consent in writing to their destruction within that period or shall require that they be kept for a longer period.
(Ord. 180, passed 9-4-2014)
If the taxpayer is an association or corporation, the officers thereof actually participating in the management or operation of the association or corporation shall be personally liable, jointly and severally, for any default on the part of the association or corporation; and payment of tax, fines, additions to tax or penalties which may be imposed by this subchapter, may be enforced against such officers as against the association or corporation which they represent.
(Ord. 180, passed 9-4-2014)
(A) Application of proceeds. The net proceeds of the tax collected and remitted to the city pursuant to this subchapter shall be deposited into the general revenue fund of the city and after appropriation thereof, shall be expended only as provided in division (B).
(B) Required expenditures. At least 50% of the net revenue receivable during the fiscal year by the city pursuant to this subchapter shall be expended in the following manner for the promotion of conventions and tourism:
(1) If a convention and visitor’s bureau is located within the city, county or region, the city shall appropriate the percentage required by this division (B) to that bureau. If a convention and visitor’s bureau is not located within the city, county or region, then the percentage appropriation required by this division (B)(1) shall be appropriated as follows:
(a) Any hotel located within the city, county or region may apply to the city for an appropriation to such hotel of a portion of the tax authorized by this subchapter and collected by such hotel and remitted to the city, for uses directly related to the promotion of tourism and travel, including advertising, salaries, travel, office expenses, publications and similar expenses. The portion of such tax allocable to such hotel shall not exceed 75% of that portion of such tax collected and remitted by such hotel which is required to be expended pursuant to this division (B); provided, that prior to appropriating any moneys to such hotel the city shall require the submission of, and give approval to, a budget setting forth the proposed uses of such moneys; and
(b) If there is more than one convention and visitor’s bureau located within the municipality, county or region, the Council may allocate the tax authorized by this subchapter to one or more of such bureaus in such portion as the Council in its sole discretion determines.
(2) The balance of net revenue required to be expended by this division (B) shall be appropriated to the regional travel council serving the area in which the city is located.
(Ord. 180, passed 9-4-2014)
(A) Any person violating any provision of this chapter, for which no other penalty is provided, shall be subject to the penalty provisions of § 10.99.
(B) Any purchaser failing or refusing to pay the tax hereby imposed and levied and any seller or purchaser violating any of the provisions of §§ 36.30 through 36.37 or any lawful rule or regulation promulgated hereunder shall, upon conviction thereof, be fined an amount set by Council from time to time. The failure or refusal to pay the tax for public utility service purchased, used or consumed during different statement periods shall constitute separate and distinct offenses.
(1991 Code, § 15-7)
(C) (1) It shall be unlawful for any person to willfully refuse to collect or to pay the tax or to willfully refuse to make the return required to be made by §§ 36.50 through 36.62; or to willfully make any false or fraudulent return or false statement in any return with the intent to default the city, or to willfully evade the payment of the tax, or any part thereof; or for any person to willfully aid or abet another in any attempt to evade the payment of the tax, or any part thereof; or for any officer, partner or principal of any corporation or association to willfully make or willfully permit to be made for such corporation or association any false return, or any false statement in any return authorized by §§ 36.50 through 36.62, with the intent to evade the payment of this tax.
(2) Any person willfully violating any of the provisions of §§ 36.50 through 36.62 shall for the first offense be guilty of a misdemeanor, and, upon conviction thereof, shall be fined an amount set by Council from time to time or imprisoned for a period of not more than 30 days, or both fined and imprisoned. For each offense after the first offense, such person shall be guilty of a felony, and, upon conviction thereof, shall be fined an amount set by Council from time to time, or imprisoned in the penitentiary not less than one nor more than three years, or in the discretion of the court be confined in the county jail not more than one year, or both fined and imprisoned.
(4) Proceedings against any person under this section shall be initiated in the county of this state wherein such person resides if any element of the offense occurs in such county of residence, or if no element of the offense occurs in such county of residence, then in the county where the offense was committed.
(5) For the purpose of this division (C), the following definitions shall apply unless the context clearly indicates or requires a different meaning.
EVADE. To willfully and fraudulently commit any act with the intent of depriving the state of payment of any tax which there is a known legal duty to pay.
FRAUD. Any false representation or concealment as to any material fact made by any person with the knowledge that it is not true and correct, with the intention that such representation or concealment be relied upon by the state.
WILLFULLY. The intentional violation of a known legal duty to perform any act, required to be performed by any provision of §§ 36.50 through 36.62, in respect of which the violation occurs; provided, that the mere failure to perform any act shall not be a willful violation under §§ 36.50 through 36.62. A willful violation of §§ 36.50 through 36.62 requires that the defendant have had knowledge of or notice of a duty to perform such act, and that the defendant, with knowledge of or notice of such duty, intentionally failed to perform such act.
(Ord. passed 5-3-1971; Ord. 180, passed 9-4-2014)