(A) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
CLERK. The Clerk of the City of Newcastle.
HOTEL. Any building or buildings, structures, trailer, or other facility in which the public may, for consideration, obtain sleeping accom-modations in which three or more rooms are used for the accommodation of such guests, whether such rooms are in one or several structures. The term shall include hotels, apartment hotels, motels, tourist homes, houses or courts, lodging houses, inns, rooming houses, trailer houses, trailer motels, dormitory space where bed space is rented to individuals or groups, apartments not occupied by “permanent residents” and all other facilities where rooms or sleeping facilities or space are furnished for a consideration. The term shall not include hospitals, sanitariums or nursing homes nor shall this term affect permanent resident facilities, as defined below, for residents for terms in excess of 30 days.
OCCUPANCY. The use or possession, or the right to the use or possession, of any room or rooms in a hotel, or the right to the use or possession of the furnishings or to the services and accommodations accompanying the use and possession of any room or rooms, or the right to use an allotted space in a recreational vehicle park.
OCCUPANT. A person who, for a consideration, uses, possesses or has the right to the use or possession of any room or rooms in a hotel or allotted space in a recreational vehicle park under lease, concession, permit, right to access, license to use or other agreement.
OPERATOR. Any person operating a hotel or recreational vehicle park in the city, included, but not limited to, the owner, proprietor, lessee, sublessee, mortgagee in possession, licensee or any other person otherwise operating such hotel.
PERMANENT RESIDENT. Any occupant who has or shall have the right of occupancy of any room or rooms in a hotel or allotted space in a recreational vehicle park in excess of 30 consecutive days during the current calendar year or preceding year.
RECREATIONAL VEHICLE PARK. An approved recreational vehicle (RV) or camper, travel trailer park that is a place where people with recreational vehicles can stay overnight, or longer, in allotted spaces commonly referred to as "sites" or "campsites".
RENT. The consideration received for occupancy valued in money, whether in money or otherwise, including all receipts, cash, credits and property or services of any kind or nature, and also any amount for which credit is allowed by the operator to the occupant, without any deduction therefrom whatsoever.
RETURN. Any return filed or required to be filed as herein provided.
ROOM. Any room or rooms of any kind in any part or portion of a hotel which is available for or let out for use or possessed for any purpose other than a place of assembly. As used herein, “place of assembly” means a room or space which is capable of being occupied by 75 or more persons and which is used for educational, recreational or amusement purposes and shall include: dance halls, cabarets; nightclubs; restaurants; any room or space for public or private banquets, feasts, socials, card parties or weddings; lodge and meeting halls or rooms; skating rinks; gymnasiums; swimming pools; billiard, bowling and table tennis rooms; halls or rooms used for public or private catering purposes; funeral parlors; markets; recreational rooms; concert halls; broadcasting studios, and all other places of similar type of occupancy.
(B) Tax rate. There is hereby levied an excise tax of 5.5% upon the gross proceeds or gross receipts derived from all rent for every occupancy of a room or rooms in a hotel or derived from all rent of allotted spaces in a recreational vehicle park in the city; except that, the tax shall not be imposed where the rent is less than the rate of $3 per day.
(C) Exemptions. The following shall be exempt from the tax levied in this section:
(1) Permanent residents;
(2) The United States Government or any agency or division thereof;
(3) The state or any political subdivision thereof; and
(4) Any organization, corporation or association organized and operated exclusively for religious, charitable, philanthropic or educational purposes; provided that its primary purpose is not carrying on a trade or business for profit.
(D) Certificate of exemption required. Anyone claiming to be exempt from the tax must obtain a certification from the Clerk that the organization, association or corporation with which he or she is affiliated is exempt from the tax. Prior to issuing such a certificate, the Clerk shall require a certification from the said organization, association or corporation that the occupant is its agent, representative or employee, and that his or her occupancy of the room is required in connection with the affairs of said organization; and upon such proof, a refund may be obtained from the respective operator. This certificate shall be available from each operator.
(E) Tax to be separately designated on bills. The operator shall separately designate, charge and show the tax on all bills, statements, receipts or any other evidence of charges or payment of rent for occupancy issued or delivered by the operator.
(F) Operator responsible for collection. The tax levied by this section shall be paid by the occupant to the operator, whether person, firm or corporation, as trustee for and on account of the city. Each and every operator, whether person, firm or corporation, in the city shall collect from the occupant the full amount of the tax levied by this section. Every person required to collect any tax imposed by this section and, in the case of a corporation, each principal officer thereof, shall be personally liable for said tax.
(G) Records to be kept. Every operator shall keep records of every occupancy and of all rent paid, charged or due thereon and of the tax payable thereon in such form as the Clerk may by regulation require. Such records shall be available for inspection and examination at any time upon demand by the Clerk, or a duly authorized agent or employee of the city, and shall be preserved for a period of three years; except that the Clerk may consent to their destruction within that period or may require that they be kept longer.
(H) Returns.
(1) Every operator shall file with the Clerk a return of occupancy and of rents and of the taxes payable on a per-month basis. Said return shall be due from the operator and taxes payable thereon to the Clerk within 15 days of the tax period accounted for in such return and is past-due 30 days from the date of the tax period accounted for.
(2) Operators will deposit these specific funds in a separate account for remission to the city.
(I) Payment of tax. At the time of filing a return of occupancy and of rents, each operator shall pay to the Clerk the taxes imposed by this subchapter upon the rents included in such return, as well as all other moneys collected by the operator acting or purporting to act under the provisions of this section. All the taxes for the period for which a return is required to be filed shall be due from the operator and payable to the Clerk on or before the date fixed for the filing of the return for such period without regard to whether a return which is filed correctly shows the amount of rents and the taxes thereon.
(J) Bond required.
(1) Where the Clerk believes that any operator is about to cease business, leave the state, or remove or dissipate assets, or for any other similar reason he or she deems it necessary in order to protect revenues under this section, he or she may require such operator to file with the city a bond issued by a surety company authorized to transact business in this state in such amount as the Clerk may fix to secure the payment of any tax or penalties and interest due, or which may become due from such operator.
(2) In the event that the Clerk determines that an operator is to file such bond, he or she shall give notice to such operator specifying the amount of bond required. The operator shall file such bond within five days after the giving of such notice unless within such five days the operator shall request in writing a hearing before the city’s Board of Adjustment or its designee, at which the propriety and amount of the bond shall be determined by the Newcastle Board of Adjustment or its designee. Such determination shall be final and shall be complied with within 15 days thereafter. In lieu of such bond, securities approved by the Clerk, or cash in such amount as he or she may prescribe, may be deposited with the Clerk, who may at any time after five days notice to the depositor, apply them to any tax and/or any penalties due, and for that purpose the securities may be sold at private or public sale.
(K) Assessment and determination of tax. If a return required by this section is not filed, or if a return when filed is incorrect or insufficient, the amount of tax due shall be assessed by the Clerk from such information as may be obtainable and, if necessary, the tax may be estimated on the basis of external indices such as number of rooms, location, scale of rents, comparable rents, types of accommodations and services, number of employees, or other factors. Written notice of such assessments shall be given to the person liable for the collection and payment of the tax. Such assessment shall finally and irrevocably fix and determine the tax unless the person against whom it is assessed, within 90 days after the giving of notice of such assessment, shall apply in writing to the city’s Board of Adjustment or its designee for a hearing or unless the Clerk on his or her own motion shall reassess the same. After such hearing, the city’s Board of Adjustment or its designee shall give written notice of its determination to the person against whom the tax is assessed and such determination shall be final.
(L) Refunds.
(1) Procedure. The Clerk shall refund or credit any tax erroneously, illegally or unconstitutionally collected if written application to the Clerk for such refund shall be made within two years from the date of payment thereof. For like causes, and in the same period, a refund may be so made upon the initiative and the order of the Clerk. Whenever a refund is made, the reasons therefor shall be stated in writing. Such application may also be made by the person who has collected and paid such tax to the Clerk, providing that the application is made within two years of the payment of the occupant to the operator, but no refund of money shall be made to the operator until he or she has repaid to the occupant the amount for which the application for refund is made. The Clerk, in lieu of any refund required to be made, may allow credit thereof on payment due from the applicant.
(2) Determination and hearing. Upon application for a refund, the Clerk may receive evidence with respect thereto and make such investigation as he or she deems necessary. After making a determination as to the refund, the Clerk shall give notice thereof to the applicant. Such determination shall be final unless the applicant, within 90 days after such notice, shall apply in writing to the city’s Board of Adjustment or its designee for a hearing. After such hearing, the city’s Board of Adjustment or its designee shall give written notice of its decision to the applicant.
(M) Notices. Notices provided for under this section shall be deemed to have been given when such notice has been delivered personally to the operator or deposited in the United States mail to the last known address of the operator.
(N) Remedies exclusive. The remedies provided in this section shall be the exclusive remedies available to any person for the review of tax liability imposed by this section.
(O) General powers of the Clerk. In addition to all other powers granted to the Clerk, the Clerk is hereby authorized and empowered:
(1) To make, adopt and amend rules and regulations appropriate for the carrying out of this section;
(2) To extend, for good cause shown, the time for filing a return for a period not exceeding 60 days; and for good cause shown waive, remit, or reduce penalties or interest;
(3) To delegate his or her functions hereunder to an assistant or other employee or employees of the city;
(4) To assess, reassess, determine, revise and readjust the taxes imposed by this section; and
(5) To prescribe methods for determining taxable and non-taxable rents.
(P) Administration of oaths and compelling testimony. The Clerk, or his or her designated representative, shall have the power to administer oaths and take affidavits in relation to any matter or proceeding in the exercise of his or her powers and duties under this section. The Clerk shall have the power to subpoena and require the attendance of witnesses and the production of books, papers and documents to secure information pertinent to the performance of his or her duties hereunder and the enforcement of this section and to examine them in relation thereto.
(Q) Certificates of registration. Every operator shall file with the Clerk a certificate of registration in a form prescribed by said Clerk within ten days after the effective date of this section or, in the case of operators commencing business or opening new hotels after such effective date, within three days after such commencement or opening. The Clerk shall, within five days after such registration, issue, without charge, to each operator a certificate of authority empowering such operator to collect the tax from the occupant and duplicates thereof for each additional hotel. Each certificate of authority shall be permanently displayed by the operator in such manner that it may be seen and come to the notice of all occupants and persons seeking occupancy. Such certificates shall be non-assignable and non- transferable, and shall be surrendered immediately to the Clerk upon the cessation of business at the hotel named, or upon its sale or transfer.
(R) Interest and penalties.
(1) If any tax levied by this section becomes delinquent, the person responsible and liable for such tax shall pay interest on such unpaid tax at the rate of 1.5% per month on the unpaid balance from the date of delinquency.
(2) In addition to the interest, if a return is not filed and the total amount of taxes due remitted within 30 days of the due date as defined in this section, a penalty of 10% of the total amount of taxes due shall be assessed; but if a return is not filed and/or the total amount of the taxes is not paid after 60 days from such due date, the penalty shall increase to 25% of the total amount of taxes due.
(S) Delinquent taxes. The tax levied by this subchapter shall be due and payable at the time filing of the returns provided for in this section is required. All taxes not paid within five days from the time they become due shall be delinquent.
(T) Collection by suit. Such taxes and interest due hereunder shall at all times constitute a prior, superior and paramount claim as against the claim of unsecured creditors and may be collected by suit as any other debt.
(U) Use of funds. All taxes collected pursuant to provisions of this section shall be used for the acquisition, development, replacement, maintenance and/or repair of municipal equipment, buildings, roads, streets, alleys, property or facilities.
(V) Records confidential. The confidential and privileged nature of the records and files concerning the administration of the hotel tax is legislatively recognized and declared, and to protect the same the provisions of 68 O.S. § 205 of the state’s Sales Tax Code, and each subsection thereof, is hereby adopted by reference and made fully effective and applicable to administration of the city’s Transient Guest Room Tax as herein set forth.
(W) Proceedings to recover tax.
(1) Whenever any taxpayer or other person shall fail to collect and pay over any tax or any tax penalty due and owing, or interest imposed by this section, as herein provided, the City Attorney shall, upon the request of the Clerk, take appropriate action to enforce the payment of the same.
(2) Further, pursuant to the authority of 68 O.S. § 2704, all taxes, interest and penalties imposed by this section are hereby declared to constitute a lien in favor of the city upon all franchises, property and rights to property, whether real or personal, then belonging to or thereafter acquired by the person, firm or corporation owing the tax, whether such property is employed by such person, firm or corporation in the conduct of its business, or in the hands of an assignee, trustee or receiver for the benefit of creditors, from the date said taxes are due and payable under the provisions of this section.
(3) Any sum or sums collected or required to be collected under this section shall be deemed to be held in trust for the city; and, as trustee, the collecting person, firm or corporation shall have a fiduciary duty to the city in regards to such sums and shall be subject to the trust laws of this state. Any person, firm or corporation who willfully or intentionally fails to remit the tax, after tax levied by this section was collected from the occupant, and appropriates the tax held in trust to his or her own use, or to the use of any person, firm or corporation not entitled thereto, without the authority of law, shall be guilty of embezzlement.
(X) Amendments. The people of the city, by their approval of this section at the election herein provided, hereby authorize the City Council by ordinance duly enacted, to make such administrative and technical changes or additions in the method and manner of administration and enforcing this subchapter as may be necessary or proper for efficiency and fairness; except that, the rate of the tax herein provided shall not be changed without approval of the qualified electors of the city as provided by law.
(Y) Provisions cumulative. The provisions hereof shall be cumulative and in addition to any and all other taxing provisions of the city ordinances.
(2002 Code, § 35.90) (Ord. 614, passed 11-13-2007; Ord. 936, passed 3-13-2023)