(a) Definitions. As used in this section, the following words and phrases shall have the meanings ascribed to them in this subsection, except where the context clearly indicates or requires a different meaning:
(1) “City” shall mean the City of Sidney and the area within the corporate limits of the City of Sidney.
(2) “City Clerk” shall mean the Clerk/Treasurer of the City of Sidney, Nebraska.
(3) “Lodging business” shall mean any person or entity that for monetary compensation rents a room or rooms or space on a daily to weekly charge basis. Such businesses include, but are not limited to hotels, motels, bed and breakfasts and campgrounds.
(4) “Person” shall mean any natural person, individual, partnership, association, organization or corporation of any kind or character engaging in the business of providing lodging on a daily to weekly rental basis.
(5) “Taxpayer” shall mean any person engaged in the hotel, motel, bed and breakfast, campground or other lodging business as herein defined who is required to pay the tax herein imposed.
(b) Intent and Purpose of Section.
(1) The City Council determines and declares that persons engaging in, carrying on, or pursuing any lodging business such as a hotel, motel, bed and breakfast or campground are directly or indirectly benefitted from tourism and the general public access to such lodging businesses throughout the City street system which provides easy access to such businesses and to services required by their lodgers. Such use places unique demands on the City's resources for street care, maintenance, repair, construction and replacement. Further, people who patronize a business for lodging purposes within the City and the areas within the corporate limits of the same use such public street resources to access other connected services which street use requires the investment of public funds for care, maintenance, repair, construction and replacement. The street system benefits such businesses by providing easy access to not only lodging but to food, fuel, goods and other services provided within the City.
(2) Pursuant to the authority of Nebraska Revised Statute R.R.S. 1943, Section 16-205, the City Council finds, determines and declares that it is appropriate that a tax be imposed on all lodging businesses including but not limited to hotels, motels, bed and breakfast, and campground businesses for the purpose of raising revenues for street system care, maintenance, repair, construction and replacement. The foregoing determination is made with due consideration of such businesses in the City and the relation of business to the municipal welfare, together with relation thereof, to expenditures required by the City and with consideration of just, proper and equitable distribution of the tax burden for street care, maintenance, repair, construction and replacement within the City.
(c) Tax Imposed; Collection of Tax.
(1) On or after November 1, 2009 and in each calendar month thereafter there is hereby imposed an occupation tax on lodging businesses upon each and every person conducting such lodging business within the City for any period of time during a calendar month. The amount of tax shall be two percent of all gross receipts for each calendar month derived from lodgers or customers.
(2) A person engaged in the lodging business may itemize the tax levied on a bill, receipt or other invoice to the lodger or customer, but each person engaged in the lodging business shall remain liable for the tax imposed by this section.
(3) Gross receipts subject to the tax shall include receipts for all services for which compensation is received except that gross receipts subject to tax shall not include the sale of food in a lodging facility if separately itemized and subject to the occupation tax on food and beverage services.
(d) Tax Imposed for Revenue Purposes; Tax Cumulative.
(1) The tax imposed by this section is purely for revenue purposes to support the care, maintenance, repair, construction and replacement of the City street system. The levy of the tax under this section is in addition to all other fees, taxes, excises and licenses levied and imposed under any contract or any other provisions of this Code or ordinances of the City, in addition to any fee, tax, excise or license imposed by the State.
(2) Payment of the tax imposed by this section shall not relieve the person paying the same from payment of any other tax now or hereafter imposed by contract or ordinance or by this Code, including those imposed for any business or occupation he or she may carry on, unless so provided therein. It is the intent of this Council that the occupation taxes imposed by this section shall be cumulative except where otherwise specifically provided.
(e) Exemptions. The tax imposed by this section shall not be due on:
(1) Any fee received exclusively by a religious, civic, educational, charitable, governmental, or political organization exempt from income taxes under the United States Internal Revenue Code.
(2) Any fee received for any scientific and literary lectures or entertainment as described in Nebraska Revised Statutes Section 16-205.
(3) Any fee received for concerts and other musical entertainments given exclusively by the citizens of the City as stated in Nebraska Revised Statutes Section 16-205.
(4) Any fee received by any person engaged in business within the City not within the taxing power of the City under the Constitution of the United States and the Constitution and Statutes of the State of Nebraska.
(5) The value of food or beverages furnished by lodging businesses to employees as part of their compensation when no charge is made to the employee.
(6) Tips to an employee of a lodging business when the amount of the tip is wholly in the discretion of the purchaser, whether or not the tip is paid to the employee or added to the bill and if the sole amount of the tip is turned over to the employee. Amounts that are added to the price of the room or accommodation and required to be paid by the purchaser, whether or not designated as a tip or a service charge, shall be exempt as a tip to the extent the mandatory amount does not exceed twenty percent of the sales price.
(f) Return.
(1) Each and every person engaged in the lodging business within the City for the calendar month beginning November, 2009, and for each and every calendar month thereafter, shall prepare and file, on or before the last day of the month following on a form prescribed by the City Clerk, a return for the taxable calendar month, and at the same time pay to the City Clerk the tax herein imposed.
(2) The City Clerk may, by regulation, specify a uniform class of taxpayer that may make reports and remittances quarterly in lieu of monthly, taking into consideration the amount of tax due. In addition, a person subject to the tax imposed herein may, upon written application to and with the written consent of the City Clerk, make reports and remittances on a quarterly basis in lieu of monthly. Such quarterly reports shall be due on the 15th day of April, July, October and January of each year and shall report the gross receipts and the amount due for the three months immediately preceding the months in which the reports and remittances are required.
(g) Suspension or Revocation of Other Licenses. No delinquency in payment of the tax herein provided for by this section and no revocation or conviction for violation of this section shall be grounds for the suspension or revocation of any other license issued to any person engaged in business within the City by the City Clerk or any other official of the City under any licensing provisions of this Code or other ordinances, nor shall the same be grounds for the suspension or revocation of any other license issued by any licensing authority pursuant to the statutes enacted by the State of Nebraska.
(h) Failure to File Return; Delinquency; Assessment by City Clerk.
(1) If any person neglects or refuses to make a return or payment of the taxes as required by this section, the City Clerk shall make an estimate, based upon such information as may be reasonably available, of the amount of taxes due for the period or periods for which the taxpayer is delinquent, and upon the basis of such estimated amount, compute and assess in addition thereto a penalty equal to ten percent thereof, together with interest on such delinquent taxes, at the rate of one percent per month, or fraction thereof from the date when due.
(2) The City Clerk shall give the delinquent taxpayer written notice of such estimated taxes, penalty and interest, which notice must be served personally or by certified mail.
(3) Such estimate shall thereupon become an assessment, and such assessment shall be final and due and payable from the taxpayer to the City Clerk ten days from the date of service of the notice or the date of mailing by certified mail; however, within such ten day period, the delinquent taxpayer may petition the City Clerk for a revision or modification of such assessment and shall, within such ten day period, furnish the City Clerk the facts and correct figures showing the correct amount of such taxes.
(4) Such petition shall be in writing, and the facts and figures submitted shall be submitted in writing and shall be given under oath of the taxpayer.
(5) Thereupon, the City Clerk shall modify such assessment in accordance with the facts which he or she deems correct. Such adjusted assessment shall be made in writing and notice thereof shall be mailed to the taxpayer within ten days. All such decisions shall become final upon the expiration of thirty days from the date of service, unless proceedings are commenced within that time for appeal in the District Court of Cheyenne County, Nebraska by the filing of a petition with the Clerk of the Court. This appeal shall be conducted in conformance with the Nebraska Rules of Civil Procedure and Rules of the Court as may be adopted by the Court from time to time or enacted or amended by the Legislature.
(i) Jeopardy Assessment.
(1) If the City Clerk finds that the collection of the tax will be jeopardized by delay, in his or her discretion, he or she may declare the taxable period immediately terminated, determine the tax, and issue notice and demand for payment thereof, and, having done so, the tax shall be due and payable forthwith, and the City Clerk may proceed to collect such tax as hereinafter provided.
(2) Collection may be stayed if the taxpayer gives such security for payment as shall be reasonably satisfactory to the City Clerk.
(j) Administration of Section; Miscellaneous Provisions.
(1) Administration by City Clerk. The administration of the provisions of this section are hereby vested in the City Clerk, who shall prescribe forms in conformity with this section for the making of returns for the ascertainment, assessment and collection of the tax imposed hereunder, and for the proper administration and enforcement hereof.
(2) Duties performed by others. Duties of the City Clerk herein provided may be performed by any qualified person designated by the City Clerk.
(3) Notices to be sent by registered or certified mail. All notices required to be given to the taxpayer under the provisions of this section shall be in writing, and if mailed postpaid by registered or certified mail, return receipt requested, to him or her at his or her last known address shall be sufficient for the purposes of this section.
(4) Duty to keep books and records. It shall be the duty of every taxpayer to keep and preserve suitable records and other books or accounts as may be necessary to determine the amount of tax for which he or she is liable hereunder.
A. Records of the gross revenue by which this tax is measured shall be kept separate and apart from the records of other sales or receipts in order to facilitate the examination of books and records as necessary for the collection of this tax.
B. It shall be the duty of every such taxpayer to keep and preserve for a period of three years all such books, invoices and other records, which shall be open for examination at any time by the City Clerk or his or her duly designated manager or agent. If such person keeps or maintains books, invoices, accounts or other records, or any thereof, outside of the State, upon demand of the City Clerk, they shall make the same available at a suitable place within the City, to be designated by the City Clerk, for examination, inspection and audit by the City Clerk or person duly authorized by him or her.
C. The City Clerk, in his or her discretion, may make, permit or cause to be made examination, inspection or audit of books, invoices, accounts or other records so kept or maintained by such person outside of the State at the place where same are kept or maintained or at any place outside the State where the same may be made available, provided such person shall have entered into a binding agreement with the City to reimburse it for all costs and expenses incurred by it in order to have such examination, inspection or audit made in such place.
(5) Investigation of taxpayer's books. For the purpose of ascertaining the correctness of a return, or for the purpose of determining the amount of tax due from any person, the City Clerk or persons authorized by him or her may hold investigation and hearings concerning any matters covered by this section; and may examine any relevant books, papers, records or memoranda of any such person, or of any person having knowledge thereof; and may take testimony and require proof of his or her information. The City Clerk and person or persons duly authorized shall have power to administer an oath to such person.
(6) Sale of business. Whenever any taxpayer sells his or her lodging business or quits engaging in such business, any tax payable under this section shall become immediately due and payable and such person shall immediately make a report and pay the tax due to date of sale or closing, whichever occurs later.
(7) Status of unpaid tax and bankruptcy or receivership. Whenever the business or property of any taxpayer subject to this section shall be placed in receivership, bankruptcy or assignment for the benefit of creditors, or seized under distraint for property taxes, all taxes, penalties, and interest imposed by this section and for which the taxpayer is in any way liable under the terms of this section shall be a prior and preferred lien against the property of the taxpayer, except as to pre-existing claims or liens of a bona fide mortgagee, pledgee, judgment creditor or purchaser whose rights shall have attached prior to the filing of the notice as hereinafter provided on the property of the taxpayer; and no sheriff, receiver, assignee or other official shall sell the property of any person subject to this section under process or order of any court without first ascertaining from the City Clerk the amount of any taxes due and payable under this section; and if there be any such taxes due, owing and unpaid, it shall be the duty of such officer to first pay the amount of such taxes out of the proceeds of such sale before making payment of any monies to any judgment creditor or other claimants of whatsoever kind or nature, except the cost of the proceedings and other pre-existing claims or liens as above provided.
(8) Release of liens. The tax imposed by this section, together with the interest and penalties herein provided and the cost of collection which may be incurred, shall be and, until paid, remain a first and prior lien, except as otherwise provided by the Constitution or Statute, superior to all other liens, on all the merchandise, furniture and fixtures, tools and equipment of the taxpayer within the City, and may be foreclosed by seizing under distraint and sale of so much of said merchandise, furniture and fixtures, tools and equipment, as may be necessary to discharge the lien. The lien created by this section shall apply only to tax obligations hereafter incurred. Any lien for taxes as shown on the records of the County Clerks and Recorders as herein provided shall, upon the payment of all taxes, penalties and interest covered thereby, be released by the City Clerk in the same manner as mortgages or judgments are released.
(9) Statute of limitations. No suit for collection of any taxes imposed by this section for any interest thereon or penalties with respect thereto may be instituted, or any other action to collect the same shall be commenced, nor shall any notice of lien be filed, or distraint warrant be issued, more than three years after the date on which the tax was or is payable. In case of a false or fraudulent return with intent to evade tax, the tax, together with interest and penalties thereon, may be assessed or proceedings for the collection of such taxes may be begun at any time. Before the expiration of such period of limitation, the taxpayer and the City Clerk may agree in writing to an extension thereof; and the period so agreed on may be extended by subsequent agreement in writing.
(k) Recovery of Unpaid Taxes by Action at Law.
(1) The City Clerk may also treat any such taxes, penalties or interest due and unpaid as a debt due the City.
(2) In case of failure to pay the taxes, or any portion thereof, or any penalty or interest thereon when due, the City Clerk may recover at law the amount of such taxes, penalties and interest in any court of Cheyenne County, Nebraska, or of a court having jurisdiction in the county where the taxpayer resides or has its principal place of business.
(3) The return of the taxpayer or the assessment made by the City Clerk, as herein provided, shall be prima facie proof of the amount due.
(4) Such actions may be actions and attachments and writs of attachment may be issued to the constable or sheriff, as the case may be; and in any such proceeding no bond shall be required of the City Clerk except as may be required by statute, nor shall any constable or sheriff require of the City Clerk an indemnifying bond for executing the writ of attachment or writ of execution upon any judgment entered in such proceeding; and, in accordance with the procedure established by statute, if any, the City Clerk may prosecute appeals or writs of error in such cases without the necessity of providing bond therefor.
(5) The City Attorney, when requested by the City Clerk, with the consent of the Council, may commence an action for the recovery of taxes due under this section; and this remedy shall be in addition to all other existing remedies, or remedies provided in this section.
(l) City a Party to Title Actions for Determination of Lien. In any action affecting the title to real estate or the ownership or rights to possession of personal property, the City may be made a party defendant for the purpose of obtaining a judgment or determination of its lien upon the property involved therein.
(m) Authority of City Clerk to Waive Penalty. The City Clerk is hereby authorized to waive, for good cause shown, any penalty assessed as in this section provided; and any interest imposed in excess of six percent per annum shall be deemed a penalty.
(n) Penalty.
(1) Penalties for deficiencies caused by disregard of rules. If any part of the deficiency is due to negligence or intentional disregard of authorized rules and regulations with knowledge thereof, but without intent to defraud, there shall be added ten percent of the total amount of the deficiency; and in such case interest shall be collected at the rate of one percent per month, or fraction thereof, on the amount of the deficiency from the time the return was due, from the person required to file the return, which interest in addition shall become due and payable within ten days after written notice and demand by the City Clerk.
(2) Penalties for deficiencies caused by fraud. If any part of the deficiency is due to fraud or with the intent to evade the tax, then there shall be added fifty percent of the total amount of the deficiency, and in such case the whole amount of the tax that is unpaid, including the additions, shall become due and payable ten days after written notice and demand by the City Clerk, and an additional one percent per month, or fraction thereof, on said amounts shall be added from the date the return was due until paid.
(Ord. 1628. Passed 9-22-09.)