The New Hotel Tax, aimed at small business people and householders trying to make a few dollars - Or, a Hunting License for Carl Feather (See Feather Employment Information)
COMMENTARY through comments!
The Board of County Commissioners of Ashtabula County,
Ohio, met on the 23rd day of July, 2013, in regular session at the
offices of said Board in the Old Courthouse Building, 2nd Floor,
Jefferson, Ohio, with the following members present: Joseph A.
Moroski, Daniel R. Claypool, Peggy A. Carlo.
WHEREAS, On April 22,
1991, pursuant to Section 5739.024 of the Ohio Revised Code, the
Board of Commissioners levied an excise tax on transactions by which
lodging by a hotel or motel is furnished to guests; and
WHEREAS,
Said Resolution has been previously amended by Resolution Numbers
91-825; 96-1687; 2002-221; 2002-471; 2002-924; and
WHEREAS, Ohio
Revised Code Section 5739.024(G), as enacted by House Bill 94 of the
124th General Assembly, authorizes a board of county commissioners to
adopt a resolution specifying that, for purposes of any lodging tax
that may be imposed by the board under Ohio Revised Code Section
5739.024 or division (c) of Ohio Revised Code Section
5739.02, “hotel”
as otherwise defined in Ohio Revised Code Section 5739.01, includes
establishments in which fewer than five rooms are used for the
accommodation of guests; and
WHEREAS,
from time to time, it is found necessary to update the Ashtabula
County Lodging Excise Tax Code of Regulations, to-wit:
Section 1:
Title
This code of regulations shall be known and may be cited and
referred to as “Ashtabula County Lodging Excise Tax Code of
Regulations” or “County Lodging Excise Tax Code of Regulations”
to the same effect. The authority for this code is ORC sections
5739.024(A), 5739.024(G) and 5739.09(A)(1), and 5739.09(A)(4) and
Chapter 351, and Board of Commissioners resolutions 91-451, 91-825,
93-1687, 2002-221, 2002-471, 2002-924 and 2003-891.
Section 2:
Definitions
Except where the context otherwise requires, the
definitions given in this section govern the regulations and are the
meanings of the words defined.
a. “Person” means any
individual, firm, partnership, joint venture, association, social
club, fraternal organization, joint stock company, corporation,
estate, trust, business trust, receiver, trustee, syndicate or any
other group or combination acting as a unit.
b. Administrator
means the Lodging Tax Administrator of Ashtabula County, Ohio, or his
or her appointed designee, who has been authorized by the Board of
Commissioners to administer the lodging tax rules and regulations.
Such tax and associated penalties and interest are collected by the
board, but the board, at its discretion, may assign that collection
duty to the Ashtabula County Auditor or Treasurer.
c. Auditor
means the Auditor of Ashtabula County, Ohio, or his or her appointed
designee.
d. Lodging means every establishment kept, used,
maintained, advertised or held out to the public to be a place where
sleeping accommodations are offered for a consideration to transient
guests, in which one or more rooms are used for the accommodation of
such guests, whether such rooms are in one or several structures
where keyed entry is provided. This includes but is not limited to
hotels, motels, bed and breakfasts, cottages, guest houses, tourist
homes/houses, cabins, condominiums, vacation homes, mobile homes,
recreational vehicles, lodges, sub-leased condominiums, dormitories
or any public or private clubs at a fixed location.
e. “Transient”
guest means persons occupying a room or rooms for sleeping
accommodations fewer than 30 consecutive nights.
f. “Rent”
means the consideration received for occupancy valued in money,
whether received in money or otherwise, including all receipts, cash,
credits and property or services of any kind or nature, and also any
amount for which the occupant is liable for the occupancy without any
deduction there from whatsoever. In those situations where the rent
is part of a package that includes food, instruction, recreation,
transportation or other services, the Operator must determine the
reasonable value of the rent portion of the service and calculate the
tax thereon. Additional fees imposed by the Operator for special
situations, such as accommodating a pet or providing amenities or
special guest accommodations, are subject to the lodging tax.
Amenities that are advertised or offered as free or complimentary
cannot be deducted from room rents.
g. “Operator” means the
person or persons who is (are) proprietor(s) of the lodging
establishment, whether in the capacity of owner, lessee, mortgagee in
possession, licensee or any other capacity. Where the Operator
performs his functions through a managing agent of any type or
character other than an employee, the managing agent shall also be
deemed an Operator for the purposes of this regulation and shall have
the same duties and liabilities as his principal. Compliance with the
provisions of this regulation by either the principal or the managing
agent shall, however, be considered to be compliance by both.
h.
“Occupancy” means the use or possession, or the right to the use
or possession of any room or rooms or space or portion thereof, in
any lodging establishment for dwelling or sleeping purposes. The use
or possession or right to use or possess any room or any suite of
connecting rooms as office space, banquet or private dining rooms, or
exhibit, sample or display space shall not be considered occupancy
within the meaning of this definition unless the person exercising
occupancy uses or possesses, or has the right to use or possess all
or any portions of such room or suite of rooms for dwelling, lodging
or sleeping purpose.
Section 3: Intent
It is the intent of
these rules and regulations to provide for the administration of
imposing, collecting and distributing the levy of an excise tax of
five percent (5%) on transactions by which lodging by an Operator is
or is to be furnished to transient guests as referred to and
authorized by Ohio Revised Code Section 5739.024. Accordingly, these
rules and regulations shall be liberally construed to effectuate that
purpose so as to be consistent with any requirement of law,
compliance which is a prerequisite to the validity of the tax
intended to be levied hereby.
The tax and any associated penalties
shall be collected by the Administrator appointed by the Board of
Commissioners. The Board may, in its discretion, assign collection
duties to the Treasurer or Auditor of Ashtabula County.
Section 4:
Imposition and Rate of Tax:
For the purpose of growing the tourism
industry in Ashtabula County, an excise tax of five percent (5%) is
levied upon all transactions when lodging is, or is to be, furnished
to transient guests. Such excise tax consists of a three percent (3%)
tax authorized pursuant to Section 5739.09(A)(1) of the Ohio Revised
Code and allocated by the Board of Commissioners to the Ashtabula
County Convention and Visitors Bureau (ACCVB), and a two percent (2%)
tax authorized pursuant to Section 5739.09(A)(4) of the Ohio Revised
Code and allocated to the Ashtabula County Convention Facilities
Authority (CFA).
Collectively, such taxes are known as the
Ashtabula County Lodging Tax.
The tax applies and is collectible
at the time the lodging is furnished, regardless of when the price
for same is paid. For the purpose of proper administration, and to
prevent evasion of the tax, it is presumed that all rents for
transient lodging in Ashtabula County are subject to the tax until
the contrary is established.
The transient guest shall pay the
excise tax to the Operator, and each Operator shall collect from the
transient guest the full and exact amount of the tax payable. The tax
required to be paid and collected shall be deemed to be held in trust
by the Operator until paid to the Administrator. The guest’s
failure to pay the tax does not relieve the Operator of his or her
responsibility to report and remit the obligation to the
Administrator
The Board of Commissioners recognizes the right of
townships and municipalities that are located either partially or
wholly within Ashtabula County to enact and administer lodging taxes
as provided under ORC 5739.08.
Section 5: Exemptions
No
Operator shall refuse to collect and no transient guest shall refuse
to pay the full and exact tax as required by this regulation. No
guest shall present to the Operator false evidence indicating that
the lodging as furnished is not subject to the tax.
No tax shall
be imposed under this regulation upon:
Rents not within the taxing
power of the county under the Constitution or laws of Ohio or the
United States;
No exemption claimed under this section shall be
granted except upon a claim therefore made at the time rent is
collected and under penalty of perjury upon a form prescribed by the
Administrator.
Generally recognized exemptions are Federal
Government Employees traveling on official business and employees of
a federal credit union, traveling on official credit union business.
To receive the exemption, a copy of a Transient Occupancy Tax
Exemption Certificate must be filed with the Operator’s tax
return.
Section 6: Tax to be Stated and Charged Separately
The
tax to be collected shall be stated on and charged separately from
the rent and shown separately on all records, bills, statements or
other documents evidencing the transaction. The tax shall be paid by
the transient guest to the Operator as trustee for and on the account
of the county. The Operator shall be liable for the collection and
remittance of the tax to the County as set forth herein.
In
instances where the Operator advertises the rent as “taxes
included,” the Operator must be prepared to, upon request by the
transient guest or Administrator, the cost of the lodging before any
taxes.
Section 7: Refunds
The Administrator shall grant credits
to Operators for the amount of any taxes paid illegally or
erroneously, as well as any penalties or interest erroneously
collected from the Operator.
The transient guest may obtain a
credit for the amount of taxes paid illegally or erroneously, but
only when the transient guest paid the tax directly to the
Administrator. No refund shall be paid unless the claimant
establishes his right thereto in writing on forms furnished by the
Administrator, stating under penalty of perjury the specific grounds
upon which the claim is founded. Such claims shall be filed with the
Administrator within three years of the date of payment. The form may
be obtained by making a request to Lodging Tax Administrator,
Ashtabula County Board of Commissioners, 25 W. Jefferson St.,
Jefferson, OH 44047, by calling the office at (440)
576-3750 or
visiting the lodging tax section of the Ashtabula County
website, www.co.ashtabula.oh.us.
Section
8: Registration
Prior to 30 days before commencing business, each
Operator of any lodging establishment renting lodging to transient
guests shall register said establishment with the Administrator and
obtain a Transient Occupancy Registration Certificate. The document
must be posted in a conspicuous place at all times on the Operator’s
premises. Said certificate shall state:
The Operator’s
name
The name(s) and street address of the operation
The date the certificate was issued
The county’s intent in
collecting the excise tax
The following language: “This
Transient Occupancy Registration Certificate signifies that the
person named on the face hereof has fulfilled the requirements of the
Ashtabula County Board of Commissioners Lodging Tax Code of
Regulations by registering with the Administrator for the purpose of
collecting from transient guests the Ashtabula County Lodging Excise
Tax and remitting said tax to the county. This certificate does not
constitute a permit.”
An Operator who elects to convert a
property to “full-time (permanent) rental use,” i.e. the guest
will be staying 30 days or more and the property is held out to the
public as such, must surrender the Transient Occupancy Tax
Certificate issued by the Administrator and pay the excise tax
through the date of conversion. A new certificate must be obtained
prior to the property being re-instated as transient guest
lodging.
Section 9: Reporting and Remitting
The Administrator
shall provide reporting forms either electronically (email/download)
or by mail to each Operator responsible for collecting the
tax.
Operators whose excise tax collection is anticipated to or
actually exceeds $100 per month for three consecutive months must
file and pay monthly. Operators whose tax liability is $100 or less
per month may file quarterly. The Administrator, at his discretion,
may revoke the option of quarterly filing if the Operator fails to
file a report and pay taxes due in a timely manner.
All Operators
whose business is seasonal (i.e. April through October) need not file
reports during the months the property is not offered for lodging.
However, said seasonal Operators must indicate the following
information on the final report of the season for that calendar
year:
• That the report is the final one for the season and no
further reportable business will be conducted at the location;
•
The year, month and day the Operator intends to resume the
business.
Each Operator shall, on or before the last day of the
month, complete and file a report for the preceding month (or
quarterly reporting period) showing receipts from furnishing lodging
and the amount of excise due from the Operator to the county for the
period of the return. Returns must be delivered in person, mailed or,
at the county’s discretion, submitted electronically, by the due
date. Such returns that are mailed must have a postmark of the last
day of the month or earlier to be within the required reporting
period. For example, the return for the month of June or the second
quarter must be postmarked on or before July 31 of the same
year.
Payment of the lodging tax reported must be included with
the report, as must be any claims for exemption filed by transient
guests with the Operator for the period covered by the return.
Acceptable payment forms include business check, certified check or
money order. In the event a check is returned for insufficient funds,
closed account or other reasons, the Administrator shall impose a
penalty of $50 and require all future payments be made by certified
check or money order.
The Administrator may extend the time for
making and filing returns, but any payments that are due and unpaid
will accrue penalties and interest as prescribed by Section 11 of
this document.
As part of the reporting process, the
Administrator, at his discretion, may request from the Operator other
pertinent data, including but not limited to the number of rooms
available/rented, the cost of such rooms on a weekly or daily basis
and the
Operator’s business forecast as part of the reporting
requirement.
A lodging activity report must be filed even if the
Operator received no consideration for lodging provided (including
family/friends using the rooms) during the reporting
period.
Operators who own more than one hotel in Ashtabula County
must file a separate report for each property. Aggregate payments are
acceptable, but multiple properties may not be combined on one
report. Aggregate reports will be rejected and individual reports
requested by the Administrator.
All returns and payments submitted
by each Operator shall be treated as confidential by the
Administrator and shall not be released by the Administrator except
upon order of a court of competent jurisdiction or to an officer or
agent of the United States, State of Ohio, County of Ashtabula,
Ashtabula County Convention and Visitors Bureau (ACCVB), fiscal
officer of a municipality or township which levies a lodging tax or
in order to comply with the requirements of Ohio Revised Code
149.43.
Returns and payments are due immediately upon cessation of
business for any reason.
Section 10: Auditing
Audits are an
integral part of a fair administration and collection of the tax.
The
Administrator or Auditor of the County of Ashtabula may conduct
audits as are deemed necessary in order to ensure compliance with
these rules and regulations and the imposition and payment of the
tax. The Administrator or Auditor has the right to inspect the
Operator’s business records at all reasonable times. Operators are
required to keep, preserve and produce upon request, for a period of
three years, all records necessary to determine the amount of the tax
and corroborate lodging reports as filed by the Operator.
Section
11: Penalties, interest and fines on delinquent payments
A report
and the tax due the county shall be considered delinquent if the same
are not received by the last day of the month for the preceding
reporting period, whether a month or quarter.
• A tax payment
that is delinquent shall be subject to a 10 percent penalty. In the
event that an audit reveals intention to defraud the county of the
lodging tax, the penalty shall be increased to 25 percent
• Any
penalty assessed by the Administrator is due immediately.
•
Additionally, the Administrator may impose a penalty of $25 for any
Operator who files three or more reports past the due date in a given
year. A penalty of $100 will be imposed for each month a tax payment
is delinquent six months or more. These fines are imposed under the
authority of the ORC 5739.99(D).
• Penalties, interest and fines
shall be retained by the Ashtabula County Board of Commissioners as
administrative fees.
• No penalties shall be imposed on the
Operator during the pendency of the appeals process.
Section 12:
Noncompliance estimate of tax due
If any Operator fails or refuses
to collect the transient guest tax or to file a return and to make a
remittance of such tax or any portion thereof as required herein, the
Administrator shall proceed in such manner deemed best to obtain
facts and information on which to base an estimate of the tax due.
The estimate will be used to calculate a penalty and interest due, as
well. The burden of proving the estimate inaccurate rests upon the
Operator.
Once a determination of the amount due is made, the
Administrator shall give notice to the Operator by serving the same
upon the Operator, personally or by registered or certified mail.
Such Operator may, within ten (10) days after the serving or mailing
of such notice, make application in writing to the Administrator for
a hearing of the amount assessed. If the application by the Operator
is not made within the time prescribed, then the tax, penalty and
interest determined by the Administrator shall become final,
conclusive and immediately due and payable.
If such application is
made, the Administrator shall give not less than five (5) days
written notice in the manner prescribed in this section to the
Operator to show cause at a time and place fixed in such notice why
the amount specified therein shall not be fixed for such acts and
penalty. In any such hearing, the Operator may appear and offer
evidence why such specified tax and penalty should not be so fixed.
After such hearing, the Administrator shall determine, within ten
(10) days, the proper tax and any penalties and/or interest due and
give written notice, in person or by registered or certified mail, of
same to the Operator. The amount determined to be due shall be
payable with fifteen (15) days of receipt of the notice by the
Operator, unless an appeal is taken as provided in Section
13.
Section 13: Appeal
An Operator aggrieved by any decision of
the Administrator with respect to the amount of such tax and
penalties due, may appeal to the Board of Ashtabula County
Commissioners by filing a written notice of appeal with the
Administrator within 15 days of receipt of the determination of the
amount tax due. The Board of Ashtabula County Commissioners shall fix
a time and place for hearing such appeal, and shall give notice in
writing to such Operator at his last known place of address. The
findings of the Board of Ashtabula County Commissioners shall be
final and conclusive of the tax and any penalties, and notice of same
shall be served upon the appellant in the manner prescribed above for
service of notice of hearing. Any amount found to be due shall
immediately be due and payable upon the service of notice.
Section
14 - Severability
If any sentence, clause, section or part of
these rules and regulations, or any tax imposed as specified herein,
is found to be unconstitutional, illegal or invalid, such
unconstitutional, illegality or invalidity shall affect only such
clause, sentence, section or part and shall not affect or impair any
of the remaining provisions, sentences, clauses, sections or other
parts of these rules and regulations
THEREFORE, BE IT RESOLVED,
That the Rules and Regulations adopted pursuant to Resolution Number
91-451, 91-825; 96-1687; 2002-221; 2002-471; 2002-924 are hereby
amended to update the Ashtabula County Lodging Excise Tax Code of
Regulations, as noted above and in accordance with a copy of the
amended Code of Regulations now on file in this office; and
BE IT
FURTHER RESOLVED, That such amendment shall be effective immediately.
