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.
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.