Loading...
6550ORDINANCE NO. 6550 AN ORDINANCE OF THE CITY OF ANAHEIM AMENDING SECTIONS 2.12.020, 2.12.025 AND 2.12.030 OF CHAPTER 2.12 (TRANSIENT OCCUPANCY TAX) OF TITLE 2 (TAXES) OF THE ANAHEIM MUNICIPAL CODE TO MODIFY THE SPECIAL PACKAGE PROVISIONS, CLARIFY REMITTANCE REQUIREMENTS FOR BOOKINGS FACILITATED BY ONLINE TRAVEL COMPANIES, AND SPECIFY THAT FUTURE TAX INCREASES MUST BE APPROVED BY THE VOTERS WHEREAS, by the adoption of Ordinance 5305, May 27, 1992; Ordinance 5338, October 27, 1992; Ordinance 5436, August 2, 1994; Ordinance 5495, May 9, 1995; Ordinance 5741, November 7, 2000; Ordinance 5777, August 28, 2001; Ordinance 5866, June 17, 2003; and Ordinance 6484, June 9, 2020, the City Council of the City of Anaheim ("City Council") added and amended Chapter 2.12 (Transient Occupancy Tax) to Title 2 (Taxes) of the Anaheim Municipal Code (the "Code") for the purpose of imposing a tax for the privilege of occupancy in hotels located within the City of Anaheim ("City"); and WHEREAS, Chapter 2.12 (known as the "Transient Occupancy Tax Code") imposes a fifteen percent (15%) tax on guests at hotels and other lodging in the City and requires "operators" of these establishments to collect from the guest and remit to the City transit occupancy tax ("TOT"); and WHEREAS, at the November 8, 2022 general municipal election, the voters of Anaheim approved Measure J, amending the Transient Occupancy Tax Code to include online and other travel companies as operators required to collect TOT from guests and remit it to the City; and WHEREAS, the changes effectuated by Measure J make it advisable to specify the remittance procedure in situations where the charges for the accommodations are collected by an online or other travel company, as well as to modify the special package provisions of the TOT Code as applicable to those companies; and WHEREAS, pursuant to the California Environmental Quality Act (Public Resources Code Section 21000 et seq.; herein referred to as "CEQA") and the State of California Guidelines for Implementation of the California Environmental Quality Act (commencing with Section 15000 of Title 14 of the California Code of Regulations; herein referred to as the "State CEQA Guidelines"), the City is the "lead agency" for the preparation and consideration of environmental documents for this ordinance; and WHEREAS, the City Council finds and determines that this ordinance is not subject to CEQA pursuant to Sections 15004, 15060(c)(2), 15060(c)(3), and 15061(b)(3) of the State CEQA Guidelines, because it will not result in a direct or reasonably foreseeable indirect physical change 1 of 7 in the environment, there is no possibility that it may have a significant effect on the environment, and it is not a "project," as that term is defined in Section 15378 of the State CEQA Guidelines. THE PEOPLE OF THE CITY OF ANAHEIM DO HEREBY ORDAIN AS FOLLOWS: SECTION 1. Section 2.12.020 of Chapter 2.12 of Title 2 of the Anaheim Municipal Code shall be, and the same hereby is amended and restated to read in full as follows: 2.12.020 OPERATOR'S COLLECTION DUTIES. .010 Each operator shall collect the tax to the same extent and at the same time the rent is collected from every transient. .011 The amount of the rent and the tax thereon shall be separately stated from all other amounts on all receipts and books of record of the hotel, and each transient shall be tendered a receipt for payment from the operator with rent and tax separately stated thereon. No operator shall advertise or state in any manner, directly or indirectly, that the tax or any part thereof will be assumed or absorbed by the operator or that the tax will not be added to the rent or that, if added, any part of the tax will be refunded except in the manner hereinafter provided. Notwithstanding the foregoing provision of this subsection, nothing contained herein shall require the operator to separately state the rent and the tax thereon on receipts and books of record or prohibit the operator from advertising or stating that the tax will be assumed or absorbed by the operator or that such tax will not be added to the rent, provided such room accommodations constitute a portion of a collective group of services, privileges, entitlement or benefits (hereinafter "benefits") which benefits include, at a minimum, room accommodations and food and beverage services or room accommodations and at least one other benefit having an ascertainable fair market value (hereinafter "special package") offered for one fixed charge (hereinafter "special package rate"). .012 Unless otherwise provided in an agreement between Anaheim and an operator in accordance with subsection .015, in the event an operator does not separately state the rent and tax from other amounts on all receipts and books of record, the operator shall file with the License Collector a statement of each special package rate on a form (hereinafter "Special Package Form") provided by the License Collector. The Special Package Form shall include the special package rate, and an itemization of the values of the items included, including, at a minimum, the rent, tax, and any other item. The operator must submit documentation to substantiate the claimed fair market value of individual items included other than rent and tax. The License Collector shall mark the date of receipt on the Special Package Form and review the submitted information to determine if sufficient information is provided to verify that the numbers are mathematically correct and comply with this chapter. If the package meets the foregoing requirements, the License Collector shall assign a unique number to the Special Package Form and return a copy to the operator within fourteen City business days of receipt. The operator may use the assigned unique number or may assign the operator's unique name/number to each package and notify the 2 of 7 License Collector to imprint the name/number on the Special Package Form. This unique name/number must appear on all receipts and books of record whenever the package is sold. If the package does not meet the requirements of this subsection, the License Collector will advise the operator of any required changes within fourteen City business days. The operator must either make the required changes and resubmit the Special Package Form or comply with subsection 2.12.020.011. A new Special Package form must be submitted in the event of any change in the special package rate or the specified rate (subsection 2.12.020.014), or other items in the special package which exceeds ten percent and for any new special package(s) offered/used. Any change of items within the special package constitutes a new special package. The effective date of the special package rate shall be the date of receipt by the License Collector if the package is approved. .013 No Special Package Form shall be accepted for filing unless accompanied by a filing fee in the amount established by resolution of the City Council. .014 As to any package sold by the operator for which the License Collector has approved the package and assigned the unique number, the tax shall apply only to the amount of rent identified in the Special Package Form (hereinafter "specified rate") until such time as the License Collector shall inform the operator that the approval is revoked. .015 If an operator sells special packages and frequently changes the package pricing or package components in a manner that would create an undue burden on the operator to comply with subsection 2.12.020.012, the operator and Anaheim may enter into a written agreement establishing a reporting methodology that is an alternative to compliance with that subsection, provided the reporting methodology clearly identifies the taxable rent portion of the special package, including any discount room charge or facilitation fee ("reported rent"). .016 In the event an operator does not comply with subsection 2.12.020.011, and does not either file a Special Package Form and obtain approval of a specified rate pursuant to subsection 2.12.020.012, or enter into a written agreement pursuant to subsection 2.12.020.015, the portion of the special package rate attributable to the room accommodations for purposes of determining the tax (hereinafter "imputed rate") shall be deemed the lesser of (a) the amount collected for the total special package or (b) an amount equal to the median average double occupancy room rate for such accommodations as posted in such room pursuant to the requirements of Section 1863 of the Civil Code (or any successor section). The burden to prove such posted room rates shall be upon the operator. In the event the operator fails to present satisfactory proof of such rates, such posted rates shall be deemed the posted rates in effect at the time of the audit. .017 Notwithstanding subsections 2.12.020.012 and 2.12.020.014, if any audit reveals that the rent component of a special package (hereinafter "audited rate") is more than ten percent greater than the specified rate or the reported rent, the rent for tax purposes shall be the audited rate, and any facilitation fee will be calculated by subtracting the discount room charge from the audited rate. In the event subsection 2.12.020.016 applies and the audited rate is greater than the imputed rate, the rent for tax purposes shall be the audited 3of7 rate, and any facilitation fee will be calculated by subtracting the discount room charge from the audited rate. The audited rate shall be determined by an audit of a sample of the special packages sold by the operator within an individual special package category. The audited rate shall be the amount of the special package rate remaining after deducting the fair market value of each of the benefits included in the special package rate other than room accommodations and room tax. Where more than one type of special package was offered within the audit period, each special package shall be audited separately for purposes of determining the applicable audited rate. Credits or offsets shall not be allowed between different special packages. .020 Any amount charged and collected by the operator from any transient beyond the period for which the tax is imposed, which amount is in excess of the rent theretofore charged the transient for the same accommodations and upon which rent tax was imposed and collected, shall be conclusively deemed collected under the representation by the operator that such excess amount was tax. If the operator gives such person written notice prior to the accrual of the obligation therefor that such excess amount constitutes an increase in the rental rate this subsection shall not apply. The burden to prove such notice shall be on the operator. .030 Whenever an operator who has collected any sum under the representation that it was tax (which sum was not required to be collected as tax) remits said sum to Anaheim and thereafter refunds such sum in whole or part, such operator may take the amount of such refund as a credit against future transient taxes only upon submitting to the License Collector a statement under penalty of perjury specifying the reasons for the credit and proof of payment of such refund. .040 Nothing contained in this chapter shall require the refund by Anaheim to any person of such sum collected by the operator and remitted to Anaheim even where such sum was not otherwise required to be collected and remitted. .050 Nothing contained in this chapter shall be deemed to authorize as a credit against tax any amount paid by the operator to any tour promoter, travel agent, or third party other than the transient. Travel agent commissions are an expense of the operator and may not be deducted from the rent. SECTION 2. Section 2.12.025 of Chapter 2.12 of Title 2 of the Anaheim Municipal Code shall be, and the same hereby is amended and restated to read in full as follows: 2.12.025 RULES AND REGULATIONS AND INTERPRETATIONS. The License Collector may promulgate rules and regulations consistent with the provisions of this chapter as may be necessary or desirable to aid in the enforcement and administration of this chapter. However, any such rule or regulation which would increase the maximum rate of any tax levied pursuant to this chapter is subject to voter approval as required by California Constitution Article XIIIC (Proposition 218). Said rules and 4 of 7 regulations shall be filed in the Office of the License Collector and maintained in an orderly and readily accessible manner. The burden to secure and comply with the rules and regulations shall be upon the operator. SECTION 3. Section 2.12.030 of Chapter 2.12 of Title 2 of the Anaheim Municipal Code shall be, and the same hereby is amended and restated to read in full as follows: 2.12.030 REPORTING AND REMITTING. .010 Each operator shall, on or before the close of City business on the last City business day of each month (hereinafter "due date"), file a return with the License Collector on forms provided by the License Collector stating the total rents charged and the amount of tax collected during the immediately preceding calendar month. The full amount of the tax (minus any authorized credits) shall be remitted to the License Collector. .0101. If rent is collected from a transient by an accommodations intermediary, the operator obligated to remit the tax on such rent to the License Collector is as follows: i. When the accommodations are in a hotel that is considered a short-term rental, the accommodations intermediary shall remit the tax on the rent to the License Collector. ii. When the accommodations are in a hotel that is not considered a short- term rental, the accommodations intermediary shall remit the tax on the facilitation fee (if any) and the tax on any additional rent it collects from the transient (excluding the tax on the discount room charge) to the License Collector, and shall remit the tax on the discount room charge to the accommodations supplier, which shall then remit the tax on the discount room charge to the License Collector. iii. The accommodations supplier shall not be responsible for any tax the accommodations intermediary is required to remit to the License Collector, and the accommodations intermediary shall not be responsible for any tax remitted to the accommodations supplier which the accommodations supplier does not then remit to the License Collector. iv. Nothing contained herein relieves an accommodations supplier of the responsibility to remit to the License Collector tax on rent the accommodations supplier collects from the transient, and the accommodations supplier shall remit the tax on such rent to the License Collector. .0102. If the terms of a lawful and fully executed contract that was entered into and in effect between an accommodations supplier and an accommodations intermediary prior to December 15, 2022 would be impaired by the remittance requirements of subsections 2.12.030.010.0101, these requirements shall not apply to the remittance of rent governed by that contract until the earlier of: (1) its renewal, amendment, or extension; or (2) January 1, 2024; provided however that the tax on the rent is 5 of 7 nonetheless required to be remitted in full to the License Collector by either the accommodations supplier and/or the accommodations intermediary. On or before March 1, 2023, any operator claiming such an impairment of contract shall file with the License Collector a statement of impairment under penalty of perjury. The burden shall be on the operator to prove and document its claim of impairment to the reasonable satisfaction of the City in the operator's filed statement, through provision of the relevant contract, the entry and end dates of the contract, and an explanation of how the City's requirement impairs the contract. .020 Taxes are paid only upon receipt of both the tax return and the tax by License Collector. Failure of the operator to submit and the License Collector to receive both the completed return and payment on or before the due date constitutes non-payment. .030 Tax returns filed with the City pursuant to this chapter, and information contained therein regarding amounts of gross receipts, adjustments, credits, overcollections, tax, penalty and interest, shall be and remain confidential. Unauthorized disclosure or use of such confidential information by any officer, agent or employee of the City shall constitute a misdemeanor; provided, however, this subsection shall not apply to any disclosures made in connection with any hearing, appeal, or any civil action or proceeding relating to the determination or recovery of the Tax, or any prosecution of any person for violation of any provision of this chapter or any criminal or civil proceeding pertaining to the Tax. This subsection shall not prohibit, nor be construed to prohibit, disclosure of statistical or cumulative information derived from tax returns, when the information disclosed does not identify or relate to any particular taxpayer. This subsection shall not prohibit, nor be construed to prohibit, any disclosure of tax returns or information contained therein which disclosure is compelled by an order of court or other judicial process. SECTION 4. If any portion of this Ordinance is declared invalid by a court of law or other legal body with applicable authority, the invalidity shall not affect or prohibit the force and effect of any other provision or application of the Ordinance that is not deemed invalid. The voters of the City hereby declare that they would have circulated for qualification and/or voted for the adoption of this Section, and each portion thereof, regardless of the fact that any portion of the initiative may be subsequently deemed invalid. 6 of 7 THE FOREGOING ORDINANCE was introduced at a regular meeting of the City Council of the City of Anaheim held on the:. 2 Way of Dec 2022, and thereafter passed and adopted at a regular meeting of said City Council held on the10 day of Jan 2023, by the following roll call vote: AYES: Mayor Aitken and Council Members Rubalcava, Diaz, Leon, Faessel and Meeks NOES: None ABSENT: None ABSTAIN: None [One City Council vacancy] CITY CL1- ZK OF THE CITY OF ANAHEIM 147547 7of7 CITY4NAIMBy: -[ TY OF ANAHEIM CLERK'S CERTIFICATE STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, THERESA BASS, City Clerk of the City of Anaheim, do hereby certify that the foregoing is the original Ordinance No. 6550 introduced at a regular meeting of the City Council of the City of Anaheim, held on the 20" day of December, 2022, and that the same was duly passed and adopted at a regular meeting of said City Council held on the 10th day of January. 2023, by the following vote of the members thereof: AYES: Mayor Aitken and Council Members Rubalcava, Diaz, Leon, Faessel and Meeks NOES: None ABSENT: None ABSTAIN: None [One City Council vacancy] IN WITNESS WHEREOF, I have hereunto set my hand this 11th of January, 2023. CITY CLE K OF THE CITY OF ANAHEIM (SEAL) ANAHEIM BULLETIN CIIYNFWS See Proof on Next Page Anaheim Bulletin 1920 Main St. Suite 225 Irvine , California 92614 714 796-2209 200 S. Anaheim Blvd., Suite 217 Anaheim, California 92805 AFFIDAVIT OF PUBLICATION STATE OF CALIFORNIA County of Orange County 1 am a citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the above -entitled matter. I am the principal clerk of the Anaheim Bulletin, a newspaper that has been adjudged to be a newspaper of general circulation by the Superior Court of the County of Orange County, State of California, on December 28, 1951, Case No. A-21021 in and for the City of Irvine , County of Orange County, State of California; that the notice, of which the annexed is a true printed copy, has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to wit: 01/19/2023 I certify (or declare) under the penalty of perjury under the laws of the State of California that the foregoing is true and correct: Executed at Anaheim, Orange County, California, on Date: Jan 19, 2023. OL-t Jm�, Signature Ordinance No 6550 (5190168) - Page 1 of 2 SUMMARY PUBLICATION CITY OF ANAHEIM ORDINANCE NO. 6550 AN ORDINANCE OF THE CITY OF ANAHEIM AMENDING SECTIONS 2.12.020, 2.12.025 AND 2.12.030 OF CHAPTER 2.12 (TRANSIENT OCCUPANCY TAX) OF TITLE 2 (TAXES) OF THE ANAHEIM MUNICIPAL CODE TO MODIFY THE SPECIAL PACKAGE PROVISIONS, CLARIFY REMITTANCE REQUIREMENTS FOR BOOKINGS FACILITATED BY ONLINE TRAVEL COMPANIES, AND SPECIFY THAT FUTURE TAX INCREASES MUST BE APPROVED BY THE VOTERS This ordinance amends Anaheim Municipal Code Chapter 2.12 to: (1) modify the special package provisions In 5ectlon 2.12.020; (11) amend 2.12.025 to provide that Increases t0 transient Occupancy tax rates must be approved by the Voters; and (111) add remittance requirements to section to 2.12.030 for bookings facilitated by online travel companies. 1, Theresa Bass, City Clerk of the City of Anaheim, do hereby certlfy that the foregoing Is a summary of Ordinance No. 6550, which ordinance was Introduced at a meeting of the City Council of the City of Anaheim on December 20, 2022 and adopted at a meeting of the City Council on January 10, 2023 by the following roll call vote of the members thereof: AYES: Mayor Aitken and Council Members Rubalcava, Diaz, Leon, Faessel and MeekS NOES: None ABSENT: None ABSTAIN: None [One City Council vacancy] The above summary Is a brief description of the sublect matter contained In the text of Ordinance No. 6550, which has been prepared pursuant to Section 512 of the Charter of the City of Anaheim. This summary does not Include or describe every provision of the ordinance and should not be relied on as a substitute for the full text of the ordinance. To obtain a COPY of the full text of the ordinance, please contact the Office of the City Clerk, (714) 765-5166, between 8:00 AM and 5:00 PM, Monday through Friday. There is no charge for the copy. Anaheim Bulletin Published: I f19J23 Ordinance No 6550 (5190168) - Page 2 of 2 CLERK'S CERTIFICATE STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, THERESA BASS, City Clerk of the City of Anaheim, do hereby certify that the foregoing is the original Ordinance No. 6550 and was published in the Anaheim Bulletin on the 19th day of January, 2023, pursuant to Section 512 of the City Charter of the City of Anaheim CITY CL RK OF THE CITY OF ANAHEIM (SEAL)