ORDINANCE 2003-03
VILLAGE OF CAPITAN LODGERS' TAX
AN ORDINANCE IMPOSING A TAX ON PERSONS USING COMMERCIAL LODGING FACILITIES;
UTILIZING REVENUE THEREFROM FOR THE PURPOSE OF PROMOTING TOURISM WITHIN THE
VILLAGE OF CAPITAN; PROVIDING FOR EXEMPTIONS, LICENSING, COLLECTION OF TAXES,
REPORTING, DUTIES OF VENDORS, AUDITS, AND ENFORCEMENT; REQUIRING THE DISCLOSURE
OF INFORMATION; PROVIDING FOR PENALTIES; SETTING REQUIREMENTS FOR FINANCIAL
REPORTING; PROVIDING FOR THE SEVERABILITY OF PARTIES HEREOF, AND FOR AN EFFECTIVE
DATE.
WHEREAS, the Board of Trustees of the village of Capitan, County of Lincoln,
New Mexico, desires to enact an ordinance imposing a tax on persons using
commercial lodging facilities; and
WHEREAS, the revenue from such imposition of tax will serve to promote and
publicize tourist-related attractions, facilities, and events or attractions
within the area;
NOW, THEREFORE, BE IT ORDAINED by the Board of Trustees of the village of
Capitan, Lincoln County, New Mexico, that the village of Capitan Lodgers'
Tax Ordinance be enacted and compiled into title 3 chapter 3 of the 2002 codification
as follows:
Section 1. SHORT TITLE:
This Ordinance may be cited as the Lodgers' Tax Ordinance.
Section 2. PURPOSE:
The purpose of this ordinance is to impose a tax, which will be borne by
persons using commercial lodging accommodations, which tax will provide revenues
for the purpose of advertising, publicizing and promoting tourist-related
attractions, facilities and events as authorized in section 5.
Section 3. DEFINITIONS:
The following words, terms and phrases, when used in this ordinance, shall
have the meanings ascribed to them in this section, except where the context
clearly indicates a different meaning:
A. “Committee” means the lodgers' tax committee established
in this ordinance to make recommendations to the governing body, keep minutes
of its proceedings and submit its recommendations, correspondence and other
pertinent documents to the governing body.
B. "Gross Taxable Rent,” means the total amount of rent
paid for lodging, not including the state gross receipts tax or local sales
tax.
C. "Lodging,” means the transaction of furnishing rooms
or other accommodations by a vendee who, for rent, uses, possesses or has
the right to use or possess any room or rooms or other units of accommodations
in or at a taxable premises.
D. "Lodgings" means the rooms or other accommodations
furnished by a vendor to a vendee by a taxable service of lodging.
E. "Occupancy Tax" means the tax on lodging authorized
by the this ordinance.
F. "Person" means a corporation, firm, other corporate
body, partnership, association or individual, including an executor, administrator,
trustee, receiver or other representative appointed according to law and acting
in a representative capacity, but does not include the United States of America,
the State of New Mexico, any corporation, department, instrumentality or
agency of the federal government or the state government, or any political
subdivision of the state.
G. "Rent" means the consideration received by a vendor
in money, credits, property or other consideration valued in money for lodgings
subject to an occupancy tax authorized in this ordinance.
H. "Taxable Premises" means a hotel, apartment, apartment
hotel, apartment house, lodge, lodging house, rooming house, motor hotel,
guest house, guest ranch, ranch resort, guest resort, mobile home, motor court,
auto court, auto camp, trailer court, trailer camp, trailer park, tourist
camp, cabin or other premises used for lodging.
I. “Tourist” means a person who travels for the purpose
of business, pleasure or culture to a municipality imposing an occupancy tax.
J. “Tourist-related events” means events that are planned
for, promoted to and attended by tourists.
K. “Tourist-related facilities and attractions” means
facilities and attractions that are intended to be used by or visited by
tourists.
L. "Vendee" means a natural person to whom lodgings are
furnished in the exercise of the taxable service of lodging.
M. "Vendor" means a person furnishing lodgings in the
exercise of the taxable service of lodging.
N. "Village clerk" means the village clerk or village
treasurer or village manager or the finance department of the village, or
other designated representative of the village clerk or manager as the case
maybe.
Section 4. IMPOSITION OF TAX:
A. There is hereby imposed an occupancy tax of revenues
of three percent (3%) of gross taxable rent for lodging paid to vendors after
June 30, 2003.
B. Every vendor who is furnishing any lodgings within
the municipality is exercising a taxable privilege.
C. There is hereby created a Lodgers' Tax Fund which the
Village of Capitan shall deposit the total amount of Lodgers' Tax collected
shall be placed into the Lodgers' Tax Fund for the purpose of advertising,
publicizing and promoting facilities authorized in Section 3-38-21 NMSA 1978
and tourist attractions.
Section 5. CRIMINAL PENALTIES
Any person violating any of the provisions of this ordinance by failure
to pay the tax, failure to remit proceeds thereof to the village, or failure
to properly account for any lodging and tax proceeds pertaining thereto, or
by violating the confidentiality provisions of section 13, shall be guilty
of a misdemeanor, and upon conviction shall be punished in accordance with
section Title 1 Chapter 4 General Penalty of the 2002 codification. The provisions
of this section shall be in addition to any other penalties and interest provided
in this ordinance.
Section 6. USE OF TAX PROCEEDS:
A. The proceeds of the Occupancy Tax shall be used to
defray the costs of:
1. Collecting and otherwise administering the tax, including
the performance of audits required by the Lodgers' Tax Act pursuant to guidelines
issued by the state department of finance and administration;
2. Advertising, publicizing and promoting such facilities
of the municipality and tourist facilities or attractions within the area.
Any combination of the foregoing purposes or transactions stated in this section.
Section 7. EXEMPTIONS:
A. The occupancy tax shall not apply if a vendee:
1. Has been a permanent resident of the taxable premises
for a period of at least thirty consecutive days; or
2. Enters into or has entered into a written agreement
for lodging at the taxable premises for a period of at least thirty consecutive
days.
B. If the rent paid by a vendee is less than Two Dollars
($2.00) per day;
C. To lodging accommodations at institutions of the federal
government, the state or any political subdivision thereof.
D. To lodging accommodations at religious, charitable,
educational or philanthropic institutions, including without limitation, such
accommodations at summer camps operated by such institutions;
E. To clinics, hospitals or other medical facilities;
F. To privately owned and operated convalescent homes
or homes for the aged, inform, indigent or chronically ill; or
G. If the taxable premises does not have at least three
rooms or three other units of accommodations for lodging.
Section 8. LICENSING:
A. Required. No vendor shall engage in the business of
providing lodging in the village that has not first obtained a license as
provided in the section.
B. Application. Applicants for a vendor's license shall
submit an application to the Village Clerk stating:
1. The name of the vendor including the identification
of any person, as defined in this ordinance, who owns or operates or both
owns and operates a place of lodging and the name or trade names under which
the vendor proposes to do business and the post office address thereof;
2. A description of the facilities, including the number
of rooms, units, spaces, or facilities used for lodging and the usual schedule
of rates therefor;
3. A description of other facilities provided by vendor
or others to users of the lodgings such as restaurant, bar, cleaning, laundry,
courtesy car, stenographic, tailor or others, and a statement identifying
the license issued, to whom issued, the authority issuing, and the period
for which issued, if applicable, and identification number provided by the
Bureau of Taxation and Revenue of the State of New Mexico;
4. The nature of the business practices of the vendor
and to the extent, if any, the business is exempt from the Lodgers' Tax;
and
5. Other information reasonably necessary to effect a
determination of eligibility for such license.
C. Issuance. The village clerk shall review applications
for license within ten (10) days of receipt thereof and grant the license
in due course if the village clerk finds the applicant is doing business subject
to the Lodgers' Tax.
D. Notice of denial. If the Village Clerk finds that the
applicant is not qualified to do business subject to the Lodgers' Tax, the
village clerk shall, not more then ten (10) days after receipt of the application,
advise the applicant of the clerk’s decision and give the reasons there for.
The notice of such action shall be given by registered mail, postage prepaid,
addressed to the applicant at the address given on the application, deposited
in the post office at Capitan on the date thereof.
E. Notice of finding that applicant is not exempt from
tax. If the village clerk finds the applicant not exempt under the terms of
this ordinance, the village clerk shall, not more than ten (10) days after
receipt of the application, advises the applicant of the clerk’s decision
and give the reasons therefor.
F. Appeal procedure. An applicant who is dissatisfied
with the decision of the village clerk may appeal the decision to the governing
body by written notice to the village clerk of such appeal to be made within
fifteen (15) days of the date of the decision of the village clerk on the
application. The matter shall be referred to the governing body for hearing
at a regular or special meeting in the usual course of business. The decision
of the governing body shall be expressed in writing and be communicated in
the same manner as the decision of the village clerk is transmitted. The action
of the governing body shall be final.
G. Duties of village clerk following action on appeal.
If the governing body finds for the applicant, the village clerk shall issue
the appropriate license or other notice conforming to the decision made by
the governing body.
Section 9. COLLECTION OF THE TAX - REPORTING:
A. Every vendor providing lodgings shall collect the tax
thereon on behalf of the village and shall act as a trustee therefor.
B. The tax shall be collected from vendees in accordance
with this ordinance and shall be charged separately from the rent fixed by
the vendor for the lodgings.
C. On or after June 30, 2004, each vendor licensed under
this ordinance shall be liable to the village for the tax provided herein
on the rent paid for lodging.
D. Each vendor shall make a report by the twenty-fifth
(25th) day of each month, each vendor shall make a report of the receipts
for lodging paid to that vendor in the preceding calendar month and shall
remit therewith payment of the amounts due to the Village. The report shall:
1. Be on forms provided by the village clerk;
2. Include all information requested on form;
3. Be verified under oath by vendor; and
4. Be accompanied by the amount due the village.
Section 10. DUTY OF VENDOR:
Vendor shall maintain adequate records of facilities subject to the tax
and of proceeds received for the use thereof. Such records shall be maintained
in Capitan and shall be open to the inspection of the village during reasonable
hours and shall be retained for three (3) years
Section 11. FAILURE TO PAY TAX; FAILURE TO MAKE RETURNS;
COMPUTATION; PENALTY; NOTICE:
A. If any vendor makes a return as required by this ordinance
without paying the tax then due, the vendor shall be liable for the tax and
a penalty equal to ten percent (10%) thereof but not less than one hundred
dollars ($100.00) in addition to the tax, without notice from the village
with regard thereto. Promptly thereafter, the village shall give the delinquent
vendor written notice of such estimated tax, penalty and interest, which notice
shall be served personally or by certified mail.
B. If any vendor neglects or refuses to make a return
and pay the tax as required by this ordinance, the village clerk shall make
an estimate based upon an examination of the vendor's books and records,
or upon any information in the village’s possession, or that may come into
the village’s possession, of the amount of the rent of the delinquent vendor
for the period in respect to which the vendor has failed to make return, and
upon the basis of the estimated amount shall compute and assess the tax payable
by the delinquent vendor, adding to the sum thus arrived at a penalty equal
to ten percent (10%) thereof, but not less than one hundred dollars ($100.00).
Promptly thereafter the village shall give the delinquent vendor written
notice of such estimated tax, penalty and interest, which notice shall be
served personally or by certified mail. The village may institute any appropriate
action or proceedings to:
1. prevent the conduct of the business;
2. Restrain, correct or abate the violation; or
3. Prevent the occupancy of the building, structure or
land on which the business is located.
C. The amounts specified in subsection (B) of this section,
plus interest of one percent (1%) per month on the total amount due, including
penalties, plus costs of collection. including reasonable attorney's fees,
shall be a lien on the real property on which the taxable premise is located
in favor of the village of Capitan. If the vendor does not make the payments
within 15 days of the notice provided for in subsection (B) of this section,
the village clerk shall cause notice of this lien to be filed with the county
clerk and sent to the vendor. The lien may be enforced as provided in NMSA
1978, §§ 3-36-1 and 3-37-7. Priority of the lien shall be determined
from the date of filing.
D. At any time more than 15 days after the notice provided
for in subsection (B) of this section the village shall bring an action in
law or equity in the district court for the collection of the amounts due,
including penalty and interest as provided by this section, plus costs of
collection, including reasonable attorneys fees. Liens may be foreclosed in
any manner provided by law.
E. Under process or order of court, no person shall sell
the property of any vendor without first ascertaining from the village clerk
the amount of any occupancy tax due the village. Any occupancy tax due shall
be paid from the proceeds of the sale before payment is made to the judgment
creditor or any other person with a claim on the sale proceeds.
F. The village clerk shall furnish to any person applying
for such a certificate a certificate showing the amount of all liens in the
records of the village against any vendor pursuant to NMSA 1978, Chapter 3,
Article 38.
Section 12. ADMINISTRATION:
The duties assigned to the village clerk in this ordinance may be delegated
to the finance department or other department or officials in whole or in
part as to the village clerk shall appear useful. Duties may be, from time
to time, reassigned.
Section 13. DISCLOSURE OF INFORMATION:
A. It is unlawful for any village official, employee or
agent to reveal to any person other than another village official, employee
or agent engaged in village tax administration, or any employee of the New
Mexico Bureau of Revenue, any information about a vendor licensed by the village
under this section or information acquired as the result of the vendor's collection
and remittance of the tax described in this section. No village official,
employee or agent charged with the keeping of such information shall be required
to produce it in any action or proceeding in court except on behalf of:
The village in an action or proceeding under the provisions of Section 3-38-13
through 3-38-24, NMSA 1978 Comp. (Lodgers' Tax Statutes) or under the provisions
of this chapter and ordinance (Lodgers' Tax Ordinance) when the information
is directly involved in the action or proceeding, provided that such information
is provided in accordance with the New Mexico Rules of Civil Procedure and
applicable statutes of the State of New Mexico. In either event, the Court
may require the production of and admit in evidence only so much of the information
as is pertinent to the action or proceeding
B. Nothing contained herein shall be construed to:
1. Prohibit delivery to a vendor or his representative
of a copy of any return or report filed by that vendor in connection with
the tax;
2. Prohibit the publication of statistics prepared so
as to prevent the identification of a particular vendor's report or return
and its contents; or
3. Inspection by the legal representative of the state,
county or municipality of the report or return of any vendor by or against
whom an action or proceedings is contemplated or has been instituted as authorized
in Sections 3-38-13 through 3-39-24 NMSA 1978 Comp (Lodgers' Tax Statutes)
or as authorized in this chapter and ordinance (Lodgers' Tax Ordinance)
C. Reports, statements, and returns shall be preserved
for three years. Any person violating any of the provisions of this section
shall be punished in accordance with Title 1 Chapter 4 General Penalty of
the 2002 codification and if the offender be an official, employee or agent
of the village, they shall be dismissed from office and be incapable of holding
any public office in the village or employment in the Village for a period
of five (5) years.
Section 14. FINANCIAL REPORTING BY THE GOVERNING
BODY.
A. The governing body shall furnish to the lodgers' Tax
committee that portion of any proposed budget, report or audit filed or received
by the council pursuant to either NMSA 1978. §§ 6-6-1 to 6-6-19
or the Audit Act that relates to expenditure of occupancy tax funds within
ten days of the filing or receipt of such proposed budget, report or audit
by the governing body.
B. The governing body shall report to the local government
division of the state department of finance and administration on a quarterly
basis any expenditure of occupancy tax funds pursuant to NMSA 1978, It 3-38-15
and 3-38-21, and shall furnish a copy of this report to the lodgers tax commit
when it is filed with the division.
Section 15. DELETED
Section 16. AUDIT OF VENDORS:
A. Audits:
1. The governing body of the village of Capitan shall
select for annual random audit one or more vendors to verify the amount of
gross rent subject to the occupancy tax and to ensure that the full amount
of the occupancy tax on the rent is collected from each vendor thus audited.
The governing body shall annually determine first the number of vendors to
be audited and the vendor(s) by lot.
2. The Village may also, at any time deemed appropriate
by the village clerk, audit any vendor to verify the amount of gross rent
subject to the occupancy tax and to ensure that the full amount of occupancy
tax on the rent is collected from each vendor thus audited.
3. A copy of each audit conducted under this section shall
be filed annually with the Local Government Division of the Department of
Finance and Administration.
4. Procedures for audits under this section shall be established
by the village clerk and approved by the village governing body.
Section 17. LODGERS' TAX COMMITTEE:
A. Composition of Lodgers' Tax Committee; Rules Governing
The Operation of The Committee:
1. The Lodgers' Tax Committee (hereinafter called "Committee")
shall consist of five (5) members. The Mayor with the advice and consent of
the Governing Body shall appoint the members. Members of the committee shall
be registered voters of the village of Capitan and shall actually reside within
the village of Capitan municipal limits. Two member of the Committee shall
represent the lodging industry, two shall be directly involved in tourist
related industries, and one shall represent the general public.
2. Persons appointed to the Lodgers' Tax Committee shall
serve two (2) year terms at the pleasure of the Mayor and Board of Trustees.
In the event a vacancy occurs on said Committee prior to the expiration of
the term of a member, it shall be filled by appointment as herein provided
and the term of the replacement member shall expire at the end of the original
term in which said vacancy occurred.
3. After the effective date of this Ordinance [2003-03],
and subject to approval of the Board of Trustees, the Mayor shall appoint
two (2) members of the Committee for terms to expire June 30, 2004 and three
(3) members of the Committee shall be appointed for terms to expire June
30, 2005. Thereafter, all persons appointed shall serve two (2) year terms
as described in subsection (B) ________ hereof.
4. The Committee shall elect the following officers:
a. Chairperson
b. Vice Chairperson
c. Secretary
d. Treasurer
5. The Committee shall meet monthly at a date and time
established by the Committee. The meeting shall be conducted in compliance
with the provisions of NMSA 1978, §10-15-1. The Secretary of the Committee
shall take minutes of each meeting, regular or special. Within ten (10) days
of any meeting, the Secretary shall forward a copy of the minutes to the village
clerk. The village clerk shall not be designated to take minutes.
6. In March of each year, the Committee shall hold a budget
hearing for the purpose of receiving public input concerning the expenditures
of lodgers' tax monies. No later than April 15th of each year, the Committee
shall submit to the Board of Trustees a proposed budget for the expenditure
of lodgers' tax funds. The recommendations of the Committee for the expenditures
of the funds are advisory only and shall not be binding upon the Board of
Trustees.
7. Removal of a Committee member shall be by a majority
vote of the Board of Trustees of the Village of Capitan.
Section 18. SEVERABILITY.
If any section, subsection, sentence, clause, phrase or portion of this
Ordinance is for any reason held invalid or unconstitutional by any court
of competent jurisdiction, such portion shall be deemed a separate, distinct,
and independent provision, and such holding shall not affect the validity
of the remaining portions of this Ordinance.
Section 19. EFFECTIVE DATE.
This Ordinance shall take effect five (5) days after recording.