§ 1202-DD-2 — Hotel or motel taxes in the town of Fishkill and in the village of Fishkill

* § 1202-dd-2. Hotel or motel taxes in the town of Fishkill and in the\nvillage of Fishkill. (1) Notwithstanding any other provisions of law to\nthe contrary, the following municipalities are hereby authorized and\nempowered to adopt and amend local laws imposing a tax on persons\noccupying rooms in hotels or motels in such town or village, as the\nlegislature has or would have the power and authority to impose, in\naddition to any other tax authorized and imposed pursuant to this\narticle:\n a. the town of Fishkill, Dutchess county, in those portions of such\ntown not located within the village of Fishkill; and\n b. the village of Fishkill situate in the town of Fishkill.\n (2) For the purposes of this section, the term "hotel" shall mean a\nbuilding or portion of it which is regularly used and kept open as such\nfor the lodging of guests. The term "hotel" includes an apartment hotel,\na motel or a boarding house, whether or not meals are served.\n (3) The rate of such tax shall not exceed two and one-half percent of\nthe per diem rental rate for each room whether such room is rented on a\ndaily or longer basis.\n (4) Such tax may be collected and administered by the commissioner of\nfinance or other fiscal officer of the town of Fishkill or of the\nvillage of Fishkill, as the case may be, by such means and in such\nmanner as other taxes which are now collected and administered by such\nofficers in accordance with the town or village charter or as otherwise\nmay be provided by such local law.\n (5) Such local laws may provide that any tax imposed shall be paid by\nthe person liable therefor to the owner of the hotel or motel room\noccupied or to the person entitled to be paid the rent or charge for the\nhotel or motel room occupied for and on account of the town of Fishkill\nor of the village of Fishkill, and that such owner or person entitled to\nbe paid the rent or charge shall be liable for the collection and\npayment of the tax; and that such owner or person entitled to be paid\nthe rent or charge shall have the same right in respect to collecting\nthe tax from the person occupying the hotel or motel room, or in respect\nto nonpayment of the tax by the person occupying the hotel or motel\nroom, as if the tax were a part of the rent or charge and payable at the\nsame time as the rent or charge; provided, however, that the\ncommissioner of finance or other fiscal officers of such town or\nvillage, specified in such local law, shall be joined as a party in any\naction or proceeding brought to collect the tax by the owner or by the\nperson entitled to be paid the rent or charge.\n (6) Such local laws may provide for the filing of returns and the\npayment of the tax on a monthly basis or on the basis of any longer or\nshorter period of time.\n (7) This section shall not authorize the imposition of such tax upon\nthe following:\n a. The state of New York or any public corporation, including a public\ncorporation created pursuant to agreement or compact with another state\nor the dominion of Canada, improvement district or other political\nsubdivision of the state;\n b. The United States of America, insofar as it is immune from\ntaxation; and\n c. Any corporation or association or trust or community chest, fund or\nfoundation organized and operated exclusively for religious, charitable\nor educational purposes or for the prevention of cruelty to children or\nanimals, and no part of the net earnings of which inures to the benefit\nof any private shareholder or individual and no substantial part of the\nactivities of which is carrying on propaganda, or otherwise attempting\nto influence legislation; provided, however, that nothing in this\nparagraph shall include an organization operated for the primary purpose\nof carrying on a trade or business for profit, whether or not all of its\nprofits are payable to one or more organizations described in this\nparagraph.\n (8) Any final determination of the amount of any tax payable hereunder\nshall be reviewable for error, illegality or unconstitutionality or any\nother reason whatsoever by a proceeding under article seventy-eight of\nthe civil practice law and rules if application therefor is made to the\nsupreme court within thirty days after giving of the notice of such\nfinal determination, provided, however, that any such proceeding under\narticle seventy-eight of the civil practice law and rules shall not be\ninstituted unless:\n a. The amount of any tax sought to be reviewed, with such interest and\npenalties thereon as may be provided for by local law or regulation\nshall be first deposited and there is filed an undertaking, issued by a\nsurety company authorized to transact business in this state and\napproved by the superintendent of financial services of this state as to\nsolvency and responsibility, in such amount as a justice of the supreme\ncourt shall approve to the effect that if such proceeding be dismissed\nor the tax confirmed the petitioner will pay all costs and charges which\nmay accrue in the prosecution of such proceeding; or\n b. At the option of the petitioner such undertaking may be in a sum\nsufficient to cover taxes, interest and penalties stated in such\ndetermination plus the costs and charges which may accrue against it in\nthe prosecution of the proceeding, in which event the petitioner shall\nnot be required to pay such taxes, interest or penalties as a condition\nprecedent to the application.\n (9) Where any tax imposed hereunder shall have been erroneously,\nillegally or unconstitutionally collected and application for the refund\nthereof duly made to the proper fiscal officer or officers, and such\nofficer or officers shall have made a determination denying such refund,\nsuch determination shall be reviewable by a proceeding under article\nseventy-eight of the civil practice law and rules, provided, however,\nthat such proceeding is instituted within thirty days after the giving\nof the notice of such denial, that a final determination of tax due was\nnot previously made, and that an undertaking is filed with the proper\nfiscal officer or officers in such amount and with such sureties as a\njustice of the supreme court shall approve to the effect that if such\nproceeding be dismissed or the tax confirmed, the petitioner will pay\nall costs and charges which accrue in the prosecution of such\nproceeding.\n (10) Except in the case of a willfully false or fraudulent return with\nintent to evade the tax, no assessment of additional tax shall be made\nafter the expiration of more than three years from the date of the\nfiling of a return, provided, however, that where no return has been\nfiled as provided by law the tax may be assessed at any time.\n (11) Revenues resulting from the imposition of tax authorized by this\nsection shall be paid into the treasury of the town of Fishkill or of\nthe village of Fishkill, and shall be credited to and deposited in the\ngeneral fund of such town or village; and may thereafter be allocated at\nthe discretion of the board of legislators of the town of Fishkill or of\nthe village of Fishkill for any town or village purpose.\n (12) If any provision of this section or the application thereof to\nany person or circumstance shall be held invalid, the remainder of this\nsection and the application of such provision to other persons or\ncircumstances shall not be affected thereby.\n (13) Each enactment of such a local law may provide for the imposition\nof a hotel or motel tax for a period of time no longer than three years\nfrom the date of its enactment. Nothing in this section shall prohibit\nthe adoption and enactment of local laws, pursuant to the provisions of\nthis section, upon the expiration of any other local law adopted\npursuant to this section.\n * NB Repealed December 31, 2027\n