SUBSTITUTE

DENALI BOROUGH, ALASKA

ORDINANCE NO. 91-07

 

AN ORDINANCE AMENDING ORDINANCE NO. 91-05 AND ESTABLISHING PROCEDURES FOR THE PAYMENT OF TAXES DUE ON THE RENTAL OF OVERNIGHT ACCOMODATIONS UNDER CONTRACTS WHICH EXISTED PRIOR TO THE FORMATION OF THE BOROUGH

 

 

            BE IT ENACTED by the Assembly of the Denali Borough, Alaska, that:

 

            Section 1.  This ordinance is of a general and permanent nature.

 

            Section 2.  Section 2 of Ordinance No. 91-05 is amended by amending subsection F as follows, by adding a new subsection G as follows, and by renumbering existing subsection G as subsection H.

 

            Section 2.            Definitions.

 

F.     “Rental” means the act of purchasing the right to occupy an overnight accommodation.  A rental is complete and tax is due thereon when:

 

1.      A guest has registered or “checked in” with a merchant and paid rent in cash, by credit card, or otherwise, regardless of whether the rent is paid in advance, [or] at the time of registration, or at a later date; or

2.      A guest who has paid rent in advance fails to register or “check in” with a merchant at the appointed time, and the merchant retains all or any part of the prepaid rent. Tax is due on the amount of prepaid rent retained by the merchant; or

3.      A tour operator pays rent on behalf of a guest whether or not the guest has registered or “checked in”, and regardless or whether the rent is paid in advance, at the time of registration, or at a later date. Rent paid by a tour operator on behalf of a guest shall be deemed paid by the guest; or

4.      A tour operator who has purchased the right to occupy an overnight accommodation for use by a guest who is a member of a tour operated by the tour operator, pays rent even though the overnight accommodation is not in fact occupied by such a guest. Rent paid by a tour operator in such circumstances shall be deemed paid by a guest.

 

Tax may be due under [both] 1, [and] 2, 3, and/or 4 for rental of the same overnight accommodation to more than one [two different] guest[s] for the same period of time. The act of making a reservation to occupy an overnight accommodation in the future is not a completed rental for which tax is due.

 

G.    “Tour Operator” means an individual, corporation, partnership, association, or other entity which purchases the right to occupy one or more overnight accommodations for the purpose of re-selling the right to occupy the overnight accommodations to one or more guests who will participate in a vacation travel package or other similar tour operated by the tour operator. When paying rent as provided under subparagraphs F 3 or 4 above, a tour operator is a guest.

 

[G]              H. . . .

 

Section 3.             Subsection C of Section 4 of Ordinance 91-05 is amended as follows:

 

Section 4.             Collection of Overnight Accommodations Tax.

 

 

C.    A merchant shall not advertise or hold out or state to the public or to any quest, directly or indirectly, that the tax or any part thereof imposed by this ordinance will be assumed or absorbed by the merchant or that it will not be added to the rent, or that it will be refunded. A merchant shall not assume, absorb or fail to add the tax or any part thereof to the rent, or refund the tax or fail to separately state the tax to the guest. [Provided however, that this subsection C shall not apply to rentals for which a merchant received a reservation prior to May 1, 1991.]

 

Section 4.      New Section 20, Special Provisions for Pre-existing Contracts, is enacted as follows:

 

Section 20.            Special Provisions for Pre-existing Contracts.

 

A.     This section applies only to taxes levied on rentals occurring during calendar year 1991 under a contract between a merchant and a tour operator, which was fully executed on or before December 7, 1990. If such a contract covers more than one year, this section applies only to rentals occurring under said contract during 1991, and not to rentals occurring in subsequent years. This section only applies if a merchant has registered in the manner prescribed in this section. All other rentals are governed by the other provisions of this ordinance and not by this section.

B.     Upon the request of a merchant, the mayor may but is not required to permit the merchant to register to transmit to the Borough, in the manner prescribed in this section, taxes levied on rentals occurring under pre-existing contracts to which this section applies. Such registration shall be separate and in addition to the registration otherwise required by Section 5 of this ordinance. The merchant shall apply for registration under this section on a form prescribed by the clerk. The application shall contain the following information and shall be accompanied by a one hundred dollar ($100) non-refundable application fee.

1.      The name and address of the parties to the pre-existing contract and the dates on which each party signed the contract.

2.      The number of motel rooms, campground spaces, or other overnight accommodations covered by the contract during 1991.

3.      The number of days for which each overnight accommodation is rented under the terms of the contract during 1991.

4.      The dollar amount of the daily rent to be received by the merchant under the contract during 1991 for each such overnight accommodation.

5.      Proof satisfactory to the mayor that the information contained in items 1-4 is accurate, i.e. a copy of the contract.

6.      Any other information required by the mayor.

In addition the mayor may impose as conditions of registration, such other requirements as he deems necessary to protect the legal interests of the borough.  The provisions of Section 9 shall apply to the information required by this subsection.

 

C.    Section 4 C shall not apply to taxes levied on rentals occurring under pre-existing contracts to which this section applies.

D.    Every merchant registered under this section shall file a monthly tax return in the manner provided on Section 7. The tax return shall include both taxes levied on rentals occurring under pre-existing contracts, and all other taxes. In addition to the information required by Section 7, the tax return shall also contain the following:

 

1.      The amount of all rents received from rentals completed during the month, which occurred under pre-existing contracts.

2.      The amount of tax due on those rentals.

Notwithstanding any other contrary provision of this ordinance, every merchant registered under this section shall transmit to the borough the taxes levied on rentals occurring under a pre-existing contract to which this section applies, not later a pre-existing contract to which this section applies, not later than March 31, 1992. If taxes are not timely transmitted to the borough by that date, in the manner required by Section 7, they are delinquent.

 

E.     The provisions of Section 7 C shall not apply to taxes levied on rentals occurring under pre-existing contracts to which this section applies. The amount of said taxes shall not be included when calculating the credit due to a merchant under Section 7 C.

 

F.     Except as otherwise provided in this section, all other provisions of Ordinance 91-05, including but not limited to those sections which impose liability for penalties, interest, and the borough’s administrative costs of collection, as well as those sections authorizing the borough to enforce this ordinance, apply to merchants registered under this section and to the taxes levied on rentals occurring under pre-existing contracts to which this section applies.

 

Section 5.            New Section 21, Appeal, is enacted as follows:

 

Section 21.            Appeal.

 

A.     A person aggrieved by the application or interpretation of any provision of this ordinance shall present his complaint in writing to the mayor not later than thirty days after the grievant knew, or should have known of his complaint.  The mayor shall investigate the matter and respond in writing to the grievant within a reasonable time. The mayor may either deliver or mail his response to the grievant. If mailed, the response shall be sent to the grievant by certified mail, return receipt requested, at the address contained in the grievance.

 

B.     If the grievant is not satisfied with the mayor’s response, the grievant shall file his complaint in writing with the borough clerk not later than thirty days after the date on which the mayor mailed or delivered his response to the grievant.  The assembly shall hold a hearing on the grievance at which the grievant and the mayor may appear and give evidence, within a reasonable time after the grievance is filed with the clerk. The assembly shall determine whether this ordinance has been properly interpreted and applied to the grievant and shall grant such relief as may be appropriate in the circumstances. The assembly shall deliver or mail its decision to the grievant and to the mayor, in the manner provided above for the mayor’s response, within a reasonable time following termination of the hearing. The assembly’s decision shall be the final action of the borough on the matter. In its discretion, the assembly may appoint a hearing officer to take evidence and report to the assembly, or to hear and decide the matter.

 

C.    A person aggrieved by the final action of the borough may appeal to the Superior Court in the manner provided in the Alaska Rules of Appellate Procedure for appeals from administrative agencies.

 

Section 6.            Effective Date.            This ordinance becomes effective immediately upon adoption.

 

DATE INTRODUCED: June 9, 1991

 

FIRST READING:  June 9, 1991

 

PUBLIC HEARING:  July 14, 1991

 

PASSED and APPROVED by the DENALI BOROUGH ASSEMBLY THIS 14TH day of July, 1991.

 

                       

                                                SIGNATURE ON FILE

                                            MAYOR

 

ATTEST:               

SIGNATURE ON FILE                                        CLERK