45th legislature - STATE OF NEW MEXICO - first session, 2001

RELATING TO THE LODGERS' TAX ACT; AUTHORIZING CERTAIN MUNICIPALITIES TO IMPOSE A DAILY SURCHARGE ON LODGING WITHIN THE MUNICIPALITY; AUTHORIZING ISSUANCE OF BONDS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 3-38-14 NMSA 1978 (being Laws 1969, Chapter 199, Section 2, as amended) is amended to read:

"3-38-14. DEFINITIONS.--As used in the Lodgers' Tax Act:

A. "gross taxable rent" means the total amount of rent paid for lodging, not including the state gross receipts tax or local sales taxes;

B. "lodging" means the transaction of furnishing rooms or other accommodations by a vendor to a vendee who for rent uses, possesses or has the right to use or possess the rooms or other units of accommodations in or at a taxable premises;

C. "lodging surcharge" means the surcharge on lodging authorized in Section 3-38-15.1 NMSA 1978;

[C.] D. "lodgings" means the rooms or other accommodations furnished by a vendor to a vendee by a taxable service of lodgings;

[D.] E. "occupancy tax" means the tax on lodging authorized by the Lodgers' Tax Act;

[E.] F. "person" means a corporation, firm, other body corporate, partnership, association or individual. "Person" includes an executor, administrator, trustee, receiver or other representative appointed according to law and acting in a representative capacity. "Person" 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;

[F.] 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 the Lodgers' Tax Act;

[G.] 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;

[H.] I. "tourist" means a person who travels for the purpose of business, pleasure or culture to a municipality or county imposing an occupancy tax;

[I.] J. "tourist-related events" means events that are planned for, promoted to and attended by tourists;

[J.] K. "tourist-related facilities and attractions" means facilities and attractions that are intended to be used by or visited by tourists;

[K.] L. "tourist-related transportation systems" means transportation systems that provide transportation for tourists to and from tourist-related facilities and attractions and tourist-related events;

[L.] M. "vendee" means a natural person to whom lodgings are furnished in the exercise of the taxable service of lodging; and

[M.] N. "vendor" means a person or his agent furnishing lodgings in the exercise of the taxable service of lodging."

Section 2. A new section of the Lodgers' Tax Act, Section 3-38-15.1 NMSA 1978, is enacted to read:

"3-38-15.1. [NEW MATERIAL] AUTHORIZATION OF LODGING SURCHARGE--USE OF PROCEEDS.--

A. The governing body of a municipality that is located in a class A county and that had a population of more than sixty thousand but less than seventy thousand according to the 1990 federal decennial census and that has imposed an occupancy tax as authorized in Section 3-38-15 NMSA 1978 may impose by ordinance a surcharge on lodging within the municipality. The amount of this surcharge is two dollars fifty cents ($2.50) per room or other unit of accommodation in or at a taxable premises for each day the room or other unit of accommodation is rented by a vendor to a vendee. The surcharge may be referred to as the "lodging surcharge".

B. A lodging surcharge may be imposed only once for a period not to exceed ten years from the effective date of the ordinance imposing the tax.

C. The governing body of the municipality, at the time of enacting the ordinance imposing the lodging surcharge, shall dedicate the revenue from the surcharge as provided in this subsection. The revenue from the surcharge may be dedicated for any portion of:

(1) acquisition of land for and the design, construction, equipping, furnishing, operation and maintenance of a convention center located within the municipality;

(2) payments of principal and interest on any prior redemption premiums due in connection with and any other charges pertaining to revenue bonds authorized by Subsection C of Section 3-38-23 or 3-38-24 NMSA 1978; or

(3) costs of collecting and otherwise administering the surcharge, including the performance of audits required by the Lodgers' Tax Act pursuant to guidelines issued by the department of finance and administration."

Section 3. Section 3-38-16 NMSA 1978 (being Laws 1969, Chapter 199, Section 4, as amended) is amended to read:

"3-38-16. EXEMPTIONS.--The occupancy tax and the lodging surcharge shall not apply:

A. 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 lodgings 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) a 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 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, infirm, indigent or chronically ill; or

G. if the vendor does not offer at least three rooms within or attached to a taxable premises for lodging or at least three other premises for lodging or a combination of these within the taxing jurisdiction."

Section 4. Section 3-38-17 NMSA 1978 (being Laws 1969, Chapter 199, Section 5, as amended) is amended to read:

"3-38-17. COLLECTION OF TAXES.--

A. Every vendor providing lodgings in a municipality or county imposing an occupancy tax or a lodging surcharge shall collect the proceeds thereof on behalf of the municipality or county and shall act as a trustee therefor.

B. The tax and surcharge shall be collected from vendees in accordance with the ordinance imposing the tax or surcharge and shall be charged separately from the rent fixed by the vendor for the lodgings."

Section 5. Section 3-38-18 NMSA 1978 (being Laws 1969, Chapter 199, Section 6, as amended) is amended to read:

"3-38-18. COLLECTION OF DELINQUENCIES.--

A. The governing body of [the] a municipality or county shall, by ordinance, provide that a vendor is liable for the payment of the proceeds of any occupancy tax or lodging surcharge that the vendor failed to remit to the municipality or county, due to his failure to collect the tax or surcharge or otherwise, and shall provide for a civil penalty for any such failure in an amount equal to the greater of ten percent of the amount that was not duly remitted to the municipality or county or one hundred dollars ($100).

B. [The] A municipality or county may bring an action in law or equity in the district court for the collection of any amounts due, including without limitation penalties thereon, interest on the unpaid principal at a rate of not exceeding one percent a month, the costs of collection and reasonable [attorneys'] attorney fees incurred in connection therewith."

Section 6. Section 3-38-18.1 NMSA 1978 (being Laws 1992, Chapter 12, Section 1) is amended to read:

"3-38-18.1. LIEN FOR OCCUPANCY TAX--PAYMENT--CERTIFICATE OF LIENS.--

A. The occupancy tax or lodging surcharge imposed by a municipality or county constitutes a lien in favor of that municipality or county upon the personal and real property of the vendor providing lodgings in that municipality or county. The lien may be enforced as provided in Sections 3-36-1 through 3-36-7 NMSA 1978. Priority of the lien shall be determined from the date of filing.

B. Under process or order of court, no person shall sell the property of any vendor without first ascertaining from the clerk or treasurer of the municipality or county in which the vendor is located the amount of any occupancy tax or lodging surcharge due the municipality or county. Any occupancy tax or lodging surcharge due the municipality or county 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.

C. The clerk or treasurer of [the] a municipality or county shall furnish to any person applying for such a certificate a certificate showing the amount of all liens in the records of the municipality or county against any vendor pursuant to Chapter 3, Article 38 NMSA 1978."

Section 7. Section 3-38-19 NMSA 1978 (being Laws 1969, Chapter 199, Section 7, as amended) is amended to read:

"3-38-19. PENALTIES.--The governing body of [the] a municipality or county shall, by ordinance, provide for penalties by creating a misdemeanor and imposing a fine of not more than five hundred dollars ($500) or imprisonment for not more than ninety days or both for a violation by any person of the provisions of the occupancy tax ordinance or the lodging surcharge ordinance for a failure to pay the tax or surcharge, to remit the proceeds thereof to the municipality or county or to account properly for any lodging and the tax or surcharge proceeds pertaining thereto."

Section 8. Section 3-38-20 NMSA 1978 (being Laws 1969, Chapter 199, Section 8, as amended) is amended to read:

"3-38-20. ORDINANCE REQUIREMENTS.--The ordinance imposing an occupancy tax or lodging surcharge or any ordinance amendatory thereof or supplemental thereto, except as limited by or otherwise provided in the Lodgers' Tax Act, shall:

A. provide a procedure for licensing each vendor and for refusing a vendor a license after an opportunity has been given to the vendor of a public hearing thereon by the governing body of the municipality or county, as the case may be;

B. state the rate or other amount of the occupancy tax or lodging surcharge; the times, place and method for the payment of the occupancy tax or lodging surcharge proceeds to the municipality or county; the accounts and other records to be maintained in connection with the occupancy tax or lodging surcharge; a procedure for making refunds and resolving disputes relating to the occupancy tax or lodging surcharge, including exemptions pertaining thereto; the procedure for preservation and destruction of records and their inspection and investigation; vendor audit requirements; applicable civil and criminal penalties; and a procedure of liens, distraint and sales to satisfy such liens; and

C. provide other rights, privileges, powers, immunities and other details relating to any such vendor licenses, the collection of the occupancy tax or lodging surcharge and the remittance of the proceeds thereof to the municipality or county."

Section 9. Section 3-38-23 NMSA 1978 (being Laws 1969, Chapter 199, Section 10, as amended) is amended to read:

"3-38-23. REVENUE BONDS.--

A. Revenue bonds may be issued at any time or from time to time by a municipality or county to defray wholly or in part the costs of any one, all or any combination of purposes authorized in Subsections B through E of Section 3-38-21 NMSA 1978.

B. The revenue bonds authorized in Subsection A of this section may be payable from and such payment may be secured by a pledge of and lien on the revenues derived from:

(1) the proceeds of the occupancy tax of the municipality or county after the deduction of those amounts required to be expended pursuant to [Subsections] Subsection D [and E] of Section 3-38-15 NMSA 1978 and the administration costs pertaining to the occupancy tax in an amount not to exceed ten percent of the occupancy tax receipts collected by the municipality or county in any fiscal year, excluding from the computation of such costs the administration costs ultimately recovered from delinquent vendors by civil action as penalties, costs of collection and [attorneys'] attorney fees but not as interest on unpaid principal;

(2) the tourist-related facilities and attractions or tourist-related transportation systems to which the bonds pertain, after provision is made for the payment of the operation and maintenance expenses of [such] the tourist-related facilities and attractions or tourist-related transportation systems; or

(3) a combination of such net revenues from both sources designated in Paragraphs (1) and (2) of this subsection.

C. Revenue bonds may be issued at any time or from time to time by a municipality that has imposed the lodging surcharge to defray wholly or in part the costs of one or both of the purposes authorized in Paragraphs (1) and (2) of Subsection C of Section 3-38-15.1 NMSA 1978. The revenue bonds may be payable from and payment may be secured by a pledge of and lien on the revenues derived from:

(1) the proceeds of the lodging surcharge of the municipality after the deduction of the administration costs pertaining to the lodging surcharge in an amount not to exceed ten percent of the lodging surcharge receipts collected by the municipality in any fiscal year;

(2) a convention center to which the bonds pertain, after provision is made for the payment of the operation and maintenance expenses of the convention center; or

(3) a combination of net revenues from both sources designated in Paragraphs (1) and (2) of this subsection.

[C.] D. The bonds shall bear interest at a rate [or rates] as authorized in the Public Securities Act, and the first interest payment may be for any period authorized in the Public Securities Act.

[D.] E. Except as otherwise provided in the Lodgers' Tax Act, revenue bonds authorized in the Lodgers' Tax Act shall be issued in accordance with the provisions of Sections 3-31-2 through 3-31-6 NMSA 1978."