HOUSE BILL 326

52nd legislature - STATE OF NEW MEXICO - first session, 2015

INTRODUCED BY

Roberto "Bobby" J. Gonzales

AN ACT

RELATING TO THE LODGERS' TAX ACT; CLARIFYING THE AUTHORITY OF A MUNICIPALITY OR COUNTY TO AUDIT A VENDOR THAT FURNISHES LODGINGS; REPLACING THE ATTORNEY GENERAL OR A DISTRICT ATTORNEY OF A COUNTY WITH A REPRESENTATIVE OF A MUNICIPALITY OR COUNTY WHO MAY BRING AN ACTION TO ENFORCE THE ACT; ALLOWING ADDITIONAL MEMBERS OF AN ADVISORY BOARD; PROVIDING A PENALTY.

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

     SECTION 1. Section 3-38-17.1 NMSA 1978 (being Laws 1992, Chapter 12, Section 2, as amended) is amended to read:

     "3-38-17.1. AUDIT OF VENDORS.--The governing body of any municipality or county collecting over two hundred fifty thousand dollars ($250,000) in occupancy tax proceeds shall select for annual random audits one or more vendors to verify the amount of gross taxable rent subject to the occupancy tax and to ensure that the full amount of occupancy tax on that rent is collected. The governing body of any municipality or county collecting less than two hundred fifty thousand dollars ($250,000) in receipts, per annum, of occupancy tax proceeds shall conduct random audits to verify full payment of occupancy tax receipts. For good cause, a municipality or county may select any vendor for audit to verify the amount of gross taxable rent subject to the occupancy tax to ensure that the full amount of occupancy tax on that rent is collected. Copies of audits completed shall be filed annually with the local government division of the department of finance and administration."

     SECTION 2. Section 3-38-17.3 NMSA 1978 (being Laws 1996, Chapter 58, Section 6) is amended to read:

     "3-38-17.3. ENFORCEMENT.--

          A. An action to enforce the provisions of the Lodgers' Tax Act or a municipal or county ordinance adopted pursuant to that act may be brought by

                [(1) the attorney general or the district attorney in the county of jurisdiction; or

                (2) a vendor who is collecting the proceeds of an occupancy tax in the county of jurisdiction] a municipality or county, through its duly authorized representative.

          B. A district court may issue a writ of mandamus or order an injunction or other appropriate remedy to enforce the provisions of the Lodgers' Tax Act.

          C. The court shall award costs and reasonable [attorneys'] attorney fees to the prevailing party in a court action to enforce the provisions of the Lodgers' Tax Act."

     SECTION 3. 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 petty 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 for a failure to pay the tax, to remit the proceeds thereof to the municipality or county, to participate and cooperate in an audit made pursuant to Section 3-38-17.1 NMSA 1978 or to account properly for any lodging and the tax proceeds pertaining thereto."

     SECTION 4. Section 3-38-22 NMSA 1978 (being Laws 1977, Chapter 294, Section 2, as amended) is amended to read:

     "3-38-22. ADVISORY BOARDS CREATED--DUTIES.--

          A. The mayor of every municipality that imposes an occupancy tax pursuant to the Lodgers' Tax Act shall appoint [a five-member] an advisory board that consists of [two members] at least five members, which shall include an equal number of members who are owners or operators of lodgings subject to the occupancy tax within the municipality [two] and members who are owners or operators of industries located within the municipality that primarily provide services or products to tourists, and one member who is a resident of the municipality and represents the general public.

          B. The [chairman] chair of every county commission that imposes an occupancy tax pursuant to the Lodgers' Tax Act shall appoint a five-member advisory board that consists of two members who are owners or operators of lodgings subject to the occupancy tax within the unincorporated area of the county, two members who are owners or operators of industries located within the unincorporated area of the county that primarily provide services or products to tourists and one member who is a resident of the unincorporated area of the county who represents the general public.

          C. Members of the advisory boards created under Subsections A and B of this section shall serve at the pleasure of the respective appointing authorities. The boards shall advise the respective governing bodies on the expenditure of funds authorized by Section 3-38-15 NMSA 1978 for advertising, publicizing and promoting [tourist attractions and] tourist-related facilities and attractions in the respective counties and municipalities.

          D. The advisory board shall submit to the mayor and council or county commission recommendations for the expenditures of funds authorized pursuant to the Lodgers' Tax Act for advertising, publicizing and promoting tourist-related [attractions] facilities and attractions and tourist-related events in the respective counties and municipalities."

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