§ 12-01 Definitions.
RCNY § 12-01
Commissioner of Finance. The words "Commissioner of Finance" mean the Commissioner of Finance of the City of New York. Hotel. A "hotel" is a building or portion of a building that is regularly used and kept open as such for the lodging of guests. The term "hotel" includes an apartment hotel, a motel, boarding house, bed and breakfast, or club, whether or not meals are served. An "apartment hotel" is a building or portion of it wherein apartments are rented to guests for fixed periods of time, either furnished or unfurnished. The term "boarding house" includes rooming houses, furnished-room houses and lodging houses. The term "bed and breakfast" includes a dwelling place ordinarily occupied by a person as his or her own dwelling in which more than one room is regularly used and kept open by such person for the lodging of guests for consideration regardless of whether services such as meals, telephone or linen services are provided. The term "club" includes a residence club, as well as private clubs. To illustrate: Illustration (i): Individual A owns and lives in a three-bedroom house in New York City. Individual A rents one of the bedrooms to guests from time to time by listing the room with a bed and breakfast listing service. At no time during the year does A rent or offer to rent more than one room to guests. The rental of one room by A is not subject to tax. Illustration (ii): The facts are the same as in illustration (i) except that A lists two of the three bedrooms or one bedroom and the living room, in his apartment for rental to guests. A's rental of rooms in the apartment is subject to tax. The term "hotel" also includes a bungalow, which is a furnished living unit intended for single family occupancy that is regularly used and kept open for the lodging of guests for consideration, except that for occupancies during taxable quarters beginning on or before September 1, 2003, the rental of a bungalow for at least one week will not be subject to the tax provided: no maid, food, or other common hotel services such as entertainment or planned activities are provided. The furnishing of linen by the lessor with the rental of a bungalow without the services of changing the linen does not alter the nontaxable status of the rental charges for such periods. To illustrate: Illustration (iii): Individual B owns an apartment in New York City. Beginning on January 1, 2004, B begins to regularly rent or offer to rent the apartment, furnished, to guests on a transient basis. B's rental of the apartment to guests on a transient basis is subject to the tax regardless of whether the rentals are for periods longer than one week. The term "hotel" does not include the following: (1) A nursing home, rest home, convalescent home, maternity home for expectant mothers, residence or home for adults or mentally disabled persons which is registered with the Department of Social Services or Department of Mental Hygiene, whether publicly or privately owned and operated, which accepts as patients persons who require special care on account of age, illness, mental or physical condition or the like, and provides this special care either by nurses, orderlies or aides. To illustrate: Illustration (iv): A senior citizen's lodging facility which only furnishes hotel facilities and services and does not furnish services or special care provided by attendants, etc., is a hotel. Illustration (v): A maternity home or residence for expectant unwed mothers which is registered with the Department of Social Services and provides care and service for mothers to be. Such care and service includes maintaining a residence, social services, medical care, and arranging for delivery at a local hospital. This facility is not a hotel.
(2)A summer camp for children which provides a program of instruction or training which the campers are required to pursue under the supervision of counselors is not a hotel. Where guest facilities are provided for parents or others the tax applies to such facilities.
(3)A college dormitory or apartment belonging to a school, college, or university in which its students reside is not a hotel. Where facilities are provided for parents, alumni or others the tax applies to such facilities. A building or portion thereof will be irrebuttably presumed not to be regularly used and kept open for the lodging of guests if, during any four consecutive quarterly tax periods, or, beginning on and after September 1, 2004, during any twelve-month tax period, described in subsection a of 19 RCNY § 12-07, rooms, apartments or living units are rented to guests or occupants on fewer than three occasions or for not more than 14 days in the aggregate. For this purpose, the rentals of rooms in a single building or apartment will be aggregated and the rentals of apartments and living units will be aggregated. In addition, for this purpose, the rental of a room, apartment or living unit under a single contract for one or more consecutive days will be considered a single occasion. However, if a single contract provides for the rental of a room or apartment for non-consecutive days, each period of consecutive days will be considered a separate occasion. In addition, for this purpose, if a room, apartment or living unit is subleased or the right to occupy it is otherwise subcontracted away to another person, each separate sublease or subcontract of a room, apartment or living unit for a period of consecutive days will be considered a separate occasion. Furthermore, for this purpose, rentals to guests or occupants that qualify as permanent residents will not be included in the number of days or occasions of rentals. Illustration (vi): A owns a four-bedroom house in New York City. During the period September 1, 2004 through August 31, 2005, A rents three of the bedrooms as follows: one bedroom is rented for the entire twelve month period to individual B who does not sublease the room; one bedroom is rented for one week to individual C; one bedroom is rented for two days to individual D, three days to individual E and one day to individual F. The rental to individual B is not considered a rental occasion or included in determining the number of days of room rentals. A is considered to have rented rooms on four occasions. However, because the total number of days is less than 14, A is not considered to be operating a hotel. Illustration (vii): Individual A owns four apartments in New York City. During the period September 1, 2004 through August 31, 2005, A rents the apartments as follows: one apartment is rented for the entire 12-month period to individual B who does not sublease the apartment; another apartment is rented for one week to individual C; a third apartment is rented for two days to individual D, five days to individual E and four days to individual F. The rental to individual B is not considered a rental occasion or included in determining the number of days of room rentals. A is considered to have rented three of the apartments on four occasions. Because the total number of days of rentals of the three apartments is more than 14, A is considered to be operating a hotel with respect to the three apartments rented to C, D, E, and F. If the apartment rented to B were rented to B for only 190 days and was subsequently rented during the period to individual G for three days, that apartment would also be included as part of the hotel operation of A. Occupancy.
(a)"Occupancy" is the use or possession, or the right to the use or possession, of any room or rooms in a hotel, or the right to the use or possession of the furnishings or to the services and accommodations accompanying the use and possession of the room or rooms. "Occupancy" includes the right to the use or possession as well as the exercise of that right; there is an "occupancy" of a room whether or not the person entitled to the use or possession of the room actually uses it or possesses it.
(b)A room is deemed to be the subject of only one taxable occupancy at a given time. Where an occupant sublets or otherwise contracts away his right to the use or possession, the tax shall be collected and paid in accordance with the following rules: (1) (i) For taxable periods beginning before June 1, 2002, if the original occupant is itself an operator, as in the case of a private club located in a hotel, and subleases the occupancy to another, the taxable occupancy shall be the occupancy by the sublessee. In such case, the original occupant shall collect the tax from the sublessee and pay it over to the Commissioner of Finance.
(ii)For taxable periods beginning on or after June 1, 2002, if the original occupant or any sublessee of the room is directly or indirectly related to the original hotel operator, the taxable occupancy will be the occupancy by the sublessee of such related person. For purposes of this subparagraph (ii) an occupant will be considered to be directly or indirectly related to the original hotel operator if: (A) the original hotel operator owns directly or indirectly a five percent or greater interest in such occupant. (B) such occupant owns directly or indirectly a five percent or greater interest in the original hotel operator. (C) one or more persons own directly or indirectly five percent or greater interests both in such occupant and in the original hotel operator, or (D) such occupant is an officer, director, manager (including a manager of a limited liability company), trustee, fiduciary or employee of the original hotel operator or an individual that is a member of the family of an individual original hotel operator. (E) For purposes of this subparagraph a five percent or greater interest shall mean, in the case of a corporation, five percent or more of the voting power of all classes of stock or five percent or more of the total fair market value of all classes of stock, and, in the case of a partnership, association, trust or other entity, five percent or more of the capital, profits or beneficial interests in such entity. (F) To illustrate: Illustration 1: In 2003, Z contracts for 100 rooms in a hotel at a rate of $100 per room per day for 190 consecutive days. Z subleases the rooms to its customers. Z is not a private club and is not related to the hotel operator within the meaning of this paragraph. The hotel operator is required to charge and collect the tax from Z for its occupancy of all 100 rooms for the entire 190-day period. Z is not a permanent resident with respect to any of the rooms. See 19 RCNY § 12-01 definition of a "permanent resident," paragraph (3). Z is not required to charge and collect the tax from its customers for the occupancy of any of the rooms that it subleases for the days that such rooms are sublet. Illustration 2: The facts are the same as in Illustration 1 except that Z is related to the hotel operator within the meaning of this paragraph. In this case, the taxable occupancy is the occupancy by the customers of Z and the hotel operator is required to charge and collect the tax from the customers of Z.
(c)The tax is applicable to any occupancy on and after July 1, 1970, even if such occupancy is pursuant to a contract, lease, or other arrangement made prior thereto. Occupant. An "occupant" is any person who, for a consideration, uses, possesses, or has the right to use or possess any room or rooms in a hotel under any lease, concession, permit, right of access, license to use or other agreement, or otherwise. Operator.
(1)An "operator" is any person operating a hotel in the City of New York, including, but not limited to, the owner or proprietor of such premises, lessee, sublessee, mortgagee in possession, licensee or any other person otherwise operating such hotel. For taxable periods beginning on or after June 1, 2002, a private club that, as an accommodation to its members, makes rooms available to such members in its own buildings is an "operator" within the meaning of the law.
(4)The tax is not applicable to any rent which has been ascertained to be worthless. Where a tax has been paid upon rent which has subsequently been ascertained to be worthless, the operator may take credit for the tax so paid on any subsequent return filed by him within one year from the date of the payment of such tax, or he may file a claim for refund of such tax within one year from the date of payment thereof.
(5)The tax is not applicable to rent which has been returned by an operator to an occupant. Where the operator has paid the tax on such rent to the Commissioner of Finance, he may take credit for the tax so paid on any subsequent return filed by him within one year from the date of the payment of such tax, or he may file a claim for refund of such tax within one year from the date of payment thereof.
(6)A cash discount may not be deducted from rent. However, where a discount is unconditionally deducted by an occupant upon settlement of his bill and is allowed as a matter of established custom without regard to the due date of such bill, the amount of such discount is not deemed to be a part of the rent.
(7)Complimentary accommodations. When a hotel furnishes complimentary accommodations for which there is no consideration no tax applies. To illustrate: Illustration (i) An operator of a hotel furnishes free of charge hotel room accommodations to governmental officials, friends or relatives of management, visiting hotel representatives, hotel employees and representatives of charitable and religious organizations. These complimentary hotel rooms are deemed to have been furnished gratuitously, and as such are not subject to the tax. Illustration (ii) An operator of a hotel furnishes complimentary rooms to persons who procure guests for the hotel, such as tour guides, travel representatives, teachers and chaperons in charge of student groups, or representatives of organizations at the time of the negotiations for future business for the hotel. The rooms furnished at such time are deemed to have been furnished in consideration of their efforts in bringing potential business to the hotel. Such occupancies are subject to the tax based upon the normal rental charge for the room. Illustration (iii) Association ABC holds its December convention at Hotel Y and receives five complimentary rooms for use by the association's officers and convention chairman for the duration of the convention. The complimentary rooms are not considered taxable. Room. Any portion of a hotel, whether used for dwelling, commercial or any other purpose, is a "room" under the law and these rules, except: (1) a bathroom or lavatory, (2) a place of assembly as defined in § 27-232 of the Administrative Code of the City of New York (See: 19 RCNY § 12-01 "place of assembly"), (3) a store, stand or counter to which access is had directly from public thoroughfares or street or mezzanine lobbies, and, (4) a lobby, public dining room or other public room when employed as such, provided, however, when such lobby, public dining room or other public room is used exclusively for a private purpose, the occupancy thereof is subject to tax (unless the room qualifies as a place of assembly). The term "room" shall include a kitchenette provided that it is a walk-in area, enclosed by walls, with one or more doorways, archways or other openings, it is supplied with a cooking appliance including but not limited to a range, microwave or convection oven, or hot plate, and it contains at least one item from each of two of the following three categories: (i) a sink with running water, or dishwater; (ii) a refrigerator; (iii) a cabinet, counter top, or table. Example: A hotel suite contains a kitchenette with a microwave oven, refrigerator, sink, cabinets and a counter top.
