MEETING DATE: 8/20/2019
DEPARTMENT: COUNTY CLERK-AUDITOR-RECORDER ELECTIONS
DEPT HEAD/DIRECTOR: Joe Paul Gonzalez
AGENDA ITEM PREPARER: Joe Paul Gonzalez
SBC DEPT FILE NUMBER: 675
SUBJECT:
COUNTY CLERK/AUDITOR/RECORDER/ELECTIONS - J. P. GONZALEZ
Adopt Voluntary Collection Agreement with Airbnb, Inc. for Proposed Transient Occupancy Tax Agreement; and delegate authority to the Chair to execute, including approving any changes to the agreement if required by Airbnb.
SBC FILE NUMBER: 675
AGENDA SECTION:
CONSENT AGENDA
BACKGROUND/SUMMARY:
Under the County Code of the County of San Benito, the County Clerk, Auditor & Recorder is the Transient Occupancy Tax Collector. In March of this year this Office sent a notice to Airbnb that it had come to our attention that they had engaged in the business of operating a hotel; or receiving consideration for the rental of a hotel room for sleeping accommodations on property located in San Benito County. However, Airbnb had not obtained a Transient Occupancy Registration Certificate and Airbnb had not paid the required Transient Occupancy Tax (TOT) per the Uniform Transient Occupancy Tax Law of San Benito County. Under Section 5.03.051 of the County Code an Operator is defined as follows:
OPERATOR. "Operator" means any person:
(1) possessing or having an ownership interest in a hotel, or who is the proprietor of the hotel, whether in the capacity of owner, lessee, sublessee, mortgagee in possession, licensee or any other capacity;
(2) engaged in the business of operating a hotel; or
(3) receiving any consideration for the rental of a hotel room for sleeping accommodations, including, without limitation, any broker, service provider, or other intermediary:
(i) with which a hotel has contracted to arrange for the rental of a hotel room
for sleeping accommodations; or
(ii) that has acquired any hotel room for subsequent rental from the hotel for sleeping accommodations.
Where the operator performs his or her functions through a managing agent of any type or character other than an employee, the managing agent shall also be deemed an operator for the purposes of this article and shall have the same duties and liabilities as his or her principal. Compliance with the provisions of this article by either the principal or the managing agent, however, shall be considered to be compliance by both.
Section 5.03.051 of the San Benito County Code requires that the operator of a hotel obtain a Transient Occupancy Registration Certificate from the Auditor of San Benito County. An operator is also required to submit Transient Occupancy Tax (TOT) reports and remit taxes collected—from occupants—to the Auditor on a quarterly basis, even if there were no rentals.
After having various written and verbal communications with Airbnb, representatives suggested that the corporation was amenable to entering into a Voluntary Collection Agreement with the County. The language of the agreement disassociates Airbnb as an operator but does obligate the corporation to report, collect, and remittance of applicable transient occupancy taxes and applicable sates taxes imposed under San Benito County law.
Please note that the agreement expressly contains a waiver of any past claims the County may have against Airbnb itself, but not against any individual operator.
BUDGETED: