61 Pa. Code § 38.3

Current through Register Vol. 54, No. 45, November 9, 2024

Section 38.3 - Definitions

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

Department-The Department of Revenue of this Commonwealth.

Hotel-A building in which the public may, for a consideration, obtain sleeping accommodations, including establishments such as inns, motels, tourist homes, tourist houses or courts, lodging houses, rooming houses, summer camps, apartment hotels, resort lodges and cabins and other building or group of buildings in which sleeping accommodations are available to the public for periods of time less than 30 days.

(i) An establishment which has accommodations available to the general public as sleeping quarters for periods less than 30 days, is a hotel within the meaning of this definition, even though the establishment may have other accommodations which are used for purposes other than sleeping quarters, and even though the establishment may have other sleeping quarters which are available only for periods of 30 days or more.

(ii) An establishment such as a public summer camp which has any permanent buildings available to the public for use as sleeping quarters, may be a hotel, even though some of its accommodations may be temporary structures, such as tents.

(iii) A private organization or institution which, in the ordinary course of its activities, provides sleeping accommodations to persons directly associated with it, is not a hotel. Where, however, an organization or institution, offers or makes available sleeping accommodations for the general public for periods less than 30 days, the organization or institution is considered to be operating a hotel with respect to all occupancies.

Example 1. An apartment hotel which rents certain apartments or rooms for occupancy on a week-to-week basis, or for other periods less than 30 days, is a hotel, even though it has other apartments or rooms leased only on a month-to-month basis, or for other periods of 30 days or more. For the purpose of registration, the entire establishment is considered a hotel.

Example 2. A public summer camp or resort which has certain permanent buildings available for occupancy as sleeping quarters, and which also has tents or other temporary structures available for use, may be a hotel if its accommodations are available to the public for less than 30 days. However, where a camp has available only temporary structures for use as sleeping quarters that is, all of its sleeping quarters consist of tents or other temporary structures, it is not a hotel within the meaning of the regulation, even though the camp may have other buildings such as dining halls, meeting rooms and the like, which are permanent structures.

Example 3. Summer camps for children which provide a program of planned instruction or training, including but not limited to physical or mental rehabilitation which the campers are required to pursue under the supervision of trained counselors, are not hotels within the meaning of section 209(1) of the TRC (72 P. S. § 7209). Accordingly, the camps are not required to register, collect or remit hotel occupancy tax.

Example 4. A single building which contains both rooms used as sleeping accommodations and rooms used for other purposes may be a hotel. Thus, where the lower floor of a building is used for rental to commercial establishments, and the upper floors are used for rental as sleeping accommodations to the public for periods less than 30 days, the building is a hotel for tax purposes.

Example 5. A hospital, nursing home, convalescent home, mental institution or other institution dedicated to the care and treatment of the sick under medical supervision, is not a hotel even though it provides sleeping accommodations for patients, doctors, nurses, students, employes and other persons associated with the institution. Similarly, where a private business provides sleeping accommodations for its employes, it is not a hotel. Where, however, an organization or institution provides accommodations to the general public as, for example, the providing of sleeping accommodations by a YMCA, or so-called health resort or spa, for periods less than 30 days, it is operating a hotel.

Example 6. A school, college, university, convent, monastery or other educational or religious institution, which provides sleeping accommodations for the use of persons who are participating in its educational or religious activities, is not a hotel. For example, where a university provides sleeping accommodations to persons who are attending a conference or convention sponsored by the institution, or to parents of students of the institution, it is not a hotel. A public summer camp conducted by an organization enumerated above, where the activity of such organization is carried on as an integral part of the camp life, is not a hotel.

Example 7. A private club which restricts the use of its sleeping accommodations to its own employes and members is not considered to be a hotel within the meaning of the Hotel Occupancy Tax portion of the TRC and need not register nor collect tax from persons. However, where a club permits its sleeping accommodations to be used by nonmembers and the billing for the occupancy is made to and paid by a nonmember, the club is considered to be a hotel and shall collect tax with respect to occupancies, other than permanent residents, including occupancies by its membership. Charges for occupancies shall be billed to club members for the organization to retain its exempt status.

Occupant-A person, other than a permanent resident as defined by § 38.2 (relating to exemptions), who, for a consideration, uses, possesses or has a right to use or possess, a room or rooms in a hotel under a lease, concession, permit, right of access, license or agreement. A person may be an occupant as defined herein, even though he does not use and does not intend to use a room or rooms as sleeping accommodations.

Example 1. A salesman who rents a sample room in a hotel is an occupant. An organization which rents a ballroom in a hotel is an occupant. In deciding whether a particular establishment is a hotel, as defined in this section, it is necessary to determine whether the establishment has sleeping accommodations available. But in deciding whether a particular person is an occupant, it is only necessary to find that he uses, possesses or has a right to use or possess a room or rooms in a hotel. It is not necessary that the room or rooms be sleeping accommodations.

Example 2. A public summer camp which has both temporary and permanent sleeping quarters available for occupancy for periods less than 30 days, is a hotel. Persons who occupy camp facilities for periods of less than 30 days are considered occupants, even though they occupy temporary sleeping quarters.

Occupancy-The use or possession, or the right to the use or possession by a person, other than a permanent resident of any room or rooms in a hotel for any purpose, or the right to the use or possession of the furnishings, services, and accommodations which accompany the use and possession of the room or rooms. Furnishings include, but are not limited to, property such as furniture, including radios, television sets, and air conditioners, utensils, glassware, linens, towels, athletic and sporting equipment, recreational equipment, stationery and stationery supplies, and other property furnished by the hotel for the use of hotel occupants and maid and porter service, towel and linen service, doormen, bellmen, elevator service, parking service, and any other services, facilities, or accommodations, including secretarial or commercial services, garage accommodations, theater ticket service, transportation service, swimming and athletic facilities, locker rooms, recreational facilities, parcel checking service, delivery service, and health facilities which are offered by the hotel for the exclusive use of hotel occupants and residents without any charge in addition to that normally made for the room or rooms occupied by such persons, or at a rate less than that charged to persons who are not hotel occupants or residents.

Operator-A person operating a hotel as defined in this section.

Permanent resident. A person who has occupied or has had the right to occupy a room or rooms in a hotel for 30 consecutive days or more.

(i) After a person has occupied or had the right to occupy for thirty consecutive days, he is no longer an occupant as defined by this section. His status as a permanent resident is effective for the rental period during which, or at the expiration of which, the 30th consecutive day of occupancy is completed, and continues thereafter so long as his occupancy remains continuous and uninterrupted. Thus, if a person completes his 30th day of consecutive occupancy during, or at the expiration of a particular rental period, he is a permanent resident for that entire rental period, even though, during a part of the period, he had not yet established his status as a permanent resident, and for each rental period thereafter in which his occupancy continues uninterrupted. He is not a permanent resident, however, as to any rental period prior to the particular rental period during or at the expiration of which, he completed his 30th day. As to such prior rental periods, he was and remains an occupant. Reference should be made to Example 1 of this definition.

(ii) A rental period, for the purposes of this subchapter, is a period of time, for example, a day, week, month, or the like during which, under and subject to the terms of a legally enforceable contract, an occupant has a continuous right to occupy a room or rooms in a hotel and is legally bound to pay rent therefor. (In the absence of evidence to the contrary, it is presumed that a rental period runs from the date of first occupancy or first payment of rent, to the date of a subsequent payment of rent.) A mere statement of intention to occupy, or to permit occupancy, on the part of an occupant or hotel operator, or both, does not create a rental period unless the period in question is the subject of a legally enforceable contract.

(iii) The occupancy or right of occupancy shall be for 30 consecutive days. A person who merely has a right to use a room or rooms on intermittent days of a week or month cannot become a permanent resident, even though he cumulatively occupies for more than 30 days.

(iv) The status of permanent resident only continues so long as the occupancy or right of occupancy continues uninterrupted. A permanent resident who quits his hotel and breaks his consecutive and continuing occupancy, loses his status as permanent resident, and, with respect to his next occupancy, he does not resume his status as a permanent resident unless and until he again completes 30 consecutive days of occupancy. A transfer from one hotel to another, even though both hotels are owned by the same operator, is a break in occupancy; however, a mere change of rooms in the same hotel is not a break in occupancy.

Example 1. G occupies a room on a week-to-week contract. At the end of each of the first 4 weekly rental periods, G is an occupant, and not a permanent resident, since he has not completed 30 consecutive days of occupancy during or at the expiration of any of those weeks. At the end of the second day of the fifth week, G completes 30 consecutive days and becomes a permanent resident. He is a resident and not an occupant as of the entire fifth week, and for each week thereafter during which he continues to have an uninterrupted right of occupancy. As to the first 4 weeks, however, he was and is an occupant.

Example 2. G occupies a room on a month-to-month contract. At the end of the first monthly rental period, G is a permanent resident, and this status is applicable to the first month, and to every month thereafter during which G continues to have an uninterrupted right of occupancy. Therefore, G is never an occupant.

Example 3. S, a student, takes a room on a week-to-week basis in a rooming house. S tells his landlady he intends to keep the room for a full semester; however, he has no legally enforceable right to do so, and his landlady has no legally enforceable right to have him do so. He therefore occupies upon a weekly rental period; he is a permanent resident as of the fifth week. Reference should be made to Example 1 of this definition. At the end of the semester, S returns to his home, and although S tells his landlady he wishes to resume his occupancy when he returns to school, S pays no rent for the interim period and has no right to occupy the room during that period. Since there is a break in S's occupancy, S has lost his status as permanent resident, and upon his resumption status as permanent resident, and upon his resumption of occupancy on the same rental period basis, he will again be considered an occupant for the first four weekly rental periods.

Person-A natural person, firm, partnership, association, corporation, fiduciary or other entity. Whenever used in any provision of the Hotel Occupancy Tax portion of the TRC which prescribes or imposes a fine or imprisonment, or both, the term person as applied to a firm, partnership or association, shall include the members thereof and, as applied to a corporation, the officers thereof. A firm, partnership, association or a corporation may be subjected as an entity to the payment of a fine.

Rent-The consideration received for occupancy as defined in this section valued in money, whether actually received in money or otherwise, including all receipts, cash, credits and property or services of any kind or nature. Also, any amount for which an occupant is liable for occupancy, as defined herein, without any deduction therefrom whatsoever.

(i) The entire amount charged by a hotel operator for occupancy, as that term is defined in this section, constitutes rent under the law. Charges for services, facilities or accommodations which are offered by the hotel for the exclusive use of hotel occupants, or which are furnished by the hotel to occupants without any charge in addition to that normally made for the room occupied by the persons, or at a rate less than that charged to persons who are not hotel occupants or residents, are deemed to be a part of the rent. This is true whether charges for such services, facilities or accommodations are separately stated and itemized or not.

(ii) Services and accommodations which are available to the general public as well as to the hotel occupants or residents, and for which the hotel makes a charge to occupants or residents at lease equal in amount to the charge made to persons who are not hotel occupants or residents, are not deemed to accompany the use or possession of a hotel room, and the charges made for the services and accommodations are not considered part of the rent, if the charges are separately stated and itemized. However, a lump sum is presumed to be rent, even though the lump sum may include charges for services and accommodations which, if separately stated and itemized, would not be considered part of the rent.

(iii) With respect to the computation, collection, reporting and remittance of tax upon rental charges which include a charge for meals, reference should be made to § 38.1 (relating to imposition and computation of tax).

Tax-Any tax, interest or penalty imposed or levied under the provisions of Article II of the TRC (72 P. S. §§ 7201-7282).

61 Pa. Code § 38.3

The provisions of this §38.3 amended April 12, 1974, effective 4/13/1974, 4 Pa.B. 691.

This section cited in 61 Pa. Code § 38.1 (relating to imposition of computation of tax); and 61 Pa. Code § 38.2 (relating to exemptions).