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HomeMy WebLinkAbout19-City Clerk li'T ~ "0' n......,.OF> , , ORIGINAL CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Dept: City Clerk Date: January 25, 2005 Subject: Appeal hearing regarding the results of a transient lodging tax audit for the Astro Motel. From: Rachel Clark, City Clerk MICC Meeting Date:February 22, 2005 Synopsis of Previous Council Action: April 19, 2004 - The Mayor and Common Council upheld the findings of the City Clerk relating to TL T audits of the Sahara Motel and EI Patio Motel. July 21,2003 - Resolution No. 2003-204 authorizing Progressive Solutions to perform Transient Lodging Tax audits~ Recommended Motion: That the hearing be closed; and that the Mayor and Common Council uphold the decision of the City Clerk and adopt her letter of December 7, 2004, as Its findings and conclusions, based upon the back-up Information submitted and any additional evidence presented at the hearing; or That the hearing be closed; and that the Mayor and Common Council uphold the appeal of the applicant and reverse the decision of the City Clerk; or That the hearing be closed; and that the Mayor and Common Council uphold the appeal of the applicant In part and direct the City Attorney's Office to are findings and conclusions consistent with Its decision. h. ~ Signature Contact person: r.lfldy Rlle~htAr Business Reg. Supervisor Supporting data attached: Yes phnnA. ~7nn Ward: FUNDING REQUIREMENTS: Amount: Source: (Acct. No.) (A,..,..t Description) Finance: Council Notes: ~ 110. I~ ~ --~"~'~~"T . ~,,".-' . 'Be--- - - -" .,-,,,-,,~.'W -',"-~----~~ ----~-- ., CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION STAFF REPORT SUBJECT: Appeal hearing regarding the results of a transient lodging tax audit for the Astro Motel located at 111 S. "E" Street. BACKGROUND: A transient lodging tax audit for the Astro Motel was conducted by Progressive Solutions on October 31,2003. The audit was performed in accordance with GAAP (Generally Accepted Accounting Principles) which utilize a statistical sampling to arrive at an Audit Opinion. The review of the hotel's records covered the time period of April 1, 2000 to December 31, 2002. A detailed review was performed of the transactions recorded for the month of August 2002. The review included the following: · Testing, by random selection, the daily summaries which include the date, room number, registration number, and the name of each guest in-house, for completeness and accuracy. · Testing, by random selection, the monthly summary, which includes daily room revenue, tax and exempt revenue, for completeness and accuracy. · Review of the operating records for the purpose of determining the existence of the practice of allowing complimentary rooms to be occupied without TLT being collected and remitted. · Testing the exemptions claimed in the compilation of the taxable room revenues reported to determine that the exemptions were allowable under the City of San Bernardino Municipal Code Section 3.55.035 A and B. The review found discrepancies in the motel's operating procedures that resulted in errors in assessment, collection, and payment of the transient lodging taxes in accordance with the requirements set forth in the San Bernardino Municipal Code Chapter 3.55 and 3.54. Review notes specifically identifying the errors are included in the audit narrative provided as backup to this appeal. Snecificallv. the hotel was assessed additional taxable room revenue for the following: ~~...None of the records that were examined displayed the room rent and the transient lodging tax separately.. .It is the motel's practice to show a flat rate on every record of the occupant, which the motel reports as taxable room rents that are the basis of assessing and remitting the transient tax. There is no evidence that the tax is assessed and collected from the occupant. The proprietor represents that the motel absorbs the burden paying the tax for the occupant, which also is a violation of the city ordinance. We tested the completeness of the records presented for our examination by comparing 1 ~,.tC~<>"CT" ~ .- , . our audit revenue compilation with the amounts reported on the Federal tax return, which indicated that the motel had understated the taxable revenue to the City..." The hotel's operating procedures that were found to be in violation of the San Bernardino Municipal Code resulted in the assessment of additional Transient Lodging Tax as follows: Additional Transient Lodging Tax Penalty Interest TOTAL AMOUNT DUE $ 4,462.04 4,462.04 1.348.60 $10,272.68 March 29. 2004 A hearing was held before the City Clerk regarding the Astro Motel's request to postpone payment until completion of an appeal of additional transient lodging taxes assessed as a result of an audit of the motel's transient lodging tax. Julv 2.2004. August 5. 2004 & November 19. 2004 Letters sent to Mr. Frank A. Weiser, Esq., representing the Astro Motel's, requesting communication from Mr. Weiser concerning the Transient Lodging Tax Appeal Hearing and evidence presented. December 7. 2004 Notice of Final Determination of Transient Lodging Tax and Penalty sent via certified mail to the Astro Motel. December 21. 2004 Appeal received from the Astro Motel regarding the decision of the City Clerk to assess $10,272.68 in additional transient lodging tax, penalty, and interest. FINANCIAL IMPACT: The hearing found an additional $10,272.68 was owed to the City for transient lodging taxes. Other motels that have been audited and found to owe additional transient lodging tax have paid accordingly, including the assessed penalties and interest. RECOMMENDATION: That the hearing be closed; and that the Mayor and Common Council uphold the decision of the City Clerk and adopt her letter of December 7,2004, as its findings and 2 ~. 'm_~_ .... . . conclusions, based upon the back-up information submitted and any additional evidence presented at the hearing; or That the hearing be closed; and that the Mayor and Common Council uphold the appeal of the applicant and reverse the decision of the City Clerk; or That the hearing be closed; and that the Mayor and Common Council uphold the appeal of the applicant in part and direct the City Attorney's Office to prepare findings and conclusions consistent with its decision. 3 , " ,,/ '. )-~ '4 CITY OF SAN BERNARDINO APPEAL FORM Office Use Onlv Copies Distributed To: o City Attorney 0 City Administrator Date: DatefI'ime Stamp: 'lE"'Ci\""'-' "I'f'( "I ,.', " VLl i. ' ~.Ii . LL~_(I!\ '04 DEe 22 P 4 :57 IMPORTANT INFORMATION: All appeals to the Mayor and Common Council, Board of Building Commissioners (BBC) and Animal Control Commission must be filed in the City Clerk's Office. Appellant Name: Address: _'l~-.n ~, ~""~'-.O~, ~....~(.\, ~~~ - ~~\ .- \\ ..., " r'"_ ,r-.e.""T'" c-....., t'"> N, \\\ ~,~ ~~ ~ ...." , ~ T">-' ~e.o..~o..Sl~'.~n I CA V" UQ \ Contact Person Address: ~~~ '3. ~, 0 b.. . ~~1:~. ~r.Q....\,e..'-l \..T L~ Name: Day,Phone: Evening Phone: (:"I ''\\1tl.\-h''''6'''1 C '"l.''1, ~c>..C\-'W)()b \1.'\'\~\....\k ~'-\)O'I ~~. ~o':t \..~. C... , J. ~. Fax: C' \ l) $.~ '"5 - "'~,g 4("\,(')\ n E-mail: Affected Property Address: Assessor's Parcel Number (APN #): Whose Decision Are You Appealing: Date of that Decision: k~Q..,. ~o,-e.'-- \\\ s;- ,," " ~ S:."q~,...Q (t \ ~ . ~. . C~ "\'lL\O\ \ OBoard of Building Commissioners - $75.00 ~Mayor and Common Council - 575.00* OPlanning Commission - Fee Adjusted Annually OAnimal Control Commission - 575.00 OPolice Commission - No Charge OOther: - No Charge *Note: Appeals to the Mayor and Common Council can only be from the Planning Commission and Police Commission. City of San Bernardino.. City Clerk's Office.. 300 N. "0" Street - San Bernardino, CA92418.. (909) 384-5002 'v~'m"" ., , . 1. The action appealed: ~t= 2. The grounds for appeal: u. \) ~~ \... 3. The action(s) sought: Se~ ~~~o~ \ ~~ {I- ~ C' \~ c...\..L4- ,~u~ 1;) ~ . ~ t.)jL \ "t.\7-ot o't '-e.\.ltev-. '\ ~Q...c:.-"O-~ 4. Any additional information: NH\..L~~"rJ' , .' t. '.,,, LAW OFFICES FRANK A. WEISER LEONARD NASATlR OF COUNSEL 3460 WILSHIRE BOULEVARD,SUITE 903 LOS ANGELES. CALIFORNIA 90010 TELEPIIONE: (113) 384..4;964 FACSIMILE: (113) 383.7368 REFER TO FILE NO. December 20, 2004 BY EXPRESS MAIL AND FACSIMILE Rachel C. Clark City Clerk Office of the City Clerk City of San Bernardino 300 North "0" Street San Bernardino, CA 92418-0001 Facsimile: (909) 384-5158 Re: Appeal Notice/Transient Lodging Tax Audit/Desert Inn Motel at 607 W. 5th Street/Terrace Motel at 2606 W. Foothill Blvd./Sunshine Motel at 570 N. "H" Streett Knights Inn at 1150 S. "E" Streett Foothill Motel at 2512 Foothill Blvd./ Econo Lodge at 606 N. "H" Street/Astro Motel at 111 S. "E" Street/Budget Lodge c/o Larry Hall Dear Ms. Clark: As you know, I represent the above referenced motels located in the City of San Bernardino. I received your letter dated December 7, 2004, notifying my clients of the final determination of transient lodging tax and penalties for eacj motel. Pursuant to your letter and Chapter 2.64 of the San Bernardino Municipal Code, each motel wishes to appeal your individual decision to the Common Council. The grounds for the appeal are as follows: None of the motels owe any monies to the City as they have reported and collected all monies due. Any technical reporting deficiencies noted in your reports are not subject to a tax assessment, as they are just that; technical deficiencies at the most and do not impact the amount of monies collected. Nevertheless, each motel owner denies any such reporting deficiencies. Nothwithstanding this, the City repealed Chapter 3.54 of the muncipal code in November 2002. It is a violation of due process to collect a tax repealed and declared unconstitutionally suspect by the voters. Morevover, both Chapters 3.54 and newly amended Chapter 3.55 violate -- - - . ~ Rachel C. Clark City Clerk Office of the City Clerk City of San Bernardino Re: Appeal Notice/Transient Lodging Tax Audit/Desert Inn Motel at 607 W. 5th Street/Terrace Motel at 2606 W. Foothill Blvd./Sunshine Motel at 570 N. "H" Street/ Knights Inn at 1150 S. "E" Street/ Foothill Motel at 2512 Foothill Blvd./ Econo Lodge at 606 N. "H" Street/Astro Motel at 111 S. "E" Street/Budget Lodge c/o Larry Hall fundamental due process as they attempt to collect a transient tax in violation of the residency requirement of the Fourteenth Amendment of the United States Constitution. This classification also violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Notwithstanding this, Chapters 3.54 and 3.55 violate due process as they are "void for vagueness." We seek to completely overturn your determination decisions on each motel before the Common Council and respectfully request a hearing at the Council's earliest convenience. Please advise me accordingly. Your courtesy and cooperation in the matter is appreciated. Sincerely, -.- ~ 0 0... .ct.:)~ Frank A. Weiser Attorney at Law cc: City Attorney's Office (Facsimile: (909) 384-5238) FAW:aw '~_~',,:,'V~__.'""O"--' .- ." ".. . OFFICE OF THE CITY CLERK RACHEL G. CLARK, C.M.C. . CITY CLERK 300 North "D" Street. San Bernardino. CA 92418-0001 909.384.5002. Fax: 909.384.5158 www.cLsan-bernardino.ca.us VIA CERTIFIED MAIL December 7, 2004 Kanti & Jashoda Patel Astro Motel 1 I I S. "En Street San Bernardino, CA 9240 I RE: NOTICE OF FINAL DETERMINATION OF TRANSIENT LODGING TAX AND PENALTY Dear Mr. & Mrs. Patel: After due consideration of the testimony and evidence presented at your appeal hearing on March 29, 2004, it is the decision of the City Clerk that your appeal on behalf of the Astra Motel is denied and the total amount of $10,272.68 is now due and owing to the City of San Bernardino. The audit period which is the subject of this appeal was April 1, 2000 through December 31, 2002. The substance of the San Bernardino Municipal Code Sections which were not complied with are the same for the ordinance which was in effect from January 1, 2000 through November 5, 2002 (Chapter 3.54), and for the ordinance which has been in effect since November 5, 2002 (Chapter 3.55). It is the decision of the City Clerk, based upon the testimony and evidence so presented, that the Astro Motel was not in compliance with the following San Bernardino Municipal Code requirements: Collection of Tax - Failure to assess and collect the transient lodging tax. Failure to provide a receipt to each transient at the time the rental payments are made. Failure to report the amount of transient lodging tax to the transient. Failure to not represent that the transient lodging tax will be added to the room rental charge and the operator absorbing the payment of the tax. Registration Cards - Failure to use preprinted registration cards. Failure to reflect expected date of termination. Failure to designate the room rental separately. 1 CITY OF SAN BERNARDINO .a. ___ L"'._. _...._ "117.... ........._. '1'__.. ", __,,-_'_!1'..__ ~_ _~__.. r__ TT____~ T"Ir.!___O.. r --j7 -~ ~m~ ~u","~ --" _CT-- -- ,- T ~ ,<~ -, --~ -~"~-~~--" .,11:- Daily Summary Sheets - Failure to contain the required information, with the only exception being the amount of payment received. The afore-mentioned violations set forth in this decision were detailed and sent to you as part of the audit performed by Progressive Solutions, Inc., via letter dated November 20, 2003. This audit was made part of the appeal hearing record at the March 29, 2004 hearing. As indicated previously herein, the violations set forth in this decision result in a total assessment due to the City of San Bernardino in the amount of $10,272.68. This amount contains three components: Additional Transient Lodging Tax Penalty Interest $4,462.04 $4,462.04 $1,348.60 $10,272.68 The amount of$IO,272.68 is now due within fifteen (15) days of the date of this decision unless this decision is appealed to the Common Council in accordance with the provisions of Chapter 2.64 of the San Bernardino Municipal Code (a copy of said Chapter 2.64 is enclosed with this letter for your information). However, the City Clerk determines that this amount of$1 0,272.68 may be paid over a four month period in four equal one-quarter payments of the lump sum in order to avoid any undue hardship. If you choose this method of payment instead of one lump sum payment, you must contact Ms. Cindy Buechter, Business Registration Supervisor, immediately at (909) 385-5035 in order to make payment arrangements. Sincerely, ~b.~,- Rachel G. Clark, CMC City Clerk encl. cc: Mr. Frank Weiser 2 - -- --,~----- --- A t'{' {/ vi '{j e - J7}ch I 11/7 j/)3 . PROGRESSIVE SOLUTIONS- October 31, 2003 Rachel G. Clark, City Clerk City of San Bernardino 300 North D Street San Bernardino, CA 92418 Dear Ms. Clark, Progressive Solutions, Inc. has applied the procedures enumerated below to the accounting records of the Astro Motel with respect to the transient lodging taxes owed to the City of San Bernardino for the three year period beginning April 1, 2000 and ending December 31, 2002. The procedures performed are summarized as follows: 1. We reviewed the City ordinance relating to the levy of transient Lodging tax. 2. We reviewed the operating records for the purpose of determining the existence of the practice of allowing complimentary rooms to be occupied without TL T being collected and remitted. 3. We tested, by random selection, the daily summaries which include the date, room number, registration number, and name of each guest in-house, for completeness and accuracy. 4. We tested by random selection, the monthly summary, which includes daily room revenue, tax and exempt revenue, for completeness and accuracy. 5. We tested the exemptions claimed in the compilation of the taxable room revenues reported to determine that the exemptions were allowable under the City of San Bernardino code section 3.55.035, under the exemption sub-sections (A) and (B). 6. We performed additional procedures, as we deemed necessary. Our review determined that the motel's operating procedures were found to be in violation of the San Bernardino code, which resulted in the assessment of additional transient lodging taxes in the amount of $4,462.04. penalties in the amount of $4,462.04, interest in the amount of $1,348.60, for a total amount of $10,272.68 due to the City of San Bernardino. Review notes specifically identifying the errors have been included in the contents of the Audit Narrative. This report is intended for the information of City management and the taxpayer. This restriction is not intended to limit the distribution of this report, which is a matter of public record. Sincerely, jt.. II. tI..!iJ Glenn R. Vodhanel, Audit Review Manager Audit Divislon-OcelUlSlde; P.O. Box 4489; Oceanside. CA 92052-4489 Tel: (760) 533-7808 FAX: (760) 722-2123 Emai/: ACAPUCHINO@aol.com --.- ,,-- -- -. -- -- -- . . . CITY OF SAN BERNARDINO TRANSIENT LODGING TAX ASTRO MOTEL AUDIT REPORT OCTOBER 31, 2003 Performed by PROGRESSIVE SOLUTIONS- Al Capuchino-Principal Auditor Audit Division-Oceanside; P.O. Box 4489; Oceanside. CA 92052-4489 Tel: (760) 533-7808 FAX: (760) 722-2123 Email: ACAPUCHINO@aol.com . , J PROGRESSIVE SOLUTION~ ASTRO MOTEL TRANSIENT LODGING TAX AUDIT NARRATIVE Progressive Solutions, Inc. completed the assigned review of the motel's records for the period beginning April 1, 2000 and ending December 31, 2002 in the presence of the motel's proprietor, Kanri Patel. A detailed review, as previously described, was performed of the transactions recorded for the month of August 2002. Our review included the examination of the motel's registration cards, and the manually prepared daily revenue summary, which is only a listing of the adding machine totals of the amounts recorded on the registration cards that are dated for that particular day. The hotel does not prepare receipts for every payment made by the occupants. In addition the daily revenue summary does not reflect the information that is required by the city ordinance. FOur review noted that the hotel records revenue on a "cash basis" as monies are received. This practice does not properly reflect daily revenue for rooms occupied, which is required by the city ordinancefRegistration cards are not pre-numbered and do not show the date of departure which does not allow an audit trail for the length of occupancy and the room rental charges for each occupant for their term of occupancy. None of the records that were examined displayed the room rent and the transient lodging tax separately, which is in violation of the city ordinance. It is the motel's practice to show a flat rate on every record of the occupant, which the motel reports as taxable room rents that are the basis of assessing and remitting the transient tax. There is no evidence that the tax is assessed and collected from the occupant. *The proprietor represents that the motel absorbs the burden paying the tax for the occupant, which also is a violation of the city ordinance,Jf We have informed the motel that this practice is in violation of the city code, which requires the motel to assess and collect the tax directly from the transient. We tested the completeness of the records presented for our examination by comparing our audit revenue compilation with amounts reported on the Federal tax return, which indicated that the motel had understated the taxable revenue to the City. We have taken the gross receipts on the Federal tax return as an independent source of revenue, and accordingly, assessed the motel for additional taxable revenue, in spite of the hotel's declaration that the tax had never been collected from the transient. This detection has been applied to the entire period of our review. The tax return, by including the amount of the tax as an integral portion of the gross receipts, represents that the tax was collected from the transient/In addition, in the lack of internal control over the accounting for each transaction, by not having a numerical and sequential "folio" number assigned to the records of each occupant, there exists a potential risk of not recording every rental charge, and the related assessment and collection of the transient tax, and the reporting and remitting the tax to the City. Consequently, we are not able to express an opinion as to the completeness of the records. In summary, the review process disclosed four sections of the city ordinance in which the motel was not in compliance relative to the requirements of the transient lodging tax section. Audit Division-Ocetlllsidllj P.O. Box 4489; Oceanside. CA 92052-4489 Tel: (760) 533-7808 FAX: (760) 722-2/23 Email: ACAPUCHINO@aol.com . PROGRESSIVE SOLUTIONS- Astro Motel Page 2 Section 3.33.030 (A), (D) Collection of tax A. Each operator receiving a room rental payment that is subject to the transient lodging tax, at the time of receipt of the room rental payment, shall collect the amount of tax imposed. The operator shall provide a receipt for payment of the transient lodging tax to the transient D. No operlltor shall represent to the public that the transient lodging tax will not be added to the room rental charge, will be absorbed by the operator or will be refunded in a manner contrary to this Chapter. Violation: Failure to (1) Failure to assess and collect the transient lodging tax, (2) Failure to provide a receipt to each transient at the time the rental payments are made, (3) Failure to report the amount of transient lodging tax to the transient, (4) Failure to not represent that the transient lodging tax will be added to the room rental charge and the operator absorbing the payment of the tax. Section 3055.070 (A) Records - Registration Cards A. Registration Cards. Each operator shall complete and maintain a transient registration card for every transient that is provided lodging space in the operator's hotel. At a minimum, transient registration cards shall list the following information: 1. The name of the person who will occupy, or who is entitled to occupy the lodging space. 2. The total number of people who will occupy, or who are entitled to occupy the lodging space. 3. The identification of the lodging space. 4. The date the occupancy will commence and the expected date of termination. 5. The room rental to be charged for the lodging space. Transient registration cards shall bear consecutive numbers that shall be preprinted on the cards by a print shop or manufacturer of the cards. Voided cards shall be kept for audit purposes. Alldlt Division-Oceanside; P.O. Box 4489: Oceanside. CA 92052-4489 Tel: (760) 533-7808 FAX: (760) 722-2123 Email: ACAPUCHINO@aol.com . PROGRESSIVE SOLUTIONS- Astro Motel Page 3 Violation: Failure to use preprinted registration cards. Failure to reflect expected date of termination. Failure to designate the room rental separately. Section 3055.070 (B) Records - Daily Summary Sheets B. Daily Summary Sheets. Each operator shall maintain a daily summary sheet for each day it's hotel is open for business. At a minimum, daily summary sheets shall contain the following information: 1. The name of the person who will occupy, or who is entitled to occupy each lodging space that is provided to a customer that day. 2. The identification number of each lodging space provided to a customer. 3. The daily room rental charge and amount paid for each lodging space provided to a transient. 4. The number of the transient registration card applicable to each lodging space provided to a transient. Violation: Failure to contain the required information, with the only exception being the amount of payment received. Alldit Div/s/on-OcelUlSlde; P.O. Box 4489; Oceanside. CA 92052-4489 Tel: (760) 533-7808 FAX: (760) 722-2/23 Email: ACAPUCHINO@aol.com . . Audit Summary City of San Bernardino Transient Lodging Tax Review Hotel: Astro Motel Tax rate: 10.0 % Taxable Revenl Audit nder Reporte Reported axable Revenl axable Reven Transient Tax Penalties Interest Total January 31, 0.00 0.00 0.00 0.00 0.00 0.00 0.00 February 28, 0.00 0.00 0.00 0.00 0.00 0.00 0.00 March 31, 0.00 0.00 0.00 0.00 0.00 0.00 0.00 April 3D, 8,927.00 9,820.00 893.00 89.30 89.30 49.58 228.16 May 31, 13,270.00 14,597.00 1,327.00 132.70 132.70 71.66 337.06 June 3D, 12,050.00 13,255.00 1,205.00 120.50 120.50 83.26 304.26 July 31, 13,600.00 14,960.00 1,360.00 136.00 136.00 69.36 341.36 August 31, 13,911.00 15,302.10 1,391.10 139.11 139.11 70.95 349.17 September 3D, 14,099.00 15,508.90 1,409.90 140.99 140.99 67.66 349.66 October 31, 12,654.00 13,919.40 1,265.40 126.54 126.54 58.84 311.92 November 3D, 11,846.00 13,030.60 1,184.60 118.46 118.46 53.31 290.23 December 31, 13,574.00 14,931.40 1,357.40 135.74 135.74 59.05 330.53 Total 2000 113,931.00 125,324.40 11,393.40 1,139.34 1,139.34 563.86 2,842.34 January 31, 12,742.00 14,016.20 1,274.20 127.42 127.42 53.52 308.36 February 28, 12,810.00 14,091.00 1,281.00 128.10 128.10 51.88 308.08 March 31, 13,422.00 14,784.20 1,342.20 134.22 134.22 52.35 320.79 April 3D, 13,654.00 15,019.40 1,365.40 136.54 136.54 51.20 324.28 May 31, 14,350.00 15,785.00 1,435.00 143.50 143.50 51.86 338.66 June 3D, 13,143.00 14,457.30 1,314.30 131.43 131.43 45.34 308.20 July 31, 13,853.00 15,238.30 1,385.30 138.53 138.53 45.71 322.77 August 31, 12,935.00 14,228.50 1,293.50 129.35 129.35 40.75 299.45 September 3D, 13,115.00 14,426.50 1,311.50 131.15 131.15 39.35 301.65 October 31, 12,827.00 14,109.70 1,282.70 128.27 128.27 36.56 293.10 November 3D, 13,406.00 14,746.60 1,340.60 134.06 134.06 36.20 304.32 December 31, 12,073.00 13,280.30 1,207.30 120.73 120.73 30.79 272.25 Total 2001 158,330.00 174,163.00 15,833.00 1,583.30 1,563.30 535.29 3,701.89 January 31, 12,200.00 13,420.00 1,220.00 122.00 122.00 29.28 273.28 February 28, 13,000.00 14,300.00 1,300.00 130.00 130.00 29.25 289.25 March 31, 13,500.00 14,850.00 1,350.00 135.00 135.00 28.35 298.35 April 3D, 15,000.00 16,500.00 1,500.00 150.00 150.00 27.00 327.00 May 31, 15,150.00 16,665.00 1,515.00 151.50 151.50 25.00 328.00 June 3D, 14,830.00 16,313.00 1,463.00 146.30 148.30 22.25 318.85 July 31, 15,200.00 16,720.00 U20.00 152.00 152.00 20.52 324.52 August 31, 16,010.00 17,611.00 1,601.00 160.10 160.10 19.21 339.41 September 3D, 15,200.00 16,720.00 1,520.00 152.00 152.00 15.96 319.96 October 31, 14,500.00 15,950.00 1,450.00 145.00 145.00 13.05 303.05 November 3D, 14,500.00 15,950.00 1,450.00 145.00 145.00 10.88 300.66 December 31, 14,850.00 16,335.00 1,485.00 148.50 148.50 8.91 305.91 Total 2002 173,940.00 191,334.00 17,394.00 1,739.40 1,739.40 249.65 3,728.45 Combined Total 446,201.00 490,821.40 44,620.40 4,482.04 4,462.04 1,348.60 10,272.66 -~"- ~ I "'r:"'t-l\/.. .'. r'll" "l E"li I"-_v _ ,: ~\., I I IJ. _!Irl JUt. -2 P 3 :56 JAMES F. PENMAN CITY ATTORNEY July 2, 2004 Mr. Frank A. Weiser, Esq. 3460 Wilshire Blvd., Suite 903 Los Angeles, CA 900 I 0 RE: Transient Lodging Tax Appeal Hearings and Evidence Presented Dear Mr. Weiser: I called your office last week concerning the above-indicated subject matter, left a message on your answering machine, but as of the date of this letter have not heard back from you. As you know, several transient lodging tax ("TLT") appeal hearings were held a couple of months ago wherein you submitted boxes of registration cards, etc. to demonstrate that the random sampling conducted by Progressive Solutions, Inc. was not an accurate measure of any moneys owed to the City of San Bernardino as a result of under or inaccurate reporting ofTL T by your clients. It was indicated at the hearings that the records would be reviewed by Progressive Solutions. It was further indicated that such review could not commence until sometime in May. The City Clerk was advised by Progressive Solutions after the TL T appeal hearings had been concluded that the fee for such an "audit" would be $250 per hour, with a 5 hour minimum requirement, payable before the audit commences. Subsequent costs would be billed as incurred. Further, Progressive Solutions advised the City Clerk that such costs would be borne by the applicant motels since they were requesting this audit service. This financial information was not known to either side at the time of the TL T appeal hearings. After grappling with various ways to resolve this dilemma, this letter is being sent to you to seek your thoughts on a course of action. It is proposed that the boxes of registration cards, etc. be returned to you and/or your clients to be organized in such a fashion as you deem appropriate so that the financial information contained in them can be presented in a concise manner to the City Clerk to address the issue of the accuracy of the random sampling method employed by Progressive Solutions. In this manner, you control the costs in the presentation of your evidence. Obviously, if you and your clients wish to employ Progressive Solutions at the rates indicated, that is your decision. The City cannot make that decision for you, nor is the City going to incur these costs since the "evidence" to be offered is in your defense. . ~ _ __. . .._n _.......,..,.T . c:.6.1\1 R~RNAROINO. CA 92418-000 1 . (909) 384.5355 · FAX (909) 384-5238 r t Please let me know as soon as possible what your thoughts are on this matter so that the appeal hearings can be resolved. As you may know, there are no additional penalties or interest being incurred by your clients as a result of this situation, but I am sure that you are like me and would want this matter brought to a conclusion. You will recall that in one of the TL T appeal hearings it was conceded by Progressive Solutions that it had made a mistake and thus that hearing will be decided in your client's favor. ~c: Rachel Clark, City Clerk . ./ OFFICE OF THE CITY ATTORNEY CITY OF SAN BERNARDINO JAMES F. PENMAN CITY ATTORNEY August 5, 2004 Mr. Frank A. Weiser, Esq. 3460 Wilshire Blvd., Suite 903 Los Angeles, CA 90010 RE: Transient Lodging Tax Appeal Hearings and Evidence Presented (2nd Letter) Dear Mr. Weiser: This letter is sent as a follow-up to my prior correspondence to you dated July 2, 2004 concerning the same above-referenced subject matter. As of the date of this letter, I have not heard from you. I know from past experience that you are a very busy sole practitioner, and for that reason I have waited to send this second letter. However, it appears that at least one of your clients is inquiring as to the status of his appeal hearing, and since you represent him, I have not taken nor returned his phone calls. Hence, this second letter to you. As you know, several transient lodging tax ("TL T") appeal hearings were held a couple of months ago wherein you submitted boxes of registration cards, etc. to demonstrate that the random sampling conducted by Progressive Solutions, Inc. was not an accurate measure of any moneys owed to the City of San Bernardino as a result of under or inaccurate reporting ofTLT by your clients. It was indicated at the hearings that the records would be reviewed by Progressive Solutions. It was further indicated that such review could not commence until sometime in May. The City Clerk was advised by Progressive Solutions after the TL T appeal hearings had been concluded that the fee for such an "audit" would be $250 per hour, with a 5 hour minimum requirement, payable before the audit commences. Subsequent costs would be billed as incurred. Further, Progressive Solutions advised the City Clerk that such costs would be borne by the applicant motels since they were requesting this audit service. This financial information was not known to either side at the time of the TL T appeal hearings. The boxes of registration cards, etc. are ready for you and/or your clients to pick up to be organized in such a fashion as you deem appropriate so that the financial information contained in them can be presented in a concise manner to the City Clerk to address the issue of the accuracy of the random sampling method employed by Progressive Solutions. If you and your clients wish to employ Progressive Solutions at the rates indicated, that 300 NORTH "0" STREET. SAN BERNARDINO. CA 92418-0001 . (909) 384-5355. FAX (909) 384-5238 u ~ u .~. ,___' _ ., is your decision. The Hearing Officer does not incur these costs since she is the initial decision- maker and the evidence is being offered by one of the parties. Again, there are no additional penalties or interest being incurred by your clients as a result of this situation, but I am sure that you are like me and would want this matter brought to a conclusion. You will recall that in one of the TLT appeal hearings it was conceded by Progressive Solutions that it had made a mistake and thus that hearing will be decided in your client's favor. As for the other appeal hearings involving the afore-mentioned boxes of evidence, the Hearing Officer is prepared to render her decisions by no later than the end ofthis month if she or I have not heard from you by August 19,2004, which is two weeks from the date of this letter. ~c: Rachel Clark, City Clerk ., "'0 ~_" ,'_' 'T__ _,_'- ,~, ~ " . ,. JAMES F. PENMAN CITY ATTORNEY November 19, 2004 Mr. Frank A. Weiser, Esq. 3460 Wilshire Blvd., Suite 903 Los Angeles, CA 90010 RE: Transient Lodging Tax Appeal Hearings and Evidence Presented (3,d Letter) Dear Mr. Weiser: This letter is sent as a final follow-up to my two prior letters to you dated July 2, 2004, and August 5, 2004. You will recall that both prior letters concerned the issue of the costs associated with ferreting through boxes of records which you produced at the several transient lodging tax ("TL T") appeal hearings in support of your position that the audits performed by Progressive Solutions were flawed, and thus the amount of taxes allegedly owed, as well as penalties and interest, were equally In error. The first letter solicited your thoughts on the best way to proceed concerning your burden of proof requirement vis-a-vis your production of records in boxes, rather than in a fashion which would be readily presentable to the hearing officer. The second letter stated the following: \ " "The boxes of registration cards, etc. are ready for you and/or your clients to pick up to be organized in such a fashion as you deem ap- propriate so that the financial information contained in them can be presented in a concise manner to the City Clerk to address the issue of the accuracy of the random sampling method employed by Pro- gressive Solutions. . . .the Hearing Officer is prepared to render her decisions by no later than the end of this month if she or I have not heard from you by August 19,2004, which is two weeks from the date of this letter." Neither this office nor the City Clerk's office ever received a written response from you or 300 NORTH "0" STREET. SAN BERNAROINO. CA 92418-0001 · (909) 384-5355' FAX (909) 384-5238 heard from you as a result of either letter. This office and the Hearing Officer have even waited an additional three months (from August 19), just in case you were on an extended vacation or involved in a multi-month court proceeding and could not respond in a timely fashion. Again, no response of any kind has been forthcoming. Please make arrangements to have the boxes of registration cards, etc. which are currently in the possession of the City Clerk's office picked up - you and your clients may need them in the future. The Hearing Officer will be issuing her decisions within two (2) weeks of the date of this letter. As you have been advised twice before, there are no additional penalties or interest being incurred by your clients as a result of this situation, but this matter needs to be brought to closure, even though the City has not received any response from you to its prior two letters. cc: RJchel Clark, City Clerk ~indy Buechter, Business Registration Supervisor