Pennsylvania Code › Title 61 - REVENUE › Part I - Department of Revenue › Subpart B - General Fund Revenues › Article II - Sales and Use Tax › Chapter 38 - HOTEL OCCUPANCY TAX › Section 38.3 - Definitions

Current through Register Vol. 54, No. 28, July 13, 2024
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).
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).