§237D-1  Definitions.  Whenever used inthis chapter, unless the context otherwise requires:

"Department" means the department oftaxation.

"Director" means the director oftaxation.

"Fair market rental value" means anamount equal to one-half the gross daily maintenance fees that are paid by theowner, are attributable to the time share unit, and include maintenance costs,operational costs, insurance, repair costs, administrative costs, taxes, otherthan transient accommodations taxes, and other costs including paymentsrequired for reserves or sinking funds.  The taxpayer shall use gross dailymaintenance fees, unless the taxpayer proves or the director determines thatthe gross daily maintenance fees do not fairly represent fair market rentalvalue taking into account comparable transient accommodation rentals or otherappraisal methods.

"Gross rental" or "gross rentalproceeds" means the gross receipts, cash or accrued, of the taxpayerreceived as compensation for the furnishing of transient accommodations and thevalue proceeding or accruing from the furnishing of such accommodations withoutany deductions on account of the cost of property or services sold, the cost ofmaterials used, labor cost, taxes, royalties, interest, discounts, or any otherexpenses whatsoever.  Every taxpayer shall be presumed to be dealing on a cashbasis unless the taxpayer proves to the satisfaction of the department oftaxation that the taxpayer is dealing on an accrual basis and the taxpayer'sbooks are so kept, or unless the taxpayer employs or is required to employ theaccrual basis for the purposes of the tax imposed by chapter 237 for anytaxable year in which event the taxpayer shall report the taxpayer's grossincome for the purposes of this chapter on the accrual basis for the sameperiod.

The words "gross rental" or"gross rental proceeds" shall not be construed to include the amountsof taxes imposed by chapter 237 or this chapter on operators of transientaccommodations and passed on, collected, and received from the consumer as partof the receipts received as compensation for the furnishing of transientaccommodations.  Where transient accommodations are furnished througharrangements made by a travel agency or tour packager at noncommissionablenegotiated contract rates and the gross income is divided between the operatorof transient accommodations on the one hand and the travel agency or tourpackager on the other hand, gross rental or gross rental proceeds to theoperator means only the respective portion allocated or distributed to theoperator, and no more.  For purposes of this definition, where the operatormaintains a schedule of rates for identifiable groups of individuals, such askamaainas, upon which the accommodations are leased, let, or rented, grossrental or gross rental proceeds means the receipts collected and received basedupon the scheduled rates and recorded as receipts in its books and records.

"Lease", "let", or"rental" means the leasing or renting of living quarters or sleepingor housekeeping accommodations in hotels, apartment hotels, motels, condominiumproperty regimes or apartments defined in chapter 514A or units defined inchapter 514B, cooperative apartments, rooming houses, or other places in whichlodgings are regularly furnished to transients for a consideration, withouttransfer of the title of such property.

"Occupant" means an owner of a resorttime share vacation plan or other person occupying the resort time sharevacation unit.

"Operator" means any person operatinga transient accommodation, whether as owner or proprietor or as lessee,sublessee, mortgagee in possession, licensee, or otherwise, or engaging orcontinuing in any service business which involves the actual furnishing oftransient accommodation.

"Owner" means any person who owns aresort time share vacation interest; provided that to the extent and for thosepurposes provided in an agreement of sale, the vendee under the agreement ofsale shall be considered the owner of the resort time share vacation interest.

"Plan manager" means a person whoundertakes the duties, responsibilities, and obligations of managing a resorttime share vacation plan or is required to act for a resort time share vacationplan under this chapter.

"Resort time share vacation interest"means any interest in a resort time share vacation unit or plan which entitlesthe owner thereof to the use, occupancy, or possession of a resort time sharevacation unit on a periodically recurring basis.

"Resort time share vacation plan"means any plan or program subject to chapter 514E in which the use, occupancy,or possession of one or more resort time share vacation units circulates amongvarious persons for less than a sixty-day period in any year, for anyoccupant.  The term resort time share vacation plan includes both resort timeshare vacation ownership plans and resort time share vacation use plans, asfollows:

(1)  "Resort time share vacation ownershipplan" means any arrangement whether by tenancy in common, sale, deed, orby other means, whereby the purchaser receives an ownership interest and theright to use the property for a specific or discernible period by temporaldivision.

(2)  "Resort time share vacation use plan"means any arrangement, excluding normal hotel operations, whether by membershipagreement, lease, rental agreement, license, use agreement, security, or othermeans, whereby the purchaser receives a right to use accommodations orfacilities, or both, in a resort time share vacation unit for a specific ordiscernible period by temporal division, but does not receive an ownershipinterest.

"Resort time share vacation unit"means the actual and promised accommodations, and related facilities, which arethe subject of a resort time share vacation plan.

"Transient accommodations" means thefurnishing of a room, apartment, suite, or the like which is customarilyoccupied by a transient for less than one hundred eighty consecutive days foreach letting by a hotel, apartment hotel, motel, condominium property regime orapartment as defined in chapter 514A or unit as defined in chapter 514B,cooperative apartment, or rooming house that provides living quarters,sleeping, or housekeeping accommodations, or other place in which lodgings areregularly furnished to transients for consideration. [L 1986, c 340, pt of §1;am L 1988, c 65, §2 and c 241, §2; am L 1990, c 185, §3; am L 1998, c 156, §15;am L 2004, c 164, §§8, 35(5); am L 2005, c 93, §7; am L 2008, c 28, §5]

 

Note

 

  The 2008 amendment is retroactive to July 1, 2006.  L 2008, c28, §43.