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



"Department" means the department of
taxation.



"Director" means the director of
taxation.



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



"Gross rental" or "gross rental
proceeds" means the gross receipts, cash or accrued, of the taxpayer
received as compensation for the furnishing of transient accommodations and the
value proceeding or accruing from the furnishing of such accommodations without
any deductions on account of the cost of property or services sold, the cost of
materials used, labor cost, taxes, royalties, interest, discounts, or any other
expenses whatsoever.  Every taxpayer shall be presumed to be dealing on a cash
basis unless the taxpayer proves to the satisfaction of the department of
taxation that the taxpayer is dealing on an accrual basis and the taxpayer's
books are so kept, or unless the taxpayer employs or is required to employ the
accrual basis for the purposes of the tax imposed by chapter 237 for any
taxable year in which event the taxpayer shall report the taxpayer's gross
income for the purposes of this chapter on the accrual basis for the same
period.



The words "gross rental" or
"gross rental proceeds" shall not be construed to include the amounts
of taxes imposed by chapter 237 or this chapter on operators of transient
accommodations and passed on, collected, and received from the consumer as part
of the receipts received as compensation for the furnishing of transient
accommodations.  Where transient accommodations are furnished through
arrangements made by a travel agency or tour packager at noncommissionable
negotiated contract rates and the gross income is divided between the operator
of transient accommodations on the one hand and the travel agency or tour
packager on the other hand, gross rental or gross rental proceeds to the
operator means only the respective portion allocated or distributed to the
operator, and no more.  For purposes of this definition, where the operator
maintains a schedule of rates for identifiable groups of individuals, such as
kamaainas, upon which the accommodations are leased, let, or rented, gross
rental or gross rental proceeds means the receipts collected and received based
upon 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 sleeping
or housekeeping accommodations in hotels, apartment hotels, motels, condominium
property regimes or apartments defined in chapter 514A or units defined in
chapter 514B, cooperative apartments, rooming houses, or other places in which
lodgings are regularly furnished to transients for a consideration, without
transfer of the title of such property.



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



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



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



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



"Resort time share vacation interest"
means any interest in a resort time share vacation unit or plan which entitles
the owner thereof to the use, occupancy, or possession of a resort time share
vacation 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 among
various persons for less than a sixty-day period in any year, for any
occupant.  The term resort time share vacation plan includes both resort time
share vacation ownership plans and resort time share vacation use plans, as
follows:



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



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



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



"Transient accommodations" means the
furnishing of a room, apartment, suite, or the like which is customarily
occupied by a transient for less than one hundred eighty consecutive days for
each letting by a hotel, apartment hotel, motel, condominium property regime or
apartment 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 are
regularly 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, c
28, §43.