OAR 150-320-0041: Liability for Unpaid State Lodging Taxes

(1) For purposes of this rule, “transient lodging tax collector” has the meaning given under ORS 320.300 and includes, but is not limited to, an officer, member, or employee of the transient lodging tax collector that provides the sale, service, or furnishing of transient lodging, if, among other duties, that individual has: (a) Authority to see that the state lodging taxes are paid when due; (b) Authority to prefer one creditor over another; (c) Authority to hire and dismiss employees; (d) Authority to set employees’ working conditions and schedules; (e) Authority to sign or co-sign checks; (f) Authority to compute and sign state lodging tax returns; (g) Authority to make fiscal decisions for the business; or (h) Authority to incur debt on behalf of the business. (2) It is the duty of a transient lodging tax collector to hold in trust any amount of state lodging tax collected from the sale, service, or furnishing of transient lodging and to assume custodial liability for amounts to be paid to the department. Any transient lodging tax collector who fails to pay the state lodging tax when due is subject to penalties, as provided by law, as any other taxpayer who fails to file a return or pay a tax when due. (3) If a transient lodging tax collector fails to file returns or to pay any collected tax when due, any or all officers, members, and employees may be held personally responsible, as provided in this rule, for the returns and payments together with any interest and penalties, that are due. (4) To be held personally liable for unpaid states lodging tax, a person must be a transient lodging tax collector. In addition, the person must be in a position to pay the state lodging tax or direct the payment of the state lodging tax at the time the duty arises to collect or pay over the state lodging taxes. The person may be held personally liable if the individual was, or should have been aware, that the state lodging taxes were not paid to the department. A transient lodging tax collector cannot avoid personal liability by delegating their responsibilities to another. (5) The following factors do not preclude a finding that an individual is liable for the payment of state lodging taxes: (a) Lack of willfulness in failing to pay over the required state lodging tax; (b) The individual’s receipt of remuneration; (c) Maintenance of full-time employment elsewhere; (d) Another individual is also liable for the same state lodging taxes; (e) A corporate bylaw or partnership agreement position description to the contrary; (f) Absence of signatory authority on a business bank account; (g) Absence of bookkeeping or recordkeeping duties; (h) Absence of authority to hire, fire, and to set working conditions and schedules; or (i) Delegation to another person any functions indicating liability.