Hotels Concession Act 2000

Link to law: http://www.bermudalaws.bm/Laws/Annual%20Laws/2000/Acts/Hotels%20Concession%20Act%202000.pdf

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Hotels Concession Act 2000
HOTELS CONCESSION ACT 2000

1

BERMUDA
2000 : 28

HOTELS CONCESSION ACT 2000

[Date of Assent 9 August 2000]

[Operative Date 9 August 2000]

ARRANGEMENT OF SECTIONS

1 Short title
2 Interpretation
3 Application to Minister
4 Hotel concession order
5 Amendment or revocation of

order

6 Relief from customs duty
7 Payment of customs duty on

diversion
8 Offences
9 Penalties and forfeitures
10 Offences by corporations

WHEREAS it is expedient to encourage hotel development by
providing relief from customs duty and exemption from certain other
taxes, and by removing certain restrictions on companies holding
interests in land;

Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:

Short title
1 This Act may be cited as the Hotels Concession Act 2000.

HOTELS CONCESSION ACT 2000

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Interpretation
2 (1) In this Act—

"bedroom" means a bedroom intended to accommodate paying
guests;

"Collector" means the Collector of Customs;

"develop a hotel" means build a new hotel or substantially
redevelop a hotel;

"hotel" means—

(a) a hotel as defined in the Hotels (Licensing and Control)
Act 1969; and

(b) any other premises which the Minister is satisfied are or
will be used for at least six months in any year to
accommodate paying guests who are not ordinarily
resident in Bermuda;

"hotel concession order" means an order under section 4;

"hotel developer" means a person who intends to develop a hotel;

"Minister" means the Minister of Tourism;

"new hotel" means a hotel which was not open for business
immediately before the commencement of this Act;

"opening date" means—

(a) in relation to a new hotel, the date on which its initial
licence to operate granted under the Hotels (Licensing
and Control) Act 1969 comes into force;

(b) in any other case, the date on which the redevelopment
which is the subject of the application under section 3 is
complete in the opinion of the Minister;

"residential unit" means a residential unit forming part of a hotel
by virtue of paragraph (b) of the definition of hotel;

"substantial redevelopment", in relation to a hotel, means
development which adds significant new facilities or features
to the hotel (including, but not limited to, night clubs,
convention rooms, spas, pools and major changes to
landscaping) and which is estimated to cost at least—

(a) $15,000 multiplied by the number of hotel bedrooms, or

(b) $1 million,

HOTELS CONCESSION ACT 2000

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whichever is the greater.

(2) The Minister may, with the agreement of the Minister of
Finance, by order subject to the negative resolution procedure, amend
the definition of "substantial redevelopment" in subsection (1).

Application to Minister
3 (1) A hotel developer may apply in writing to the Minister for
the making of a hotel concession order.

(2) The application shall contain—

(a) full particulars of the proposed development;

(b) estimated costs of the proposed development;

(c) a map showing the existing or proposed location of the
hotel;

(d) plans and drawings of the proposed development;

(e) projected financial statements for five years; and

(f) such other information as the Minister may require.

Hotel concession order
4 (1) Where, having considered an application under section 3,
the Minister is satisfied that the hotel development is in the national
economic interest of Bermuda he may, with the written agreement of the
Minister of Finance, make an order under this section ("a hotel
concession order") in respect of the hotel.

(2) In determining whether the hotel development is in the
national economic interest of Bermuda, the Minister shall consider all
relevant circumstances, including in particular whether the hotel
development is likely—

(a) to benefit the tourism industry and the economy
generally;

(b) to create employment and entrepreneurial opportunities
for Bermudians; and

(c) to encourage local investment.

(3) A hotel concession order may make provision for any or all
of the following—

(a) full or partial relief from, or deferral of, customs duty
until a year after the hotel's opening date in respect of
any building materials, furnishings, fixtures and

HOTELS CONCESSION ACT 2000

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equipment which are necessary for the building,
furnishing and equipping of the hotel;

(b) full or partial exemption from, or deferral of, land tax for
a period not exceeding five years from the hotel's
opening date;

(c) full or partial exemption from, or deferral of, hotel
occupancy tax for a period not exceeding five years from
the hotel's opening date;

(d) partial exemption from, or deferral of, payroll tax for a
period not exceeding five years from the hotel's opening
date;

(e) full or partial relief from, or deferral of, customs duty in
respect of alcohol sold to, and consumed by, hotel guests
on the hotel premises, for a period not exceeding five
years from the hotel's opening date;

(f) a reduction or deferral of the licence fee payable under
section 83 of the Bermuda Immigration and Protection
Act 1956 (grant of licence authorizing restricted persons
to acquire land) in respect of the first disposition of each
residential unit;

(g) full or partial relief from, or deferral of, any statutory
charge payable in respect of a residential unit under the
Bermuda Immigration and Protection (Rental Charges)
Regulations 1985 for a period not exceeding five years
from the hotel's opening date;

(h) that, notwithstanding the provisions of section 78 of the
Bermuda Immigration and Protection Act 1956 and
paragraph 12 of the First Schedule to the Companies Act
1981, a company may lease a hotel or residential unit
for a period not exceeding 131 years with an option to
renew for a similar period.

(4) A hotel concession order may be made subject to such
terms and conditions as the Minister thinks fit, including in particular
terms and conditions relating to—

(a) the employment and training of Bermudians;

(b) the obtaining of planning permission under the
Development and Planning Act 1974.

HOTELS CONCESSION ACT 2000

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(5) The Minister need not give any reasons for not making a
hotel concession order in response to an application under section 3, or
for attaching terms and conditions to an order.

(6) The decision of the Minister to make a hotel concession
order, or to make an order subject to terms and conditions, or not to
make an order, is final for all purposes and is not subject to any appeal.

(7) For the purposes of this section—

"Bermudian" means a person who possesses Bermudian status
under the Bermuda Immigration and Protection Act 1956;

"customs duty" means the duty payable under the Customs
Tariff Act 1970;

"land tax" means the tax payable under the Land Valuation and
Tax Act 1967;

"hotel occupancy tax" has the meaning assigned by Part V of the
Miscellaneous Taxes Act 1976;

"payroll tax" has the meaning assigned by the Payroll Taxes Act
1995.

(8) A hotel concession order shall be made subject to the
affirmative resolution procedure.

Amendment or revocation of hotel concession order
5 (1) The Minister may amend or revoke a hotel concession
order—

(a) if there has been any breach of the terms and conditions
contained in the order;

(b) if any false declarations are made to the Collector in
respect of the goods to which customs duty relief
applies;

(c) if any goods which were imported subject to customs
duty relief by virtue of the order are used for purposes
which do not relate directly to the hotel (otherwise than
in accordance with section 7); or

(d) where any offence under this Act is committed.

(2) Before the Minister amends or revokes an order he shall—

(a) give the hotel developer notice in writing of the reasons
why he is minded to amend or revoke the order;

HOTELS CONCESSION ACT 2000

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(b) afford the hotel developer an opportunity to make
objection in writing within the period of 14 days after
receipt of the notice; and

(c) take any such objection into account;

and if the Minister, with the agreement of the Minister of Finance,
thereafter decides to amend or revoke the hotel concession order, he
shall serve an order on the hotel developer amending or revoking the
hotel concession order from such date as may be specified.

(3) An order served under this section—

(a) shall be final for all purposes and is not subject to any
appeal; and

(b) shall be subject to the negative resolution procedure.

Relief from customs duty
6 (1) This section and section 7 apply in relation to a hotel
concession order which makes provision for goods to be imported into
Bermuda subject to any relief from customs duty.

(2) Subject to this Act, relief may be made available by such
administrative methods and procedures as the Collector may establish.

(3) The hotel developer or any person in Bermuda who supplies
goods to him ("the supplier") may be a claimant for relief in respect of
those goods.

(4) A supplier shall make himself known to the Collector as
soon as practicable so that the requirements of this section may be
fulfilled in relation to him.

(5) For a period of six years after importing goods subject to
relief from customs duty by virtue of a hotel concession order, the hotel
developer and each supplier shall—

(a) maintain at his place of business in Bermuda such full
and proper records of the goods as the Collector may
from time to time require; and

(b) whenever so required by the Collector, within 24 hours
produce, for inspection by the Collector or any person
authorized by him for the purpose, those records or
such portion of them as the Collector may specify.

(6) Section 99(2) of the Revenue Act 1898 (seizure and
detention of records which may afford evidence of commission of offence)
shall apply to records produced under subsection (5)(b) as it applies to
records produced under section 99(1) of that Act.

HOTELS CONCESSION ACT 2000

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(7) The Collector may give to any person to whom subsection
(5) applies such reasonable directions as the Collector deems necessary
for the purpose of ensuring that relief is made available in accordance
with the hotel concession order and not otherwise; and a person to whom
such a direction is given shall comply with it.

(8) For a period of six years after importing any goods subject
to relief from customs duty by virtue of a hotel concession order, a hotel
developer shall, whenever so required by the Collector, permit the
Collector or any person authorized by him for the purpose to inspect the
hotel or the goods to which the hotel concession order applies.

Payment of customs duty on diversion
7 (1) A hotel developer who has imported goods subject to relief
from customs duty may make an application to the Collector if he
wishes, within five years of their importation, to use or dispose of the
goods otherwise than in accordance with the hotel concession order.

(2) The Collector may, upon payment of the outstanding duty,
approve such use or disposal.

(3) Subsections (3) to (6) of section 89 of the Revenue Act 1898
(penalties for improper use of goods) shall apply, with the necessary
modifications, in relation to the use or disposal of goods in breach of the
hotel concession order without the authorization of the Collector under
this section, as they apply in relation to the use or disposal of restricted
goods in contravention of that section.

(4) For the purposes of this section—

(a) "duty" includes any surcharge;

(b) "outstanding duty" means any amount of duty payable
in respect of goods less any amount already paid;

(c) where the goods in question are goods in respect of
which duty is charged on the basis of their value, the
value of the goods shall be taken to be that value which
the Collector places on goods which in his opinion are
goods of a description, age and condition of the goods in
question at the time of the change of use or disposal;

(d) the rate of duty to be taken for the purposes of
calculation of outstanding duty is the rate in force at the
time of the change of use or disposal.

HOTELS CONCESSION ACT 2000

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Offences
8 (1) A person is guilty of an offence if he fails without reasonable
excuse (the proof of which is upon him) to comply with a requirement or
direction made of or given to him under this Act by the Collector.

(2) A person is guilty of an offence if—

(a) in or in relation to an application under section 3 he
makes any statement, or otherwise supplies to the
Minister or the Collector any information, which that
person knows to be false or does not believe to be true;
or

(b) he fails, without reasonable excuse (the proof of which is
upon him), to disclose to the Minister or the Collector
any information which that person knows or believes, or
ought reasonably to know or believe, that he is expected
to supply pursuant to a requirement made of him under
this Act.

(3) A person is guilty of an offence if he fails to comply with a
duty imposed upon him by or under section 6(5) or (8).

Penalties and forfeitures
9 (1) A person who is guilty of an offence under section 8(1) is li-
able on summary conviction to a fine of $1,200.

(2) A person who is guilty of an offence under section 8(2) or (3)
is liable on summary conviction—

(a) to a fine of $6,000; or

(b) where duty is lost to the Revenue as a result of the
offence, to a fine of $6,000 or, at the election of the
Collector, five times the amount of the duty lost to the
Revenue by reason of the commission of the offence.

(3) For the avoidance of doubt, it is hereby declared that the
provisions of sections 110, 111, 111A, 112, 114 and 115 of the Revenue
Act 1898 (recovery of penalties and forfeitures) apply with the necessary
modifications in relation to penalties and forfeitures under this section as
those provisions apply in relation to penalties and forfeitures under that
Act.

(4) Subsection (3) of this section is without prejudice to the
application in relation to penalties and forfeitures under this section of
any other provision of the Revenue Act 1898 that is also applicable in
relation to those penalties and forfeitures according to the tenor of that
provision.

HOTELS CONCESSION ACT 2000

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Offences by corporations
10 Where an individual who has committed an offence against this
Act was at the time he committed the offence a director, manager, secre-
tary or other similar functionary of a body corporate and committed the
offence in that capacity, then the body corporate also is guilty of the of-
fence and liable to be proceeded against and punished accordingly.