Illinois continues to struggle with its budget. The state’s most recent stopgap budget expired on December 31, 2016. To perhaps break up the political logjam, Illinois senators of both political parties have begun...
- Litigation Ongoing against Online Travel Companies for Ho...
Litigation Ongoing against Online Travel Companies for Hotel Occupancy Taxes
- State and local officials in 34 states and the District of Columbia have filed lawsuits against online travel companies (OTCs), seeking to apply hotel occupancy taxes to OTC services.
- OTCs facilitate booking transactions between consumers and hotels, and hotel tax is imposed on the amount received by the hotel from the consumer. The lawsuits seek to also apply hotel tax on the amount kept by the OTC as a service fee.
- Courts in 23 states have concluded that OTC services are not subject to hotel occupancy taxes, including three federal courts of appeal, while courts in six states have ruled otherwise. Most states exempt services from their sales tax but seek to subject OTC services to the higher hotel occupancy tax.
- The OTC litigation trend also raises concerns about administrative re-casting of old tax statutes to new situations not meant to be included, about the role of private contingency-fee lawyers in pursuing government tax claims, and whether ambiguous tax statutes should be resolved in favor of government or taxpayers.
- Congressional pre-emption of a category of state taxation is justified if states are imposing a discriminatory and excessive burden on interstate commerce.
Over the past decade, state and local governments in 34 states, the District of Columbia, and Puerto Rico have filed 92 lawsuits against online travel companies (OTCs) like Expedia, Hotels.com, Orbitz, Priceline, and Travelocity.
Travelers use these OTC websites to search for, compare, and book hotel rooms (among other things). When booking, travelers pay one unified charge to the OTC, most of which is forwarded to the hotel as payment for the accommodation, but some of which is kept by the OTC as a facilitation or service charge. Hotel taxes (sometimes called transient occupancy taxes or accommodation taxes) are remitted on the amount paid by the consumer and forwarded to the hotel by the OTC. The lawsuits generally center on whether hotel tax should also be collected on the amount paid by the consumer and not forwarded to the hotel but instead retained by the OTC as a facilitation or service charge (sometimes called a commission, markup, or difference between retail and wholesale rates).
For example, assume the hotel and the OTC agree to a contract whereby the hotel will receive $70 a night for any OTC-facilitated rentals of the normally $100-a-night room. Assume the hotel tax rate is 15 percent. (Hotels agree to such contracts because they reach a market through the OTC that they would not otherwise reach. OTCs do not own rooms, operate hotels, or control inventory themselves.) If a traveler books the room at $90-a-night inclusive of taxes and fees, $70 is forwarded to the hotel, $10.50 (15 percent of $70) is forwarded to the hotel to pay hotel taxes to the government, and the remaining $9.50 is retained by the OTC as its service fee on the transaction. A typical lawsuit argues that hotel tax should also be paid on this amount. Put another way, the question is whether hotel occupancy taxes should be calculated based on (1) just the amount received by the hotel from the consumer via the OTC, or (2) the amount the consumer pays when arranging the hotel stay, regardless of to whom it is paid.
Of the 92 lawsuits, 49 have reached a decision on the merits:
- Thirty-nine cases in 23 states have concluded that OTC services are not taxable under hotel occupancy taxes. Appeals are pending in five of these cases in three states (the Phoenix, consolidated California, and Denver cases). The courts have widely rejected claims that OTCs take title to hotel rooms, that OTCs act as wholesalers, that OTCs collect taxes but refuse to remit them, or that hotel occupancy statutes should be administratively or judicially expanded to include OTC services to prevent revenue losses. Key recent cases include rulings by three federal circuit courts of appeals (the Fourth, Sixth, and Eleventh) (finding that OTC services are exempt from hotel taxes), the Florida Supreme Court in 2015 (same), the Hawaii Supreme Court in 2015 (finding OTC services are exempt from hotel taxes but subject to the state’s general tax on services), and the Montana Supreme Court in 2015 (same). Additionally, the North Carolina Court of Appeals reached a similar decision in the Wake County case that the state supreme court declined to review.
- Ten cases in six states and the District of Columbia have concluded that OTC services are taxable under hotel occupancy taxes. In all but three of these cases, the dispositive factor was that the statute clearly imposed hotel tax on amounts paid by the consumer, whether to the hotel or to others. The remaining three cases turned on the court’s conclusion that OTCs control hotels; in one of these cases (San Antonio), an appeal is likely. These cases include decisions by the highest courts of Georgia, South Carolina, Wyoming, and the District of Columbia, although no federal circuit court has concluded that OTC services are subject to hotel taxes.
- No merits decision has yet occurred in 14 cases in 12 states.
- The remaining cases were voluntarily dismissed, dismissed for procedural errors, or settled.
Aside from the question of whether hotel taxes should apply (1) only to amounts received by the hotel from the consumer or (2) apply also to other travel-related services, other questions have been raised in the litigation:
- Should hotel occupancy statutes be “updated” to expand their scope to OTC activity by legislative action, or by administrative re-interpretation? Generally courts have not looked kindly on administrative re-interpretation, concluding that any revision to expand the scope of hotel occupancy taxes to OTC services should be done legislatively.
- Is it wise for local governments turn over litigation efforts to private contingency-fee lawyers, who promise to pursue the lawsuits at no cost to the city? Most of these lawsuits have been undertaken by private contingency-fee lawyers, promising huge windfalls to the city by collecting years of retroactive taxes with no down-side risk. This is not necessarily true: Palm Beach County ended up paying $1.66 million in attorneys’ fees to OTCs after their case was determined to be meritless.
- Is it fair for services produced by residents to be exempt from sales tax, but services produced by (generally out-of-state) OTCs to be taxed, often at a rate several times higher than the general sales tax? Hotel occupancy taxes in the United States average 14 percent, over twice the sales tax on other goods and services. While states like Hawaii, New Mexico, South Dakota, and Wyoming generally tax all consumer services, most other states exempt them. If state or city tax policy targets out-of-state actors like OTCs for a discriminatory and excessive tax, this may run afoul of the federal Commerce Clause guaranteeing free flow of interstate commerce. Additionally, if online travel services are to be taxed, why should the jurisdiction with the hotel get the revenue, as opposed to the jurisdiction of the traveler?
- If hotel tax should be applied to all amounts spent by the consumer on the transaction, does that apply to just online travel companies or also include amounts paid to travel agents, personal assistants, tour guides, or conference booking coordinators? Does it include room service charges, valet charges, and resort fees, which are usually exempt from hotel occupancy tax? One proposed statute revision from the Multistate Tax Commission would apply hotel taxes to any “person or entity . . . that facilitates the sale of an accommodation,” arguably expanding hotel taxes to every dollar spent in the travel industry. Stretching old statutes to new situations not originally meant to be covered can lead to unintended consequences.
- If a tax statute is ambiguous as to its application, should that ambiguity be resolved in favor of the taxing government or in favor of the taxpayer? While a few courts have resolved ambiguity in favor of the government due to the importance of maintaining tax revenue, the vast majority of courts have ruled that taxpayers should get the benefit of the doubt of an ambiguous statute.
In four out of five cases brought by cities against OTCs, the only people that win are the lawyers. Cities get no additional revenue and send a signal that they seek aggressive and unjustified taxation of one set of businesses that happens to be primarily non-resident. The costs imposed in filing and defending these lawsuits are also passed along to taxpayers and travelers. While it is important that state and local governments collect revenue to provide services for their constituents, that need cannot justify discriminatorily taxing non-residents, or taxing only services primarily used by nonresidents while everything else is exempt.
When cities and states act in such a way, investment and economic growth can be chilled as other businesses take note. Such a burden in one municipality is at best a bother. But when multiplied across the country, it can quickly become death by a thousand cuts. One option for addressing this problem is a federal bill or amendment that is designed to narrowly bar discriminatory taxation of online travel company services.
If enacted, the proposal should neither provide online travel companies with preferential tax treatment nor would it be a blanket tax exemption of online travel companies or their services. Instead, the proposal should maintain settled practices in hotel occupancy taxation: hotel occupancy taxes will be calculated by the amounts hotels receive in payment from the hotel occupant. If written in such a way, that tax revenue will still be collected, so it calm fears since it would not endanger billions of dollars currently collected in hotel taxes by state and local governments. Further, states should retain the option of taxing online travel booking services, so long as they tax services generally or at least do not discriminate by only taxing online travel booking services.
Such a federal proposal is in line with other federal actions that prevent parochial state government actions from damaging interstate commerce. The people of the United States adopted the Constitution in large part because their existing national government had no power to stop states from imposing trade barriers with each other, to the detriment of the national economy. Congressional actions under the Commerce Clause to remove or prevent discriminatory state and local burdens on interstate activity are common and have previously been upheld.
It is in the nation’s interest and the interest of each state and municipality to have a vibrant and dynamic travel industry. Unpredictable and unaccountable taxes are a hindrance to that.
 This “merchant model” contrasts with the historical “agent model,” whereby the hotel separately pays compensation to its reservations agent or to a travel agent.
 This is the amount at issue when some claim that OTCs are “collecting” taxes but not remitting them. The claim begs the argument over whether the amount kept by the OTCs is subject to hotel tax or not. The vast majority of courts have rejected this claim as specious, although courts in Georgia and South Carolina found it persuasive. Some policymakers have focused their efforts on increasing consumer transparency regarding amounts paid in taxes.
 See, e.g., Alachua County v. Expedia, 175 So.3d 730 (Fla. 2015); Leon County v. Expedia, 128 So.3d 81 (Fla. Dist. Ct. App. 2013), rev. denied 2015 WL 7889296 (Fla. Dec. 3, 2015); Expedia v. Broward County, 135 So.3d. 415 (Fla. Dist. Ct. App. 2014), rev. denied 2015 WL 8477751 (Fla. Dec. 9, 2015); In the Matter of Travelocity v. Dir. of Taxation, 346 P.3d 157 (Haw. 2015); Montana Dept. of Revenue v. Priceline, 354 P.3d 631 (Mont. 2015); Expedia v. City and County of Denver, 2014 WL 2980979 (Colo. App. Jul. 3, 2014), appeal granted 2015 WL 5215961 (Colo. Sep. 8, 2015); City of Fargo v. Expedia, No. 09-2013-CV-00620 (N.D. Cass Co. Cir. Ct. Aug. 8, 2015); In re Transient Occupancy Tax Cases (City of San Diego v. Hotels.com), 225 Cal.App.4th 56 (2014), review granted 329 P.3d 192 (Cal. 2014); Wake County v. Hotels.com, 762 S.E.2d 477 (N.C. App. 2014), appeal denied 762 S.E.2d 608 (N.C. 2014); Dare County (NC) v. Hotels.com, Dare County Superior Court No. 07 CVS 56 (consolidated into Wake County); Buncombe County v. Hotels.com, Buncombe County Superior Court No. 07 CVS 585 (consolidated into Wake County); Mecklenburg County v. Hotels.com, General Ct. of Justice Superior Division No. 08 CVS 741 (consolidated into Wake County); City of Phoenix v. Expedia, No. TX2014-00471 (Ariz. Tax Ct. May 28, 2014) (appeal pending); Orbitz v. Wisconsin Dept. of Revenue, 2014 WL 2573222 (Wis. Tax. App. May 14, 2014); City of Rome (GA) v. Hotels.com, 549 Fed. Appx. 896 (11th Cir. 2013); City of Branson (MO) v. Hotels.com, 396 S.W.3d 378 (Mo. Ct. App. 2013); City of Los Angeles v. Hotels.com, No. BC326693 (Cal. Super. Ct. Apr. 18, 2013) (appeal pending); Expedia v. City and County of San Francisco, No. CGC 13 535278 (Cal. Sup. Ct. Feb. 6, 2013) (appeal pending); City of Birmingham v. Orbitz, 93 So.3d 932 (Ala. 2012); City of Bowling Green (KY) v. Hotels.com, 357 S.W.3d 531 (Ky. App. 2011), review denied (Ky. Feb. 17, 2012); City of Duluth v. Expedia, Minnesota District Court No. 69DU-CV-11-1217; City of Columbus (OH) v. Hotels.com, 693 F.3d 642 (6th Cir. 2012); City of Philadelphia v. City of Philadelphia Tax Review Board, 37 A.3d 15 (Pa. Cmmw. Ct. 2012); City of Goodlettesville (TN) v. Priceline, No. 3:05-cv-00561 (M.D. Tenn. Feb. 21, 2012); City of Santa Monica v. Expedia, 2012 WL 5360882 (Cal. App. 2nd Nov. 1, 2012), rev. denied Jan. 23, 2013; Expedia v. City of Anaheim, 2012 WL 5360907 (Cal. App. 2nd Nov. 1, 2012), rev. denied Jan. 23, 2013; Orange County (FL) v. Expedia, 2011 WL 7657975 (Fla. Cir. Ct. Jan. 20, 2011); County of Genesee v. Hotels.com, Circuit Court for the County of Ingham No. 09-265-CZ (settled 2011; all parties stipulated OTCs not subject to hotel taxes); St. Louis County v. Prestige Travel, 344 S.W.3d 708 (Mo. 2011); Expedia v. City of New York Dept of Finance, No. 6174 650761/09 (N.Y. Ct. App. Nov. 29, 2011); State (of Oklahoma) v. Priceline, No. CJ-2010-8952 (Dist. Okla. Cty. Mar. 22, 2011); City of Houston v. Hotels.com, 357 S.W.3d 706 (Tex. App. 14th Dist. 2011); Marshall v. Priceline, 2010 WL 1068197 (De. Sup. Ct. New Castle Co. Mar. 8, 2010); City of Gallup v. Hotels.com, No. CV 07-644 JC/RLP (D.N.M. Mar. 1, 2010); Louisville/Jefferson County Metro Gov't v. Hotels.com, 590 F.3d 381 (6th Cir. 2009); Pitt County (NC) v. Hotels.com, 553 F.3d 308 (4th Cir. 2009); City of Madison v. Expedia, No. 2007-cv-4488 (Wis. Dane Co. Cir. Ct. Jul. 24, 2008); City of Orange (TX) v. Hotels.com, 2007 WL 2787985 (E.D. Tex. Sep. 21, 2007); City of Findlay v. Hotels.com, 441 F.Supp.2d 855 (N.D. Ohio 2006).
 See, e.g., City of San Antonio v. Hotels.com, 2011 WL 10970566 (W.D. Tex. Apr. 4, 2013); Expedia v. District of Columbia, 120 A.3d 623 (D.C. 2015); Travelocity v. Wyoming Dept. of Revenue, 329 P.3d 131 (Wyo. 2014); City of Chicago v. Hotels.com, 2013 WL 3185061 (Il. Cir. Ct. Cook Cnty. No. 2005-L-051003, Jun. 21, 2013); City of Atlanta v. Hotels.com, 710 S.E.2d 766 (Ga. 2011); Village of Rosemont (IL) v. Priceline, 2011 WL 4913262, No. 09-C-4438 (E.D. Ill. Oct. 14, 2011); Mayor & City Council of Baltimore v. Priceline, 2011 WL 9961251 (D. Md. Aug. 2, 2011); Travelscape v. South Carolina Dept. of Revenue, 705 S.E.2d 28 (S.C. 2011); Expedia v. City of Columbus (GA), 681 S.E.2d 122 (Ga. 2009); City of Charleston v. Hotels.com, 520 F.Supp.2d 757 (D.S.C. Nov. 5, 2007), reconsideration denied, 586 F.Supp.2d 538 (D.S.C. 2008).
 See, e.g., Pine Bluff v. Hotels.com, Supreme Court of Arkansas No. CV-13-342; Town of Breckenridge v. Colorado Travel Co., District Court, Summit County, No. 2011CV420; City of Bedford Park v. Expedia, No. 1:13-CV-02586 (D.N.D.Ill.); Orbitz v. Indiana Dept. of Revenue, Indiana Tax Court No. 49T10-0903-TA-10; Kentucky Dept. of Revenue v. Expedia, Franklin Circuit Court, No. 13-CI-912; Travelocity v. Controller (MD), Maryland Tax Court; State of Mississippi v. Priceline, Chancery Court, Hinds County No. G-2011-002211; State of New Hampshire v. Priceline, Merrimack Superior Court No. 217-2013-CV-00613; Nassau County v. Hotels.com, 971 N.Y.S.2d 664 (2013), class action denied 120 N.Y.A.D. 2 Dept. (2014); Expedia v. City of Portland (Oregon), Cir. Ct. Multnomah County No. 1202-02223; Volusia County v. Expedia, Circuit Court, 7th Judicial Dist. No. 2011-10834-CIDL; Expedia v. Miami-Dade County, 2nd Jud. Cir. Nos. 09CA4977, 09CA4978, 09CA4979; Expedia v. Osceola, Florida, 2nd Jud. Cir. Nos. 2011 CA 000206, 000196, 000202; County of Lawrence (PA) v. Hotels.com, No. 2541 (Pa. Cmwlth. Ct. Jun. 6, 2011).
 As one example, San Francisco officials demanded that OTCs prepay $73 million of disputed taxes before permitting them to protest the assessment. Such “pay-to-play” practices are a deterrent to judicial resolution of disputed issues. OTCs have tens of millions of dollars tied up in reserve funds to pay litigation costs and any potential judgments. See, e.g., Neil Weinberg and Patrick G. Lee, “Expedia Faces Claims for At Least $800 Million in Hotel Taxes,” Seattle Times (Feb. 5, 2015), http://www.seattletimes.com/business/expedia-faces-claims-for-at-least-800-million-in-hotel-taxes/.
 Examples include Public L. 86-272, 73 Stat. 555 (codified at 15 U.S.C. § 381 et seq.) (preempting state and local income taxes on a business if the business’s in-state activity is limited to soliciting sales of tangible personal property, with orders accepted outside the state and goods shipped into the state); 4 U.S.C. § 111 (preempting discriminatory state taxation of federal employees); 4 U.S.C. § 113 (preempting state taxation of nonresident members of Congress); 4 U.S.C. § 114 (preempting discriminatory state taxation of nonresident pensions); 7 U.S.C. § 2013 (preempting state taxation of food stamps); 12 U.S.C. § 531 (preempting state taxation of Federal Reserve banks, other than real estate taxes); 15 U.S.C. § 391 (preempting discriminatory state taxes on electricity generation or transmission);31 U.S.C. § 3124 (preempting state taxation of federal debt obligations); 43 U.S.C. § 1333 (2)(A) (preempting state taxation of the outer continental shelf); 45 U.S.C. § 101 (preempting state income taxation of nonresident water carrier employees); 45 U.S.C. § 501 (preempting state income taxation of nonresident employees of interstate railroads and motor carriers and Amtrak ticket sales); 45 U.S.C. § 801 et seq. (preempting discriminatory state taxation of interstate railroads); 47 U.S.C. § 151 (preempting state taxation of Internet access, aside from grandfathered taxes); 47 U.S.C. § 152 (preempting local but not state taxation of satellite telecommunications services); 49 U.S.C. § 101 (preempting state taxation of interstate bus and motor carrier transportation tickets); 49 U.S.C. § 1513 et seq. (preempting state taxation of interstate air carriers and air transportation tickets); 49 U.S.C. § 40116(b) (preempting state taxation of air passengers); 49 U.S.C. § 40116(c) (preempting state taxation of flights unless they take off or land in the state); 49 U.S.C. § 40101 (preempting state income taxation of nonresident airline employees); 50 U.S.C. § 574 (preempting state taxation of nonresident members of the military stationed temporarily in the state).
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