Litigation Ongoing against Online Travel Companies for Hotel Occupancy Taxes

Download SPECIAL REPORT No. 230: Litigation Ongoing against Online Travel Companies for Hotel Occupancy Taxes (PDF)

Key Findings:

• 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 taxA tax is a mandatory payment or charge collected by local, state, and national governments from individuals or businesses to cover the costs of general government services, goods, and activities. 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 taxA sales tax is levied on retail sales of goods and services and, ideally, should apply to all final consumption with few exemptions. Many governments exempt goods like groceries; base broadening, such as including groceries, could keep rates lower. A sales tax should exempt business-to-business transactions which, when taxed, cause tax pyramiding. 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.[1] 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.[2] 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.[3] 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.[4] 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.[5]
• 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.[6] 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.[7]

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.

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