Town of Breckenridge v. Egencia, LLC

2018 COA 8, 442 P.3d 969

• Court: Colorado Court of Appeals
• Decided: January 25, 2018
• Docket: 16CA1901
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY January 25, 2018

2018COA8

No. 16CA1901, Town of Breckenridge v. Egencia, LLC — Taxation — Municipalities — Home Rule Cities — Accommodation Tax

A division of the court of appeals concludes that online travel

companies are not required to remit to the Town of Breckenridge

accommodation taxes because they are not lessors or renters of

hotel rooms and therefore have no possessory interest in those

rooms, for purposes of Breckenridge’s hotel accommodation tax

ordinance. In its analysis, the division distinguishes Breckenridge’s

accommodation tax from Denver’s lodging tax, which was imposed

on the online travel companies in City & County of Denver v.

Expedia, Inc., 2017 CO 32.

The division also considers and rejects Breckenridge’s

contentions that the district court erred in applying the summary judgment standard, that its sales tax claim was improperly

dismissed for lack of subject matter jurisdiction, that its motion for

class action certification should have been granted because

common questions predominated the class, and that the district

court erred in dismissing Breckenridge’s common law claims.

Accordingly, the division affirms the holding of the district

court. COLORADO COURT OF APPEALS 2018COA8

Court of Appeals No. 16CA1901 Summit County District Court No. 11CV420 Honorable Karen A. Romeo, Judge

Town of Breckenridge, Colorado,

Plaintiff-Appellant,

v.

Egencia, LLC; Expedia, Inc.; Hotels.com, L.P.; Hotels.com, GP, LLC; Hotwire, Inc.; Internetwork Publishing Corporation, d/b/a Lodging.com; Lowestfare.com, Inc.; Orbitz, Inc.; Orbitz, LLC; Priceline.com, Incorporated; Site59.com, LLC; TravelNow.com, LP; Travelport, Inc., f/k/a Cendant Travel Distribution Services Group, Inc.; Travelscape, LLC; Travelweb, LLC; Trip Network, Inc., d/b/a Cheaptickets.com,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division III Opinion by JUDGE GRAHAM Webb, J., concurs Terry, J., specially concurs

Announced January 25, 2018

Lewis Roca Rothgerber Christie LLP, Michael D. Plachy, Thomas M. Rogers III, Joy Allen Woller, Denver, Colorado, for Plaintiff-Appellant

Connelly Law LLC, Sean Connelly, Denver, Colorado; Davis Graham Stubbs LLP, Jason M. Lynch, Denver, Colorado, for Defendants-Appellees ¶1 We are asked to determine whether online travel companies

(OTCs) are required to collect and remit accommodation and sales

taxes to the Town of Breckenridge, Colorado, on hotel rooms they

book through their respective internet websites. We conclude that

they need not collect and remit such taxes.

¶2 Breckenridge, the plaintiff, seeks to collect accommodation

and sales taxes from sixteen OTCs, the defendants: Egencia, LLC;

Expedia, Inc.; Hotels.com, L.P.; Hotels.com, GP, LLC; Hotwire, Inc.;

Internetwork Publishing Corporation d/b/a Lodging.com;

Lowestfare.com, Inc.; Orbitz, Inc.; Orbitz, LLC; Priceline.com,

Incorporated; Site59.com, LLC; TravelNow.com, LP; Travelport Inc.

f/k/a Cendant Travel Distribution Services Group, Inc.;

Travelscape, LLC; Travelweb, LLC; Trip Network, Inc. d/b/a

Cheaptickets.com; and yet unidentified companies, Does 1 through

1000.

¶3 On appeal, Breckenridge makes five contentions. First, it

contends that the district court erred in determining that the OTCs

were not “renters” or “lessors” for purposes of Breckenridge’s

accommodation tax ordinance, relying on the Colorado Supreme

Court’s decision in City & County of Denver v. Expedia, Inc., 2017

1 CO 32 (plurality opinion). Second, it contends that the district

court misapplied the summary judgment standard by resolving

material issues of fact. Third, it contends that its sales tax claim

should not have been dismissed for lack of subject matter

jurisdiction. Fourth, it contends that its motion for class action

certification should have been granted because common questions

predominate and class action was the superior method of relief.

Fifth, it contends that its common law claims were improperly

dismissed. We consider and reject each contention.

I. Background

A. Overview of OTCs

¶4 The OTCs maintain websites through which travelers may

book reservations for hotel accommodations and other travel-

related services. The OTCs transact their online businesses in two

ways. The first is known as the “agency model,” which describes

transactions where the OTC is the actual agent of a hotel. The

second is the “merchant model,” which was used here.

¶5 Under the merchant model, an OTC first contracts with a

hotel. These contracts offer rooms to an OTC at a discounted rate

— a fixed percentage of the price the hotel would charge travelers

2 directly for the rooms. The OTC describes the hotel and its facilities

on its website and allows customers logging onto its website to book

reservations for that hotel.

¶6 When facilitating reservations, an OTC neither purchases nor

reserves rooms in advance. Rather, the OTC coordinates

information between travelers and hotels. Only hotels can issue

reservations. When a purchaser requests a hotel room, the chosen

OTC’s computer system communicates with a hotel’s central

reservation system to find a specific room at a specified rate. If

available, the purchaser must agree to the hotel’s cancellation

policy and terms of occupancy before the hotel will accept the

reservation. If the hotel accepts the reservation, it will provide a

confirmation number in the customer’s name and supply this

number to the OTC. The OTC forwards the confirmation number

then collects and processes the customer’s payment.

¶7 When a customer arrives at the hotel, the hotel registers the

customer as a guest before assigning a room. Assignments are

made only when a room is available and the customer meets the

hotel’s terms and conditions for occupancy. After the customer

3 concludes his stay, the OTC transfers payment to the hotel. The

hotel then remits the collected taxes to Breckenridge.

¶8 As relevant here, Breckenridge imposes an accommodation tax

“of three and four-tenths percent (3.4%) on the price paid for the

leasing or rental of any hotel room, motel room, or other

accommodation located in the town.” Breckenridge Town Code § 3-

4-3 (B.T.C.). In addition to the accommodation tax, Breckenridge

collects a 2.5% sales tax. B.T.C. § 3-1-5. Unlike the

accommodation tax, the sales tax ordinance requires Breckenridge

to seek administrative review before petitioning the district court for

relief to collect allegedly unpaid sales taxes. B.T.C. §§ 3-1-35, 3-1-

36.

B. Procedural History

¶9 Breckenridge instituted this action to recover from the OTCs

unpaid accommodation and sales taxes. In its initial complaint,

Breckenridge alleged that the OTCs were responsible for collecting

and remitting taxes associated with hotel reservations.

Breckenridge asserted five causes of action: declaratory judgment,

violations of municipal ordinances, conversion, civil conspiracy, and

unjust enrichment.

4 ¶ 10 The OTCs then filed a motion to dismiss, which was partially

granted. The district court agreed that no cause of action existed in

respect to the sales tax claim because Breckenridge had failed to

exhaust its administrative remedies and none of the exceptions to

exhaustion applied. Consequently, the court determined that it

lacked subject matter jurisdiction to decide that claim. But, the

district court refused to dismiss the accommodation tax claim,

explaining that Breckenridge had sufficiently asserted a claim in

regard to the accommodation tax.

¶ 11 Breckenridge then sought class certification for fifty-five home

rule cities that also levy a lodger’s or accommodation tax, seeking to

impose taxes, interest, and penalties on the OTCs in favor of the

putative class. The district court denied class certification on

multiple grounds. First, the court concluded that certification

under C.R.C.P. 23(b)(2) was inappropriate because Breckenridge

was primarily seeking monetary damages. Second, the court

determined that common questions did not predominate over

questions affecting only individual members of the putative class,

so class certification was not superior to other available remedies

and, therefore, C.R.C.P. 23(b)(3) certification was unavailable.

5 Third, the court held that certification was inappropriate because at

least nine of the unnamed class members had failed to exhaust

their own administrative remedies.

¶ 12 Thereafter, the parties filed cross-motions for summary

judgment. Resolving those motions in favor of the OTCs, the

district court analyzed the plain language of the accommodation tax

ordinance, in addition to the OTCs’ role in the reservation process.

Specifically, the court determined that it was beyond dispute that

OTCs do not maintain hotel room inventories, any customer service

the OTCs provide is related only to the facilitation of reservations

and not the actual rental or service of accommodations, and the

hotels — not the OTCs — are primarily involved in a customer’s

reservation process. Based on those undisputed facts and the plain

language of the ordinance, the court concluded that the OTCs were

not renters or lessors and, therefore, not required to collect and

remit the accommodation tax.

II. The District Court Properly Determined that the OTCs are not Subject to Breckenridge’s Accommodation Tax

¶ 13 Breckenridge contends that the district court erred in

concluding that OTCs are neither “lessors” nor “renters” of hotel

6 rooms. Additionally, Breckenridge asserts that the district court

erred when it relied on Expedia, Inc. v. City & County of Denver,

2014 COA 87 (Expedia I), which was reversed by the Colorado

Supreme Court in a plurality decision. City & Cty. of Denver v.

Expedia, Inc., 2017 CO 32 (Expedia II). We disagree.

¶ 14 Who is responsible for collecting and remitting accommodation

taxes under the B.T.C.? This question hinges on the meaning of

“lessor,” “renter,” and “furnish,” as used in sections 3-4-1, 3-4-3,

and 3-4-4 of that code.

¶ 15 Breckenridge contends that the OTCs are renters or lessors

under the code because they sell the legal right to use hotel rooms

in exchange for consideration. Because the accommodation tax

does not require a person to have physical possession of the right

sold, Breckenridge asserts that the OTCs are capable of leasing or

renting even without physical possession of the hotel rooms.

¶ 16 The OTCs respond that they are not lessors or renters because

they do not own, possess, or have any interest in hotel rooms;

therefore, they have no power to convey use or occupancy — in

other words, to lease hotel rooms — to others. See City of

Philadelphia v. City of Philadelphia Tax Review Bd., 37 A.3d 15, 20

7 (Pa. Commw. Ct. 2012) (no rental occurs until a customer checks in

at the hotel and receives the right to a room). Rather, they contend

that OTCs are technology companies that act as intermediaries

between purchasers and hotels.

¶ 17 The district court agreed with the OTCs that they are not

lessors or renters subject to the accommodation tax and, instead,

are intermediaries. Relying on dictionary definitions, the court

found that a “lessor” or “renter” is a “person or business that

conveys via a contract the right to use, possess, or occupy

accommodations for consideration.” Because OTCs act merely as

intermediaries and, therefore, lack a possessory interest in the

lodging, the district court found that they are not subject to

Breckenridge’s accommodation tax.

A. Standard of Review

¶ 18 We review a district court’s grant of summary judgment and

issues of statutory interpretation de novo. Robinson v. Legro, 2014

CO 40, ¶ 10; Bd. of Cty. Comm’rs v. ExxonMobil Oil Corp., 192 P.3d

582, 585 (Colo. App. 2008), aff’d, 222 P.3d 303 (Colo. 2009). When

reviewing a municipal ordinance, our primary task is to give effect

to the intent of the drafters, which we attempt to discern by looking

8 first to the ordinance’s plain language. Jackson & Co. v. Town of

Avon, 166 P.3d 297, 299 (Colo. App. 2007). If we can give effect to

the ordinary meaning of the words used by the drafter, the

ordinance should be construed as written. Id. But if the ordinance

is ambiguous and therefore susceptible of multiple interpretations,

we may resort to various aids of statutory construction in

determining intent. Jefferson Cty. Bd. of Equalization v. Gerganoff,

241 P.3d 932, 935 (Colo. 2010). We must also refrain from

rendering a judgment that would be inconsistent with the

municipal body’s legislative intent and must avoid any

interpretation that would produce an illogical or absurd result. Id.;

Waste Mgmt. of Colo., Inc. v. City of Commerce City, 250 P.3d 722,

725 (Colo. App. 2010).

¶ 19 Interpreting a tax code requires a similar analysis. Welby

Gardens v. Adams Cty. Bd. of Equalization, 71 P.3d 992, 995 (Colo.

2003). We must construe it as a whole to give consistent,

harmonious, and sensible effect to all its parts. Id. Additionally,

however, we adhere to Colorado’s longstanding rule of construction

that “tax provisions like those at issue here will not be extended

beyond the clear import of the language used, nor will their

9 operation be extended by analogy.” Waste Mgmt., 250 P.3d at 725

(citing City of Boulder v. Leanin’ Tree, Inc., 72 P.3d 361, 367 (Colo.

2003)). We construe all doubts against the government and in favor

of the taxpayer. Id.

B. The Accommodation Tax Ordinance’s Language

¶ 20 B.T.C. section 3-4-1 (the preamble) states, in part, as follows:

[The] legislative intent of the town council in enacting this chapter is that every person who, for consideration, leases or rents any hotel room, motel room, or other accommodation located in the town shall pay and every person who furnishes for lease or rental any such accommodation shall collect the tax imposed by this chapter.

¶ 21 An implementing provision provides that “an excise tax of

three and four-tenths percent (3.4%) [shall be assessed] on the price

paid for the leasing or rental of any hotel room, motel room, or

other accommodation located in the town.” B.T.C. § 3-4-3.

¶ 22 The code also imposes liability for unpaid taxes on “any lessee

or renter of a hotel room, motel room, or other accommodation

located in the town” who fails to pay or “any lessor or renter of such

accommodation” who fails to collect the accommodation tax. B.T.C.

§ 3-4-4(A).

10 ¶ 23 The B.T.C. does not define the terms “leasing,” “renting,”

“lessor,” or “renter.” Nor does the code define the operative term

used in its preamble, “furnishes for lease or rental.”

¶ 24 When a statute fails to define an integral term, we may refer to

a dictionary to determine the common usage of the term. See

Roalstad v. City of Lafayette, 2015 COA 146, ¶ 34 (If a “statute does

not define a term, the word at issue is a term of common usage, and

people of ordinary intelligence need not guess at its meaning, we

may refer to dictionary definitions in determining the plain and

ordinary meaning.” (quoting Mendoza v. Pioneer Gen. Ins. Co., 2014

COA 29, ¶ 24)). Thus, we look to dictionary definitions of the terms

“lessor,” “renter,” “lease,” “rent,” and “furnish” to ascertain their

plain and ordinary meanings.

¶ 25 Black’s Law Dictionary defines those terms as follows:

 “lessor” (n.) is “[s]omeone who conveys real or personal

property by lease; esp[ecially], landlord”;

 “lease” (n.) is a “contract by which a rightful possessor of

real property conveys the right to use and occupy the

property in exchange for consideration,” and (v.) is “[t]o

grant the possession and use of (land, buildings, rooms,

11 movable property, etc.) to another in return for rent or

other consideration”; and

 “rent” (n.) is “[c]onsideration paid, usu[ally] periodically,

for the use or occupancy of property.”

Black Law’s Dictionary 1024, 1026, 1043, 1488 (10th ed. 2014).

¶ 26 Similarly, Webster’s Third New International Dictionary

defines the terms as follows:

 “lessor” (n.) is “one that surrenders possession of real

estate under a lease”;

 “lease” (n.) is a “a contract by which one conveys lands,

tenements, or hereditaments for life, for a term of years,

or at will or for any less interest than that of the lessor,

usu[ally] for a specified rent or compensation,” and (v.) is

“to grant or convey to another by lease”;

 “rent” (n.) is “income from a property,” and “a piece of

property that the owner allows another to use in

exchange for a payment in services, kind, or money”;

 “renter” (n.) is “one that rents: as . . . the lessee or tenant

of lands, tenements, or other property”; and

12  “furnish” means “to provide or supply with what is

needed.”

Webster’s Third New International Dictionary 923, 1286, 1297,

1923 (2002).

¶ 27 These definitions clarify that a person who rents or leases or

furnishes for rent to another is one who has a possessory interest in

the property and has the legal ability to supply the property.

¶ 28 Here, the OTCs are not the “rightful possessor[s]” of hotel

rooms. Black’s Law Dictionary 1024 (10th ed. 2014) (defining

lease). The district court found that OTCs cannot pledge, assign, or

use hotel properties. Instead, hotels, as property owners, maintain

possession of the hotel rooms throughout the transaction.

¶ 29 Breckenridge argued before the district court that the OTCs

acquire inventory. However, the court found that numerous

operating agreements explicitly state that the OTCs have no right or

obligation to acquire an inventory of rooms. Further, the court

found that inventory belongs to the hotel and is only purchased by

the OTC immediately before being passed along to the consumer.

¶ 30 Breckenridge also contends that the code does not impose any

requirement that a person who leases or rents lodging have physical

13 possession of that room. Therefore, Breckenridge asserts that the

OTCs need not have physical possession of the hotel rooms to

qualify as renters or lessors. However, the physical possession

requirement is inherent in the plain and ordinary meaning of

renting and leasing. Because the hotels maintain possession of the

rooms and are the sole grantors of the right of occupancy, hotels

are lessors or renters and OTCs are essentially brokers.

¶ 31 A broker is an “agent who acts as an intermediary or

negotiator, esp[ecially] between prospective buyers and sellers.”

Black’s Law Dictionary 232 (10th ed. 2014). Notably, a “broker

usu[ally] does not have possession of the property” at issue. Id.

Here, the OTCs, like traditional brokers, do not possess the hotel

rooms during the entirety of the transaction. They may only

acquire the right to use a room, which is immediately passed along

to the purchaser when the hotel issues a confirmation number in

the purchaser’s name.

¶ 32 They also cannot “grant the possession and use of” hotel

rooms because they are not the rightful possessors. OTCs do not

issue or furnish reservations; they facilitate them, at times and

rates set by a hotel pursuant to their contracts. Ultimately, a hotel,

14 not an OTC, grants a right of occupancy to guests upon check-in.

Consequently, an OTC is more akin to a broker.

¶ 33 Moreover, reading the accommodation tax statute as a whole

indicates that the accommodation tax applies only to those who

have a possessory interest in the accommodation being taxed.

Turning to B.T.C. section 3-4-2, the code defines hotel room, motel

room, or other accommodation as “[a]ny room or other

accommodation in any hotel . . . or any such similar place to any

person who, for consideration, uses, possesses, or has the right to

use or possess such room or other accommodation for a total

continuous duration of less than one month.” (emphasis added.) A

hotel guest does not have the right to use or possess a hotel room

until she is registered at the hotel. An OTC cannot grant this right.

¶ 34 In Village of Bedford Park v. Expedia, Inc., 876 F.3d 296 (7th

Cir. 2017), the court was presented with facts similar to those here.

Thirteen Illinois municipalities sought to impose taxes on the OTCs.

Applying an analysis like that of the district court here, the court

determined that renting implies ownership and granting possession

of property. Id. at 305. Since the OTCs had no possessory interest

and were not engaged in the business of owning, operating, or

15 leasing, and could not independently grant customers access to

rooms, they could not be liable for collecting and remitting taxes.

Id. The various ordinances applied by the Illinois municipalities

used language like that adopted by Breckenridge. Also, in City of

San Antonio v. Hotels.com, L.P., 876 F.3d 717 (5th Cir. 2017), the

Fifth Circuit determined that OTCs do not have an inventory of

rooms for occupancy. Persuaded by the analysis in Bedford Park,

we conclude that, under the Breckenridge ordinance, an OTC does

not have an interest that would allow it to furnish for rent any hotel

room. On the contrary, it appears that the OTCs only “furnish”

purchasers the opportunity to rent rooms from hotels.

¶ 35 Therefore, construing the statute as a whole and according to

its plain meaning, we conclude that the OTCs are not subject to

Breckenridge’s accommodation tax.1

C. Expedia II is not Dispositive

¶ 36 In addition to arguing that the OTCs qualify as renters and

lessors of hotel rooms, Breckenridge contends that Expedia II,

1As an additional argument, Breckenridge contends that OTCs should pay taxes on the room rate charged plus services fees. Because we determine that the OTCs are not liable for accommodation taxes, we need not address this contention.

16 which concluded that OTCs are liable under Denver’s lodger’s tax,

is dispositive for two reasons. First, Breckenridge asserts that

Denver’s lodger’s tax is substantially similar to Breckenridge’s

accommodation tax. Second, Breckenridge argues that we should

reverse the district court’s decision because it relied on Expedia I,

which was ultimately overturned. We are not persuaded.

¶ 37 In Expedia II, ¶ 11, the City and County of Denver sought to

impose its lodger’s tax on the OTCs, which requires “vendors” to

collect and remit the prescribed tax on the purchase price of any

furnished lodging. The Denver ordinance defines “vendor” as a

“person making sales of or furnishing lodging,” and defines “sale” as

“furnishing for consideration.” Id. at ¶ 39 (quoting Denver Revised

Municipal Code § 53-170(4), (8) (D.R.M.C.)). The plurality

determined that “furnishing lodging for consideration . . . refers to

selling, or providing for consideration, the right to overnight use of

rooms or accommodations in the enumerated hotel-like facilities.”

Id. at ¶ 23. But, “‘lodging’ does not refer to a room, as a commodity,

or even title or a right of ownership of a room, but rather to the

right of overnight use of rooms . . . .” Id. The opinion rendered by

Justice Coats, Justice Márquez, and Justice Boatright held that

17 OTCs are vendors, for purposes of the lodger’s tax, because they

furnish lodging for consideration. Id. at ¶ 22.

¶ 38 However, Breckenridge’s reliance on Justice Coat’s plurality

decision in Expedia II is misplaced. “When a fragmented [c]ourt

decides a case and no single rationale explaining the result enjoys

the assent” of a majority of justices, Marks v. United States, 430

U.S. 188, 193 (1977), “the holding of the [c]ourt may be viewed as

that position taken by those Members who concurred in the

judgments on the narrowest grounds.” Id. (quoting Gregg v.

Georgia, 428 U.S. 153, 169 n.15 (1976) (plurality opinion)).

Accordingly, Justice Hood’s concurrence in Expedia II is instructive.

¶ 39 Although the concurrence agreed that OTCs are liable under

the lodger’s tax, the concurrence reached this decision without

using interpretive aids. Instead, the concurrence concluded that

the plain language of the ordinance makes sufficiently clear that the

OTCs qualify as vendors.

¶ 40 In its analysis, the concurrence defined “to furnish” as

providing or supplying rooms to “any person who for consideration

uses or has the right to use such rooms.” Expedia II, ¶ 42 (Hood,

J., concurring in the judgment). It also noted that nothing in the

18 definition of furnish, nor in the ordinance, limits the term to the

physical provision of a hotel room. Id. Therefore, because a

customer’s entire transactional relationship is with the OTC, the

OTCs clearly “provide or supply rooms to customers who pay

consideration to the OTCs in exchange for rooms or the right to use

rooms.” Id. at ¶ 43.

¶ 41 Breckenridge argues that we should extend the reasoning of

Expedia II to the instant case and conclude that the OTCs are

subject to the accommodation tax because they furnish lodging for

consideration. While this argument has some appeal, it overlooks

the different contexts surrounding the term “furnish,” as used in

the Denver and Breckenridge codes. In Expedia II, the concurrence

explained that the duty to collect Denver’s lodging tax is imposed on

vendors who “make[] sales of or furnish[] lodging to a purchaser in

the city.” Expedia II, ¶ 41 (quoting D.R.M.C. § 53-170(8)). For

purposes of the Denver lodging tax, furnishing is defined as

“provid[ing] or suppl[ying] to any person who for consideration uses

or has the right to use such rooms.” Id. at ¶ 42.

¶ 42 Under B.T.C. section 3-4-1, the duty to collect the

accommodation tax is imposed on those who “furnish[] [lodging] for

19 lease or rental.” The use of “furnish” in this context is

distinguishable from that in Denver’s ordinance. Under Denver’s

lodging tax, “furnishing lodging” indicates making hotel rooms

available to purchasers. On the other hand, the Breckenridge code

imposes liability only on those who furnish property for leasing or

renting. And only those with a possessory interest can furnish

property for leasing or renting. Accordingly, OTCs only furnish the

opportunity to rent hotel rooms from hotels.

¶ 43 Furthermore, Breckenridge’s argument ignores the different

terms used to describe the liable parties in the Denver and

Breckenridge codes. Unlike the term “vendor,” (which is used in the

Denver code and encompasses all parties that provide or supply

rooms for consideration) the plain meaning of “renter” or “lessor,”

restricts liability to only those who have a possessory interest in the

property.

¶ 44 Additionally, even if we were to overlook the words “lease” and

“rental,” the concept of furnishing is contained in the preamble to

the B.T.C. We are not persuaded that the concept of furnishing as

used in the context of a vendor, as in Expedia II, should inform our

decision here simply because the preamble uses the term

20 “furnishes.” But, a term used in the preamble to a statute cannot

be used to contradict the operative terms of the statute. A

“preamble can neither restrain nor extend the meaning of an

unambiguous statute.” 2A Norman Singer, Sutherland on Statutory

Construction § 47.04, at 295 (7th ed. 2007); cf. Dist. Landowners Tr.

v. Adams Cty., 104 Colo. 146, 150, 89 P.2d 251, 253 (1939) (where

it was asserted that a preamble had been violated, the preamble

could “not be invoked apart from specific provisions” of the statute).

¶ 45 We are also not persuaded that we must overturn the district

court’s decision because it relied on Expedia I. The district court

conducted a thorough analysis of the language of the ordinance and

its application to the OTCs. It was not until after the district court

concluded that the accommodation tax did not apply to the instant

case that the court discussed Expedia I. And in doing so, the court

observed that its holding was consistent with the division’s ruling in

Expedia I. Therefore, we cannot determine that the court relied

upon Expedia I in making its decision.

21 III. The District Court Properly Granted Summary Judgment for Breckenridge’s Accommodation Tax Claim

¶ 46 Next, Breckenridge contends that the court erred in granting

summary judgment because genuine issues of material fact exist as

to (1) whether OTCs acquire inventory; (2) whether OTCs provide

customer service; and (3) the extent to which the hotels are involved

in merchant model transactions. We disagree.

¶ 47 We review a court’s grant of summary judgment de novo.

Williams v. State Farm Mut. Auto. Ins. Co., 195 P.3d 1158, 1160

(Colo. App. 2008). Summary judgment is appropriate if the

pleadings, depositions, answers to interrogatories, and admissions,

together with any affidavits, establish that there is no genuine issue

of a material fact, and the moving party is entitled to judgment as a

matter of law. C.R.C.P. 56(c); City of Longmont v. Colo. Oil & Gas

Ass’n, 2016 CO 29, ¶ 9. A triable issue of fact is one in which

reasonable people could reach different conclusions about the

evidence. People in Interest of S.N., 2014 COA 116, ¶ 24.

¶ 48 The moving party has the burden of establishing the absence

of a genuine issue of material fact. Gibbons v. Ludlow, 2013 CO 49,

22 ¶ 11. The moving party “need only identify those portions of the

record and affidavits which demonstrate an absence of a genuine

issue of material fact.” Id. If the nonmoving party cannot produce

sufficient evidence to establish a triable issue, the moving party is

entitled to summary judgment as a matter of law. Id. A genuine

issue of fact cannot be raised simply by means of argument. People

in Interest of J.M.A., 803 P.2d 187, 193 (Colo. 1990).

B. There is No Genuine Issue of Material Fact

¶ 49 Breckenridge failed to meet its burden of producing sufficient

evidence to establish that a genuine issue of fact exists as to

whether OTCs acquire inventory, whether the OTCs provide

customer service, and the extent of the hotels’ involvement in

merchant model transactions.

¶ 50 First, Breckenridge argues that the court improperly resolved

the issue as to whether OTCs acquire inventory, which could

support the contention that they are lessors or renters.

Breckenridge asserts that it provided evidence contrary to the OTCs’

argument that they do not acquire inventory because they merely

act as intermediaries. Specifically, Breckenridge points to the

annual Securities and Exchange Commission (SEC) reports where

23 the OTCs allegedly admit to acquiring some inventory. But, after

analyzing the SEC reports, the court found, and we agree, that the

SEC filings refer primarily to the hotel’s inventory. And, any

mention of the OTCs’ inventory concerns the inventory needed to

facilitate a reservation. Moreover, OTCs enter into non-exclusive

operating agreements in which OTCs agree to display information

about a hotel, but make clear that OTCs have no right or ability to

issue reservations themselves. Therefore, none of the record

evidence marshalled by Breckenridge contradicts the numerous

SEC reports and agreements between the parties indicating that

hotels, not the OTCs, possess inventory. Consequently,

Breckenridge failed to establish a triable issue of fact.

¶ 51 Second, Breckenridge argues that the court improperly

resolved whether and to what extent the OTCs provide customer

service. Specifically, Breckenridge contends that the taxable

transaction arises when the OTCs accept a customer’s payment in

exchange for the right to use the accommodation. However, the

OTCs’ involvement in customer service relating to room reservations

is immaterial because it does not indicate possessory interest.

24 Because no genuine issue of material fact was presented, summary

judgment was appropriate.

¶ 52 Third, Breckenridge argues that the court improperly

determined the degree to which hotels are involved in merchant

model transactions. It says that it presented evidence that a

consumer’s entire transaction is with the OTC, compensation is

paid to the OTC, and no additional compensation is paid to the

hotel after the purchaser becomes a guest. Breckenridge contends

that the court ignored its evidence. But, none of these facts

advance Breckenridge’s arguments because they do not indicate a

possessory interest. Therefore, these facts are immaterial. See

Peterson v. Halsted, 829 P.2d 373, 375 (Colo. 1992) (“A material fact

is simply a fact that will affect the outcome of the case.”).

¶ 53 Because reasonable people could not reach different

conclusions on the three issues presented, we conclude that the

court’s entry of summary judgment was proper.

IV. The District Court Lacked Subject Matter Jurisdiction to Address the Sales Tax Claim

¶ 54 Breckenridge contends that the district court erred in

concluding that it lacked subject matter jurisdiction over its sales

25 tax claim because Breckenridge failed to exhaust administrative

remedies. We discern no error.

¶ 55 In reviewing a district court’s ruling on a jurisdictional issue,

we will uphold its factual findings unless they are clearly erroneous,

and we evaluate all legal conclusion de novo. Tidwell v. City & Cty.

of Denver, 83 P.3d 75, 81 (Colo. 2003).

¶ 56 There is a “general jurisdictional requirement that a party

exhaust available administrative remedies before seeking relief in a

district court.” City & Cty. of Denver v. United Air Lines, Inc., 8 P.3d

1206, 1212 (Colo. 2000). When “complete, adequate, and speedy

administrative remedies are available, a party must pursue these

remedies before filing suit in district court.” Id. Absent an

exhaustion of administrative remedies, judicial review has been

particularly disfavored in tax cases. Davison v. Bd. of Cty. Comm’rs,

41 Colo. App. 344, 348, 585 P.2d 315, 348 (1978). The exhaustion

requirement is subject to exceptions.

¶ 57 First, exhaustion is not required when it is clear beyond a

reasonable doubt that administrative review would be futile because

the agency will not provide the relief requested. United Air Lines, 8

P.3d at 1213. Second, a party can circumvent exhaustion

26 requirements when the issue presents a matter of law that the

agency lacks the authority or capacity to determine. Id.

Breckenridge argues that it was not required to exhaust its own

administrative remedies because doing so would be futile and the

question of whether OTCs are subject to the sales tax was a

question of law not subject to exhaustion requirements. We are not

convinced.

¶ 58 The B.T.C. explicitly provides that the administrative authority

has jurisdiction over the enforcement and collection of

Breckenridge’s sales tax. The code states, in relevant part, that in

the event “any person neglects or refuses to make a return in

payment of the sales tax or to pay any sales tax as required,” the

“finance director shall make an estimate . . . of the amount of taxes

due . . . .” B.T.C. § 3-1-32(B)(1). Following the finance director’s

review, a person can challenge the final decision by “proceed[ing] to

have [the finance director’s final decision] reviewed by the district

court.” B.T.C. § 3-1-36.

¶ 59 It is evident from the code that a party’s first step in seeking

relief for unpaid sales taxes is to petition for administrative review

from the finance director. And, only after undergoing

27 administrative review can Breckenridge petition for relief from the

district court.

¶ 60 Breckenridge circumvented its own procedural requirements

by first appealing to the district court for review. In its defense,

Breckenridge argues that it was not required to seek administrative

review because exceptions to the exhaustion requirement apply —

any administrative relief would be futile, the issue presented a

question of law that was not appropriate for administrative review,

and exhaustion is not required under these circumstances because

the interests underlying the exhaustion requirement are not

implicated. We disagree.

¶ 61 Breckenridge asserts that it need not exhaust administrative

remedies because the available procedures would not provide

adequate relief. But, the code provides for the precise relief

Breckenridge seeks. When determining the liability of a nonpaying

party, like an OTC, the finance director has exclusive jurisdiction to

assess unpaid taxes, interest, and penalties. B.T.C. § 3-1-32.

When a party fails to pay outstanding taxes, the finance director is

responsible for determining the amount owed. Id. The

administrator can then initiate action to collect the amount due.

28 He may issue liens and warrants for the seizing and selling of real

and personal property to satisfy the unpaid amount. B.T.C. § 3-1-

32(C) (1), (2).

¶ 62 If Breckenridge was disappointed with the finance director’s

decision, it could have petitioned for an administrative hearing to

contest the finance director’s determination. B.T.C. § 3-1-35. Only

after the finance director conducts a hearing may Breckenridge

petition for district court review. B.T.C. § 3-1-36. Assuming the

finance director determined the OTCs were liable for unpaid taxes,

Breckenridge would have been awarded adequate relief had it

exhausted the administrative requirements.

¶ 63 Breckenridge further argues that exhausting administrative

procedures would have been futile because the OTCs publicly

declared that they were unwilling to pay Breckenridge’s sales tax.

In support, Breckenridge points to two cases where the

administrator publicly announced its position on the issue;

therefore, the court found exhaustion would have been futile. See

Kuhn v. State Dep’t of Revenue, 817 P.2d 101, 104 (Colo. 1991)

(there was no need to exhaust when the agency publicly stated it

would not rule on any claim filed until the court had decided the

29 issue); Anderson v. Bd. of Adjustment for Zoning Appeals, 931 P.2d

517, 521 (Colo. App. 1996) (exhaustion would have been futile as

the parties had notice of the zoning administrator’s interpretation of

the pertinent law).

¶ 64 Here, the finance director made no public declaration on the

liability of the OTCs for unpaid sales taxes. Further, a

disagreement between parties in which one party publicly disclaims

liability is insufficient grounds to determine that administrative

remedies are futile. Accordingly, we are unable to determine that

administrative remedies would have been futile.

¶ 65 Second, Breckenridge contends exhaustion was inappropriate

because the controversy involves a matter of law that the finance

director did not have the authority or capacity to determine.

However, this exception is limited and applies only to issues, such

as constitutional matters, that “the agency lacks the necessary

expertise to address” and those that “fall squarely in the province of

the courts.” United Air Lines, 8 P.3d at 1213. Here, the issue of

determining a nonpaying party’s tax liability falls squarely within

the finance director’s jurisdiction as it is the administrator’s

responsibility to determine tax liability, impose penalties and

30 interest, and initiate action to collect the debt due. See B.T.C. § 3-

1-29. Undoubtedly, the finance director had the authority and

expert capacity to determine the OTCs’ sales tax liability.

¶ 66 Breckenridge also contends that exhaustion was not required

as courts “will excuse a party’s failure to exhaust available

administrative remedies” in situations that “do not implicate the

interests underlying the exhaustion requirement.” United Air Lines,

8 P.3d at 1213. Breckenridge argues that the OTCs’ offensive use

of the exhaustion doctrine as a merits defense fails to promote the

policy reasons justifying exhaustion.

¶ 67 However, a party’s motive in raising another party’s failure to

exhaust does not undermine the policy interests justifying the

exhaustion requirement. Exhausting administrative procedures in

this case would have served a number of significant interests. For

instance, the finance director would have had an opportunity to

apply his expertise and may have arrived at a satisfactory

determination — therefore ultimately conserving judicial resources.

Even if the issue had later been appealed, prior administrative

review would have helped to develop a factual record for the district

court’s review. See id. (developing a factual record, preventing the

31 interruption of the administrative process, preserving the autonomy

of the agency, and conserving judicial resources are important

policy interests of the exhaustion doctrine). Regardless of the OTCs’

reasons for raising the issue of exhaustion, we determine that

utilizing administrative procedures would have furthered a number

of important interests underpinning the exhaustion requirement.

¶ 68 For these reasons, we conclude that the district court lacked

subject matter jurisdiction to address Breckenridge’s unpaid sales

tax claim. Instead, Breckenridge must exhaust its own

administrative procedures before seeking judicial review.

V. The District Court Properly Denied Breckenridge’s Motion for Class Certification

¶ 69 Breckenridge also contends that the district court abused its

discretion by denying Breckenridge’s request for class certification

of fifty-five Colorado home rule cities that also have ordinances

levying a lodger’s or accommodation tax for the purpose of imposing

taxes, interest, and penalties on nonpaying parties.2

2 Breckenridge also sought class certification for its sales tax claim, but the court dismissed it for failure to exhaust administrative remedies. We do not reach the question of whether a home rule

32 ¶ 70 The district court denied Breckenridge’s petition on multiple

grounds. The court concluded that class certification was not

appropriate pursuant to C.R.C.P. 23(b)(2) as Breckenridge was

primarily seeking monetary damages. Additionally, Breckenridge

failed to meet the requirements for C.R.C.P. 23(b)(3) certification

because there was no predominance of common questions nor was

class action the superior remedy.

¶ 71 Breckenridge argues that, contrary to the district court’s

finding, it satisfied class certification requirements under C.R.C.P.

23(b)(2), or alternatively under C.R.C.P. 23(b)(3). We are not

persuaded.

¶ 72 When determining whether the district court erred in denying

class certification, we review a district court’s decision for an abuse

of discretion. Jackson v. Unocal Corp., 262 P.3d 874, 879 (Colo.

2011). An abuse of discretion occurs if the decision is manifestly

arbitrary, unreasonable, or unfair, or when the district court

applies the incorrect legal standards. Id. A district court retains “a

municipality may be represented in a class action without a vote of its citizens.

33 great deal of discretion in determining whether to certify a class

action” under C.R.C.P. 23. Id. at 880 (quoting Goebel v. Colo. Dep’t

of Insts., 764 P.2d 785, 794 (Colo. 1988)); accord Garcia v. Medved

Chevrolet, Inc., 263 P.3d 92, 97 (Colo. 2011).

B. Relevant Law

¶ 73 We turn first to the prerequisites of class certification. To

obtain certification, a party must allege that (1) the class is so

numerous that joinder of all its members is impractical; (2)

questions of law or fact are common among the class members; (3)

the claims or defenses of the class representative are typical of the

class; and (4) the class representative is capable of fairly and

adequately protecting the interests of the class. C.R.C.P. 23(a);

Garcia v. Medved Chevrolet, Inc., 240 P.3d 371, 377 (Colo. App.

2009), aff’d, 263 P.3d 92 (Colo. 2011). “[S]o long as the trial court

rigorously analyzes the evidence, it retains discretion to find to its

satisfaction whether the evidence supports each C.R.C.P. 23

requirement.” Garcia, 263 P.3d at 97 (quoting Jackson, 262 P.3d at

884).

¶ 74 After establishing the requirements above, a party must satisfy

one of the three subsections of C.R.C.P. 23(b). As pertinent here,

34 C.R.C.P. 23(b)(2) certification “is appropriate for classes seeking

predominantly injunctive or declaratory relief.” State v. Buckley

Powder Co., 945 P.2d 841, 845 (Colo. 1997). But, certification is

not prohibited where damages are sought in addition to injunctive

and declaratory relief, so long as the damages are incidental to the

other relief sought. Id. Even so, C.R.C.P. 23(b)(2) certification is

not appropriate in cases where the final relief relates exclusively or

predominantly to money damages. Id.

¶ 75 In contrast, C.R.C.P. 23(b)(3) is the appropriate avenue for

parties seeking primarily monetary damages. Id. C.R.C.P. 23(b)(3)

requires a petitioning party to demonstrate that (1) common

questions of law or fact predominate over any questions affecting

only individual members and (2) a class action is superior to other

available remedies. Garcia, 240 P.3d at 377. When determining

C.R.C.P. 23(b)(3) claims, a district court is afforded broad discretion

in assessing whether a class action is the superior method to

resolve the case. Buckley, 945 P.2d at 845.

C. C.R.C.P. 23(b)(2) Certification

¶ 76 In the instant case, the district court engaged in extensive

factfinding in its determination as to whether Breckenridge satisfied

35 the four prerequisites to class certification — numerosity,

commonality, typicality, and adequacy of representation — and

found that Breckenridge satisfied C.R.C.P. 23(a)’s threshold

requirements. However, the court was unwilling to grant class

certification under C.R.C.P. 23(b)(2) because Breckenridge was

seeking primarily monetary damages.

¶ 77 While Breckenridge may have satisfied the four prerequisites

to certification, we agree with the district court that Breckenridge

primarily sought monetary damages. Breckenridge’s argument that

any potential monetary damages are only incidental to the

declaratory relief it seeks is unavailing. Four of Breckenridge’s five

claims for relief expressly request relief in the form of monetary

damages.

¶ 78 The fifth, although labeled as a request for declaratory

judgment under C.R.C.P. 57, also predominantly seeks monetary

relief. Scrutiny of Breckenridge’s specific declarations reveals that

each relates to the recovery of unpaid taxes:

i. whether Defendants have a duty, under law, to collect Excise Taxes and/or Sales Taxes . . . ;

36 ii. whether the Excise Taxes and/or Sales Taxes are based on the Retail Rate;

iii. whether Defendants have a duty to remit these taxes to Plaintiff and the Class;

iv. whether Defendants have failed to fulfill their duty under law to remit these taxes to Plaintiff and the Class; and

v. whether, under the appropriate ordinance and/or rule, the amount of tax due and owing to Plaintiff and the Class is to be calculated as a percentage of the Retail Rate, without regard to service fees, operation expenses and other amounts currently deducted by Defendants.

Because the relief sought predominantly relates to money damages,

we cannot determine that the district court abused its discretion in

denying class certification under C.R.C.P. 23(b)(2).

D. C.R.C.P. 23(b)(3) Certification

¶ 79 Alternatively, Breckenridge argues that class certification is

appropriate under C.R.C.P. 23(b)(3). But, the district court found,

and we agree, that Breckenridge failed to satisfy C.R.C.P. 23(b)(3)’s

predominance and superiority requirements.

¶ 80 When reviewing a court’s decision regarding whether C.R.C.P.

23(b)(3)’s requirements are satisfied, we will uphold a district

court’s determination, absent an abuse of discretion, so long as the

court “rigorously analyze[d] the evidence presented.” State Farm

37 Mut. Auto. Ins. Co. v. Reyher, 266 P.3d 383, 387 (Colo. 2011).

Accordingly, we must determine whether the court sufficiently

examined the evidence presented.

¶ 81 The court first found that Breckenridge failed to advance a

classwide method of proving the OTCs’ liability for unpaid taxes. To

satisfy C.R.C.P. 23(b)(3)’s predominance requirement, a party must

demonstrate that legal or factual questions common to the class

predominate over questions affecting individual members. This

inquiry often turns on whether a “plaintiff advances a theory by

which to prove or disprove ‘an element on a simultaneous, class-

wide basis, since such proof obviates the need to examine each

class member’s individual position.’” Farmers Ins. Exch. v. Benzing,

206 P.3d 812, 820 (Colo. 2009) (quoting Lockwood Motors, Inc. v.

Gen. Motors Corp., 162 F.R.D. 569, 580 (D. Minn. 1995)).

¶ 82 Breckenridge argues that the common question affecting all

class members is whether merchant model transactions are subject

to tax liability. Because OTCs predominantly utilize the same

merchant model throughout the state, Breckenridge contends that

class certification is appropriate for fifty-five municipalities with

similar accommodation and sales tax provisions. However, what

38 Breckenridge fails to consider, and what the district court notes, is

the varying language used throughout the ordinances.

¶ 83 The district court explained that “one of the chief

responsibilities in adjudicating this action will be to interpret

applicable municipal accommodation tax statutes and then apply

the prevailing factual circumstance to determine whether the plain

language creates a tax responsibility flowing from [the OTCs] to [the

class member].” This is especially problematic when the ordinances

are not identical, or even significantly similar. In its analysis, the

court noted at least six material differences amongst the ordinances

regarding the taxable amount.3 Additionally, the district court

determined that the “ordinances utilize at least 20 different

standards to determine who is obligated to collect and remit

accommodation tax.”4 Consequently, the court was tasked with

conducting “an exhaustive analysis of all 55 municipal statutes.”

3 For example, Burlington requires taxing the “entire amount charged for furnishing rooms or accommodations,” whereas Larkspur taxes “the gross rental price of the lodging unit.” Burlington Code of Ordinances § 3.28.010; Larkspur Mun. Code § 4-4-20. 4 The court noted that if it were to determine who is obligated to

collect and remit accommodation tax, it would have to decide what

39 ¶ 84 Further, the district court examined a number of federal cases

certifying class action that Breckenridge asserted involved similar

actions against OTCs. See City of Rome v. Hotels.com, L.P., Civ. A.

No. 4:05-CV-249-HLM, 2007 WL 6887932 (N.D. Ga. May 10, 2011);

City of Goodlettsville v. Priceline.com, Inc., 267 F.R.D. 523, 527 (M.D.

Tenn. 2010); County of Monroe v. Priceline.com, Inc., 265 F.R.D. 659,

663 (S.D. Fla. 2010); City of Gallup v. Hotels.com, L.P., No. 07-CV-

00644 JEC/RLP, 2009 WL 9056102 (D.N.M. July 7, 2009); City of

San Antonio v. Hotels.com, Civ. No. SA-06-CA-381-OG, 2008 WL

2486043 (W.D. Tex. May 27, 2008).

¶ 85 But, the court made clear that this particular situation is

distinguishable from those because the fifty-five ordinances were

not modeled after a common source, like a uniform enabling act.

Consequently, unlike the federal cases where the court could utilize

a single test to determine liability, the district court would have had

to look to the plain language of each ordinance to determine the

the controlling standard would be. Would it be “whether Defendants are ‘the lodging services vendor from whom the accommodations are rented,’ as required by Rifle?” Rifle Charter & Mun. Code § 4-6-10. Or, “in Commerce City, the relevant question would be whether Defendants are a ‘vendor or provider of hotel . . . services.” Commerce City Code of Ordinances § 20-246.

40 OTCs’ liability. See Transponder Corp. of Denver v. Prop. Tax Adm’r,

681 P.2d 499, 504 (Colo. 1984) (There is a “‘long-standing rule of

statutory construction’ in Colorado . . . that tax statutes ‘will not be

extended beyond the clear import of the language used, nor will

their operation be extended by analogy . . . .’” (quoting Associated

Dry Goods v. City of Arvada, 197 Colo. 491, 496, 593 P.2d 1375,

1378 (1979))). Because the district court correctly analyzed the

evidence presented, it did not abuse its discretion in finding that

common questions do not predominate over questions affecting only

individual members.

¶ 86 In addition, because it is likely Breckenridge would have to

provide evidence and arguments on fifty-five separate theories to

demonstrate the OTCs’ alleged liability for unpaid taxes, a class

action is not the superior available method for the fair and efficient

resolution of this issue.5

5 Breckenridge also argues that class certification is appropriate for unnamed members who failed to exhaust administrative remedies. See State v. Golden’s Concrete Co., 962 P.2d 919, 924 (Colo. 1998) (“[U]nnamed class members need not exhaust administrative remedies so long as the named class plaintiff does so.”). Because we have determined that class certification is not available under

41 VI. Breckenridge’s Civil Common Law Claims Are Conclusory and We Will Not Address Them

¶ 87 Lastly, Breckenridge, asserting without factual detail and

specificity, contends that the OTCs converted tax dollars and

conspired to do so. Because we have concluded that the

accommodation tax does not apply to OTCs, there is no liability

under these theories either. Moreover, Breckenridge fails to provide

any reasons to support its bald assertions. These arguments are

underdeveloped and are not properly presented for our review. See

People v. Wallin, 167 P.3d 183, 187 (Colo. App. 2007) (declining to

review the issues that were presented in the appeal “in a

perfunctory or conclusory manner”).

VII. Conclusion

¶ 88 The judgment of the district court is affirmed.

JUDGE WEBB concurs.

JUDGE TERRY specially concurs.

C.R.C.P. 23(b)(2) or C.R.C.P. 23(b)(3), we need not address this argument.

42 JUDGE TERRY, specially concurring.

¶ 89 Though my reasoning differs from that of the majority, I

concur in the result of Part III of the majority opinion, concluding

that the district court did not err in granting summary judgment for

the online travel companies (OTCs). I also concur in Part IV,

concluding that the Town of Breckenridge failed to exhaust

administrative remedies; Part V, concluding that the district court

did not err in denying class certification; and Part VI, declining to

address Breckenridge’s common law claims.

¶ 90 And, because I conclude — based on an analysis somewhat

different from the majority’s in Part II of the opinion — that the

Breckenridge tax ordinance does not unambiguously apply to the

markup charged by the OTCs, I concur in the overall result.

¶ 91 The majority concludes that the City & County of Denver v.

Expedia, Inc., 2017 CO 32 (Expedia II), is not dispositive in this

case, because of differences in the Denver and Breckenridge taxing

ordinances, as well as factual differences in the two cases. I agree.

¶ 92 The result in Expedia II was driven by the language of Denver’s

tax code. Both the plurality opinion and Justice Hood’s concurring

opinion in that case relied on the language of the Denver code to

43 conclude that the OTCs are liable for the tax because they “furnish”

lodging.

¶ 93 The Denver tax code at issue in Expedia II clearly imposes a

tax on those furnishing lodging. Section 53-171(a) of the Denver

Revised Municipal Code imposes a tax on the purchase of “lodging.”

“Tax” is defined in section 53-170(6) to include “taxes due from a

vendor.” “Vendor” is defined in section 53-170(8) to include a

person “furnishing lodging to a purchaser in the city” (emphasis

added). The tax is levied in section 53-171(b) on the purchase price

paid or charged for “purchasing such lodging.” “Purchase or sale”

is defined in section 53-170(4) to include “furnishing for

consideration by any person of lodging within the city” (emphasis

added).

¶ 94 Because both the plurality, Expedia II, ¶ 24, and Justice Hood,

id. at ¶ 43, concluded that the OTCs furnish lodging (including

rooms and accommodations), these portions of the Denver code

clearly dictate that the OTCs are liable for the Denver tax. See id.

at ¶ 44 (Hood, J., concurring in the judgment) (“[E]xempting the

OTCs from the definition of ‘vendor’ would leave a portion of the

44 price paid for lodging untaxed, thereby frustrating rather than

effectuating the city council’s clear intent to tax that purchase.”).

¶ 95 But Breckenridge’s tax code differs in substantial respects

from Denver’s. Breckenridge’s code does not clearly impose the tax

on the “furnishing” of rooms or accommodations. The only clear

duty imposed on those who “furnish” lodging in the Breckenridge

Town Code is to collect tax, as required by section 3-4-1, which

says:

[The] legislative intent of the town council in enacting this chapter is that every person who, for consideration, leases or rents any hotel room, motel room, or other accommodation located in the town shall pay and every person who furnishes for lease or rental any such accommodation shall collect the tax imposed by this chapter.

(emphasis added.)

¶ 96 It is undisputed that the OTCs collected tax. What is disputed

is whether any portion of the OTCs’ markup is to be included in the

amount subject to the tax. Cf. Expedia II, ¶¶ 35, 36 (concluding

that OTCs’ markup was taxable under Denver tax code); id. at ¶ 45

(Hood, J., concurring in the judgment) (indicating that Denver’s tax

45 code imposes “tax on the entire purchase price of any lodging” sold

by vendors, including the OTCs).

¶ 97 Unlike Denver’s code, Breckenridge’s code does not impose a

tax on the furnishing of lodging. As I understand the plurality

opinion and Justice Hood’s concurring opinion in Expedia II, the

absence of such a provision in the Breckenridge code is a potential

impediment to Breckenridge’s ability to impose a tax on that

markup.

¶ 98 Also unlike Breckenridge’s code, Denver’s code imposes a tax

on the “purchase price paid or charged for purchasing such lodging.”

Denver Rev. Mun. Code § 53-171(b) (emphasis added). The Expedia

II plurality opinion concluded that the OTCs’ markup is part of that

purchase price paid or charged. Expedia II, ¶ 35. Justice Hood’s

separate concurrence appears to agree with the concept that the

markup is part of that purchase price. Id. at ¶ 45 (reasoning that

Denver’s tax is imposed “on the entire purchase price of any

lodging”).

¶ 99 In contrast, section 3-4-3 of the Breckenridge code imposes a

tax on the “price paid for the leasing or rental” of a room. The

majority concludes that the term “leasing or rental” in the

46 Breckenridge code has significance implicating possessory rights on

the part of the entity making the rental. See supra ¶ 42 (concluding

that “only those with a possessory interest can furnish property for

leasing or renting”). The majority may be correct in concluding that

this is a distinguishing factor between the two ordinances. But in

any event, it is not patent that the OTCs’ markup is part of the

price paid for “leasing or rental,” as distinct from the price paid for

¶ 100 We are required to construe tax provisions narrowly as

imposing tax only on those items clearly enumerated in the tax

code, and ambiguities should be resolved against the government

and in favor of the taxpayer. City of Boulder v. Leanin’ Tree, Inc., 72

P.3d 361, 367 (Colo. 2003).

¶ 101 I am therefore compelled to conclude that because the

Breckenridge code does not explicitly impose a tax on the OTCs’

markup, summary judgment was properly granted in favor of the

OTCs.