5 Models of Renting Hotel Rooms in California
In In re Transient Occupancy Tax Cases (Nov. 1, 2012, B230457 (Anaheim), the Court set forth the five different models that hotels use for renting their hotel rooms.
The Court described the models as follows (using Anaheim's 15 percent tax rate):
The hotel direct transaction model: this is the traditional model in which the transient deals directly with the hotel. If the retail room rate were $100, then the transient would pay the hotel $100 plus an additional $15 in transient occupancy tax (TOT). The transient has paid $115, the hotel keeps $100, and the City receives $15.
The traditional travel agency model: in a traditional travel agency model, the transient reserves a room through a traditional travel agent. The transient pays $100 for the hotel room plus $15 for TOT, directly to the hotel. The hotel then pays the travel agent a back end commission of $20. The transient has paid $115, the hotel keeps $80, the travel agent receives a $20 commission, and the City receives $15.
The online travel company (OTC) agency model: here, the OTC acts as a travel agent. This model works exactly like a traditional travel agency model, with the transient paying $115 directly to the hotel, the hotel keeping $80 and paying the OTC a $20 commission. Again, the City receives $15.
OTC modified merchant model: the OTC modified merchant model is a model used by two major hotel chains. The transient contracts with the OTC and the OTC--not the hotel--serves as the merchant of record. The transient pays the OTC $115, which the OTC remits in full to the hotel. However, as with the traditional travel agency model, the hotel keeps $80, the OTC receives a $20 back end commission, and the City gets $15.
The fifth model is the OTC merchant model, at issue in this lawsuit. Here, the OTC is the merchant of record. It collects the transient's entire $115 payment at the time the transient's credit card is charged. It then remits $80 to the hotel, plus TOT of $12. The OTC keeps the remainder of the money paid by the transient.
Based on these examples, Anaheim argued, as the City does here, that the OTC merchant model results in significantly different tax results for the same retail transaction. (Anaheim, supra, B230457.)
In the Anaheim opinion, the Court concluded that because Anaheim's TOT is based on the amount of money charged and received by a hotel operator, it makes sense that the tax is lower on a transaction where the hotel charges and receives less rent.
The Court held that under the plain meaning of Anaheim's ordinance, the OTCs cannot be considered to be operators of the hotels for which they provide room reservations. (Anaheim, supra, B230457.)
The Court further held that OTCs do not assume the role of hotel operator, nor are they managing agents for any hotel. (Ibid.)
Thus, the Court concluded that the amounts charged by the OTCs for their services are not subject to TOT.