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                                                       ADVANCE SHEET HEADNOTE
                                                                    April 24, 2017

                                      2017 CO 32

No. 14SC634, City & Cty. of Denver v. Expedia, Inc.—Statutory Construction—Local
Tax Ordinances.

        Denver petitioned for review of the court of appeals opinion reversing the

judgment of the district court and remanding with directions to vacate the subject tax

assessments against Expedia and the other respondent online travel companies

(“OTCs”). See Expedia, Inc. v. City & Cty. of Denver, 2014 COA 87, ___ P.3d ___. The

district court had largely upheld a Denver hearing officer’s denial of protests by

Expedia and the other OTCs to Denver’s claim for unpaid taxes, interest, and penalties,

assertedly due according to Denver’s ordinance imposing a lodger’s tax. Unlike the

hearing officer and district court, the court of appeals concluded that the city lodger’s

tax article was at least ambiguous with regard to both the purchase price paid or

charged for lodging, upon which the tax is to be levied, and the status of the OTCs as

vendors, upon which the ordinance imposes the responsibility to collect the tax and

remit it to the city; and the intermediate appellate court considered itself obligated to

resolve all ambiguities in the lodger’s tax article, being a tax statute, in favor of the

OTCs.
      The supreme court reversed the judgment of the court of appeals. A majority of

the court agreed that Denver’s lodger’s tax article imposes a duty on the OTCs to collect

and remit the prescribed tax on the purchase price of any lodging they sell, to include

not only the amount they have contracted with the hotel to charge and return but also

the amount of their markup.
                      The Supreme Court of the State of Colorado
                        2 East 14th Avenue • Denver, Colorado 80203


                                        2017 CO 32

                           Supreme Court Case No. 14SC634
                         Certiorari to the Colorado Court of Appeals
                           Court of Appeals Case No. 13CA779

                                        Petitioners:
City and County of Denver, Colorado; Brendan Hanlon in his official capacity as the Chief
   Financial Officer of the City and County of Denver; and Bill Speckman, in his official
          capacity as Hearing Officer designated by the Chief Financial Officer,
                                             v.
                                       Respondents:
  Expedia, Inc.; Hotels.com, L.P.; Hotwire, Inc.; Orbitz, LLC; Priceline.com, Incorporated;
  Site59.com, LLC; Travel Webb LLC; Travelocity.com LP; and Trip Network, Inc. d/b/a
                                     Cheaptickets.com.

                                   Judgment Reversed
                                         en banc
                                       April 24, 2017

Attorneys for Petitioners:
Lewis Roca Rothgerber Christie LLP
Michael D. Plachy
Thomas M. Rogers
 Denver, Colorado

Hagens Berman Sobol Shapiro LLP
Andrew M. Volk
Christopher A. O’Hara
 Seattle, Washington

City Attorney for the City and County of Denver
Charles T. Solomon, Assistant City Attorney
 Denver, Colorado
Attorneys for Respondents:
Zonies Law LLC
Sean Connelly
 Denver, Colorado

Davis Graham & Stubbs
Jason M. Lynch
  Denver, Colorado

Attorneys for Amici Curiae Colorado Municipal League and Colorado Association of
Ski Towns:
Colorado Municipal League
Geoffrey T. Wilson
 Denver, Colorado

Attorneys for Amici Curiae Visit Denver and Colorado Hotel and Lodging
Association:
Brownstein Hyatt Farber & Schreck, LLP
Richard B. Benenson
 Denver, Colorado

Attorneys for Amicus Curiae American Society of Travel Agents, Inc.:
Blain Myhre LLC
Blain Myhre
 Englewood, Colorado




JUSTICE COATS announced the judgment of the Court and delivered an opinion, in
which JUSTICE MÁRQUEZ and JUSTICE BOATRIGHT join.
JUSTICE HOOD concurs in the judgment.
JUSTICE GABRIEL dissents, and CHIEF JUSTICE RICE and JUSTICE EID join in the
dissent.

                                         2
¶1      Denver petitioned for review of the court of appeals opinion reversing the

judgment of the district court and remanding with directions to vacate the subject tax

assessments against Expedia and the other respondent online travel companies

(“OTCs”). See Expedia, Inc. v. City & Cty. of Denver, 2014 COA 87, ___ P.3d ___. The

district court had largely upheld a Denver hearing officer’s denial of protests by

Expedia and the other OTCs to Denver’s claim for unpaid taxes, interest, and penalties,

assertedly due according to Denver’s ordinance imposing a lodger’s tax. Unlike the

hearing officer and district court, the court of appeals concluded that the city lodger’s

tax article was at least ambiguous with regard to both the purchase price paid or

charged for lodging, upon which the tax is to be levied, and the status of the OTCs as

vendors, upon which the ordinance imposes the responsibility to collect the tax and

remit it to the city; and the intermediate appellate court considered itself obligated to

resolve all ambiguities in the lodger’s tax article, being a tax statute, in favor of the

OTCs.

¶2      The application of well-accepted aids to statutory construction leads to the

conclusion that the fair and reasonable interpretation of Denver’s lodger’s tax article is

that it imposes a duty on the OTCs to collect and remit the prescribed tax on the

purchase price of any lodging they sell, to include not only the amount they have

contracted with the hotel to charge and return but also the amount of their markup.

The judgment of the court of appeals is therefore reversed, and the matter is remanded

for consideration of the remaining issues raised on appeal by the parties.




                                            3
                                             I.

¶3        In July 2010, the City and County of Denver issued nine Notices of Final

Determination, Assessment and Demand for Payment against various online travel

companies: Expedia, Inc.; Hotels.com LP; Hotwire, Inc.; Orbitz, LLC; Trip Network,

Inc.; Priceline.com Incorporated; Travelweb, LLC; Site59.com, LLC; and Travelocity.com

LP. The Notices claimed unpaid taxes, penalties, and interest due according to the city

lodger’s tax article, Denver Revised Municipal Code (“D.R.M.C.”) §§ 53-166 to -236, for

the period from January 2001 through April 2010, totaling over $40 million.1 These

online companies filed nearly identical protests, requesting hearings before a Denver

Department of Finance hearing officer, and the protests were consolidated by

stipulation.

¶4        Based on the stipulated evidence, including depositions and other materials from

litigation in other jurisdictions and internal materials of the OTCs themselves

explaining their operational methods and practices, the hearing officer found, and the

parties do not dispute, that the OTCs operate under two basic business models. Under

what they describe as the “agency model,” he found that the OTCs refer customers to

hotels.     Lodgers then transact directly with the hotels, and the OTCs receive

commissions in separate transactions. Under what they describe as the “merchant

model,” by contrast, the OTCs operate in the transaction somewhere between lodgers

1 Denver estimated the liabilities based on incomplete information. After discovery
during the administrative proceedings, the parties stipulated to the amount of liability
under various scenarios, depending upon the hearing officer’s determinations.
Pursuant to that stipulation, the websites faced potential liabilities totaling, at most,
$7,573,506 (with interest computed through the date of the stipulation).


                                              4
and hotels. Lodgers transact with the OTCs, prepaying for reservations, and the OTCs

later pass part of those payments along to the hotels. The OTCs, not the hotels, appear

as the merchant of record on lodgers’ credit card statements—hence the term “merchant

model.” These two models have different pricing structures, about which again the

parties do not disagree. In the agency model, the hotels maintain exclusive control over

the purchase price paid by lodgers. In the merchant model, by contrast, the hotels set a

rate they will accept, which the OTCs refer to as a “net rate,” but the hotels grant the

OTCs discretion, within designated limits, to set the price ultimately to be paid by the

lodger. The OTCs then sell reservations to lodgers at that price, pass the amount of the

so-called “net rate” plus a tax surcharge along to the hotels, and retain the difference as

their own compensation.

¶5       For agency-model transactions, the hotels collect and remit lodger’s taxes, just as

they do for all other traditional bookings.2 For merchant-model transactions, the hotels,

as a matter of practice, have also been claiming the transactions on their own lodger’s

tax returns, but because the hotels do not transact directly with the lodgers, and because

the hotels typically do not receive payment at the time of the transaction with the

lodger, the process of collecting and remitting the lodgers’ tax to the city is, in current

practice, somewhat more convoluted.           In practice, the OTCs typically collect a

“surcharge” from the lodger at the time the lodger initially pays for a reservation. The

OTCs then transmit that tax surcharge to the hotel along with the so-called “net rate,”

which transmission ordinarily occurs after the lodger checks out. Finally, the hotel

2   Denver does not dispute the tax treatment of the OTCs’ agency-model transactions.


                                              5
remits the surcharged amount to the city, along with its other lodger’s tax receipts for

the month.

¶6    When booking reservations, the OTCs typically disclose two charges to lodgers.

The first amount is the room rate, which is presented to the lodger as a single per-night

rate that includes both the discounted rate to be returned to the hotel and the OTC’s

markup on that rate. The second amount is a taxes-and-fees charge, which is presented

to the lodger as a single per-transaction amount but which actually has two

components: what the OTCs refer to as a “service fee” and a surcharge for taxes.3

Typically, the parties agree, the tax surcharge is computed on the “net rate,” while the

service fees are computed on the price charged to the lodger plus taxes.

¶7    To illustrate, Denver relied on the following example during administrative

proceedings, using hypothetical numbers from the deposition of Expedia, Inc.’s

corporate representative. Assume a website sells a reservation for $100, of which $75

will be paid to the hotel as the net rate and $25 will be retained by the OTC as its

markup. If the applicable lodger’s tax is 10%, it will be applied to the $75 net rate and

the tax surcharge will therefore be $7.50. If the OTC’s service charge is 5.5%, it will be

applied to the so-called “retail price” plus taxes—i.e., to $107.50—and the service fee

will therefore be $5.91. The lodger will see a room rate of $100 and a taxes-and-fees

charge of $13.41, and will pay a total of $113.41. The OTC will retain both the markup

3 The OTCs assert—and Denver does not dispute—that the service fees and taxes are
bundled together into one line item in order to keep the hotels’ net rates confidential,
per contractual obligations. If the tax surcharges were displayed separately, a hotel’s
competitors could compute the hotel’s net rate by dividing the applicable tax rate into
the tax surcharge.


                                            6
and the service fee ($25 plus $5.91, totaling $30.91)4 and will eventually remit to the

hotel the “net rate” and tax surcharge ($75 plus $7.50, totaling $82.50). The hotel then

will remit the tax receipts ($7.50) on its next monthly lodger’s tax return.

¶8     The hearing officer held that this practice for merchant-model transactions does

not comport with the mandates of the city lodger’s tax article for two reasons. First, he

concluded that the OTCs’ markups and service fees are “directly connected with”

furnishing lodging, as contemplated by section 53-171(c) of the D.R.M.C., and therefore

must be included within the tax base.         Second, he concluded that the OTCs are

“vendors,” within the contemplation of section 53-170(8), and are therefore responsible

for collecting and remitting taxes directly to the city. The hearing officer therefore

upheld Denver’s Notices.5

¶9     The OTCs sought judicial review as permitted by C.R.C.P. 106(a)(4). The district

court rejected Denver’s position regarding the applicable statute of limitations, holding

instead that Denver could assert liabilities for only the preceding three years, but

otherwise it upheld the hearing officer’s determinations.        On cross-appeals by the

parties, the court of appeals concluded that the city lodger’s tax article is at least


4 The parties agree that, although the service fees roughly approximate the OTCs’
transaction costs for credit-card vendor fees and the like, there is no substantive
difference between the OTCs’ markup and the service fees. Both types of receipts are
booked as gross receipts, without a distinction from any accounting or tax perspective.
Although the OTCs argued during administrative proceedings that the markups and
service fees might be treated differently under Denver’s ordinance, they have since
abandoned that argument.
5 The hearing officer voided Denver’s asserted fraud penalties—which are no longer at
issue in this case—and recomputed the liabilities based on the parties’ stipulations, but
otherwise upheld the Notices in full.


                                             7
ambiguous as to both the question whether the OTCs are “vendors,” with

collect-and-remit obligations, and the question whether the tax base includes the OTCs’

markups and service fees. Relying on its understanding that tax statutes must be

construed strictly, the intermediate appellate court construed both provisions against

the promulgating authority and ordered the case remanded with directions to vacate

Denver’s Notices.6

¶10    Denver petitioned this court for a writ of certiorari.

                                             II.

¶11    By ordinance, the City and County of Denver imposes a tax on the privilege of

purchasing lodging in the city, and the tax thus imposed is to be paid by the person

exercising the privilege. D.R.M.C. § 53-171(a). The amount of the tax is to be calculated

as a percentage of the purchase price paid or charged for purchasing the lodging,

§ 53-171(b), and obligations are imposed on the vendor to add the amount of this tax to

the purchase price or charge for lodging and pay to the city, on a monthly basis, an

amount equivalent to the tax on all gross taxable sales, § 53-174(a).

¶12    The term “purchase or sale” is used as a term of art in the lodger’s tax article to

mean the acquisition or furnishing of lodging within the city for consideration. See

§ 53-170(4). Similarly, the term “lodging” is used as a term of art in the article to refer to

rooms or accommodations for overnight use furnished to someone who has for

consideration acquired the right to use, possess, or occupy any such room or


6 The court of appeals did not reach Denver’s cross-appeal as to the statute of
limitations, and it is therefore not before this court.


                                              8
accommodation in either a hotel or another of the enumerated similar establishments,

under a concession, permit, lease, contract, license to use, or other similar arrangement.

§ 53-170(2). Finally, the term “vendor,” as it is used in the lodger’s tax article, refers

specifically to a person making sales of lodging, or furnishing lodging, to a purchaser in

the city. § 53-170(8).

¶13    No claim that the city’s lodging tax article is unconstitutional, is preempted by

statute, or is otherwise inoperable was implicated by the court of appeals judgment

below. Therefore the questions pending before this court, concerning whether the

OTCs are vendors and, if so, whether the purchase price upon which the lodging tax is

to be calculated includes the OTCs’ markup, turn entirely on the interpretation of the

Denver lodger’s tax article.

¶14    Like state statutes, city ordinances are a form of legislation and therefore have

meaning according to the intent of the enacting body, as that intent is expressed in the

language the enacting body has chosen for the particular ordinance itself. Dep’t of

Transp. v. Gypsum Ranch Co., 244 P.3d 127, 131 (Colo. 2010); City of Colorado Springs

v. Securcare Self Storage, Inc., 10 P.3d 1244, 1248 (Colo. 2000). If an ordinance or statute

is clear and unambiguous, and is not in conflict with another ordinance or statute, it

must simply be applied as written. Holcomb v. Jan-Pro Cleaning Sys. of S. Colo., 172

P.3d 888, 890 (Colo. 2007). However, if the language in which legislation is written is

susceptible of more than one reasonable interpretation, and is therefore considered

ambiguous, a substantial body of interpretative aids, either provided by the legislative

body itself to explain its own drafting conventions and preferences for avoiding or


                                             9
resolving conflict, see, e.g., D.R.M.C. §§ 1-3 to -12, or developed by courts over

centuries, see generally Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes &

Statutory Construction (7th ed. 2007), is available to help determine which of these

reasonable interpretations actually embodies the legislative intent. People v. Jones, 2015

CO 20, ¶ 10, 346 P.3d 44, 48.

¶15      These interpretative aids, or canons of construction, may take a number of

different forms.     As we have noted in the past, many reflect little more than

grammatical or syntactical conventions; others largely reflect conventions followed in

the process of legislative drafting; and still others purport to draw reasonable inferences

from the relationship between legislative enactments and external events, or actually

seek to reconstruct the purpose of drafters, sponsors, or even individual supporters

with regard to legislative enactments. See Union Pac. R.R. v. Martin, 209 P.3d 185, 188

(Colo. 2009). Noteworthy for understanding the meaning of the tax provisions at issue

here, a number of court-developed aids, or rules of construction, also express

presumptions, or preferences, favoring, in the absence of adequate indication to the

contrary, one over another class of litigants affected by the specific type of legislation at

issue.

¶16      Included in this last group are policy preferences concerning the construction of

statutes imposing burdens on property or liberty. In this jurisdiction, we have long

accepted the proposition that statutes imposing a tax burden on the citizenry should be

construed strictly, resolving doubts concerning their meanings in favor of the persons

against whom an attempt is made to exact the tax. Gomer v. Chaffee, 6 Colo. 314, 317


                                             10
(1882) (“It is a settled rule in the interpretation of revenue laws, that in case of doubt or

ambiguity the construction must be in favor of the public.” (citing Thomas M. Cooley,

Law of Taxation 197–208 (1876, reprinted 1881)). Much like the closely related policy

favoring lenity in the construction of criminal statutes, see Commissioner v. Acker, 361

U.S. 87, 91 (1959) (applying rule of lenity to civil tax penalties), however, this policy

preference regarding tax burdens was never intended to displace other canons designed

to help resolve doubts, or ambiguity. See, e.g., Douglas Cty. Bd. of Equalization v. Fid.

Castle Pines, Ltd., 890 P.2d 119, 125–30 (Colo. 1995) (stating that “[g]enerally, we

interpret ambiguous tax statutes in favor of the taxpayer,” but also applying several

other canons of construction and surveying legislative history); Stanley v. Little

Pittsburg Min. Co., 6 Colo. 415, 419 (1882) (citing Cooley, supra, for the proposition that

the presumption exists to maintain fidelity to legislative intent); cf. White v. United

States, 305 U.S. 281, 292 (1938) (“It is the function and duty of courts to resolve doubts.

We know of no reason why that function should be abdicated in a tax case . . . . Here

doubts which may arise upon a cursory examination of §§ 101 and 115 disappear when

they are read, as they must be, with every other material part of the statute, and in the

light of their legislative history.” (citation omitted)).

¶17    Rather, such policy preferences have often been characterized as rules of last

resort, applicable only if, after utilizing the other relevant aids to statutory construction,

the enacting body’s intent remains obscured. See, e.g., People v. Thoro Prods. Co., 70

P.3d 1188, 1198 (Colo. 2003) (quoting from Muscarello v. United States, 524 U.S. 125, 138

(1998), to the effect that the “rule of lenity applies only if, after seizing everything from


                                               11
which aid can be derived, . . . we can make no more than a guess as to what Congress

intended,” and from United States v. Wilson, 10 F.3d 734, 736 (10th Cir. 1993), to the

effect that the “rule of lenity is a rule of last resort, to be invoked only after traditional

means of interpreting the statute have been exhausted”); BP Am. Prod. Co. v. Patterson,

185 P.3d 811, 814 (Colo. 2008) (holding that rule favoring longer, rather than shorter, of

two arguably applicable statutes of limitation, like analogous rules of choice applicable

to statutes or contractual provisions generally, is a rule of last resort); cf. Lee R. Russ &

Thomas F. Segalla, Couch on Insurance § 22:16 (3d ed. 1995) (characterizing the familiar

principle that ambiguity in insurance contracts must be construed in favor of insured as

a rule of last resort).7



7 While Colorado retains, as a last resort, these rules of construction favoring one over
another class of litigants affected by the specific type of legislation at issue, many
commentators actually argue that these presumptions have been, or should be,
discontinued altogether. E.g., Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 359–63 (2012) (“Like any other governmental intrusion on
property or personal freedom, a tax statute should be given its fair meaning, and this
includes a fair interpretation of any exceptions it contains. . . . . [As to all such
presumptions,] [t]he expressions to the contrary find their source either in a judicial
proclivity to make difficult interpretive questions easy, or else in an inappropriate
judicial antagonism to limitations on favored legislation.”); see also Jasper L.
Cummings, Jr., The Supreme Court’s Federal Tax Jurisprudence, Ch. II.B. (2nd ed. 2016)
(tracing history of presumptions in federal tax statutes, and concluding, “the tilt toward
taxpayers in construing the federal tax statutes did not long survive the enactment of
the income tax”); Singer & Singer, Sutherland Statutes & Statutory Construction, §§ 66:1
–:2 (listing as many applications of exceptions and contrary presumptions as
applications of the original presumption against the government); Cooley, supra, at 205
(“There may and doubtless should be a distinction taken in construction of those
provisions of revenue laws which points out the subjects to be taxed, and indicate the
time, circumstances and manner of assessment and collection, and those which impose
penalties for obstructions and evasions. There is no reason for peculiar strictness in
construing the former. Neither is there reason for liberality.”).


                                             12
¶18    It is also widely accepted that where the body enacting particular legislation has

not expressly defined a term or otherwise limited its meaning, that term must be given

its ordinary meaning. See Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, ___, 132 S.

Ct. 1997, 2002 (2012); Marquez v. People, 2013 CO 58, ¶ 8, 311 P.3d 265, 268. Because,

however, terms frequently have more than one ordinary meaning, or at least more than

one shading or nuance of meaning, and because even a dictionary definition broad

enough to encompass a particular sense of a word does not establish that the term is

ordinarily understood in that sense, Taniguchi, 566 U.S. at ___, 132 S. Ct. at 2003, the

precise meaning intended by an undefined term often must be determined by reference

to other considerations, like the context in which it is used and the apparent purpose for

its use, Marquez, ¶ 8, 311 P.3d at 268; see also Curious Theater Co. v. Colo. Dep’t of

Pub. Health & Env’t, 220 P.3d 544, 549 (Colo. 2009). In particular, we have often held

that in the absence of some express indication to the contrary, a term or provision that is

part of a greater statutory scheme should be interpreted, to the extent possible,

harmoniously with the other provisions and purpose of that scheme. Gypsum Ranch

Co., 244 P.3d at 131; Frank M. Hall & Co. v. Newsom, 125 P.3d 444, 448 (Colo. 2005). In

this regard, a tax statute is no different from any other statute. Welby Gardens v.

Adams Cty. Bd. of Equalization, 71 P.3d 992, 995 (Colo. 2003); see also Walgreen Co. v.

Charnes, 819 P.2d 1039, 1043 & n.6 (Colo. 1991) (requiring that particular Denver sales

tax ordinance be construed in pari materia with entire scheme to effectuate the

legislative intent).




                                            13
¶19      The two issues resolved by the court of appeals by construing the lodger’s tax

article, or better, by declining to fully construe the lodger’s tax article and instead

resolving any perceived ambiguity in favor of the taxpayer, analytically involve one

substantive question, concerning tax liability, and a separate administrative question,

concerning the responsibility to collect whatever tax is due and remit it to the city.

While it might appear that the more logical sequence for dealing with these two

questions would be to address the existence and extent of any tax liability before

assigning responsibility for its collection and remittance, perhaps because only

assessments against the OTCs are at issue in this litigation and therefore a

determination that they are not responsible to collect or remit any lodging tax should

end the matter, the parties and the intermediate appellate court have not addressed the

issues in that sequence. For that reason, and because we believe the purchase price of

lodging, or tax base, to be integrally related to the sale, and therefore the seller, or

“vendor,” of that lodging, we will follow suit and address the administrative question

first.

                                           A.

¶20      Although the tax is imposed on the purchaser, the obligation to collect it and

remit it to the city falls on the vendor, and for that reason, the court of appeals

appropriately concerned itself with the definition of “vendor” in the article.        It

determined that according to the article’s definition, the term “vendor” refers to a

person who furnishes lodging, and since the lodger’s tax article itself nowhere defines

the term “furnish,” the court turned to dictionary definitions of that term and case law


                                           14
in other contexts to determine its ordinary meaning. Further finding that the OTCs’

primary contention—that the person who furnishes lodging is the one who actually

provides access to a specific room—was at least a reasonable interpretation of the

article, the intermediate appellate court considered itself bound to accept that

interpretation.

¶21    While the article somewhat unusually defines “purchase or sale” as a single

term, there appears to be no dispute that it can only be understood to intend that

“purchase” refers to the acquisition of lodging within the city by any person for

consideration, and that “sale” refers to the furnishing of lodging within the city by any

person for consideration. See § 53-170(4). That being the case, the court of appeals was

undoubtedly right in concluding that the word “or” in the definition of “vendor” was

not used in its disjunctive implication but rather to introduce a synonymous phrase.

See People v. Swain, 959 P.2d 426, 430 n.12 (Colo. 1998) (“Generally, the word ‘or’ is a

disjunctive particle that denotes an alternative; however, the word ‘or’ may also be

utilized as a ‘coordinate conjunction introducing a synonymous word or phrase or it

may join different terms expressing the same idea or thing.’” (quoting State v. Ramsey,

430 S.E.2d 511, 514 (S.C. 1993))). As the definition of “sale” makes clear, furnishing

lodging to a purchaser is simply the equivalent of, or another way of saying, making a

sale of lodging. By concluding, however, that a “vendor” is therefore one who merely

“furnishes lodging,” the court of appeals too narrowly circumscribed the equivalent

definitions and thereby mistakenly considered itself free to look to the “ordinary

meaning” of the term “furnish.”


                                           15
¶22   Read together, the definitions of “purchase or sale” and “vendor” unmistakably

lead to the conclusion that the term “vendor” does not refer simply to someone who

furnishes lodging, as the court of appeals reasoned, but rather to someone who

furnishes lodging for consideration, and further, only to someone who furnishes

lodging for consideration to a person who acquires that lodging for that consideration.

See § 53-170(4), (8). Making a sale of lodging, or furnishing it for consideration, on the

one hand, and purchasing that lodging, or acquiring it for consideration, on the other,

are defined as opposite but corresponding aspects, or what could be characterized as

flip-sides, of the same transaction. While the term “furnish” may not be separately

defined in the article, as the court of appeals and OTCs correctly point out, the phrase

“furnishing lodging to a purchaser,” appearing in the definition of “vendor,” is made

synonymous with “making sales” of lodging, as the court of appeals also explains.

“Furnishing lodging,” as used in the definition of “vendor” therefore cannot mean

simply providing a room, in the sense of controlling physical access to it, but can only

mean making a sale of lodging.

¶23   By contrast with the term “furnish,” the term “lodging” is expressly defined as a

term of art, and that definition similarly makes clear that furnishing lodging refers to

selling, or providing for consideration, “the right to use, possess, or occupy qualifying

accommodations.” While the definition might have been phrased more felicitously in

terms of the overnight use of certain rooms or accommodations, rather than as “rooms

or accommodations for overnight use,” when the definition is read as whole and in

context, the choice of subject and placement of a modifying prepositional phrase creates


                                           16
no ambiguity. There can be no serious question that “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 meeting all of the specifications of the definition. Because only

the right to overnight use of rooms can be furnished and acquired for consideration

without removing the transaction from the definition of “lodging” altogether,

furnishing lodging for consideration necessarily refers to selling, or providing for

consideration, the right to overnight use of rooms or accommodations in the

enumerated hotel-like facilities.

¶24    Although the OTCs maintain that even in merchant-model transactions they do

not sell, or furnish for consideration, a right to occupy or use the hotel rooms in

question, no matter what terminology they may choose to use in describing their

transactions, as a functional matter that is precisely what they do. See Apollo Stereo

Music Co. v. City of Aurora, 871 P.2d 1206, 1211–12 (Colo. 1994) (holding that vending-

machine owners, rather than owners of stores in which vending machines sit, are the

vendors for purposes of sales taxes in light of the control they actually exercised over

the machines, and especially over the access to and distribution of the moneys

deposited in the machines); People v. Becker, 413 P.2d 185, 186 (Colo. 1966) (“It is a

familiar and well documented rule of law that taxation is concerned with realities and

that, in considering tax matters, substance and not form should govern.”).

¶25    However characterized, virtually every aspect of the merchant-model transaction

objectively places an OTC in the role of “vendor.” The OTC deals directly in the

transaction with the consumer-purchaser. The OTC sets the price, or consideration,


                                            17
without the payment of which, the OTC will not sell the consumer the right to use the

room; the OTC collects the amount of that purchase price directly from the consumer;

and the OTC adds to the purchase price an amount it determines to be sufficient for the

lodger’s tax. Whether or not a particular room is specified at that point, in accepting the

purchase price the OTC sells a reservation for a room of particular specifications to a

consumer, and by its arrangement with the hotel, the hotel becomes contractually

obligated to the OTC to provide the consumer with a room meeting those specifications.

¶26    Although the OTCs may choose to characterize themselves as mere

intermediaries in a transaction between the hotels and the consumers, their relationship

with the hotels is clearly not one remotely resembling an agency relationship. The

OTCs are not employed by the hotels nor are they paid a fee, or commission, by the

hotels for arranging reservations, as in the traditional agency model. The obligations of

the OTCs and hotels to each other are purely contractual in nature, and to the extent the

purchaser of lodging acquires rights from the hotel, it is at most as a third-party

beneficiary of the contractual arrangement between the hotel and OTC. Whoever may

actually hand the purchaser the key, the lodger is the purchaser in a transaction of sale

with the OTC.

¶27    By the same token, however, although the OTCs pay an amount that is set by the

hotels to them for each room reservation the OTCs make, and contractually retain the

right to charge more in their subsequent sales to lodger-purchasers, neither are their

arrangements with the hotels in the nature of wholesale purchases. The OTCs’ separate

transactions, first with the hotels and then with lodgers, are not in the nature of


                                            18
wholesale and retail sales for the simple reason that the OTCs never acquire the right to

occupy or use the rooms in question. They merely contract for the authority to sell to

consumers, or lodgers, the right to occupy or use rooms, in agreed upon numbers or as

available, at a price largely of their own choosing, in exchange for an agreement to

return a specified amount to the hotels for each reservation not timely cancelled. If the

OTCs actually purchased the right to occupy or use the rooms at a wholesale rate and

resold that right at a retail rate, in the absence of some other provision in the tax code as

provided for various commodity sales, the first sale would itself be a taxable event, with

a second sale resulting in at least partial double taxation.8

¶28    The lodger-purchaser in the transaction is in privity of contract with the OTC,

not the hotel. By virtually all objective criteria, the contract for sale of the right to use a

hotel accommodation is entered into by the OTC and purchaser, at the time of the

OTC’s acceptance by receiving payment of the amount it charges for the reservation.

There is of course nothing improper in attempting to structure transactions to the

advantage of one’s clients, and within ethical limits, that is precisely what lawyers are

typically retained to do. But labelling alone is insufficient to alter the structure of a

transaction. Apollo Stereo Music Co., 871 P.2d at 1211–12; Becker, 413 P.2d at 186. If tax

obligations are imposed on the basis of function, then objective criteria establishing the

functional relationships involved in any particular transaction must be determinative of

the relative tax obligations. Any fair and reasonable interpretation of the city lodger’s

8At this point, Denver does not claim from the OTCs tax arrearages on the full amount
of the purchase price paid or charged but only past due lodger’s tax on the OTCs’
markup, which has not already been remitted by the hotels.


                                              19
tax article categorizes the OTC in a merchant-model transaction, according to the

objective criteria of the article’s definitions, as the vendor, with the obligation to collect

and remit a lodger’s tax to the city.

                                              B.

¶29    Not only is the lodger’s tax imposed on the person actually purchasing lodging

in the city, but the amount of the tax thus imposed is expressed as a percentage “of the

price paid or charged” for the purchase in question. § 53-171(a), (b). For the obvious

reasons that a single money transaction may involve the purchase and sale of more than

lodging alone and that a vendor may attempt to differentiate the cost of lodging and the

cost of related goods or services for tax purposes, despite their inseparability from the

purchase and sale of the lodging itself, the article further specifies that “the price paid

by the purchaser for any goods, services or commodities other than those directly

connected with, and included in the price of, the furnishing of rooms or

accommodations” is not to be included as part of “the purchase price” from which the

lodger’s tax is to be calculated.       § 53-171(c). The court of appeals focused on the

meaning of the phrase “directly connected with” in the ordinance, and because it had

already found it reasonable to conclude that the OTCs do not furnish lodging at all, it

similarly considered it reasonable to conclude that the OTCs’ markups, which they

characterize as compensation for providing travel-related information and online

facilitation services, are not directly connected with furnishing lodging.

¶30    Because we reach a different conclusion with regard to the meaning of

“furnishing” and therefore the OTCs’ role in furnishing lodging, we must similarly find


                                              20
the intermediate appellate court’s resolution of the tax base question, based on its

understanding of the meaning of “furnishing,” to be unsupported by the text of the

article. The appellate court was, however, undoubtedly correct in inferring from the

context a relationship between the purchase price charged for lodging and the vendor

charging that price. If, as we now make clear, the OTC is actually the vendor in a

merchant-model transaction, making sales of lodging by exchanging the right to use or

occupy a room for the purchaser’s payment of the price the OTC has decided to charge

for the use of that room, it would not be unnatural for the tax scheme to intend by the

“purchase price paid or charged,” the price assessed by the OTC, without the payment

of which the OTC would not sell, and the purchaser could not acquire, the room

reservation in question.

¶31   In emphasizing that certain “goods, services or commodities” are not to be

considered part of the “purchase price paid or charged for lodging,” for lodger’s tax

purposes, the article circumscribes the exempted “goods, services or commodities” with

the limiting phrase, “other than those directly connected with, and included in the price

of, the furnishing of rooms or accommodations.” There is no dispute that the cost of

goods, services, and commodities other than those specifically excluded according to

this formula are instead to be taxed as part of the purchase price paid or charged for the

lodging.   Beeghly v. Mack, 20 P.3d 610, 613 (Colo. 2001) (“Under the rule of

interpretation expressio unius exclusio alterius, the inclusion of certain items implies

the exclusion of others.”).   While the word “and” is typically, and perhaps even

presumptively, used as a coordinating conjunction, joining two elements of identical


                                           21
construction and equal grammatical rank, it is also a word long acknowledged to serve

a wide-range of different functions, depending upon syntax and context. See, e.g.,

Clyncke v. Waneka, 157 P.3d 1072, 1079 (Colo. 2007) (Coats, J., concurring) (quoting

Peacock v. Lubbock Compress Co., 252 F.2d 892, 893 (5th Cir. 1958), to the effect that

“and” is a word having no “single meaning, for chameleonlike, it takes its color from its

surroundings”); see generally 2 Corpus Juris 1337 (1915) (stating, in definition of “and,”

that “[w]hile the word is generally used in a conjunctive sense, this is not its invariable

use; it is often employed to indicate a connection of what follows with what has gone

before in the way of narration or description”).

¶32    As the Denver ordinances themselves expressly contemplate, the words “and”

and “or” may be functionally interchangeable, depending upon context and usage in a

given sentence. See D.R.M.C. § 1-2(10) (“‘Or’ may be read ‘and,’ and ‘and’ may be read

‘or,’ if the sense requires it.”). More subtly, however, even when a conjunctive, rather

than disjunctive, meaning is clearly intended, a number of different relationships may

be intended between the conjoined elements.           The conjoined elements may be

completely independent or synonymous, but often their meanings overlap with one, or

both, serving to further define or clarify the sense in which the other is being used. See

Arthur v. Cumming, 91 U.S. 362, 364, 23 L. Ed. 328 (1875) (noting “many instances in

which two phrases with the like conjunction between them have been used to designate

the same thing,” a construction “obviously done to make clear and certain the meaning

of the legislature, and to leave no room for doubt upon the subject”).




                                            22
¶33    While the use of commas to set off the second conjoined phrase—“and included

in the price of”—suggests that it was intended to operate in apposition to, or as the

functional equivalent of, the first phrase—“directly connected with”—the meaning of

both phrases is ultimately dictated by context and their use specifically in reference to

the “furnishing of rooms or accommodations.” See United States v. Ron Pair Enters.,

Inc., 489 U.S. 235, 251 (1989) (“Although punctuation is not controlling, it can provide

useful confirmation of conclusions drawn from the words of a statute.”).           For the

reasons we have already articulated, the term “furnishing” in this context means

making sales of, or selling, the right of overnight use of rooms or accommodations

constituting lodging. There can therefore at least be little doubt that the purchase price

of services directly connected with and included in the price for which the lodging in

question is sold is to be included in the tax base.

¶34    Whether or not the conjoined conditions of being directly connected with and

being included in the selling price of the lodging are precisely synonymous, they are

clearly attempts to describe a determinable amount that is neither based on the fortuity

of being included in a single payment by the purchaser nor subject to manipulation by

the labelling choices of the vendor. Cf. Apollo Stereo Music Co., 871 P.2d at 1211–12;

Becker, 413 P.2d at 186. Functionally, the selling, and therefore purchase, price of

lodging is the amount without the payment of which the lodging will not be furnished

by sale, and therefore cannot be acquired by purchase. However this amount is broken

out, or characterized, in the billing process, if the purchaser has no option but to pay it




                                             23
to the vendor as part of the purchase of the lodging in question, it is necessarily both

included in and directly connected with the price for which that lodging is sold.

¶35    In the typical merchant-model transaction, as described for purposes of these

proceedings, the OTC’s markup is not distinguished in the billing process from the

amount to be returned to the hotel at all, much less charged as a separate fee for

informational and online services.     However, whether or not such a fee could be

objectively justified in terms of the service provided, because the purchaser has no

option to decline it in making his purchase of lodging from the OTC, and it is therefore

inseparable from the selling price of the lodging, it is directly connected with, in the

sense that it is necessarily included in, that selling price. When the related provisions

and interlocking definitions of the lodger’s tax article are considered as a harmonious

whole, the conclusion that the OTC’s markup must be included in the purchase price

paid or charged for lodging is not only one reasonable construction of the article; it is

sufficiently apparent that it is the fair and reasonable construction embodying the

legislative intent.

                                           III.

¶36    Because the application of well-accepted aids to statutory construction leads to

the conclusion that the fair and reasonable interpretation of Denver’s lodger’s tax article

is that it imposes a duty on the OTCs to collect and remit the prescribed tax on the

purchase price of any lodging they sell, to include not only the amount they have

contracted with the hotel to charge and return but also the amount of their markup, the




                                            24
judgment of the court of appeals is reversed, and the matter is remanded for

consideration of the remaining issues raised on appeal by the parties.

JUSTICE HOOD concurs in the judgment.
JUSTICE GABRIEL dissents, and CHIEF JUSTICE RICE and JUSTICE EID join in the
dissent.




                                           25
JUSTICE HOOD, concurring in the judgment.

¶37   I agree with the plurality that under Denver’s lodging tax ordinance (“the

ordinance”), Denver, Colo., Revised Municipal Code §§ 53-166 to -236 (2016), the OTCs

are vendors who must collect and remit the prescribed tax on the entire purchase price

of the lodging they sell. However, I disagree with the plurality’s rationale for reaching

this result. Rather than viewing this outcome as a “fair and reasonable interpretation”

of the ordinance, pl. op. ¶ 2, I believe the ordinance is unambiguous regarding the

OTCs’ obligation to collect lodging tax on the entire purchase price. I therefore concur

in the judgment only.1

¶38   The primary goal of statutory interpretation is to effectuate the enacting body’s

legislative intent. BP Am. Prod. Co. v. Colo. Dep’t of Revenue, 2016 CO 23, ¶ 15,

369 P.3d 281, 285. This requires first looking to the plain language of the ordinance,

construing words and phrases according to their ordinary meaning. Id. “A tax statute

is no different than any other statute; it must be construed as a whole in order to give

consistent, harmonious, and sensible effect to all of its parts.” Welby Gardens v. Adams

Cty. Bd. of Equalization, 71 P.3d 992, 995 (Colo. 2003). If the language is clear and

unambiguous, our analysis is complete: we look no further, and we apply the ordinance


1 I am particularly concerned by and specifically decline to join in the plurality’s
discussion of certain interpretive aids it characterizes as “policy preferences concerning
the construction of statutes imposing burdens on property or liberty.” Pl. op. ¶ 16. The
plurality weakens the force of these interpretive aids, referring to them as “rules of last
resort” and claiming that “many commentators actually argue that these presumptions
have been, or should be, discontinued altogether.” Id. at ¶ 17 & n.7. Because I consider
the ordinance unambiguous, I do not believe there is any need to reach the applicability
of interpretive aids to construction, or to call their value into question.


                                            1
as written. Jefferson Cty. Bd. of Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo.

2010). But if the language is susceptible to multiple interpretations, and therefore

ambiguous, we may resort to various aids to statutory construction. Id.

¶39   The court of appeals began its interpretive inquiry with the definition of

“vendor,” because the ordinance requires only “vendors” to collect and remit the tax.

Because the ordinance defines “vendor” as “a person making sales of or furnishing

lodging,” § 53-170(8), and further defines “sale” as “furnishing for consideration,” see

§ 53-170(4), the court of appeals concluded that a “vendor” under the ordinance “refers

only to one who actually furnishes lodging,” Expedia, Inc. v. City & Cty. of Denver,

2014 COA 87, ¶ 38, __ P.3d __. Because the ordinance does not define “furnish,” the

court of appeals looked to the ordinary meaning of that word, which the court

determined was “to equip; to provide or supply with something that is necessary,

useful, or desired.” Id. at ¶ 39 (quoting Broadmoor Hotel, Inc. v. Dep’t of Revenue,

773 P.2d 627, 629 (Colo. App. 1989)). The court of appeals then accepted the OTCs’

argument that they merely facilitate hotel reservations rather than equip, provide, or

supply rooms, and therefore that they are not vendors. The court concluded that the

OTCs had articulated a reasonable interpretation of the ordinance, demonstrating that

the ordinance was at least ambiguous and should be construed in the OTCs’ favor. See

City of Boulder v. Leanin’ Tree, Inc., 72 P.3d 361, 367 (Colo. 2003) (explaining that

doubts in tax statutes should be resolved against the government and in favor of the

taxpayer).




                                           2
¶40    In my view, the court of appeals inappropriately focused on the meaning of

“vendor” to the exclusion of other provisions in the ordinance, and it thereby neglected

to follow the well-established principle of statutory interpretation that a tax statute, like

any other statute, “must be construed as a whole in order to give consistent,

harmonious, and sensible effect to all of its parts.” Welby Gardens, 71 P.3d at 995; see

also Colo. Dep’t of Revenue v. Cray Comput. Corp., 18 P.3d 1277, 1282 (Colo. 2001)

(determining scope of tax exemption based on unambiguous language of statute after

construing statute as a whole and defining integral term according to common usage);

Mesa Verde Co. v. Montezuma Cty. Bd. of Equalization, 898 P.2d 1, 5 (Colo. 1995)

(determining disputed issue based on plain language of statute and noting that “[t]his

interpretation is consistent with the statute read as a whole”).

¶41    The ordinance levies the tax on “every person exercising the taxable privilege of

purchasing lodging.” § 53-171(a). “Purchase” and “sale,” though defined as one term

in the ordinance, mean the acquisition and furnishing, respectively, of lodging for

consideration. See § 53-170(4). Vendors are made responsible for collecting the tax at

the time they make a sale. § 53-173(a). A “vendor,” as discussed above, is “a person

making sales of or furnishing lodging to a purchaser in the city.” § 53-170(8).

¶42    What, then, is “lodging,” for purposes of the ordinance? “Lodging” is defined as

“rooms or accommodations for overnight use furnished by any person . . . to any person

who for consideration uses, possesses, occupies or has the right to use, possess or

occupy any such room.” § 53-170(2). Using the ordinary meaning of “furnish,” as

identified by the court of appeals, lodging must mean rooms provided or supplied to


                                             3
any person who for consideration uses or has the right to use such rooms. Nothing in

the definition of “furnish”—or elsewhere in the ordinance—limits that term to the

physical provision of a hotel room.

¶43   When a customer uses an OTC’s website to purchase a room, the OTC charges

the customer’s credit card at the time of the booking and is the merchant of record for

the transaction. The customer receives a hotel confirmation number, but even this

comes by way of the OTC, and the customer’s entire transactional relationship is with

the OTC, not the hotel. Thus, the OTCs provide or supply rooms to customers who pay

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

are vendors furnishing lodging within the plain meaning of the ordinance.

¶44   This is the only interpretation that harmonizes all parts of the ordinance and

effectuates its stated intent.    Characterizing the OTCs as mere intermediaries

responsible solely for facilitating the booking of reservations would ignore that

purchasers acquire rooms by providing consideration to the OTCs, not to hotels. And it

would render ineffective the ordinance provision governing the collection of the tax,

which states: “Every vendor making sales to a purchaser . . . at the time of making such

sales is required to collect the tax imposed by [the ordinance] from the purchaser.”

§ 53-173(a). In a merchant-model transaction, only the OTC, and not the hotel, collects

payment from the purchaser.2 Finally, exempting the OTCs from the definition of



2 Because the OTC, and not the hotel, collects payment from the purchaser, under the
current state of affairs, the OTC also collects the lodging tax levied on the underlying
room rate charged by the hotel. See pl. op. ¶ 7 (using hypothetical to illustrate
merchant-model transaction). The OTC later remits both the underlying room rate and


                                           4
“vendor” would leave a portion of the price paid for lodging untaxed, thereby

frustrating rather than effectuating the city council’s clear intent to tax that purchase.

¶45    For these reasons, under the plain language of the ordinance, the OTCs are

vendors and must collect and remit the prescribed tax on the entire purchase price of

any lodging they sell. Because I believe the ordinance to be unambiguous in requiring

this result, I do not see a need to resort to the use of interpretive aids. I therefore

respectfully concur in the judgment only.




the tax surcharge to the hotel. See id. In my view, this practice amounts to implicit
acknowledgment by the OTCs that they are vendors, because they are the ones
collecting the lodging tax from the purchasers at the time of sale. See § 53-173(a)
(setting forth provisions governing collection of lodging tax). And, as Denver
emphasized in its briefs, the OTCs repeatedly presented themselves as “providers” and
“resellers” of lodging in SEC filings pre-dating this litigation, which further suggests
that they perceive themselves, at least in a functional sense, as vendors.


                                              5
JUSTICE GABRIEL, dissenting.

¶46    The plurality concludes that the respondent online travel companies (“OTCs”)

furnished lodging within the meaning of the Denver Revised Municipal Code (the

“Code”) because they sold or provided to customers for consideration the right to the

overnight use of rooms or accommodations. See pl. op. ¶¶ 23–24. The plurality thus

concludes that the OTCs are “vendors” subject to Denver’s lodging tax. See id. at ¶¶ 25,

28. The plurality further concludes that the fees charged by the OTCs for their services

were directly connected with furnishing rooms.            See id. at ¶¶ 29–30, 33–35.

Accordingly, the plurality concludes that these fees were part of the cost of lodging and

were also subject to Denver’s lodging tax. See id.

¶47    Because I do not believe that Denver’s ordinances support these conclusions, I

respectfully dissent.

                                      I. Analysis

¶48    I first address the applicable standard of review and principles of construction of

municipal ordinances such as those at issue here. I proceed to address whether the

OTCs furnished lodging, which would render them “vendors” subject to Denver’s

lodging tax. I conclude by considering whether the fees charged by the OTCs to their

customers were directly connected with the furnishing of rooms or accommodations

and thus subject to Denver’s lodging tax.




                                            1
              A. Standard of Review and Principles of Construction

¶49    When reviewing a municipal ordinance or code, we construe it using the same

rules that we use when we interpret statutes. See Town of Erie v. Eason, 18 P.3d 1271,

1275 (Colo. 2001).

¶50    We review de novo questions of law concerning statutory construction. City of

Littleton v. Indus. Claim Appeals Office, 2016 CO 25, ¶ 27, 370 P.3d 157, 165.

¶51    Our purpose in interpreting a statute or ordinance is to give effect to the intent of

the legislature or city council. See id. at ¶ 27, 370 P.3d at 165–66. To discern this intent,

we look first to the language of the statute or ordinance. See id. at ¶ 27, 370 P.3d at 166.

We construe the statute or ordinance as a whole to give effect and meaning to all of its

parts, and we avoid interpretations that render provisions either superfluous or absurd.

Id.; Concerned Parents of Pueblo, Inc. v. Gilmore, 47 P.3d 311, 313 (Colo. 2002).

¶52    If the applicable language is clear and unambiguous, we do not resort to

legislative history or other rules of construction. City of Littleton, ¶ 27, 370 P.3d at 166.

Rather, we give the words used their plain and ordinary meanings. See Concerned

Parents, 47 P.3d at 313.

¶53    If, however, the language of the statute or ordinance is ambiguous, then we may

examine the legislative intent, the circumstances surrounding the adoption of the

statute or ordinance, and the possible consequences of various interpretations to

determine the proper construction of that statute or ordinance. Coffman v. Williamson,

2015 CO 35, ¶ 23, 348 P.3d 929, 936.       A statute or ordinance is ambiguous if it is

reasonably susceptible of multiple interpretations. Id.


                                             2
¶54    Finally, I note that “[i]t is a longstanding rule of construction in this jurisdiction

that tax statutes ‘will not be extended beyond the clear import of the language used, nor

will their operation be extended by analogy. . . . All doubts will be construed against

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

72 P.3d 361, 367 (Colo. 2003) (quoting Transponder Corp. v. Prop. Tax Admin., 681 P.2d

499, 504 (Colo. 1984)). In this regard, I disagree with the plurality’s assertion that the

foregoing “longstanding rule” is akin to the rule of lenity in criminal law and thus is to

be applied only as a rule of last resort. See pl. op. ¶¶ 16–17. None of the parties made

any such argument in this case, the plurality cites no case so holding, nor have I seen

one. Accordingly, although I understand the plurality’s desire to avoid the settled rule

that ambiguous tax provisions will be construed against the taxing authority,11 I do not

believe that it can properly do so here.

                                B. Furnishing Lodging

¶55    Section 53-167(b) of the Code provides, in pertinent part, “[E]very vendor who

shall make a sale of lodging to a purchaser in the city shall collect the tax imposed by

this article to the total purchase price charged for such lodging furnished at any one (1)

time by or to every customer or buyer.”          Denver, Colo., Revised Municipal Code

§ 53-167(b) (2016).




11To reach its conclusions, the plurality must strain against the text of the municipal
ordinances at issue and ignore reasonable interpretations thereof that differ from its
own.


                                             3
¶56    The Code defines “vendor” as “a person making sales of or furnishing lodging to

a purchaser in the city.” § 53-170(8).

¶57    “Sale,” in turn, is defined as the “furnishing for consideration by any person of

lodging within the city.” § 53-170(4).

¶58    The question presented here is, thus, whether the OTCs furnished lodging within

the meaning of the Code, thereby rendering them “vendors” subject to Denver’s

lodging tax.

¶59    Under the Code,

       [l]odging shall mean rooms or accommodations for overnight use
       furnished by any person or the representative of any person to any person
       who for consideration uses, possesses, occupies or has the right to use,
       possess or occupy any such room or accommodation in a hotel, apartment
       hotel, lodging house, motel, motor hotel, guest house, guest ranch, resort,
       mobile home, mobile home park, auto court, inn, trailer court, trailer park
       or hotel, under any concession, permit, lease, contract, license to use or
       other similar arrangement.

§ 53-170(2).

¶60    Accordingly, “lodging” is a room or accommodation for overnight use; it is not

the right to use a room, as the plurality states. See pl. op. ¶ 23. Because it is undisputed

that the OTCs have not provided either rooms or accommodations, in my view, they

have not furnished “lodging” within the meaning of the Code. As a result, they are not

“vendors” subject to Denver’s lodging tax.

¶61    In reaching this conclusion, I acknowledge that section 53-170(2)’s definition of

“lodging” refers to the right to use a room or accommodation. As I read that portion of

the definition, however, the phrase “right to use, possess, or occupy any such room or




                                             4
accommodation” modifies “any person” who has that right. § 53-170(2). Thus, in my

view, the section plainly means that lodging is a room or accommodation furnished to

any person who has the right to use, possess, or occupy that room or accommodation.

Id. To construe this provision to define “lodging” simply as the right to use a room or

accommodation would read words out of the ordinance, and we cannot do that. See

City of Littleton, ¶ 27, 370 P.3d at 166.

¶62    Even if the language of the ordinance could reasonably be construed to define

lodging as the right to use a room or lodging, however, any such reading would be one

of multiple reasonable constructions. Accordingly, at best, this provision is ambiguous,

and therefore, we must construe it against the city and in favor of the OTCs. See City of

Boulder, 72 P.3d at 367.

¶63    For these reasons, I would conclude that the OTCs have not furnished lodging to

customers and, thus, are not “vendors” subject to Denver’s lodging tax.

                             C. Fees Charged By The OTCs

¶64    With respect to the fees charged by the OTCs, section 53-171(c) of the Code

provides, “The purchase price paid or charged for lodging shall exclude the price paid

by the purchaser for any goods, services or commodities other than those directly

connected with, and included in the price of, the furnishing of rooms or

accommodations.” Thus, the purchase price that a customer pays to an OTC includes

any fees “directly connected with” the furnishing of rooms or accommodations. See

§ 53-171(c).




                                            5
¶65    The question presented here thus becomes whether the fees charged by the OTCs

to their customers were directly connected with or part of the purchase price for

furnishing rooms or accommodations, so as to render them subject to Denver’s lodging

tax.

¶66    As noted above, under my reading of the pertinent provisions of the Code, the

OTCs did not furnish rooms or accommodations to their customers.            Thus, by

definition, the fees that the OTCs charged were not directly connected with or part of

the purchase price for furnishing rooms or accommodations, and therefore, they were

not subject to Denver’s lodging tax.

                                       II. Conclusion

¶67    For these reasons, I respectfully dissent.

       I am authorized to state that CHIEF JUSTICE RICE and JUSTICE EID join in this

dissent.




                                             6
