Furthermore, unlike in the hypotheticals set forth above, none of the OTCs here are under common ownership with the physical establishments that control the rooms. Moreover, the recent decision of the Georgia Supreme Court in Expedia, Inc. v. City of Columbus, 285 Ga. 684, 681 S.E.2d 122 (2009), is instructive by way of the contrasting language in the city ordinance before the state court. The City of Columbus ordinance assesses a tax on "the charge to the public" for a room, causing the Court to conclude that because "Expedia is not the end-consumer, is not a member of the public at large, and is not the occupant of the hotel room," the tax targets the full rate paid by the customer.
Hotels.com et al. are online travel companies (OTCs) which book hotel rooms and make other travel arrangements for customers who access their services over the internet. The OTCs' business model, known as the "merchant model," is fully detailed in Expedia v. City of Columbus, 285 Ga. 684 ( 681 SE2d 122) (2009). In sum, the consumer pays the OTC a retail "room rate" and a line item for "taxes and fees" in order to reserve and later occupy one of the City's hotel rooms.
THOMPSON, Justice. The facts and arguments in this appeal are virtually identical to those in Expedia, Inc. v. City of Columbus, 285 Ga. 684 ( 681 SE2d 122) (2009). Like its sister company, Expedia, Hotels.com, L.P., is an online travel company which books hotel rooms and makes other travel arrangements for customers who access its services over the internet.
The issue before us is purely legal and, thus, is reviewed de novo. See Expedia, Inc. v. City of Columbus , 285 Ga. 684, 689 (4), 681 S.E.2d 122 (2009). Broadly speaking, the Georgia Administrative Procedure Act, see OCGA § 50-13-1 et seq., "is meant to provide a procedure for administrative determination and regulation where expressly authorized by law or otherwise required by the Constitution or a statute of this state."
On appeal, the question of whether the superior court properly construed a county ordinance is one of law, and our review is de novo. See SDS Real Prop. Holdings, LTD. v. City of Brookhaven , 341 Ga. App. 862, 862, 802 S.E.2d 100 (2017) ; see also Expedia, Inc. v. City of Columbus , 285 Ga. 684, 689 (4), 681 S.E.2d 122 (2009) ("The interpretation of statutes and ordinances is a question of law, which we review de novo on appeal." (citations omitted) ).
Second, the Localities contend that the OTCs are liable for back taxes they never collected pursuant to City of Atlanta v. Hotels.com, 289 Ga. 323 (2011). Third, the Localities argue that City of Atlanta and Expedia, Inc. v. City of Columbus, 285 Ga. 684 (2009), do not preclude all legal and equitable relief for back taxes in this case. Fourth, the Localities request that we certify a question to the Georgia Supreme Court.
MILLER, Chief Judge. These cases arise out of the Supreme Court of Georgia's decision in Expedia, Inc. v. City of Columbus, 285 Ga. 684 ( 681 SE2d 122) (2009). Therein the Supreme Court held that pursuant to OCGA § 48-13-50 and the Hotel-Motel Occupancy Excise Tax Ordinance of the City of Columbus (the "City"), Expedia must remit hotel occupancy taxes to the City based on the full room rate it charged its customers rather than the wholesale rate it agreed to pay the hotel for the room.
Defendants claim that the City's interpretation of the Ordinance violates all four prongs of the Complete Auto test. Consistently with every court that has considered this issue in this context, the Court disagrees. See Vill. of Rosemont, I11, v. Priceline.com Inc., 2 011 WL 4913262 at *8 (N.D. Ill. Oct. 14, 2011); City of Charleston v. Hotels.com, 586 F. Supp. 2d 538, 544 (D.S.C. 2008); City of San Antonio v. Hotels.com, 2008 WL 2486043 at *14 (W.D. Tex. 2008); Travelscape, LLC v. S. Carolina Dept. of Revenue, 705 S.E.2d 28, 36 (S.C. 2011); Expedia, Inc. v. City of Columbus, 691 S.E.2d 122, 128 (Ga. 2009). As discussed herein, the Court holds that Defendants are not entitled to summary judgment with regard to their Commerce Clause affirmative defense.
2). Second, in the Louisville/Jefferson II decision, the Sixth Circuit cited to Expedia, Inc. v. City of Columbus, 285 Ga. 684, 681 S.E.2d 122 (2009)—published post- Goodlettsville—as providing an example of language that did clearly apply hotel taxes to the retail rate charged by OTCs. 590 F.3d at 389 (discussing City of Columbus ). There, the ordinance at issue expressly taxed the “charge to the public” for a room.
) Because the record establishes that defendants' customers cannot occupy hotel rooms in Rosemont unless they pay the full amount defendants charge, defendants' fees and markups are part of the rental rate subject to the Tax. See Expedia, Inc. v. City of Columbus, 681 S.E.2d 122, 128 (Ga. 2009) (explaining that Expedia and other OTCs are travel intermediaries, not room occupants, and finding that the full price Expedia charges its customers, not the amount it pays hotels, is subject to a similar hotel tax); see also Louisville/Jefferson Cnty. Metro Gov't v. Hotels.Com, LP, 590 F.3d 381, 389 (6th Cir. 2009) (agreeing with the Expedia court's reasoning but coming to a different result based on an issue not raised in this case). Defendants also argue that the Hotel Tax is a sales tax and thus, cannot be levied on defendants' services.