396 S.W.3d 378
Mo. Ct. App.2013Background
- Branson filed a First Amended Petition alleging the OTCs owed a four percent tourism tax under Branson's code and sought declaratory judgment, a tax violation, and conversion claims.
- OTCs moved to dismiss under section 67.662, arguing Missouri tax statutes do not apply to them, and cited Prestige Travel for support.
- Trial court dismissed the petition with prejudice without explicit reasoning; Branson appeals, arguing merchant model makes OTCs operators under 67.662.
- Branson argued section 67.662 defines operators by actual operation of hotels; OTCs are online sellers who contract for rates but do not operate hotels.
- Prestige Travel held the OTCs were not liable where they did not operate hotels; court deferred to that ruling.
- The appellate court reviews de novo, examining whether the petition states a cognizable cause of action and liberally construing the pleadings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Branson stated a claim because OTCs operate under 67.662 | Branson alleges OTCs control hotels to be operators under 67.662. | OTCs are not operators; statute precludes them from liability. | No; petition fails to show OTCs operate hotels; dismissal affirmed. |
| Whether the trial court properly relied on Prestige Travel | Prestige Travel is distinguishable on constitutional grounds and should not control. | Prestige Travel governs whether OTCs can be liable when not operating hotels. | No; affirmed on basis of Point I; Prestige Travel relied upon improperly for distinguishing facts. |
Key Cases Cited
- Prestige Travel, Inc. v. St. Louis County, 344 S.W.3d 708 (Mo. banc 2011) (OTCs not liable where not operating hotels; tax must be expressly authorized)
- Louisville/Jefferson Cty. Metro Gov't v. Hotels.com, LP, 590 F.3d 381 (6th Cir. 2009) (OTCs not operators; do not physically control or provide rooms)
- City of Findlay v. Hotels.com, LP, 441 F. Supp. 2d 855 (N.D. Ohio 2006) (OTCs not owners or operators of hotels)
- Pitt County v. Hotels.com, L.P., 553 F.3d 308 (4th Cir. 2009) (OTCs do not constitute operators)
- City of Goodlettsville v. Priceline.com, Inc., 844 F. Supp. 2d 897 (M.D. Tenn. 2012) (APA-derived operator definitions; willingness to rely on statutory definitions)