IN THE SUPREME COURT OF FLORIDA Case No. SC DCA Case No. 1D L.T. Case No CA-4882 LEON COUNTY, EXPEDIA, INC., et al.

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1 Electronically Filed 11/27/ :35:26 AM ET RECEIVED, 11/27/ :38:42, John A. Tomasino, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA Case No. SC DCA Case No. 1D L.T. Case No CA-4882 LEON COUNTY, Petitioner, v. EXPEDIA, INC., et al., Respondents. ON PETITION FOR DISCRETIONARY REVIEW OF A DECISION OF THE DISTRICT COURT OF APPEAL OF FLORIDA, FIRST DISTRICT RESPONDENT DEPARTMENT OF REVENUE'S BRIEF ON JURISDICTION PAMELA JO BONDI ATTORNEY GENERAL J. Clifton Cox Fla. Bar No Special Counsel Office of the Attorney General Revenue Litigation Bureau PL-01, The Capitol Tallahassee, FL / / FAX Attorneysfor Respondent Department ofrevenue

2 TABLE OF CONTENTS TABLE OF AUTHORITIES...iii PRELIMINARY STATEMENT... 1 STATEMENT OF THE CASE AND FACTS... 2 ISSUE ON APPEAL... 3 WHETHER THE DISTRICT COURT OF APPEAL'S PER CURIAM DECISION IN THE PRESENT CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THIS COURT'S DECISION TO REVIEW ALACHUA COUNTY V. EXPEDIA, 110 SO. 3D 941 (FLA. 1ST DCA 2013). SUMMARY OF ARGUMENT...3 ARGUMENT... 4 CONCLUSION... 8 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF COMPLIANCE

3 TABLE OF AUTHORITIES CASES Alachua County v. Expedia, 110 So. 3d 941 (Fla. 1st DCA 2013)... 3,4,5,6,7,8 Coalitionfor Adequacy & Fairness in Sch. Funding, lnc. v. Chiles, 680 So. 2d 400 (Fla.1996)... 6 Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010 (Fla. 1979)...7 Kaisner v. Kolb, 543 So. 2d 732 (Fla. 1989)... 6,7 Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 1 FLORIDA STATUTES 20.21, Fla. Stat , Fla. Stat (3)(a), Fla. Stat , Fla. Stat....2,3, (2), Fla. Stat.... 2, (1), Fla. Stat....5, (3), Fla. Stat , Fla. Stat (1), Fla. Stat.... 5, , Fla. Stat

4 FLORIDA ADMINISTRATIVE CODE Florida Administrative Code Rule (1) IV

5 PRELIMINARY STATEMENT Petitioner LEON COUNTY will be referred to as "Leon County" or "Petitioner." Respondents EXPEDIA, INC., HOTELS.COM, L.P., DELAWARE HOTWIRE, Inc., ORBITZ, LLC, ORBITZ FOR BUSINESS, INC., TRIP NETWORK, INC., PRICELINE.COM, INC., TRAVELWEB LLC, and TRAVELOCITY.COM, LP, will be collectively referred to as the "Travel Companies." Respondent STATE OF FLORIDA, DEPARTMENT OF REVENUE, will be referred to as the "Department" or "DOR." Objection To Matters Outside the Four Corners of the Decision Below The Department objects to Petitioner's reliance on matters outside the four corners of the decision below. See Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986) (noting that conflict jurisdiction must "appear within the four corners of the majority decision" that is offered for review). Because Petitioner's jurisdictional brief improperly relies on such matters, the Court should strike or disregard that brief, and decline to accept jurisdiction. 1

6 STATEMENT OF THE CASE AND FACTS Without waiving its objection to reliance upon matters that are outside the four corners of the First District's per curiam decision, the Department agrees to the accuracy of the following assertions in Petitioner's jurisdictional brief: "At issue is whether the (sic) Leon County has standing to bring a declaratory judgment action against the Travel Companies and the DOR to seek a declaration of its rights under Florida Statutes and (2)." (Petitioner's Jurisdictional Brief, at 1) (emphasis added). "DOR is the agency statutorily charged with the collection ofthe transient rentals tax." (1d.) "Leon County also seeks an injunction directing the DOR to assess and collect the amount of Transient Rentals Tax and the Discretionary Sales Surtax owed on a retrospective basis..." (1d. at 4) "Leon County also requests that the trial court direct the DOR to distribute to Leon County and other participating or eligible counties and municipalities the statutorily mandated distribution amounts of the Transient Rentals Tax and to distribute to Leon County and other counties, municipalities, and school districts that have imposed a Discretionary Sales Surtax the amount of surtaxes mandated by law." (Id.) 2

7 "Leon County further requests the trial court to assemble a common fund for unpaid Transient Rentals Taxes and the Discretionary Sales Surtaxes, and to award to Leon County, out of the common fund, the reasonable attorney's fees and costs of maintaining this action." (Id.) "The trial court concluded:... 'This Court cannot force the DOR to carry out its executive branch functions under the direction ofthe judicial branch.'" (Id. at 5). ISSUE ON APPEAL WHETHER THE DISTRICT COURT OF APPEAL'S PER CURIAM DECISION IN THE PRESENT CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THIS COURT'S DECISION TO REVIEW ALACHUA COUNTY V. EXPEDIA, 110 SO. 3D 941 (FLA. I st DCA 2013). SUMMARY OF THE ARGUMENT Alachua County never addressed what Petitioner acknowledges to be the issue in the present case ("At issue is whether the (sic) Leon County has standing to bring a declaratory judgment action against the Travel Companies and the DOR to seek a declaration of its rights under Florida Statutes and (2)." Alachua County, however, described the Travel Companies' operations, which would be helpful "background." information in any dispute regarding taxation oftravel Companies' business. Petitioner's jurisdictional brief 3

8 concedes the existence of determinative facts and issues in the present case that are significantly different from the facts and issues in Alachua County. Accordingly, the outcome in Alachua County would have no bearing on the merits of this case and the Court should decline to exercise jurisdiction. ARGUMENT This case is about Petitioner's standing to seek unique relief from the specific parties it has sued. This Court should decline to exercise its jurisdiction because Alachua County v. Expedia, 110 So. 3d 941 (Fla. 1st DCA 2013) ("Alachua County") addressed the application of a completely different tax, in a suit seeking significantly different relief from a critically different set of defendants. Because of these legally significant distinctions, this Court's resolution ofalachua County will have no bearing on the merits of the present case. Petitioner bases its assertion ofjurisdiction solely upon the theory that the reference to Alachua County in the First District Court of Appeal's per curiam decision in the present case expressly and directly conflicts with this Court's decision on the same question of law when this Court accepted jurisdiction to consider Alachua County. Petitioner's jurisdictional brief and the Alachua County opinion show that Alachua County has no bearing on the merits of the present case. 4

9 Alachua County did not address the unique standing issues presented in the present case. Instead, it addressed the appropriate tax base for local tourist development tax: In this case before us, we address the Tourist Development Tax, codified in section , Florida Statutes, and levied pursuant to Florida's Local Option Tourist Development Act of The question presented on appeal is whether the Tourist Development Tax ("Tax") applies to the entire amount that Appellees ("Online Travel Companies" or "Companies") collect from hotel customers who reserve their hotel room through Online Travel Companies. Alachua County, 110 So. 3d at 942. Appellants in Alachua County did not seek any relief against the Department or against any other agency of the State of Florida. Alachua County did not address the standing of a beneficiary of State largesse to seek an injunction requiring the Department to collect more tax, or to pay additional tax collections to various beneficiaries (rather than to the Chief Financial Officer as required by sections (1) and (1), Fla. Stat.). Appellants in Alachua County were local tax collectors and county governments that sought a declaration of the way they should administer the local tourist development tax (section (3)(a), Fla. Stat.), which was their responsibility to administer, enforce, and collect. Petitioner's jurisdictional brief acknowledges that the present case involves the statewide transient rentals tax (section , Fla. Stat.) rather than the local tourist development tax (section , Fla. Stat.) at issue in Alachua County. 5

10 Unlike the local tourist development tax, the transient rentals tax is administered, enforced, and collected by the Department. The Department is required to pay all sums it collects for the transient rentals tax (and other taxes) to Florida's Chief Financial Officer, "to be credited to the account ofthe General Revenue Fund of the state." Section (1), Fla. Stat. Before any distributions from those accounts, tax receipts are commingled in the General Revenue Fund or various trust funds created by the Legislature and maintained by the Chief Financial Officer. See (1), Fla. Stat. The heading of the present case shows that the Chief Financial Officer and the Department of Financial Services, which the Chief Financial Officer administers, are not parties in this case. It is particularly significant that the present Petitioner seeks mandatory injunctive relief against the Department, which is a Cabinet agency headed by the Governor and Cabinet (section 20.21, Fla. Stat.), and that the Department's Executive Director (or his or her designee) has broad authority to administer the Department in accordance with "directives issued by the Governor and Cabinet acting as the head of the Department." (Florida Administrative Code Rule (1)). Thus, the present case presents issues of separation of powers (see, e.g., Kaisner v. Kolb, 543 So. 2d 732, (Fla. 1989)), political question (see, e.g., Coalitionfor Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So. 2d 400 6

11 (Fla.1996)), and sovereign immunity (see, e.g., Kaisner v. Kolb, 543 So. 2d 732 (Fla. 1989), and Commercial Carrier Corp. v. Indian River Cnty, 371 So. 2d 1010 (Fla. 1979)) that were never presented in Alachua County. Indeed, the present Petitioner's jurisdictional brief quoted the trial court's conclusion that Petitioner's claims failed as a result of these constitutional difficulties. See Petitioner's jurisdictional brief, at 5 ("The trial court concluded:... 'This Court cannot force the DOR to carry out its executive branch functions under the direction of the judicial branch.'"). It also is significant that Florida Statutes section (3) bars Petitioner's claim in the present case by specifying the "sole means by which any person may seek or obtain any moneys as the result of, in relation to, or founded upon the failure by another person to comply with the tax laws of this state." (Emphasis added). That section offers a potential monetary reward to taxpayers (possibly including Petitioner) who provide information to the Department about other taxpayers who have underpaid taxes, if that information enables the Department to collect more taxes. That, however, is not what the present Petitioner seeks. Section (3) is not relevant in Alachua County because no one in that case sought any relief against any agency of the State of Florida. It likewise is significant that the Legislature specifically prohibits creation of a "Common Fund," which the present Petitioner asks the court to create for 7

12 additional tax collections. See and , Fla. Stat. (specifying that creation of special funds for State revenues is solely a Legislative function). Alachua County never addressed any request for monetary relief or for creation of a "common fund." CONCLUSION For the reasons stated above, the First District Court ofappeal's decision in the present case, "PER CURIAM. AFFIRMED. See Alachua Cnty. v. Expedia, Inc., 110 So. 3d 941 (Fla. 1st DCA 2013)" does not expressly and directly conflict with a decision of this Court on the same question of law. The present case follows well-established principles of standing, political question, separation of powers, and the sole statutory means by which a taxpayer may benefit from another taxpayer's underpayment of tax. The Alachua County decision presented none ofthese matters. Thus, there can be no conflict and this Court should decline to acceptjurisdiction in the present case. Respectfully submitted, PAMELA JO BONDI ATTORNEY GENERAL J. Cliftoíí Cox Fla. Bar No Special Counsel Clifton.Cox@myfloridalegal.com 8

13 Office of the Attorney General Revenue Litigation Bureau PL-01, The Capitol Tallahassee, FL / / FAX Counsel for Respondent, Florida Department of Revenue CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by the e-portal to all counsel whose addresses are registered in the e-portal, and also by to counsel of record at the following addresses, this 27th day of November, 2013: Mark E. Holcomb Madsen Goldman & Holcomb, LLP 1705 Metropolitan Blvd., Suite 101 Tallahassee, Florida mholcomb@mgh-law.com jherzfeldt@mgh-law.com Darrel J. Hieber Skadden, Arps, et al. 300 South Grand Avenue, suite 3400 Los Angeles, California darrel.hieber@skadden.com Elizabeth B. Herrington Mark J. Altschul McDermott Will & Emery LLP 227 West Monroe Street, Suite 4400 Chicago, Illinois eherrington@mwe.com maltschul@mwe.com James P. Karen Tamara Marinkovic, Emmanuel E. Ubinas, Jones Day 2727 N. Harwood Street Dallas, Texas jkaren@jonesday.com tmarinkovic@jonesday.com eeubinas@jonesday.com Karen L. Valihura Randolph K. Herndon, Sr. Skadden, Arps, et al. One Rodney Square Post Office Box 636 Wilmington, Delaware karen.valihura@skadden.com randolph.herndon@skadden.com Robert L. Nabors 9

14 Brian S. Stagner Marcus G. Mungioli Kelly, Hart & Hallman LLP 201 Main Street, suite 2400 Ft. Worth, Texas Roberto Martinez Stephanie A. Casey Colson Hicks Eidson 255 Alhambra Circle, Penthouse Coral Gables, Florida Harry F. Chiles Bethany Burgess Nabors Giblin & Nickerson, P.A Mahan Drive, Suite 200 P.O. Box Tallahassee, Florida Edward A. Dion Nabors Giblin & Nickerson, P.A. 208 S.E. Sixth Street Ft. Lauderdale, Florida J.A±LIFTdN COX Special Counsel CERTIFICATE OF COMPLIANCE I certify that the font used in this brief is Times New Roman, 14-point, in compliance with Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. By J. Cliftún Cox Special Counsel 10