Electronically Filed 11/27/2013 11:35:26 AM ET RECEIVED, 11/27/2013 11:38:42, John A. Tomasino, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA Case No. SC13-2056 DCA Case No. 1D12-4815 L.T. Case No. 2009-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. 347396 Special Counsel Office of the Attorney General Revenue Litigation Bureau PL-01, The Capitol Tallahassee, FL 32399-1050 850/ 414-3300 850/488-5865 FAX Attorneysfor Respondent Department ofrevenue
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... 10 11
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....6 125.0104, Fla. Stat.... 5 125.0104(3)(a), Fla. Stat.... 5 212.03, Fla. Stat....2,3,5 212.055(2), Fla. Stat.... 2,3 212.20(1), Fla. Stat....5,6 213.30(3), Fla. Stat.... 7 215.31, Fla. Stat.... 8 215.32(1), Fla. Stat.... 5,6 215.3207, Fla. Stat.... 8 111
FLORIDA ADMINISTRATIVE CODE Florida Administrative Code Rule 12-3.007(1).... 6 IV
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
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 212.03 and 212.055(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
"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 212.03 and 212.055(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
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
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 125.0104, Florida Statutes, and levied pursuant to Florida's Local Option Tourist Development Act of 1977. 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 212.20(1) and 215.32(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 125.0104(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 212.03, Fla. Stat.) rather than the local tourist development tax (section 125.0104, Fla. Stat.) at issue in Alachua County. 5
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 212.20(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 215.32(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 12 3.007(1)). Thus, the present case presents issues of separation of powers (see, e.g., Kaisner v. Kolb, 543 So. 2d 732, 736-37 (Fla. 1989)), political question (see, e.g., Coalitionfor Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So. 2d 400 6
(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 213.30(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 213.30(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
additional tax collections. See 215.31 and 215.3207, 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. 347396 Special Counsel Clifton.Cox@myfloridalegal.com 8
Office of the Attorney General Revenue Litigation Bureau PL-01, The Capitol Tallahassee, FL 32399-1050 850/ 414-3300 850/488-5865 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 e-mail addresses are registered in the e-portal, and also by e-mail to counsel of record at the following e-mail addresses, this 27th day of November, 2013: Mark E. Holcomb Madsen Goldman & Holcomb, LLP 1705 Metropolitan Blvd., Suite 101 Tallahassee, Florida 32308-3765 mholcomb@mgh-law.com jherzfeldt@mgh-law.com Darrel J. Hieber Skadden, Arps, et al. 300 South Grand Avenue, suite 3400 Los Angeles, California 90071 darrel.hieber@skadden.com Elizabeth B. Herrington Mark J. Altschul McDermott Will & Emery LLP 227 West Monroe Street, Suite 4400 Chicago, Illinois 60606 eherrington@mwe.com maltschul@mwe.com James P. Karen Tamara Marinkovic, Emmanuel E. Ubinas, Jones Day 2727 N. Harwood Street Dallas, Texas 75201 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 19899 karen.valihura@skadden.com randolph.herndon@skadden.com Robert L. Nabors 9
Brian S. Stagner Marcus G. Mungioli Kelly, Hart & Hallman LLP 201 Main Street, suite 2400 Ft. Worth, Texas 76102 brian.stagner@kellyhart.com marcus.mungioli@kellyhart.com Roberto Martinez Stephanie A. Casey Colson Hicks Eidson 255 Alhambra Circle, Penthouse Coral Gables, Florida 33134 bob@colson.com scasey@colson.com aurora@colson.com Harry F. Chiles Bethany Burgess Nabors Giblin & Nickerson, P.A. 1500 Mahan Drive, Suite 200 P.O. Box 11008 Tallahassee, Florida 32302 rnabors@ngnlaw.com hchiles@ngnlaw.com bburgess@ngnlaw.com legal-admin@ngnlaw.com Edward A. Dion Nabors Giblin & Nickerson, P.A. 208 S.E. Sixth Street Ft. Lauderdale, Florida 33301 edion@ngnlaw.com 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