Batt v. City and County of San Francisco

Decision Date21 May 2010
Docket NumberNo. A123253.,A123253.
Citation184 Cal.App.4th 163,109 Cal.Rptr.3d 129
PartiesAngel BATT, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent.
CourtCalifornia Court of Appeals Court of Appeals

Berding & Weil, Daniel L. Rottinghaus, Fredrick A. Hagen, Alamo; Paul G. Kerkorian, for Plaintiff and Appellant.

Dennis J. Herrera, City Attorney; Julie Van Nostern, Chief Tax Attorney, Peter J. Keith, Deputy City Attorney, for Defendant and Respondent.

RICHMAN, J.

In Batt v. City and County of San Francisco (2007) 155 Cal.App.4th 65, 65 Cal.Rptr.3d 716, we held that an individual could not maintain a class action for refund of a municipal tax absent statutory authorization. Unquestioned in our decision was the right of that individual to prosecute the action on her own behalf. That individual, plaintiff Angel Batt, thereafter had a bench trial on her claim that the City and County of San Francisco improperly required hoteliers to apply the City's hoteltax to parking charges, challenging the validity of the administrative regulation that required collection on the grounds that it was not a proper tax on the " occupancy" of a hotel room. The trial court rejected her claim, upholding as valid the application of the City's hotel tax to parking charges. We agree, and we affirm.

BACKGROUND

Plaintiff is a resident of San Mateo County. On August 6, 2005, she drove to San Francisco and stayed overnight at the Ritz-Carlton Hotel. In addition to what she was charged for the room, she was charged $55 for parking her automobile. Of the $55, $7.70, or 14%, was imposed pursuant to the City tax on the transient occupancy of hotel rooms (the Hotel Tax).

Originally adopted in 1961, the Hotel Tax imposes a levy of 14% "on the rent for every occupancy of a guest room in a hotel in the City and County." (S.F. Bus. & Tax Regs. Code, §§ 502, 502.6-1.) "Occupancy" is defined as "The use or possession, or the right to the use or possession of any room or apartment in a hotel or the right to the use or possession of the furnishings or to the services and accommodations accompanying the use and possession of the room." ( Id., § 501, subd. (c).) "Guest room" is defined as "A room occupied, or intended, arranged, or designed for occupation by one or more occupants." ( Id., § 501, subd. (e).) The tax is to be collected from the occupant/renter by the hotel operator, and transmitted to the city tax collector. ( Id., §§ 503, 504.)

The City of San Francisco's Treasurer and Tax Collector (Tax Collector) is authorized to "promulgate regulations and issue rules, determinations and interpretations consistent with provisions of the Business and Tax Regulations Code as may be necessary or appropriate for the purpose of carrying out and enforcing the payment, collection and remittance of taxes...." (S.F. Bus. & Tax Regs. Code, § 6.16-1 (section 6.16-1).) Pursuant to this grant of authority, in December 2003, that official promulgated a number of "Hotel Tax Guidelines" (the Guidelines) advising hotel operators that the Hotel Tax applied to a number of charges, one of which was "Charges for parking (including valet services) for hotel guests," including "(i) charges to hotel guests for parking located on the hotel premises regardless how charged, and (ii) charges to hotel guests for parking located off the hotel premises where such charge is added to the room bill and paid to the hotel operator."

After plaintiff's administrative claim for refund was denied, she filed this action inJanuary 2006, alleging that "imposition of the Hotel Tax on Parking Charges is unlawful and in violation of the [Hotel Tax] Ordinance. The Ordinance only authorizes the imposition of the Hotel Tax 'on the rent forevery occupancy of a guest room in a hotel,' whereas the Guidelines purport to extend the Hotel Tax to the Parking Charges. Parking Charges, however, are not 'rent for ... occupancy of a guest room,' and the imposition of the Hotel Tax on such charges contravenes the [Hotel Tax] Ordinance and is unlawful."

Our decision in the first appeal halted plaintiff's attempt to maintain her action as a "class and taxpayer representative" on behalf of "all who paid a 'Hotel Tax' on their hotel parking charge." Plaintiff maintained her individual action for declaratory and injunctive relief to halt the collection of that charge, and the matter came on for trial before the Honorable Curtis Karnow, submitted on the basis of a "Joint Stipulation of Undisputed Facts," the City's unopposed request for judicial notice, briefs, and argument. Judge Karnow filed a thoughtful and exhaustive statement of decision, rejecting all of plaintiff's challenges to the Hotel Tax as interpreted by the Guidelines to apply to hotel parking charges. Plaintiff perfected this timely appeal from the judgment entered in due course.

DISCUSSION
Establishing The Standard Of Our Review

We would ordinarily start our analysis by establishing the standard of review, which at first glance would seem to be that "The application of a taxing statute to uncontradicted facts is a question of law, and this court is accordingly not bound to accept the trial court's findings of fact made from the uncontradicted facts shown in the parties' stipulation and the documentary evidence." ( Communications Satellite Corp. v. Franchise Tax Bd. (1984) 156 Cal.App.3d 726, 746, 203 Cal.Rptr. 779; accord, Microsoft Corp. v. Franchise Tax Bd. (2006) 39 Cal.4th 750, 758, 47 Cal.Rptr.3d 216, 139 P.3d 1169; Limited Stores, Inc. v. Franchise Tax Bd. (2007) 152 Cal.App.4th 1491, 1496, 62 Cal.Rptr.3d 191.) However, plaintiff means to overturn not just Judge Karnow's judgment, but the Tax Collector's promulgation of the Guidelines implementing the Hotel Tax. If plaintiff is correct that Guidelines are ultra vires, their invalidity moots Judge Karnow's contrary conclusion, and essentially demands that plaintiff prevail. (See California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 11, 270 Cal.Rptr. 796, 793 P.2d 2 [" 'Administrative regulations that alter or amend the statute or enlarge or impair its scope are void and courts not only may, but it is their obligation to strike down such regulations.' "]; Association for Retarded Citizens v. Department of Developmental Services (1985) 38 Cal.3d 384, 391, 211 Cal.Rptr. 758, 696 P.2d 150 ["Administrative action that is not authorized ... is void."].)

As previously mentioned, the Tax Collector is statutorily authorized to "promulgate regulations and issue rules, determinations and interpretations consistent with provisions of the Business and Tax Regulations Code as may be necessary or appropriate for the purpose of carrying out and enforcing the payment, collection and remittance of taxes...." (S.F. Bus. & Tax Regs. Code, § 6.16-1.) Although this statute does not expressly mention the promulgation of "guidelines," both sides appear to accept that the Guidelines at issue qualify as "rules, determinations [or] interpretations." So do we.

But plaintiff contends that the Guidelines are invalid because they go beyond "carrying out and enforcing the payment,collection and remittance of taxes" collectible under the Hotel Tax as properly construed. Plaintiff argues that the Guidelines on parking amounts to "a new tax on hotel parking," and thus impermissibly extends the Hotel Tax "because parking space is not a 'guest room' and does not 'accompany' the room's 'use and possession.' " Under this general heading plaintiff argues that "the Tax Collector's new tax" as implemented by the Guidelines: (1) "change[s] the definition of 'occupancy' "; (2)"conflicts with the Board of Supervisors' intent to specifically exempt hotel parking," as shown by the City's Parking Tax Ordinance; and (3) "also violates the California Constitution by increasing the Hotel Tax without a vote of the electorate."

Plaintiff is not challenging the validity of the Hotel Tax itself, only the Tax Collector's interpretative Guidelines; it is the administrative interpretation which she claims is illegitimate because it extends the application of the Hotel Tax beyond the proper scope of its language. In short, plaintiff seeks to overturn not the tax itself, but only the interpretation of it adopted by the Tax Collector. In this situation, the interpretation of the Hotel Tax and the Guidelines presents a question of law, which warrants no particular deference from this court.1 (See State Building & Construction Trades Council of California v. Duncan (2008) 162 Cal.App.4th 289, 302-305, 76 Cal.Rptr.3d 507; Yamaha Corp. of America v. State Bd. of Equalization (1999) 73 Cal.App.4th 338, 349-354, 86 Cal.Rptr.2d 362; see also San Francisco Fire Fighters Local 798 v. City and County of San Francisco (2006) 38 Cal.4th 653, 667-668, 42 Cal.Rptr.3d 868, 133 P.3d 1028.)

Hoping to have the Guidelines classified as "quasi-legislative," the City contends that "deferential review is proper"—indeed, going so far as to assertthat our review must be "most deferential." The City is only partially correct, and in a sense that is not really applicable here.

Such deference is extended only "if the court is satisfied that the rule in question falls within the lawmaking authority delegated ..., that the rule is reasonably necessary to implement the purpose of the statute, and that it is consistent with the controlling law...." ( Yamaha Corp. of America v. State Bd. of Equalization, supra, 73 Cal.App.4th 338, 349-350, 86 Cal.Rptr.2d 362.) Such an inquiry obviously requires examination of the statute and the regulation(s), and that examination would to be de novo because it entails what we have called, "the quintessential judicial function." ( State Building & Construction Trades Council of California v. Duncan, supra, 162 Cal.App.4th 289, 304, 76 Cal.Rptr.3d 507; accord, Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7-8, 78 Cal.Rptr.2d 1, 960 P.2d 1031.) As other cour...

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