Florida Justices Allow Airbnb to Skip Collecting Palm Beach County Bed Tax

Palm Beach County Tax Collector Anne Gannon lost her legal push to have home-sharing booking platforms like Airbnb charge a tourism tax.

The Florida Supreme Court on Monday denied Gannon’s petition to take up an appellate court’s ruling in favor of the vacation rental platforms by declining to accept jurisdiction.

Justices Ricky Polston, Jorge Labarga, Alan Lawson, John Couriel and Carlos Muñiz concurred. Chief Justice Charles Canady and Justice Jamie Grosshans were not listed on the order.

The decision leaves the Fourth District Court of Appeal opinion in place in favor of the home-sharing platforms.

Gannon declined comment and her attorneys had no comment by deadline. Gannon was represented by Liggio Law managing partner Jeffrey Liggio, Silber & Davis partner Louis Silber, and Burlington & Rockenbach founding partner Philip Burlington and associate Adam Richardson in West Palm Beach.

The issue stems from a 6-year-old lawsuit filed against Airbnb Inc., Airbnb Payments Inc., HomeAway.com Inc., HomeAway Inc. and Tripadvisor LLC to force them to charge the 6% tourism development tax and remit the funds. Expedia Group owns HomeAway and now operates its booking platform under Vrbo.

The tourism development tax, also called a bed tax, is levied on short-term rentals of six months or less. Gannon in her declaratory judgment lawsuit filed in Palm Beach Circuit Court argued home-sharing vacation platforms should collect the tax.

A divided Fourth District Court of Appeal in March upheld a trial court summary judgment that said Airbnb, HomeAway and Tripdvisor are not responsible for the tax.

The Fourth DCA shot down Gannon’s argument that the home-sharing platforms are dealers, should register and collect the tax. The home-sharing platforms argued they were mere conduits and don’t have a possessory interest in rental properties.

In their petition seeking Supreme Court review, Gannon’s attorneys argued the court had jurisdiction and argued there is a heightened importance for the platforms to collect the tax in light of the coronavirus pandemic.

“Local governments will have a pressing need for tax revenue,” they wrote in the petition signed by Burlington and Richardson. “The issues of statutory interpretation presented by this case — in short, do the companies have the obligation to collect and remit the TDT to taxing authorities? — will become all the more important.”

Airbnb, HomeAway and Tripadvisor attorneys — Gunster shareholders Kenneth Bell, Nicole Atkinson and Amy Terwilleger — had no comment by deadline.

In a brief, they argued the Florida Supreme Court lacked jurisdiction because the appellate panel’s opinion did not expressly affect a class of constitutional officers. Gannon sought a determination of an obligation for the platforms to collect and remit the tax.

Even if the Supreme Court had jurisdiction, Gannon’s petition should have been denied because the appellate panel didn’t hurt her ability to collect the tax when it decided the rental companies don’t fall within the class obligated to collect the tax, according to the petition signed by Bell.

He said it falls within the power of the Legislature to determine whether the home-sharing companies are on the hook for tax collections, but lawmakers haven’t made that determination, Bell added.