May 29, 2017

Colorado Supreme Court: Denver Lodger’s Tax Imposes Duty on Online Travel Companies to Collect and Remit Tax

The Colorado Supreme Court issued its opinion in City & County of Denver v. Expedia, Inc. on Monday, April 24, 2017.

Statutory Construction—Local Tax Ordinances.

The City and County of Denver (Denver) petitioned for review of the Colorado Court of Appeals’ opinion reversing the judgment of the district court and remanding with directions to vacate the subject tax assessments against Expedia, Inc. and the other respondent online travel companies (OTCs). (See Expedia, Inc. v. City and County of Denver, 2014 COA 87.) The district court had largely upheld a Denver hearing officer’s denial of protests by Expedia and the other OTCs to Denver’s claim for unpaid taxes, interest, and penalties, apparently due according to Denver’s ordinance imposing a lodger’s tax. Unlike the hearing officer and district court, the court of appeals concluded that Denver’s lodger’s tax article was at least ambiguous with regard to both the purchase price paid or charged for lodging, upon which the tax is to be levied, and the status of the OTCs as vendors, upon which the ordinance imposes the responsibility to collect the tax and remit it to the city; and the intermediate appellate court considered itself obligated to resolve all ambiguities in the lodger’s tax article, being a tax statute, in favor of the OTCs.

The supreme court reversed the judgment of the court of appeals. The court held that Denver’s lodger’s tax article imposes a duty on the OTCs to collect and remit the prescribed tax on the purchase price of any lodging they sell, to include not only the amount they have contracted with the hotel to charge and return but also the amount of their markup.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Dormant Commerce Clause Not Violated Where Defendant Interacted with Colorado Investigator

The Colorado Court of Appeals issued its opinion in People v. Helms on Thursday, June 16, 2016.

Internet Child Exploitation Statute—CRE 404(b)—Bad Act Evidence—Evidence—Probation Revocation.

Defendant was convicted of two counts of Internet exploitation of a child. He was sentenced to 10 years of supervised probation on each count. The district court later revoked his probation when he failed to register as a sex offender and resentenced him for an indeterminate term of two years to life.

On appeal, defendant contended that the Internet child exploitation statute, C.R.S. § 18-3-405(1)(a), is facially unconstitutional for several reasons. The Court of Appeals disagreed. The statute does not violate the dormant Commerce Clause of the U.S. Constitution because the statute is limited to situations in which the criminal conduct occurs either wholly or partially in Colorado. It also does not violate the First Amendment because it is not overly broad, and it does not violate defendant’s constitutional right to due process because it is not vague.

Defendant also contended that the district court erred by admitting a statement he made, arguing that it was CRE 404(b) bad act evidence. However, the statement was not admitted as evidence of defendant’s bad character; rather, it directly rebutted his defense. Therefore, the district court did not err by admitting this evidence.

Defendant additionally argued that the evidence was insufficient to support his convictions. He argued that his conviction for count one was not supported by sufficient evidence because the jury was instructed that he must have committed the crime in Colorado to be guilty of child exploitation. However, the sufficiency of the evidence is measured against the elements of the offense rather than jury instructions. The child exploitation statute does not require that the actor be in Colorado at the time of the criminal communication. As to the second count, defendant’s conduct did not meet the requirements of the essential elements of the offense. Therefore, this conviction was reversed.

Defendant also argued that the district court erred by denying his motion for a mistrial after a witness testified about an inadmissible matter. Defense counsel elicited the statement from the witness, and although it was prejudicial, the court offered to give a curative instruction to the jury, which defense counsel declined. Therefore, the district court did not abuse its discretion by denying the motion for a mistrial.

Lastly, defendant contended that the district court’s revocation of his probation must be reversed because the district court did not adhere to the applicable statutory requirements. There was not sufficient evidence that defendant waived his right to be advised by the court through counsel, or that he was advised of potential penalties before the probation revocation hearing. In addition, the district court revoked defendant’s probation without obtaining and considering treatment and monitoring recommendations from defendant’s probation officer or treatment provider, as required by statute. Therefore, the district court’s revocation of defendant’s probation was reversed.

The judgment was affirmed in part and reversed in part, and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.