ATTORNEYS FOR PETITIONER: HOWARD E. KOCHELL RANDAL J.
KALTENMARK ZIAADDIN MOLLABASHY BARNES & THORNBURG LLP
Indianapolis, IN ELIZABETH B. HERRINGTON CATHERINE A. BATTIN
MEGAN THIBERT-IND JEFFERY A. ROSSMAN MCDERMOTT WILL &
EMERY LLP Chicago, IL
ATTORNEYS FOR RESPONDENT: GREGORY F. ZOELLER ATTORNEY GENERAL
OF INDIANA JESSICA R. GASTINEAU DEPUTY ATTORNEY GENERAL
ORDER ON PARTIES' CROSS-MOTIONS FOR SUMMARY
Blood Wentworth Judge.
Orbitz, LLC challenges the Indiana Department of State
Revenue's assessments of Indiana sales and
innkeeper's taxes for the January 1, 2004, through
December 31, 2006, period (the "period at issue").
The matter is currently before the Court on the parties'
cross-motions for summary judgment. The Court restates the
dispositive issue as whether the Department erred in issuing
sales and innkeeper's tax assessments against Orbitz
based on the retail rather than the wholesale rate of Indiana
hotel rooms. The Court finds in favor of Orbitz.
AND PROCEDURAL HISTORY
Orbitz is an online travel company headquartered in Chicago,
Illinois that provides a variety of travel-related services
and information to customers through its Orbitz.com website.
(Pet'r & Resp't Jt. Stip. Facts ("Jt.
Stip.") ¶¶ 1-2, 30.) For instance, customers
may use the Orbitz website to search for, compare, and
ultimately reserve airline tickets, car rentals, lodging, or
a variety of other travel products. (See Jt. Stip.
¶¶ 1, 30, 32.)
During the period at issue, one of the Orbitz regional market
managers traveled to Indiana to cultivate relationships with
hoteliers. (See Jt. Stip. ¶¶ 6-9.) The
regional market manager and the hoteliers subsequently
executed contracts that allowed Orbitz to provide its
services for several Indiana hotels in Allen, Clark, Floyd,
Harrison, Jefferson, Marion, Scott, and Shelby Counties (the
"Hotel Listing Agreements"). (See Jt.
Stip. ¶¶ 10, 19-23, Ex. 1.)
According to the terms of the Hotel Listing Agreements, the
hoteliers delegated to Orbitz some of their day-to-day
responsibilities, including certain marketing, tax
collecting, payment processing, reservation, and customer
service functions. (See Jt. Stip., Ex. 1
¶¶ 5-7.) The hoteliers also established wholesale
rates for the hotel rooms, agreed not to disclose the
wholesale rates to the public, and agreed to allow Orbitz to
charge customers at rates greater than the wholesale rates
when it facilitated pre-paid reservations. (See Jt.
Stip., Ex. 1 ¶ 5(a).) Orbitz, in turn, agreed to promote
the Indiana hotels on its website, to facilitate pre-paid
reservations for the hotels through its secure private
communications network (the "extranet"), and to
collect sales and innkeeper's taxes from customers based
on the wholesale rate of the hotel rooms alone
(i.e., the "tax recovery charge").
(See Jt. Stip., Ex. 1 ¶¶ 2, 5(a).)
Orbitz, like other third-party travel intermediaries, used
the "merchant model" to facilitate the pre-paid
reservations. (See Jt. Stip. ¶ 33.)
Consequently, Orbitz's facilitation of pre-paid
reservations typically involved several, nearly simultaneous,
1) Orbitz advertised Indiana hotels on its website; after the
customer selected a room to reserve and agreed to certain
policies, the following two separate charges were displayed
to the customer:
i. the "subtotal" (i.e., the "retail
rate") that consisted of the combined amount of the
wholesale rate and Orbitz's facilitation fee; and
ii. the "taxes and fees, " which reflected the
total of the tax recovery charge and Orbitz's additional
2) Orbitz transmitted the customer's reservation request
to the hotel through the extranet; the hotel accepted the
reservation by sending Orbitz a confirmation number through
the extranet; Orbitz provided the confirmation number to the
customer and charged the customer's credit card for an
amount totaling the retail rate and the taxes and fees;
Orbitz was the merchant of record for the transaction;
3) the customer subsequently checked into the hotel and, upon
check-out, paid for incidental charges only (e.g.,