sixteen thirty nine forty four who will be arguing for pla from reading the braves and they skate in this case the issue certification of these questions of state lot of the supreme court was well briefed and i believe it's more important to focus on the fundamental errors that the district court made and it rather than rehashing what has been briefed first and foremost the district court erred and its admission of the court term of person which lead to a domino effect and a limited and erroneous application of what it means for you'll see that the definition of person is a very broad definition it's defined as any natural individual firm or institution agency association supplier vendor then b it's very page order the district court never once addressed this definition of person or considered what does that definition and it broadly defiance who can be determined as an operator under the statute it sounds like it broadens the kind of entities that could be determined the hotel operator but doesn't really change the activity that's involved here it would be helpful to me if you could address  yes my most fundamental problem with the municipalities claims here which is that it is always at least in my experience in the law rental whether we're talking about real estate or personal property involves some physical control over possession or a right to occupy and i don't see that here yes your honor will in this case  the entities are taking control control of the end and tory taking their right to have the hotel room and tory and then they pass that right on to the customers that rent their rooms in exchange for consideration in these transactions it's room or the hotel itself and the hotel operator the hotel the physical brick and mortar hotel a human being the person yes at the front desk who is an agent of the operator of the hotel yes honor however the delivery of the key is not the important timing for these taxable transactions these transactions we can all agree are taxable rental of room transactions in the state of illinois in these units apologies the important time even under the statutes is when the room reservation is made and when payment is collected if you look at the bedford harp ordinance for example it states clearly the charge shall be effective on each night that a room is reserved so every time that room is reserved when that reservation is made is when the taxation is triggered so the fact that the hotel path is the keil lot happens if the room is council there are if the is cancelled then there are certain cancellation policies that these companies have they differ from company to company s and the customers that provide for they called walk situations and it provides that the hotel has to find an alternative reservation that is of the same caliber of the hotel they were going to stand for that customer because and this is importantly because the o c a has transferred an intangible right to occupy the room to the customer so they're not walking into the hotel and receiving the right to stay in that room when they go to  hotel holds onto but the important part here is there also pieces of this reservation in this transaction that are soley within the ambit of the o c a why does that make them the primary apparat her then it makes them the primary operator under the statute  importantly it's not just that they're an operator but that they fall within this broad definition of person and they are the person and the merchant of record in the transaction just collecting all of the consideration for the right to reserve the room for the right to occupy the room  they control all financial aspects of the transaction they are the ones who charge the customer's credit card they are doing many of the things that a hotel does when a customer books directly through a hotel many but not what about a cleaning service they provide a portion of the hotel's operating needs but yet i don't think anybody would make an argument that the cleaning service is the app rate or the hotel why is it any different because the o t control just or arguably control just one facet of the operations and that's bacillus hating reservations the fact that they control the financial piece of this transaction and they are the ones who give the consumer the intangible right to occupy a room at a hotel is important to the taxation on and the rental of that hotel room i would say that that would that would be more important than a cleaning service that as the cleaning service doesn't provide any right to stay in the room and what's taxed here is the use and privilege of both ends of the transaction are using and so the rooms that are available in the hotel will be loaded in a central reservation system which then communicates with the computers sometimes there is a direct connection however at the end of the day what's important is that the hotels are making room inventory available to the o c a to put out for rent on their website and these are renting these rooms to consumers and providing them with guaranteed reservations confirmation email confirmation numbers and it's very it's identical to what a hotel does when a hotel makes a direct booking so a hotel still has to pay for the marketing their websites their credit card processing fees the advertising all of these services the defendants are arguing should be exempt from taxation are the very thing services that the hotels find the hotels provide to consumers however don't receive a tax exemption it's important here to note that the contracts that the o t are into with these hotels a provider for it an important binding relationship between these two entities and it allows the o t a's to then take the step into the shoes of the hotel and act as the entity that is providing the customer with the right to use the room and it's another thing that they did just record ignored is that under illinois law a an entity cannot do  is prohibited directly and if the district court's decision is allowed to stand what it it's allowing the o t s to do is to contract their way into a tax exemption which is improper their day by entering into these contracts and stepping into these transactions they are entering they are saying that they get a tax exemption for the services that they're providing and it doesn't make any sense that they should get that tax exemption when a hotel provides the very same service but interesting interestingly as was set out in the appellate statement of material facts in the district court when an agency transaction takes place taxes are paid on the full retail rate for whatever the travel agent services or just leave the entire so what happens in that case is the hotel is the merchant of record and so the hotel charges the customer and the total amount that the customer pay engaged in the business is the o c a in these instances and that the gross relevance these for the person engaged in the business would be the total amount b o t a collect out the margin or backward from the customers not the lower net rate that's then paid to the hotel the in fact it's been and it was decided in the rosemont decision which was also an illinois decision looking at grocery overspeed because they consumer cannot get the right to occupy a room without paying the total price the total price has to be considered the go prospero receipt there is no way for a customer to not pay the o c a service fees and still stay in that realm so in order to be able to rent and stay in the hotel room the consumer must pay every single piece of that charge making the entire thing the entire total that is paid gross from overseas so suppose the trailer from los park tax the transaction you tax the los angeles travel agent you tax the the person the merchant of record in the transaction who has the hotel in that instance that would be collecting the total amount the customer different these charges are an extra could be tied to the total amount paid for the ram there is no way for a customer to separate out the amount for service that that they're paying to the gate they'll never know that in fact it's questions here if cases are properly before us you know and there are you know it's simply a matter of time before the state court will have a reasonable opportunity to decide these issues issue would be a little different in that sense that there have already been several cases in the state of illinois and yet there is with these companies and the taxation of these companies taxability of their service fees and there is still no supreme court precedent to guide any of these jurisdiction it please the court the new nasa municipalities attempt to apply twentieth century tax laws to twenty first century technology companies founders on the rule that tax laws must be clear and unambiguous that rule is not just a rule of statutory construction it is a fundamental guarantee of fair notice ensuring that taxpayers can rely on reasonable interpretations  as your honor suggested if you listen pal it is in this case wish to tax online travel companies and their services going forward they must amend their ordinances to do so clearly and unambiguously and to answer your question judge dash three dash one is that amendment the claims in this appeal however going forward must be resolved in the online travel company's favor because they aren't  insist unambiguous lay tax and alternatively because their services aren't what the ordinances unambiguously tax first the online travel companies aren't who the ordinances  ambiguously tax nine of the thirteen ordinances tax those who own operate or manage hotels as held by the district court here the fourth and the six circuits and numerous courts across the country as we cite on page thirteen of our principle brief those dutch atory terms don't apply to online travel companies much less clearly and unambiguously and to your point in your discussion with my friend judge hamilton you highlight control and physical premises and we think these are two characteristics that apply in terms of owning and operating and managing and what those terms mean by any plausible definition online travel companies don't operate hotels or hotel accommodations or hotel rooms because they don't run the basic functions necessary to run hotels on a daily basis or something told  that the hotel operators essentially turn over control of the certain block of rooms to go to your clients know you are and that's that's not what the this summary judgment evidence in this case clearly establishes in fact to the contrary although there are many contracts that issue virtually all of them make a very clear that the hotels are not in any measure ceding any form of control even i think it's important to highlight out certainly not over the hotels or hotel rooms but the hotels also remain complete control over the reservation process itself and judge darrow to your question about our i think you use the phrase arguably control the reservation process and i think if anything the hotels always always retain the ability when an online travel agent facilitates a traveler's request for a reservation and that and carries carries that request to the to the hotels the hotel may always has the ability to turn down that reservation request and to say no we're not going to make any men any reservations available to travelers through the online travel agencies i think it's important to highlight not only do the contracts pacifically set out the river refusal to see the control of the of any physical operation or other the hotel they they actually make clear and practice and in the contracts that even the reservation process itself that the hotels maintain control over that over that process i don't minimize we think it's reasonable to construe operating hotels as not in tampa seeing facilitating reservations and that's all that's required to affirm judgment for the online travel companies as to these ordinances i think the same thing is true about the fo ordinances here that don't express please state who is taxed as that ambiguity must be resolved in the online travel companies favor so summary judgment for the online travel companies in this case is required for for cutting the tax on a retail transaction down to wholesale rates right as far as that is as far as a customer is concerned here she is   the taxes and fees common and if you also look at the rate it's made clear to the traveler that the the the the rate includes not only what the well it's charging the traveler for the room but also our facilitation fee for facilitating the reservation and all the other services that that are that are provided here travel really has no idea what those fees are right you know if i'm a customer i have no idea how much expediency orbitz is paying or tell you as well and in fact your honor that way you don't and the reason the reason for that won't tell you the customer how much you're paying in different taxes and fees right well again your honor if that's that's a function of the confidentiality that the hotels require here obligated contractual to the hotels because they don't want that to be that to be reverse reverse engineer but that isn't the municipality's complaint in this case they're not they're not complaining about any of that they're trying to say that it is it is our services that we provide that are taxable and i think by any plausible definition at the very minimum it's not clear and unambiguous that our services are what is targeted all of the ordinance ordinances tax the leasing or letting of rooms the use or occupation of rooms or engaging in the business of leasing or letting rooms the ordinary meaning of leasing or letting is the transfer of ownership or control from an owner or a possessor to a renter going concept enough to decide because i think that can i think that concept the concept is enough to decide certainly certainly it's enough i mean our poseur our position and certainly judge judge can only thought it was sufficient  i think it would be sufficient to decide twelve of the thirteen ordinances at issue here our position on cross appeal with respect to the district court's holding as to what engaged in the business of granting means our position is that summary judgment is proper to the online travel companies with respect to that claim to really for the same reason that summary judgment was proper in terms of municipality will abre that in this case after losing on summary judgment amended let me just read the language of that ordinance as amended it says under tax required an amount there is hereby levied and imposed upon the use and privilege of engaging in the business of leasing renting making facilitating or servicing the leasing or renting of a hotel or motel room in the village at will or so that's that sort of on the what question by using the term facilitating there that refers to what we do as facilitators as helping traveller make reservations further on down i think this is important too it relates to the discussion you've been having in eleven dash three dash three the definition section says for purposes of this text the following definition and it defines gross rental receipts as the total amount of consideration for occupancy valued in money whether received in money or otherwise including all receipts cash credits and property or services of any kind or nature including but not limited to amounts charged for the making servicing or facilitating reservations so again willowbrook went back and it amended its ordinance to refer to facilitating in both the who is required to tell us whether there are other cases against your clients making their way through the state courts yes your honor there are in fact the cases in state courts my my understanding is that those cases have actually  een stayed while while this court is is addressing the issue obviously why does that make any sense obviously obviously obviously what this court decides would not would not bind bind those rights those decisions those those courts in in any way but those those cases are of you all asked for those days i i don't know the answer to that question are i can i can check with my who can say but i'm not i'm not sure i'm not sure who it seems like a very peculiar notion of federalism which courts would state courts would would defer to a federal court's decision on issues of state tax so so as your honor there's there there whatever just this court's interpretations of these ordinances would certainly not bind any any of the of those those state courts and as i said before i think the important thing your honor here for purposes of your question is that there are other cases pending involving other ordinances that have a path to the to the illinois supreme court the thing that emphasizes two points to that your honor i think that does that does emphasise the control that the hotel itself exercises so what the traveler has promised is is a prepaid reservation at the hotel certainly when a traveler shows up there's no room it's the hotel's responsibility to what's called walking walk walk the customer as good as your honor also discussed with my friend on the other side if i ever travel or shows up anybody added drunk under age again those those are the hotels policies and the hotel is certainly certainly retains control in the as as your own or as your honor said and yet dispel these point to your clients talking about selling hotel rooms right and that's your marketing your witnesses why shouldn't you have some way to that in the is used as an off as an industry parlance for what we do and i find it interesting that in one of the excerpts on which my friend realized the witness goes on to then define sell as meaning to facilitate which which is what was just what we do so i think even on their own but even on their own terms i think the use of those terms certainly is makes clear if not consistent with what we any and all of the answers a matter of tax law it's substance in the form and not the labels that either side attaches to something that that that governs and again even if this court saw a col argument that online travel companies rent rooms or engage in the business of wrenching rooms that isn't enough for the municipalities to prevail there ordinance must ambiguously tax the online travel companies and their services because they do not the online travel companies are entitled to summary judgment on all of the ordinances that issue for that reason to proceed first i want to clear up a point about travel agents and travel a transaction i think it's simple it can be put in a travel agency transaction the it's the hotel in the travel agent the guest is getting the room and the taxes on the full amount the guest  paying for the room when you have a hotel and i know t s a i guess is getting a room but the tax is paid on some lower amount than what the customer pays there is no reasoning under the law for this difference or for th in which the customer purchases from the o c a the merchant record the right to stay in the room so you don't he if the consideration for the reservation is collected by the u s d a and not refunded then that would be a completed transaction and those funds should be refunded and not retained by us here i don't want to confuse and in the absence of occupancy no tax is authorized when that undermine your position so i think i may have misspoke we are not trying to tax transactions that have been cancelled because there was no accutane see as indigent under the ordinance because because the reservation was not completed this was not addressed by opposing counsel but these contracts what they are doing is attempting to nullify the tax law which very clearly put the taxation on room rentals and there are no one is going to say that a customer isn't getting access to rent a room when they complete a transaction a few t i a it's very clearly and unambiguously taxed under the ordinances as they stand i think that one of the main issues is that a customer cannot lease or rent a room for minutes a day without paying these fees it is inextricably part of the total amount that is paid by the customer and these taxes should be applied equally and there is no reason that when a customer bucks directly through a hotel they are taxed on a larger amount versus when a customer books through an o t a mount of tax is being transferred to municipalities that is inconsistent and there is no explanation under the law for that difference in tax basis when the same reservation is being accomplished