SUMMARY 

January 25, 2018 

2018COA8

No. 16CA1901, Town of Breckenridge v. Egencia, LLC — 

Taxation — Municipalities — Home Rule Cities — 

Accommodation Tax 

A division of the court of appeals concludes that online travel 

companies are not required to remit to the Town of Breckenridge 

accommodation taxes because they are not lessors or renters of 

hotel rooms and therefore have no possessory interest in those 

rooms, for purposes of Breckenridge’s hotel accommodation tax 

ordinance. In its analysis, the division distinguishes Breckenridge’s 

accommodation tax from Denver’s lodging tax, which was imposed 

on the online travel companies in City & County of Denver v. 

Expedia, Inc., 2017 CO 32. 

The division also considers and rejects Breckenridge’s 

contentions that the district court erred in applying the summary 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion. 
judgment standard, that its sales tax claim was improperly 

dismissed for lack of subject matter jurisdiction, that its motion for 

class action certification should have been granted because 

common questions predominated the class, and that the district 

court erred in dismissing Breckenridge’s common law claims. 

Accordingly, the division affirms the holding of the district 

court. 
COLORADO COURT OF APPEALS 2018COA8 

Court of Appeals No. 16CA1901 

Summit County District Court No. 11CV420 

Honorable Karen A. Romeo, Judge 

Town of Breckenridge, Colorado, 

Plaintiff-Appellant, 

v. 

Egencia, LLC; Expedia, Inc.; Hotels.com, L.P.; Hotels.com, GP, LLC; Hotwire, 

Inc.; Internetwork Publishing Corporation, d/b/a Lodging.com; 

Lowestfare.com, Inc.; Orbitz, Inc.; Orbitz, LLC; Priceline.com, Incorporated; 

Site59.com, LLC; TravelNow.com, LP; Travelport, Inc., f/k/a Cendant Travel 

Distribution Services Group, Inc.; Travelscape, LLC; Travelweb, LLC; Trip 

Network, Inc., d/b/a Cheaptickets.com, 

Defendants-Appellees. 

JUDGMENT AFFIRMED 

Division III 

Opinion by JUDGE GRAHAM 

Webb, J., concurs 

Terry, J., specially concurs 

Announced January 25, 2018 

Lewis Roca Rothgerber Christie LLP, Michael D. Plachy, Thomas M. Rogers III, 

Joy Allen Woller, Denver, Colorado, for Plaintiff-Appellant 

Connelly Law LLC, Sean Connelly, Denver, Colorado; Davis Graham Stubbs 

LLP, Jason M. Lynch, Denver, Colorado, for Defendants-Appellees
1 

¶ 1 We are asked to determine whether online travel companies 

(OTCs) are required to collect and remit accommodation and sales 

taxes to the Town of Breckenridge, Colorado, on hotel rooms they 

book through their respective internet websites. We conclude that 

they need not collect and remit such taxes. 

¶ 2 Breckenridge, the plaintiff, seeks to collect accommodation 

and sales taxes from sixteen OTCs, the defendants: Egencia, LLC; 

Expedia, Inc.; Hotels.com, L.P.; Hotels.com, GP, LLC; Hotwire, Inc.; 

Internetwork Publishing Corporation d/b/a Lodging.com; 

Lowestfare.com, Inc.; Orbitz, Inc.; Orbitz, LLC; Priceline.com, 

Incorporated; Site59.com, LLC; TravelNow.com, LP; Travelport Inc. 

f/k/a Cendant Travel Distribution Services Group, Inc.; 

Travelscape, LLC; Travelweb, LLC; Trip Network, Inc. d/b/a 

Cheaptickets.com; and yet unidentified companies, Does 1 through 

1000. 

¶ 3 On appeal, Breckenridge makes five contentions. First, it 

contends that the district court erred in determining that the OTCs 

were not “renters” or “lessors” for purposes of Breckenridge’s 

accommodation tax ordinance, relying on the Colorado Supreme 

Court’s decision in City & County of Denver v. Expedia, Inc., 2017 
2 

CO 32 (plurality opinion). Second, it contends that the district 

court misapplied the summary judgment standard by resolving 

material issues of fact. Third, it contends that its sales tax claim 

should not have been dismissed for lack of subject matter 

jurisdiction. Fourth, it contends that its motion for class action 

certification should have been granted because common questions 

predominate and class action was the superior method of relief. 

Fifth, it contends that its common law claims were improperly 

dismissed. We consider and reject each contention. 

I. Background 

A. Overview of OTCs 

¶ 4 The OTCs maintain websites through which travelers may 

book reservations for hotel accommodations and other travelrelated services. The OTCs transact their online businesses in two 

ways. The first is known as the “agency model,” which describes 

transactions where the OTC is the actual agent of a hotel. The 

second is the “merchant model,” which was used here. 

¶ 5 Under the merchant model, an OTC first contracts with a 

hotel. These contracts offer rooms to an OTC at a discounted rate 

— a fixed percentage of the price the hotel would charge travelers 
3 

directly for the rooms. The OTC describes the hotel and its facilities 

on its website and allows customers logging onto its website to book 

reservations for that hotel. 

¶ 6 When facilitating reservations, an OTC neither purchases nor 

reserves rooms in advance. Rather, the OTC coordinates 

information between travelers and hotels. Only hotels can issue 

reservations. When a purchaser requests a hotel room, the chosen 

OTC’s computer system communicates with a hotel’s central 

reservation system to find a specific room at a specified rate. If 

available, the purchaser must agree to the hotel’s cancellation 

policy and terms of occupancy before the hotel will accept the 

reservation. If the hotel accepts the reservation, it will provide a 

confirmation number in the customer’s name and supply this 

number to the OTC. The OTC forwards the confirmation number 

then collects and processes the customer’s payment. 

¶ 7 When a customer arrives at the hotel, the hotel registers the 

customer as a guest before assigning a room. Assignments are 

made only when a room is available and the customer meets the 

hotel’s terms and conditions for occupancy. After the customer 
4 

concludes his stay, the OTC transfers payment to the hotel. The 

hotel then remits the collected taxes to Breckenridge. 

¶ 8 As relevant here, Breckenridge imposes an accommodation tax 

“of three and four-tenths percent (3.4%) on the price paid for the 

leasing or rental of any hotel room, motel room, or other 

accommodation located in the town.” Breckenridge Town Code § 3-

4-3 (B.T.C.). In addition to the accommodation tax, Breckenridge 

collects a 2.5% sales tax. B.T.C. § 3-1-5. Unlike the 

accommodation tax, the sales tax ordinance requires Breckenridge 

to seek administrative review before petitioning the district court for 

relief to collect allegedly unpaid sales taxes. B.T.C. §§ 3-1-35, 3-1-

36. 

B. Procedural History 

¶ 9 Breckenridge instituted this action to recover from the OTCs 

unpaid accommodation and sales taxes. In its initial complaint, 

Breckenridge alleged that the OTCs were responsible for collecting 

and remitting taxes associated with hotel reservations. 

Breckenridge asserted five causes of action: declaratory judgment, 

violations of municipal ordinances, conversion, civil conspiracy, and 

unjust enrichment. 
5 

¶ 10 The OTCs then filed a motion to dismiss, which was partially 

granted. The district court agreed that no cause of action existed in 

respect to the sales tax claim because Breckenridge had failed to 

exhaust its administrative remedies and none of the exceptions to 

exhaustion applied. Consequently, the court determined that it 

lacked subject matter jurisdiction to decide that claim. But, the 

district court refused to dismiss the accommodation tax claim, 

explaining that Breckenridge had sufficiently asserted a claim in 

regard to the accommodation tax. 

¶ 11 Breckenridge then sought class certification for fifty-five home 

rule cities that also levy a lodger’s or accommodation tax, seeking to 

impose taxes, interest, and penalties on the OTCs in favor of the 

putative class. The district court denied class certification on 

multiple grounds. First, the court concluded that certification 

under C.R.C.P. 23(b)(2) was inappropriate because Breckenridge 

was primarily seeking monetary damages. Second, the court 

determined that common questions did not predominate over 

questions affecting only individual members of the putative class, 

so class certification was not superior to other available remedies 

and, therefore, C.R.C.P. 23(b)(3) certification was unavailable. 
6 

Third, the court held that certification was inappropriate because at 

least nine of the unnamed class members had failed to exhaust 

their own administrative remedies. 

¶ 12 Thereafter, the parties filed cross-motions for summary 

judgment. Resolving those motions in favor of the OTCs, the 

district court analyzed the plain language of the accommodation tax 

ordinance, in addition to the OTCs’ role in the reservation process. 

Specifically, the court determined that it was beyond dispute that 

OTCs do not maintain hotel room inventories, any customer service 

the OTCs provide is related only to the facilitation of reservations 

and not the actual rental or service of accommodations, and the 

hotels — not the OTCs — are primarily involved in a customer’s 

reservation process. Based on those undisputed facts and the plain 

language of the ordinance, the court concluded that the OTCs were 

not renters or lessors and, therefore, not required to collect and 

remit the accommodation tax. 

II. The District Court Properly Determined that the OTCs are not 

Subject to Breckenridge’s Accommodation Tax 

¶ 13 Breckenridge contends that the district court erred in 

concluding that OTCs are neither “lessors” nor “renters” of hotel 
7 

rooms. Additionally, Breckenridge asserts that the district court 

erred when it relied on Expedia, Inc. v. City & County of Denver, 

2014 COA 87 (Expedia I), which was reversed by the Colorado 

Supreme Court in a plurality decision. City & Cty. of Denver v. 

Expedia, Inc., 2017 CO 32 (Expedia II). We disagree. 

¶ 14 Who is responsible for collecting and remitting accommodation 

taxes under the B.T.C.? This question hinges on the meaning of 

“lessor,” “renter,” and “furnish,” as used in sections 3-4-1, 3-4-3, 

and 3-4-4 of that code. 

¶ 15 Breckenridge contends that the OTCs are renters or lessors 

under the code because they sell the legal right to use hotel rooms 

in exchange for consideration. Because the accommodation tax 

does not require a person to have physical possession of the right 

sold, Breckenridge asserts that the OTCs are capable of leasing or 

renting even without physical possession of the hotel rooms. 

¶ 16 The OTCs respond that they are not lessors or renters because 

they do not own, possess, or have any interest in hotel rooms; 

therefore, they have no power to convey use or occupancy — in 

other words, to lease hotel rooms — to others. See City of 

Philadelphia v. City of Philadelphia Tax Review Bd., 37 A.3d 15, 20 
8 

(Pa. Commw. Ct. 2012) (no rental occurs until a customer checks in 

at the hotel and receives the right to a room). Rather, they contend 

that OTCs are technology companies that act as intermediaries 

between purchasers and hotels. 

¶ 17 The district court agreed with the OTCs that they are not 

lessors or renters subject to the accommodation tax and, instead, 

are intermediaries. Relying on dictionary definitions, the court 

found that a “lessor” or “renter” is a “person or business that 

conveys via a contract the right to use, possess, or occupy 

accommodations for consideration.” Because OTCs act merely as 

intermediaries and, therefore, lack a possessory interest in the 

lodging, the district court found that they are not subject to 

Breckenridge’s accommodation tax. 

A. Standard of Review 

¶ 18 We review a district court’s grant of summary judgment and 

issues of statutory interpretation de novo. Robinson v. Legro, 2014 

CO 40, ¶ 10; Bd. of Cty. Comm’rs v. ExxonMobil Oil Corp., 192 P.3d 

582, 585 (Colo. App. 2008), aff’d, 222 P.3d 303 (Colo. 2009). When 

reviewing a municipal ordinance, our primary task is to give effect 

to the intent of the drafters, which we attempt to discern by looking 
9 

first to the ordinance’s plain language. Jackson & Co. v. Town of 

Avon, 166 P.3d 297, 299 (Colo. App. 2007). If we can give effect to 

the ordinary meaning of the words used by the drafter, the 

ordinance should be construed as written. Id. But if the ordinance 

is ambiguous and therefore susceptible of multiple interpretations, 

we may resort to various aids of statutory construction in 

determining intent. Jefferson Cty. Bd. of Equalization v. Gerganoff, 

241 P.3d 932, 935 (Colo. 2010). We must also refrain from 

rendering a judgment that would be inconsistent with the 

municipal body’s legislative intent and must avoid any 

interpretation that would produce an illogical or absurd result. Id.;

Waste Mgmt. of Colo., Inc. v. City of Commerce City, 250 P.3d 722, 

725 (Colo. App. 2010). 

¶ 19 Interpreting a tax code requires a similar analysis. Welby 

Gardens v. Adams Cty. Bd. of Equalization, 71 P.3d 992, 995 (Colo. 

2003). We must construe it as a whole to give consistent, 

harmonious, and sensible effect to all its parts. Id. Additionally, 

however, we adhere to Colorado’s longstanding rule of construction 

that “tax provisions like those at issue here will not be extended 

beyond the clear import of the language used, nor will their 
10 

operation be extended by analogy.” Waste Mgmt., 250 P.3d at 725 

(citing City of Boulder v. Leanin’ Tree, Inc., 72 P.3d 361, 367 (Colo. 

2003)). We construe all doubts against the government and in favor 

of the taxpayer. Id.

B. The Accommodation Tax Ordinance’s Language 

¶ 20 B.T.C. section 3-4-1 (the preamble) states, in part, as follows: 

[The] legislative intent of the town council in 

enacting this chapter is that every person who, 

for consideration, leases or rents any hotel 

room, motel room, or other accommodation 

located in the town shall pay and every person 

who furnishes for lease or rental any such 

accommodation shall collect the tax imposed 

by this chapter. 

¶ 21 An implementing provision provides that “an excise tax of 

three and four-tenths percent (3.4%) [shall be assessed] on the price 

paid for the leasing or rental of any hotel room, motel room, or 

other accommodation located in the town.” B.T.C. § 3-4-3. 

¶ 22 The code also imposes liability for unpaid taxes on “any lessee 

or renter of a hotel room, motel room, or other accommodation 

located in the town” who fails to pay or “any lessor or renter of such 

accommodation” who fails to collect the accommodation tax. B.T.C. 

§ 3-4-4(A). 
11 

¶ 23 The B.T.C. does not define the terms “leasing,” “renting,” 

“lessor,” or “renter.” Nor does the code define the operative term 

used in its preamble, “furnishes for lease or rental.” 

¶ 24 When a statute fails to define an integral term, we may refer to 

a dictionary to determine the common usage of the term. See

Roalstad v. City of Lafayette, 2015 COA 146, ¶ 34 (If a “statute does 

not define a term, the word at issue is a term of common usage, and 

people of ordinary intelligence need not guess at its meaning, we 

may refer to dictionary definitions in determining the plain and 

ordinary meaning.” (quoting Mendoza v. Pioneer Gen. Ins. Co., 2014 

COA 29, ¶ 24)). Thus, we look to dictionary definitions of the terms 

“lessor,” “renter,” “lease,” “rent,” and “furnish” to ascertain their 

plain and ordinary meanings. 

¶ 25 Black’s Law Dictionary defines those terms as follows: 

 “lessor” (n.) is “[s]omeone who conveys real or personal 

property by lease; esp[ecially], landlord”; 

 “lease” (n.) is a “contract by which a rightful possessor of 

real property conveys the right to use and occupy the 

property in exchange for consideration,” and (v.) is “[t]o 

grant the possession and use of (land, buildings, rooms, 
12 

movable property, etc.) to another in return for rent or 

other consideration”; and 

 “rent” (n.) is “[c]onsideration paid, usu[ally] periodically, 

for the use or occupancy of property.” 

Black Law’s Dictionary 1024, 1026, 1043, 1488 (10th ed. 2014). 

¶ 26 Similarly, Webster’s Third New International Dictionary 

defines the terms as follows: 

 “lessor” (n.) is “one that surrenders possession of real 

estate under a lease”; 

 “lease” (n.) is a “a contract by which one conveys lands, 

tenements, or hereditaments for life, for a term of years, 

or at will or for any less interest than that of the lessor, 

usu[ally] for a specified rent or compensation,” and (v.) is 

“to grant or convey to another by lease”; 

 “rent” (n.) is “income from a property,” and “a piece of 

property that the owner allows another to use in 

exchange for a payment in services, kind, or money”; 

 “renter” (n.) is “one that rents: as . . . the lessee or tenant 

of lands, tenements, or other property”; and 
13 

 “furnish” means “to provide or supply with what is 

needed.” 

Webster’s Third New International Dictionary 923, 1286, 1297, 

1923 (2002). 

¶ 27 These definitions clarify that a person who rents or leases or 

furnishes for rent to another is one who has a possessory interest in 

the property and has the legal ability to supply the property. 

¶ 28 Here, the OTCs are not the “rightful possessor[s]” of hotel 

rooms. Black’s Law Dictionary 1024 (10th ed. 2014) (defining 

lease). The district court found that OTCs cannot pledge, assign, or 

use hotel properties. Instead, hotels, as property owners, maintain 

possession of the hotel rooms throughout the transaction. 

¶ 29 Breckenridge argued before the district court that the OTCs 

acquire inventory. However, the court found that numerous 

operating agreements explicitly state that the OTCs have no right or 

obligation to acquire an inventory of rooms. Further, the court 

found that inventory belongs to the hotel and is only purchased by 

the OTC immediately before being passed along to the consumer. 

¶ 30 Breckenridge also contends that the code does not impose any 

requirement that a person who leases or rents lodging have physical 
14 

possession of that room. Therefore, Breckenridge asserts that the 

OTCs need not have physical possession of the hotel rooms to 

qualify as renters or lessors. However, the physical possession 

requirement is inherent in the plain and ordinary meaning of 

renting and leasing. Because the hotels maintain possession of the 

rooms and are the sole grantors of the right of occupancy, hotels 

are lessors or renters and OTCs are essentially brokers. 

¶ 31 A broker is an “agent who acts as an intermediary or 

negotiator, esp[ecially] between prospective buyers and sellers.” 

Black’s Law Dictionary 232 (10th ed. 2014). Notably, a “broker 

usu[ally] does not have possession of the property” at issue. Id. 

Here, the OTCs, like traditional brokers, do not possess the hotel 

rooms during the entirety of the transaction. They may only 

acquire the right to use a room, which is immediately passed along 

to the purchaser when the hotel issues a confirmation number in 

the purchaser’s name. 

¶ 32 They also cannot “grant the possession and use of” hotel 

rooms because they are not the rightful possessors. OTCs do not 

issue or furnish reservations; they facilitate them, at times and 

rates set by a hotel pursuant to their contracts. Ultimately, a hotel, 
15 

not an OTC, grants a right of occupancy to guests upon check-in. 

Consequently, an OTC is more akin to a broker. 

¶ 33 Moreover, reading the accommodation tax statute as a whole 

indicates that the accommodation tax applies only to those who 

have a possessory interest in the accommodation being taxed. 

Turning to B.T.C. section 3-4-2, the code defines hotel room, motel 

room, or other accommodation as “[a]ny room or other 

accommodation in any hotel . . . or any such similar place to any 

person who, for consideration, uses, possesses, or has the right to 

use or possess such room or other accommodation for a total 

continuous duration of less than one month.” (emphasis added.) A 

hotel guest does not have the right to use or possess a hotel room 

until she is registered at the hotel. An OTC cannot grant this right. 

¶ 34 In Village of Bedford Park v. Expedia, Inc., 876 F.3d 296 (7th 

Cir. 2017), the court was presented with facts similar to those here. 

Thirteen Illinois municipalities sought to impose taxes on the OTCs. 

Applying an analysis like that of the district court here, the court 

determined that renting implies ownership and granting possession 

of property. Id. at 305. Since the OTCs had no possessory interest 

and were not engaged in the business of owning, operating, or 
16 

leasing, and could not independently grant customers access to 

rooms, they could not be liable for collecting and remitting taxes. 

Id. The various ordinances applied by the Illinois municipalities 

used language like that adopted by Breckenridge. Also, in City of 

San Antonio v. Hotels.com, L.P., 876 F.3d 717 (5th Cir. 2017), the 

Fifth Circuit determined that OTCs do not have an inventory of 

rooms for occupancy. Persuaded by the analysis in Bedford Park, 

we conclude that, under the Breckenridge ordinance, an OTC does 

not have an interest that would allow it to furnish for rent any hotel 

room. On the contrary, it appears that the OTCs only “furnish” 

purchasers the opportunity to rent rooms from hotels. 

¶ 35 Therefore, construing the statute as a whole and according to 

its plain meaning, we conclude that the OTCs are not subject to 

Breckenridge’s accommodation tax.1

C. Expedia II is not Dispositive 

¶ 36 In addition to arguing that the OTCs qualify as renters and 

lessors of hotel rooms, Breckenridge contends that Expedia II, 

 

1 As an additional argument, Breckenridge contends that OTCs 

should pay taxes on the room rate charged plus services fees. 

Because we determine that the OTCs are not liable for 

accommodation taxes, we need not address this contention. 
17 

which concluded that OTCs are liable under Denver’s lodger’s tax, 

is dispositive for two reasons. First, Breckenridge asserts that 

Denver’s lodger’s tax is substantially similar to Breckenridge’s 

accommodation tax. Second, Breckenridge argues that we should 

reverse the district court’s decision because it relied on Expedia I, 

which was ultimately overturned. We are not persuaded. 

¶ 37 In Expedia II, ¶ 11, the City and County of Denver sought to 

impose its lodger’s tax on the OTCs, which requires “vendors” to 

collect and remit the prescribed tax on the purchase price of any 

furnished lodging. The Denver ordinance defines “vendor” as a 

“person making sales of or furnishing lodging,” and defines “sale” as 

“furnishing for consideration.” Id. at ¶ 39 (quoting Denver Revised 

Municipal Code § 53-170(4), (8) (D.R.M.C.)). The plurality 

determined that “furnishing lodging for consideration . . . refers to 

selling, or providing for consideration, the right to overnight use of 

rooms or accommodations in the enumerated hotel-like facilities.” 

Id. at ¶ 23. But, “‘lodging’ does not refer to a room, as a commodity, 

or even title or a right of ownership of a room, but rather to the 

right of overnight use of rooms . . . .” Id. The opinion rendered by 

Justice Coats, Justice Márquez, and Justice Boatright held that 
18 

OTCs are vendors, for purposes of the lodger’s tax, because they 

furnish lodging for consideration. Id. at ¶ 22. 

¶ 38 However, Breckenridge’s reliance on Justice Coat’s plurality 

decision in Expedia II is misplaced. “When a fragmented [c]ourt 

decides a case and no single rationale explaining the result enjoys 

the assent” of a majority of justices, Marks v. United States, 430 

U.S. 188, 193 (1977), “the holding of the [c]ourt may be viewed as 

that position taken by those Members who concurred in the 

judgments on the narrowest grounds.” Id. (quoting Gregg v. 

Georgia, 428 U.S. 153, 169 n.15 (1976) (plurality opinion)). 

Accordingly, Justice Hood’s concurrence in Expedia II is instructive. 

¶ 39 Although the concurrence agreed that OTCs are liable under 

the lodger’s tax, the concurrence reached this decision without 

using interpretive aids. Instead, the concurrence concluded that 

the plain language of the ordinance makes sufficiently clear that the 

OTCs qualify as vendors. 

¶ 40 In its analysis, the concurrence defined “to furnish” as 

providing or supplying rooms to “any person who for consideration 

uses or has the right to use such rooms.” Expedia II, ¶ 42 (Hood, 

J., concurring in the judgment). It also noted that nothing in the 
19 

definition of furnish, nor in the ordinance, limits the term to the 

physical provision of a hotel room. Id. Therefore, because a 

customer’s entire transactional relationship is with the OTC, the 

OTCs clearly “provide or supply rooms to customers who pay 

consideration to the OTCs in exchange for rooms or the right to use 

rooms.” Id. at ¶ 43. 

¶ 41 Breckenridge argues that we should extend the reasoning of 

Expedia II to the instant case and conclude that the OTCs are 

subject to the accommodation tax because they furnish lodging for 

consideration. While this argument has some appeal, it overlooks 

the different contexts surrounding the term “furnish,” as used in 

the Denver and Breckenridge codes. In Expedia II, the concurrence 

explained that the duty to collect Denver’s lodging tax is imposed on 

vendors who “make[] sales of or furnish[] lodging to a purchaser in 

the city.” Expedia II, ¶ 41 (quoting D.R.M.C. § 53-170(8)). For 

purposes of the Denver lodging tax, furnishing is defined as 

“provid[ing] or suppl[ying] to any person who for consideration uses 

or has the right to use such rooms.” Id. at ¶ 42. 

¶ 42 Under B.T.C. section 3-4-1, the duty to collect the 

accommodation tax is imposed on those who “furnish[] [lodging] for 
20 

lease or rental.” The use of “furnish” in this context is 

distinguishable from that in Denver’s ordinance. Under Denver’s 

lodging tax, “furnishing lodging” indicates making hotel rooms 

available to purchasers. On the other hand, the Breckenridge code 

imposes liability only on those who furnish property for leasing or 

renting. And only those with a possessory interest can furnish 

property for leasing or renting. Accordingly, OTCs only furnish the 

opportunity to rent hotel rooms from hotels. 

¶ 43 Furthermore, Breckenridge’s argument ignores the different 

terms used to describe the liable parties in the Denver and 

Breckenridge codes. Unlike the term “vendor,” (which is used in the 

Denver code and encompasses all parties that provide or supply 

rooms for consideration) the plain meaning of “renter” or “lessor,” 

restricts liability to only those who have a possessory interest in the 

property. 

¶ 44 Additionally, even if we were to overlook the words “lease” and 

“rental,” the concept of furnishing is contained in the preamble to 

the B.T.C. We are not persuaded that the concept of furnishing as 

used in the context of a vendor, as in Expedia II, should inform our 

decision here simply because the preamble uses the term 
21 

“furnishes.” But, a term used in the preamble to a statute cannot 

be used to contradict the operative terms of the statute. A 

“preamble can neither restrain nor extend the meaning of an 

unambiguous statute.” 2A Norman Singer, Sutherland on Statutory 

Construction § 47.04, at 295 (7th ed. 2007); cf. Dist. Landowners Tr. 

v. Adams Cty., 104 Colo. 146, 150, 89 P.2d 251, 253 (1939) (where 

it was asserted that a preamble had been violated, the preamble 

could “not be invoked apart from specific provisions” of the statute). 

¶ 45 We are also not persuaded that we must overturn the district 

court’s decision because it relied on Expedia I. The district court 

conducted a thorough analysis of the language of the ordinance and 

its application to the OTCs. It was not until after the district court 

concluded that the accommodation tax did not apply to the instant 

case that the court discussed Expedia I. And in doing so, the court 

observed that its holding was consistent with the division’s ruling in 

Expedia I. Therefore, we cannot determine that the court relied 

upon Expedia I in making its decision. 
22 

III. The District Court Properly Granted Summary Judgment for 

Breckenridge’s Accommodation Tax Claim 

¶ 46 Next, Breckenridge contends that the court erred in granting 

summary judgment because genuine issues of material fact exist as 

to (1) whether OTCs acquire inventory; (2) whether OTCs provide 

customer service; and (3) the extent to which the hotels are involved 

in merchant model transactions. We disagree. 

A. Standard of Review 

¶ 47 We review a court’s grant of summary judgment de novo. 

Williams v. State Farm Mut. Auto. Ins. Co., 195 P.3d 1158, 1160 

(Colo. App. 2008). Summary judgment is appropriate if the 

pleadings, depositions, answers to interrogatories, and admissions, 

together with any affidavits, establish that there is no genuine issue 

of a material fact, and the moving party is entitled to judgment as a 

matter of law. C.R.C.P. 56(c); City of Longmont v. Colo. Oil & Gas 

Ass’n, 2016 CO 29, ¶ 9. A triable issue of fact is one in which 

reasonable people could reach different conclusions about the 

evidence. People in Interest of S.N., 2014 COA 116, ¶ 24. 

¶ 48 The moving party has the burden of establishing the absence 

of a genuine issue of material fact. Gibbons v. Ludlow, 2013 CO 49, 
23 

¶ 11. The moving party “need only identify those portions of the 

record and affidavits which demonstrate an absence of a genuine 

issue of material fact.” Id. If the nonmoving party cannot produce 

sufficient evidence to establish a triable issue, the moving party is 

entitled to summary judgment as a matter of law. Id. A genuine 

issue of fact cannot be raised simply by means of argument. People 

in Interest of J.M.A., 803 P.2d 187, 193 (Colo. 1990). 

B. There is No Genuine Issue of Material Fact 

¶ 49 Breckenridge failed to meet its burden of producing sufficient 

evidence to establish that a genuine issue of fact exists as to 

whether OTCs acquire inventory, whether the OTCs provide 

customer service, and the extent of the hotels’ involvement in 

merchant model transactions. 

¶ 50 First, Breckenridge argues that the court improperly resolved 

the issue as to whether OTCs acquire inventory, which could 

support the contention that they are lessors or renters. 

Breckenridge asserts that it provided evidence contrary to the OTCs’ 

argument that they do not acquire inventory because they merely 

act as intermediaries. Specifically, Breckenridge points to the 

annual Securities and Exchange Commission (SEC) reports where 
24 

the OTCs allegedly admit to acquiring some inventory. But, after 

analyzing the SEC reports, the court found, and we agree, that the 

SEC filings refer primarily to the hotel’s inventory. And, any 

mention of the OTCs’ inventory concerns the inventory needed to 

facilitate a reservation. Moreover, OTCs enter into non-exclusive 

operating agreements in which OTCs agree to display information 

about a hotel, but make clear that OTCs have no right or ability to 

issue reservations themselves. Therefore, none of the record 

evidence marshalled by Breckenridge contradicts the numerous 

SEC reports and agreements between the parties indicating that 

hotels, not the OTCs, possess inventory. Consequently, 

Breckenridge failed to establish a triable issue of fact. 

¶ 51 Second, Breckenridge argues that the court improperly 

resolved whether and to what extent the OTCs provide customer 

service. Specifically, Breckenridge contends that the taxable 

transaction arises when the OTCs accept a customer’s payment in 

exchange for the right to use the accommodation. However, the 

OTCs’ involvement in customer service relating to room reservations 

is immaterial because it does not indicate possessory interest. 
25 

Because no genuine issue of material fact was presented, summary 

judgment was appropriate. 

¶ 52 Third, Breckenridge argues that the court improperly 

determined the degree to which hotels are involved in merchant 

model transactions. It says that it presented evidence that a 

consumer’s entire transaction is with the OTC, compensation is 

paid to the OTC, and no additional compensation is paid to the 

hotel after the purchaser becomes a guest. Breckenridge contends 

that the court ignored its evidence. But, none of these facts 

advance Breckenridge’s arguments because they do not indicate a 

possessory interest. Therefore, these facts are immaterial. See 

Peterson v. Halsted, 829 P.2d 373, 375 (Colo. 1992) (“A material fact 

is simply a fact that will affect the outcome of the case.”). 

¶ 53 Because reasonable people could not reach different 

conclusions on the three issues presented, we conclude that the 

court’s entry of summary judgment was proper. 

IV. The District Court Lacked Subject Matter Jurisdiction to 

Address the Sales Tax Claim 

¶ 54 Breckenridge contends that the district court erred in 

concluding that it lacked subject matter jurisdiction over its sales 
26 

tax claim because Breckenridge failed to exhaust administrative 

remedies. We discern no error. 

¶ 55 In reviewing a district court’s ruling on a jurisdictional issue, 

we will uphold its factual findings unless they are clearly erroneous, 

and we evaluate all legal conclusion de novo. Tidwell v. City & Cty. 

of Denver, 83 P.3d 75, 81 (Colo. 2003). 

¶ 56 There is a “general jurisdictional requirement that a party 

exhaust available administrative remedies before seeking relief in a 

district court.” City & Cty. of Denver v. United Air Lines, Inc., 8 P.3d 

1206, 1212 (Colo. 2000). When “complete, adequate, and speedy 

administrative remedies are available, a party must pursue these 

remedies before filing suit in district court.” Id. Absent an 

exhaustion of administrative remedies, judicial review has been 

particularly disfavored in tax cases. Davison v. Bd. of Cty. Comm’rs, 

41 Colo. App. 344, 348, 585 P.2d 315, 348 (1978). The exhaustion 

requirement is subject to exceptions. 

¶ 57 First, exhaustion is not required when it is clear beyond a 

reasonable doubt that administrative review would be futile because 

the agency will not provide the relief requested. United Air Lines, 8 

P.3d at 1213. Second, a party can circumvent exhaustion 
27 

requirements when the issue presents a matter of law that the 

agency lacks the authority or capacity to determine. Id. 

Breckenridge argues that it was not required to exhaust its own 

administrative remedies because doing so would be futile and the 

question of whether OTCs are subject to the sales tax was a 

question of law not subject to exhaustion requirements. We are not 

convinced. 

¶ 58 The B.T.C. explicitly provides that the administrative authority 

has jurisdiction over the enforcement and collection of 

Breckenridge’s sales tax. The code states, in relevant part, that in 

the event “any person neglects or refuses to make a return in 

payment of the sales tax or to pay any sales tax as required,” the 

“finance director shall make an estimate . . . of the amount of taxes 

due . . . .” B.T.C. § 3-1-32(B)(1). Following the finance director’s 

review, a person can challenge the final decision by “proceed[ing] to 

have [the finance director’s final decision] reviewed by the district 

court.” B.T.C. § 3-1-36. 

¶ 59 It is evident from the code that a party’s first step in seeking 

relief for unpaid sales taxes is to petition for administrative review 

from the finance director. And, only after undergoing 
28 

administrative review can Breckenridge petition for relief from the 

district court. 

¶ 60 Breckenridge circumvented its own procedural requirements 

by first appealing to the district court for review. In its defense, 

Breckenridge argues that it was not required to seek administrative 

review because exceptions to the exhaustion requirement apply — 

any administrative relief would be futile, the issue presented a 

question of law that was not appropriate for administrative review, 

and exhaustion is not required under these circumstances because 

the interests underlying the exhaustion requirement are not 

implicated. We disagree. 

¶ 61 Breckenridge asserts that it need not exhaust administrative 

remedies because the available procedures would not provide 

adequate relief. But, the code provides for the precise relief 

Breckenridge seeks. When determining the liability of a nonpaying 

party, like an OTC, the finance director has exclusive jurisdiction to 

assess unpaid taxes, interest, and penalties. B.T.C. § 3-1-32. 

When a party fails to pay outstanding taxes, the finance director is 

responsible for determining the amount owed. Id. The 

administrator can then initiate action to collect the amount due. 
29 

He may issue liens and warrants for the seizing and selling of real 

and personal property to satisfy the unpaid amount. B.T.C. § 3-1-

32(C) (1), (2). 

¶ 62 If Breckenridge was disappointed with the finance director’s 

decision, it could have petitioned for an administrative hearing to 

contest the finance director’s determination. B.T.C. § 3-1-35. Only 

after the finance director conducts a hearing may Breckenridge 

petition for district court review. B.T.C. § 3-1-36. Assuming the 

finance director determined the OTCs were liable for unpaid taxes, 

Breckenridge would have been awarded adequate relief had it 

exhausted the administrative requirements. 

¶ 63 Breckenridge further argues that exhausting administrative 

procedures would have been futile because the OTCs publicly 

declared that they were unwilling to pay Breckenridge’s sales tax. 

In support, Breckenridge points to two cases where the 

administrator publicly announced its position on the issue; 

therefore, the court found exhaustion would have been futile. See 

Kuhn v. State Dep’t of Revenue, 817 P.2d 101, 104 (Colo. 1991) 

(there was no need to exhaust when the agency publicly stated it 

would not rule on any claim filed until the court had decided the 
30 

issue); Anderson v. Bd. of Adjustment for Zoning Appeals, 931 P.2d 

517, 521 (Colo. App. 1996) (exhaustion would have been futile as 

the parties had notice of the zoning administrator’s interpretation of 

the pertinent law). 

¶ 64 Here, the finance director made no public declaration on the 

liability of the OTCs for unpaid sales taxes. Further, a 

disagreement between parties in which one party publicly disclaims 

liability is insufficient grounds to determine that administrative 

remedies are futile. Accordingly, we are unable to determine that 

administrative remedies would have been futile. 

¶ 65 Second, Breckenridge contends exhaustion was inappropriate 

because the controversy involves a matter of law that the finance 

director did not have the authority or capacity to determine. 

However, this exception is limited and applies only to issues, such 

as constitutional matters, that “the agency lacks the necessary 

expertise to address” and those that “fall squarely in the province of 

the courts.” United Air Lines, 8 P.3d at 1213. Here, the issue of 

determining a nonpaying party’s tax liability falls squarely within 

the finance director’s jurisdiction as it is the administrator’s 

responsibility to determine tax liability, impose penalties and 
31 

interest, and initiate action to collect the debt due. See B.T.C. § 3-

1-29. Undoubtedly, the finance director had the authority and 

expert capacity to determine the OTCs’ sales tax liability. 

¶ 66 Breckenridge also contends that exhaustion was not required 

as courts “will excuse a party’s failure to exhaust available 

administrative remedies” in situations that “do not implicate the 

interests underlying the exhaustion requirement.” United Air Lines, 

8 P.3d at 1213. Breckenridge argues that the OTCs’ offensive use 

of the exhaustion doctrine as a merits defense fails to promote the 

policy reasons justifying exhaustion. 

¶ 67 However, a party’s motive in raising another party’s failure to 

exhaust does not undermine the policy interests justifying the 

exhaustion requirement. Exhausting administrative procedures in 

this case would have served a number of significant interests. For 

instance, the finance director would have had an opportunity to 

apply his expertise and may have arrived at a satisfactory 

determination — therefore ultimately conserving judicial resources. 

Even if the issue had later been appealed, prior administrative 

review would have helped to develop a factual record for the district 

court’s review. See id. (developing a factual record, preventing the 
32 

interruption of the administrative process, preserving the autonomy 

of the agency, and conserving judicial resources are important 

policy interests of the exhaustion doctrine). Regardless of the OTCs’ 

reasons for raising the issue of exhaustion, we determine that 

utilizing administrative procedures would have furthered a number 

of important interests underpinning the exhaustion requirement. 

¶ 68 For these reasons, we conclude that the district court lacked 

subject matter jurisdiction to address Breckenridge’s unpaid sales 

tax claim. Instead, Breckenridge must exhaust its own 

administrative procedures before seeking judicial review. 

V. The District Court Properly Denied Breckenridge’s Motion for 

Class Certification 

¶ 69 Breckenridge also contends that the district court abused its 

discretion by denying Breckenridge’s request for class certification 

of fifty-five Colorado home rule cities that also have ordinances 

levying a lodger’s or accommodation tax for the purpose of imposing 

taxes, interest, and penalties on nonpaying parties.2 

 

2 Breckenridge also sought class certification for its sales tax claim, 

but the court dismissed it for failure to exhaust administrative 

remedies. We do not reach the question of whether a home rule 
33 

¶ 70 The district court denied Breckenridge’s petition on multiple 

grounds. The court concluded that class certification was not 

appropriate pursuant to C.R.C.P. 23(b)(2) as Breckenridge was 

primarily seeking monetary damages. Additionally, Breckenridge 

failed to meet the requirements for C.R.C.P. 23(b)(3) certification 

because there was no predominance of common questions nor was 

class action the superior remedy. 

¶ 71 Breckenridge argues that, contrary to the district court’s 

finding, it satisfied class certification requirements under C.R.C.P. 

23(b)(2), or alternatively under C.R.C.P. 23(b)(3). We are not 

persuaded. 

A. Standard of Review 

¶ 72 When determining whether the district court erred in denying 

class certification, we review a district court’s decision for an abuse 

of discretion. Jackson v. Unocal Corp., 262 P.3d 874, 879 (Colo. 

2011). An abuse of discretion occurs if the decision is manifestly 

arbitrary, unreasonable, or unfair, or when the district court 

applies the incorrect legal standards. Id. A district court retains “a 

 

municipality may be represented in a class action without a vote of 

its citizens. 
34 

great deal of discretion in determining whether to certify a class 

action” under C.R.C.P. 23. Id. at 880 (quoting Goebel v. Colo. Dep’t 

of Insts., 764 P.2d 785, 794 (Colo. 1988)); accord Garcia v. Medved 

Chevrolet, Inc., 263 P.3d 92, 97 (Colo. 2011). 

B. Relevant Law 

¶ 73 We turn first to the prerequisites of class certification. To 

obtain certification, a party must allege that (1) the class is so 

numerous that joinder of all its members is impractical; (2) 

questions of law or fact are common among the class members; (3) 

the claims or defenses of the class representative are typical of the 

class; and (4) the class representative is capable of fairly and 

adequately protecting the interests of the class. C.R.C.P. 23(a); 

Garcia v. Medved Chevrolet, Inc., 240 P.3d 371, 377 (Colo. App. 

2009), aff’d, 263 P.3d 92 (Colo. 2011). “[S]o long as the trial court 

rigorously analyzes the evidence, it retains discretion to find to its 

satisfaction whether the evidence supports each C.R.C.P. 23 

requirement.” Garcia, 263 P.3d at 97 (quoting Jackson, 262 P.3d at 

884). 

¶ 74 After establishing the requirements above, a party must satisfy 

one of the three subsections of C.R.C.P. 23(b). As pertinent here, 
35 

C.R.C.P. 23(b)(2) certification “is appropriate for classes seeking 

predominantly injunctive or declaratory relief.” State v. Buckley 

Powder Co., 945 P.2d 841, 845 (Colo. 1997). But, certification is 

not prohibited where damages are sought in addition to injunctive 

and declaratory relief, so long as the damages are incidental to the 

other relief sought. Id. Even so, C.R.C.P. 23(b)(2) certification is 

not appropriate in cases where the final relief relates exclusively or 

predominantly to money damages. Id. 

¶ 75 In contrast, C.R.C.P. 23(b)(3) is the appropriate avenue for 

parties seeking primarily monetary damages. Id. C.R.C.P. 23(b)(3) 

requires a petitioning party to demonstrate that (1) common 

questions of law or fact predominate over any questions affecting 

only individual members and (2) a class action is superior to other 

available remedies. Garcia, 240 P.3d at 377. When determining 

C.R.C.P. 23(b)(3) claims, a district court is afforded broad discretion 

in assessing whether a class action is the superior method to 

resolve the case. Buckley, 945 P.2d at 845. 

C. C.R.C.P. 23(b)(2) Certification 

¶ 76 In the instant case, the district court engaged in extensive 

factfinding in its determination as to whether Breckenridge satisfied 
36 

the four prerequisites to class certification — numerosity, 

commonality, typicality, and adequacy of representation — and 

found that Breckenridge satisfied C.R.C.P. 23(a)’s threshold 

requirements. However, the court was unwilling to grant class 

certification under C.R.C.P. 23(b)(2) because Breckenridge was 

seeking primarily monetary damages. 

¶ 77 While Breckenridge may have satisfied the four prerequisites 

to certification, we agree with the district court that Breckenridge 

primarily sought monetary damages. Breckenridge’s argument that 

any potential monetary damages are only incidental to the 

declaratory relief it seeks is unavailing. Four of Breckenridge’s five 

claims for relief expressly request relief in the form of monetary 

damages. 

¶ 78 The fifth, although labeled as a request for declaratory 

judgment under C.R.C.P. 57, also predominantly seeks monetary 

relief. Scrutiny of Breckenridge’s specific declarations reveals that 

each relates to the recovery of unpaid taxes: 

i. whether Defendants have a duty, under 

law, to collect Excise Taxes and/or Sales 

Taxes . . . ; 
37 

ii. whether the Excise Taxes and/or Sales 

Taxes are based on the Retail Rate; 

iii. whether Defendants have a duty to remit 

these taxes to Plaintiff and the Class; 

iv. whether Defendants have failed to fulfill 

their duty under law to remit these taxes to 

Plaintiff and the Class; and 

v. whether, under the appropriate ordinance 

and/or rule, the amount of tax due and owing 

to Plaintiff and the Class is to be calculated as 

a percentage of the Retail Rate, without regard 

to service fees, operation expenses and other 

amounts currently deducted by Defendants. 

Because the relief sought predominantly relates to money damages, 

we cannot determine that the district court abused its discretion in 

denying class certification under C.R.C.P. 23(b)(2). 

D. C.R.C.P. 23(b)(3) Certification 

¶ 79 Alternatively, Breckenridge argues that class certification is 

appropriate under C.R.C.P. 23(b)(3). But, the district court found, 

and we agree, that Breckenridge failed to satisfy C.R.C.P. 23(b)(3)’s 

predominance and superiority requirements. 

¶ 80 When reviewing a court’s decision regarding whether C.R.C.P. 

23(b)(3)’s requirements are satisfied, we will uphold a district 

court’s determination, absent an abuse of discretion, so long as the 

court “rigorously analyze[d] the evidence presented.” State Farm 
38 

Mut. Auto. Ins. Co. v. Reyher, 266 P.3d 383, 387 (Colo. 2011). 

Accordingly, we must determine whether the court sufficiently 

examined the evidence presented. 

¶ 81 The court first found that Breckenridge failed to advance a 

classwide method of proving the OTCs’ liability for unpaid taxes. To 

satisfy C.R.C.P. 23(b)(3)’s predominance requirement, a party must 

demonstrate that legal or factual questions common to the class 

predominate over questions affecting individual members. This 

inquiry often turns on whether a “plaintiff advances a theory by 

which to prove or disprove ‘an element on a simultaneous, classwide basis, since such proof obviates the need to examine each 

class member’s individual position.’” Farmers Ins. Exch. v. Benzing, 

206 P.3d 812, 820 (Colo. 2009) (quoting Lockwood Motors, Inc. v. 

Gen. Motors Corp., 162 F.R.D. 569, 580 (D. Minn. 1995)). 

¶ 82 Breckenridge argues that the common question affecting all 

class members is whether merchant model transactions are subject 

to tax liability. Because OTCs predominantly utilize the same 

merchant model throughout the state, Breckenridge contends that 

class certification is appropriate for fifty-five municipalities with 

similar accommodation and sales tax provisions. However, what 
39 

Breckenridge fails to consider, and what the district court notes, is 

the varying language used throughout the ordinances. 

¶ 83 The district court explained that “one of the chief 

responsibilities in adjudicating this action will be to interpret 

applicable municipal accommodation tax statutes and then apply 

the prevailing factual circumstance to determine whether the plain 

language creates a tax responsibility flowing from [the OTCs] to [the 

class member].” This is especially problematic when the ordinances 

are not identical, or even significantly similar. In its analysis, the 

court noted at least six material differences amongst the ordinances 

regarding the taxable amount.3 Additionally, the district court 

determined that the “ordinances utilize at least 20 different 

standards to determine who is obligated to collect and remit 

accommodation tax.”4 Consequently, the court was tasked with 

conducting “an exhaustive analysis of all 55 municipal statutes.” 

 

3 For example, Burlington requires taxing the “entire amount 

charged for furnishing rooms or accommodations,” whereas 

Larkspur taxes “the gross rental price of the lodging unit.” 

Burlington Code of Ordinances § 3.28.010; Larkspur Mun. Code 

§ 4-4-20. 

4 The court noted that if it were to determine who is obligated to 

collect and remit accommodation tax, it would have to decide what 
40 

¶ 84 Further, the district court examined a number of federal cases 

certifying class action that Breckenridge asserted involved similar 

actions against OTCs. See City of Rome v. Hotels.com, L.P., Civ. A. 

No. 4:05-CV-249-HLM, 2007 WL 6887932 (N.D. Ga. May 10, 2011); 

City of Goodlettsville v. Priceline.com, Inc., 267 F.R.D. 523, 527 (M.D. 

Tenn. 2010); County of Monroe v. Priceline.com, Inc., 265 F.R.D. 659, 

663 (S.D. Fla. 2010); City of Gallup v. Hotels.com, L.P., No. 07-CV00644 JEC/RLP, 2009 WL 9056102 (D.N.M. July 7, 2009); City of 

San Antonio v. Hotels.com, Civ. No. SA-06-CA-381-OG, 2008 WL 

2486043 (W.D. Tex. May 27, 2008). 

¶ 85 But, the court made clear that this particular situation is 

distinguishable from those because the fifty-five ordinances were 

not modeled after a common source, like a uniform enabling act. 

Consequently, unlike the federal cases where the court could utilize 

a single test to determine liability, the district court would have had 

to look to the plain language of each ordinance to determine the 

 

the controlling standard would be. Would it be “whether 

Defendants are ‘the lodging services vendor from whom the 

accommodations are rented,’ as required by Rifle?” Rifle Charter & 

Mun. Code § 4-6-10. Or, “in Commerce City, the relevant question 

would be whether Defendants are a ‘vendor or provider of hotel . . . 

services.” Commerce City Code of Ordinances § 20-246.
41 

OTCs’ liability. See Transponder Corp. of Denver v. Prop. Tax Adm’r, 

681 P.2d 499, 504 (Colo. 1984) (There is a “‘long-standing rule of 

statutory construction’ in Colorado . . . that tax statutes ‘will not be 

extended beyond the clear import of the language used, nor will 

their operation be extended by analogy . . . .’” (quoting Associated 

Dry Goods v. City of Arvada, 197 Colo. 491, 496, 593 P.2d 1375, 

1378 (1979))). Because the district court correctly analyzed the 

evidence presented, it did not abuse its discretion in finding that 

common questions do not predominate over questions affecting only 

individual members. 

¶ 86 In addition, because it is likely Breckenridge would have to 

provide evidence and arguments on fifty-five separate theories to 

demonstrate the OTCs’ alleged liability for unpaid taxes, a class 

action is not the superior available method for the fair and efficient 

resolution of this issue.5 

 

5 Breckenridge also argues that class certification is appropriate for 

unnamed members who failed to exhaust administrative remedies. 

See State v. Golden’s Concrete Co., 962 P.2d 919, 924 (Colo. 1998) 

(“[U]nnamed class members need not exhaust administrative 

remedies so long as the named class plaintiff does so.”). Because 

we have determined that class certification is not available under 
42 

VI. Breckenridge’s Civil Common Law Claims Are Conclusory and 

We Will Not Address Them 

¶ 87 Lastly, Breckenridge, asserting without factual detail and 

specificity, contends that the OTCs converted tax dollars and 

conspired to do so. Because we have concluded that the 

accommodation tax does not apply to OTCs, there is no liability 

under these theories either. Moreover, Breckenridge fails to provide 

any reasons to support its bald assertions. These arguments are 

underdeveloped and are not properly presented for our review. See 

People v. Wallin, 167 P.3d 183, 187 (Colo. App. 2007) (declining to 

review the issues that were presented in the appeal “in a 

perfunctory or conclusory manner”). 

VII. Conclusion 

¶ 88 The judgment of the district court is affirmed. 

JUDGE WEBB concurs. 

JUDGE TERRY specially concurs. 

 

C.R.C.P. 23(b)(2) or C.R.C.P. 23(b)(3), we need not address this 

argument. 
43 

JUDGE TERRY, specially concurring. 

¶ 89 Though my reasoning differs from that of the majority, I 

concur in the result of Part III of the majority opinion, concluding 

that the district court did not err in granting summary judgment for 

the online travel companies (OTCs). I also concur in Part IV, 

concluding that the Town of Breckenridge failed to exhaust 

administrative remedies; Part V, concluding that the district court 

did not err in denying class certification; and Part VI, declining to 

address Breckenridge’s common law claims. 

¶ 90 And, because I conclude — based on an analysis somewhat 

different from the majority’s in Part II of the opinion — that the 

Breckenridge tax ordinance does not unambiguously apply to the 

markup charged by the OTCs, I concur in the overall result. 

¶ 91 The majority concludes that the City & County of Denver v. 

Expedia, Inc., 2017 CO 32 (Expedia II), is not dispositive in this 

case, because of differences in the Denver and Breckenridge taxing 

ordinances, as well as factual differences in the two cases. I agree. 

¶ 92 The result in Expedia II was driven by the language of Denver’s 

tax code. Both the plurality opinion and Justice Hood’s concurring 

opinion in that case relied on the language of the Denver code to 
44 

conclude that the OTCs are liable for the tax because they “furnish” 

lodging. 

¶ 93 The Denver tax code at issue in Expedia II clearly imposes a 

tax on those furnishing lodging. Section 53-171(a) of the Denver 

Revised Municipal Code imposes a tax on the purchase of “lodging.” 

“Tax” is defined in section 53-170(6) to include “taxes due from a 

vendor.” “Vendor” is defined in section 53-170(8) to include a 

person “furnishing lodging to a purchaser in the city” (emphasis 

added). The tax is levied in section 53-171(b) on the purchase price 

paid or charged for “purchasing such lodging.” “Purchase or sale” 

is defined in section 53-170(4) to include “furnishing for 

consideration by any person of lodging within the city” (emphasis 

added). 

¶ 94 Because both the plurality, Expedia II, ¶ 24, and Justice Hood, 

id. at ¶ 43, concluded that the OTCs furnish lodging (including 

rooms and accommodations), these portions of the Denver code 

clearly dictate that the OTCs are liable for the Denver tax. See id.

at ¶ 44 (Hood, J., concurring in the judgment) (“[E]xempting the 

OTCs from the definition of ‘vendor’ would leave a portion of the 
45 

price paid for lodging untaxed, thereby frustrating rather than 

effectuating the city council’s clear intent to tax that purchase.”). 

¶ 95 But Breckenridge’s tax code differs in substantial respects 

from Denver’s. Breckenridge’s code does not clearly impose the tax 

on the “furnishing” of rooms or accommodations. The only clear 

duty imposed on those who “furnish” lodging in the Breckenridge 

Town Code is to collect tax, as required by section 3-4-1, which 

says: 

[The] legislative intent of the town council in 

enacting this chapter is that every person who, 

for consideration, leases or rents any hotel 

room, motel room, or other accommodation 

located in the town shall pay and every person 

who furnishes for lease or rental any such 

accommodation shall collect the tax imposed by 

this chapter.

(emphasis added.) 

¶ 96 It is undisputed that the OTCs collected tax. What is disputed 

is whether any portion of the OTCs’ markup is to be included in the 

amount subject to the tax. Cf. Expedia II, ¶¶ 35, 36 (concluding 

that OTCs’ markup was taxable under Denver tax code); id. at ¶ 45 

(Hood, J., concurring in the judgment) (indicating that Denver’s tax 
46 

code imposes “tax on the entire purchase price of any lodging” sold 

by vendors, including the OTCs). 

¶ 97 Unlike Denver’s code, Breckenridge’s code does not impose a 

tax on the furnishing of lodging. As I understand the plurality 

opinion and Justice Hood’s concurring opinion in Expedia II, the 

absence of such a provision in the Breckenridge code is a potential 

impediment to Breckenridge’s ability to impose a tax on that 

markup. 

¶ 98 Also unlike Breckenridge’s code, Denver’s code imposes a tax 

on the “purchase price paid or charged for purchasing such lodging.” 

Denver Rev. Mun. Code § 53-171(b) (emphasis added). The Expedia 

II plurality opinion concluded that the OTCs’ markup is part of that 

purchase price paid or charged. Expedia II, ¶ 35. Justice Hood’s 

separate concurrence appears to agree with the concept that the 

markup is part of that purchase price. Id. at ¶ 45 (reasoning that 

Denver’s tax is imposed “on the entire purchase price of any 

lodging”). 

¶ 99 In contrast, section 3-4-3 of the Breckenridge code imposes a 

tax on the “price paid for the leasing or rental” of a room. The 

majority concludes that the term “leasing or rental” in the 
47 

Breckenridge code has significance implicating possessory rights on 

the part of the entity making the rental. See supra ¶ 42 (concluding 

that “only those with a possessory interest can furnish property for 

leasing or renting”). The majority may be correct in concluding that 

this is a distinguishing factor between the two ordinances. But in 

any event, it is not patent that the OTCs’ markup is part of the 

price paid for “leasing or rental,” as distinct from the price paid for 

lodging. 

¶ 100 We are required to construe tax provisions narrowly as 

imposing tax only on those items clearly enumerated in the tax 

code, and ambiguities should be resolved against the government 

and in favor of the taxpayer. City of Boulder v. Leanin’ Tree, Inc., 72 

P.3d 361, 367 (Colo. 2003). 

¶ 101 I am therefore compelled to conclude that because the 

Breckenridge code does not explicitly impose a tax on the OTCs’ 

markup, summary judgment was properly granted in favor of the 

OTCs.