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ADVANCE SHEET HEADNOTE

April 24, 2017

2017 CO 32

No. 14SC634, City & Cty. of Denver v. Expedia, Inc.—Statutory Construction—Local 

Tax Ordinances.

Denver petitioned for review of the court of appeals opinion reversing the 

judgment of the district court and remanding with directions to vacate the subject tax 

assessments against Expedia and the other respondent online travel companies 

(“OTCs”). See Expedia, Inc. v. City & Cty. of Denver, 2014 COA 87, ___ P.3d ___. 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, 

assertedly due according to Denver’s ordinance imposing a lodger’s tax. Unlike the 

hearing officer and district court, the court of appeals concluded that the city 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. A majority of 

the court agreed 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. 
The Supreme Court of the State of Colorado

2 East 14th Avenue • Denver, Colorado 80203

2017 CO 32

Supreme Court Case No. 14SC634

Certiorari to the Colorado Court of Appeals

Court of Appeals Case No. 13CA779

Petitioners:

City and County of Denver, Colorado; Brendan Hanlon in his official capacity as the Chief 

Financial Officer of the City and County of Denver; and Bill Speckman, in his official 

capacity as Hearing Officer designated by the Chief Financial Officer,

v.

Respondents:

Expedia, Inc.; Hotels.com, L.P.; Hotwire, Inc.; Orbitz, LLC; Priceline.com, Incorporated; 

Site59.com, LLC; Travel Webb LLC; Travelocity.com LP; and Trip Network, Inc. d/b/a 

Cheaptickets.com.

Judgment Reversed

en banc

April 24, 2017

Attorneys for Petitioners:

Lewis Roca Rothgerber Christie LLP

Michael D. Plachy

Thomas M. Rogers

Denver, Colorado

Hagens Berman Sobol Shapiro LLP

Andrew M. Volk

Christopher A. O’Hara

Seattle, Washington

City Attorney for the City and County of Denver

Charles T. Solomon, Assistant City Attorney

Denver, Colorado
2

Attorneys for Respondents:

Zonies Law LLC

Sean Connelly

Denver, Colorado

Davis Graham & Stubbs

Jason M. Lynch

Denver, Colorado

Attorneys for Amici Curiae Colorado Municipal League and Colorado Association of 

Ski Towns:

Colorado Municipal League

Geoffrey T. Wilson

Denver, Colorado

Attorneys for Amici Curiae Visit Denver and Colorado Hotel and Lodging 

Association:

Brownstein Hyatt Farber & Schreck, LLP

Richard B. Benenson

Denver, Colorado

Attorneys for Amicus Curiae American Society of Travel Agents, Inc.:

Blain Myhre LLC

Blain Myhre

Englewood, Colorado

JUSTICE COATS announced the judgment of the Court and delivered an opinion, in 

which JUSTICE MÁRQUEZ and JUSTICE BOATRIGHT join.

JUSTICE HOOD concurs in the judgment.

JUSTICE GABRIEL dissents, and CHIEF JUSTICE RICE and JUSTICE EID join in the 

dissent.
3

¶1 Denver petitioned for review of the court of appeals opinion reversing the 

judgment of the district court and remanding with directions to vacate the subject tax 

assessments against Expedia and the other respondent online travel companies 

(“OTCs”). See Expedia, Inc. v. City & Cty. of Denver, 2014 COA 87, ___ P.3d ___. 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, 

assertedly due according to Denver’s ordinance imposing a lodger’s tax. Unlike the 

hearing officer and district court, the court of appeals concluded that the city 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.

¶2 The application of well-accepted aids to statutory construction leads to the 

conclusion that the fair and reasonable interpretation of Denver’s lodger’s tax article is 

that it 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. 

The judgment of the court of appeals is therefore reversed, and the matter is remanded 

for consideration of the remaining issues raised on appeal by the parties.
4

I.

¶3 In July 2010, the City and County of Denver issued nine Notices of Final 

Determination, Assessment and Demand for Payment against various online travel 

companies: Expedia, Inc.; Hotels.com LP; Hotwire, Inc.; Orbitz, LLC; Trip Network, 

Inc.; Priceline.com Incorporated; Travelweb, LLC; Site59.com, LLC; and Travelocity.com 

LP. The Notices claimed unpaid taxes, penalties, and interest due according to the city 

lodger’s tax article, Denver Revised Municipal Code (“D.R.M.C.”) §§ 53-166 to -236, for 

the period from January 2001 through April 2010, totaling over $40 million.1 These 

online companies filed nearly identical protests, requesting hearings before a Denver 

Department of Finance hearing officer, and the protests were consolidated by 

stipulation.

¶4 Based on the stipulated evidence, including depositions and other materials from 

litigation in other jurisdictions and internal materials of the OTCs themselves 

explaining their operational methods and practices, the hearing officer found, and the 

parties do not dispute, that the OTCs operate under two basic business models. Under 

what they describe as the “agency model,” he found that the OTCs refer customers to 

hotels. Lodgers then transact directly with the hotels, and the OTCs receive 

commissions in separate transactions. Under what they describe as the “merchant 

model,” by contrast, the OTCs operate in the transaction somewhere between lodgers 

 

1 Denver estimated the liabilities based on incomplete information. After discovery 

during the administrative proceedings, the parties stipulated to the amount of liability 

under various scenarios, depending upon the hearing officer’s determinations. 

Pursuant to that stipulation, the websites faced potential liabilities totaling, at most, 

$7,573,506 (with interest computed through the date of the stipulation).
5

and hotels. Lodgers transact with the OTCs, prepaying for reservations, and the OTCs

later pass part of those payments along to the hotels. The OTCs, not the hotels, appear

as the merchant of record on lodgers’ credit card statements—hence the term “merchant 

model.” These two models have different pricing structures, about which again the 

parties do not disagree. In the agency model, the hotels maintain exclusive control over 

the purchase price paid by lodgers. In the merchant model, by contrast, the hotels set a 

rate they will accept, which the OTCs refer to as a “net rate,” but the hotels grant the 

OTCs discretion, within designated limits, to set the price ultimately to be paid by the 

lodger. The OTCs then sell reservations to lodgers at that price, pass the amount of the 

so-called “net rate” plus a tax surcharge along to the hotels, and retain the difference as 

their own compensation.

¶5 For agency-model transactions, the hotels collect and remit lodger’s taxes, just as 

they do for all other traditional bookings.2 For merchant-model transactions, the hotels, 

as a matter of practice, have also been claiming the transactions on their own lodger’s 

tax returns, but because the hotels do not transact directly with the lodgers, and because 

the hotels typically do not receive payment at the time of the transaction with the 

lodger, the process of collecting and remitting the lodgers’ tax to the city is, in current 

practice, somewhat more convoluted. In practice, the OTCs typically collect a 

“surcharge” from the lodger at the time the lodger initially pays for a reservation. The 

OTCs then transmit that tax surcharge to the hotel along with the so-called “net rate,” 

which transmission ordinarily occurs after the lodger checks out. Finally, the hotel 

 

2 Denver does not dispute the tax treatment of the OTCs’ agency-model transactions.
6

remits the surcharged amount to the city, along with its other lodger’s tax receipts for 

the month.

¶6 When booking reservations, the OTCs typically disclose two charges to lodgers. 

The first amount is the room rate, which is presented to the lodger as a single per-night 

rate that includes both the discounted rate to be returned to the hotel and the OTC’s 

markup on that rate. The second amount is a taxes-and-fees charge, which is presented 

to the lodger as a single per-transaction amount but which actually has two 

components: what the OTCs refer to as a “service fee” and a surcharge for taxes.3 

Typically, the parties agree, the tax surcharge is computed on the “net rate,” while the 

service fees are computed on the price charged to the lodger plus taxes.

¶7 To illustrate, Denver relied on the following example during administrative 

proceedings, using hypothetical numbers from the deposition of Expedia, Inc.’s 

corporate representative. Assume a website sells a reservation for $100, of which $75 

will be paid to the hotel as the net rate and $25 will be retained by the OTC as its 

markup. If the applicable lodger’s tax is 10%, it will be applied to the $75 net rate and 

the tax surcharge will therefore be $7.50. If the OTC’s service charge is 5.5%, it will be 

applied to the so-called “retail price” plus taxes—i.e., to $107.50—and the service fee 

will therefore be $5.91. The lodger will see a room rate of $100 and a taxes-and-fees

charge of $13.41, and will pay a total of $113.41. The OTC will retain both the markup 

 

3 The OTCs assert—and Denver does not dispute—that the service fees and taxes are 

bundled together into one line item in order to keep the hotels’ net rates confidential, 

per contractual obligations. If the tax surcharges were displayed separately, a hotel’s 

competitors could compute the hotel’s net rate by dividing the applicable tax rate into 

the tax surcharge.
7

and the service fee ($25 plus $5.91, totaling $30.91)

4 and will eventually remit to the 

hotel the “net rate” and tax surcharge ($75 plus $7.50, totaling $82.50). The hotel then 

will remit the tax receipts ($7.50) on its next monthly lodger’s tax return.

¶8 The hearing officer held that this practice for merchant-model transactions does 

not comport with the mandates of the city lodger’s tax article for two reasons. First, he 

concluded that the OTCs’ markups and service fees are “directly connected with” 

furnishing lodging, as contemplated by section 53-171(c) of the D.R.M.C., and therefore 

must be included within the tax base. Second, he concluded that the OTCs are 

“vendors,” within the contemplation of section 53-170(8), and are therefore responsible 

for collecting and remitting taxes directly to the city. The hearing officer therefore 

upheld Denver’s Notices.5

¶9 The OTCs sought judicial review as permitted by C.R.C.P. 106(a)(4). The district

court rejected Denver’s position regarding the applicable statute of limitations, holding 

instead that Denver could assert liabilities for only the preceding three years, but 

otherwise it upheld the hearing officer’s determinations. On cross-appeals by the 

parties, the court of appeals concluded that the city lodger’s tax article is at least 

 

4 The parties agree that, although the service fees roughly approximate the OTCs’

transaction costs for credit-card vendor fees and the like, there is no substantive 

difference between the OTCs’ markup and the service fees. Both types of receipts are 

booked as gross receipts, without a distinction from any accounting or tax perspective. 

Although the OTCs argued during administrative proceedings that the markups and 

service fees might be treated differently under Denver’s ordinance, they have since 

abandoned that argument.

5 The hearing officer voided Denver’s asserted fraud penalties—which are no longer at 

issue in this case—and recomputed the liabilities based on the parties’ stipulations, but 

otherwise upheld the Notices in full.
8

ambiguous as to both the question whether the OTCs are “vendors,” with 

collect-and-remit obligations, and the question whether the tax base includes the OTCs’ 

markups and service fees. Relying on its understanding that tax statutes must be 

construed strictly, the intermediate appellate court construed both provisions against 

the promulgating authority and ordered the case remanded with directions to vacate 

Denver’s Notices.6

¶10 Denver petitioned this court for a writ of certiorari.

II.

¶11 By ordinance, the City and County of Denver imposes a tax on the privilege of 

purchasing lodging in the city, and the tax thus imposed is to be paid by the person 

exercising the privilege. D.R.M.C. § 53-171(a). The amount of the tax is to be calculated 

as a percentage of the purchase price paid or charged for purchasing the lodging, 

§ 53-171(b), and obligations are imposed on the vendor to add the amount of this tax to 

the purchase price or charge for lodging and pay to the city, on a monthly basis, an 

amount equivalent to the tax on all gross taxable sales, § 53-174(a).

¶12 The term “purchase or sale” is used as a term of art in the lodger’s tax article to 

mean the acquisition or furnishing of lodging within the city for consideration. See

§ 53-170(4). Similarly, the term “lodging” is used as a term of art in the article to refer to 

rooms or accommodations for overnight use furnished to someone who has for 

consideration acquired the right to use, possess, or occupy any such room or 

 

6 The court of appeals did not reach Denver’s cross-appeal as to the statute of 

limitations, and it is therefore not before this court.
9

accommodation in either a hotel or another of the enumerated similar establishments, 

under a concession, permit, lease, contract, license to use, or other similar arrangement. 

§ 53-170(2). Finally, the term “vendor,” as it is used in the lodger’s tax article, refers 

specifically to a person making sales of lodging, or furnishing lodging, to a purchaser in 

the city. § 53-170(8).

¶13 No claim that the city’s lodging tax article is unconstitutional, is preempted by 

statute, or is otherwise inoperable was implicated by the court of appeals judgment 

below. Therefore the questions pending before this court, concerning whether the 

OTCs are vendors and, if so, whether the purchase price upon which the lodging tax is 

to be calculated includes the OTCs’ markup, turn entirely on the interpretation of the 

Denver lodger’s tax article.

¶14 Like state statutes, city ordinances are a form of legislation and therefore have 

meaning according to the intent of the enacting body, as that intent is expressed in the 

language the enacting body has chosen for the particular ordinance itself. Dep’t of 

Transp. v. Gypsum Ranch Co., 244 P.3d 127, 131 (Colo. 2010); City of Colorado Springs 

v. Securcare Self Storage, Inc., 10 P.3d 1244, 1248 (Colo. 2000). If an ordinance or statute 

is clear and unambiguous, and is not in conflict with another ordinance or statute, it 

must simply be applied as written. Holcomb v. Jan-Pro Cleaning Sys. of S. Colo., 172 

P.3d 888, 890 (Colo. 2007). However, if the language in which legislation is written is 

susceptible of more than one reasonable interpretation, and is therefore considered 

ambiguous, a substantial body of interpretative aids, either provided by the legislative 

body itself to explain its own drafting conventions and preferences for avoiding or 
10

resolving conflict, see, e.g., D.R.M.C. §§ 1-3 to -12, or developed by courts over 

centuries, see generally Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes & 

Statutory Construction (7th ed. 2007), is available to help determine which of these 

reasonable interpretations actually embodies the legislative intent. People v. Jones, 2015 

CO 20, ¶ 10, 346 P.3d 44, 48.

¶15 These interpretative aids, or canons of construction, may take a number of 

different forms. As we have noted in the past, many reflect little more than 

grammatical or syntactical conventions; others largely reflect conventions followed in 

the process of legislative drafting; and still others purport to draw reasonable inferences 

from the relationship between legislative enactments and external events, or actually 

seek to reconstruct the purpose of drafters, sponsors, or even individual supporters 

with regard to legislative enactments. See Union Pac. R.R. v. Martin, 209 P.3d 185, 188 

(Colo. 2009). Noteworthy for understanding the meaning of the tax provisions at issue 

here, a number of court-developed aids, or rules of construction, also express 

presumptions, or preferences, favoring, in the absence of adequate indication to the 

contrary, one over another class of litigants affected by the specific type of legislation at 

issue.

¶16 Included in this last group are policy preferences concerning the construction of 

statutes imposing burdens on property or liberty. In this jurisdiction, we have long 

accepted the proposition that statutes imposing a tax burden on the citizenry should be 

construed strictly, resolving doubts concerning their meanings in favor of the persons 

against whom an attempt is made to exact the tax. Gomer v. Chaffee, 6 Colo. 314, 317 
11

(1882) (“It is a settled rule in the interpretation of revenue laws, that in case of doubt or 

ambiguity the construction must be in favor of the public.” (citing Thomas M. Cooley, 

Law of Taxation 197–208 (1876, reprinted 1881)). Much like the closely related policy 

favoring lenity in the construction of criminal statutes, see Commissioner v. Acker, 361 

U.S. 87, 91 (1959) (applying rule of lenity to civil tax penalties), however, this policy 

preference regarding tax burdens was never intended to displace other canons designed 

to help resolve doubts, or ambiguity. See, e.g., Douglas Cty. Bd. of Equalization v. Fid. 

Castle Pines, Ltd., 890 P.2d 119, 125–30 (Colo. 1995) (stating that “[g]enerally, we 

interpret ambiguous tax statutes in favor of the taxpayer,” but also applying several 

other canons of construction and surveying legislative history); Stanley v. Little 

Pittsburg Min. Co., 6 Colo. 415, 419 (1882) (citing Cooley, supra, for the proposition that 

the presumption exists to maintain fidelity to legislative intent); cf. White v. United 

States, 305 U.S. 281, 292 (1938) (“It is the function and duty of courts to resolve doubts. 

We know of no reason why that function should be abdicated in a tax case . . . . Here 

doubts which may arise upon a cursory examination of §§ 101 and 115 disappear when 

they are read, as they must be, with every other material part of the statute, and in the 

light of their legislative history.” (citation omitted)).

¶17 Rather, such policy preferences have often been characterized as rules of last 

resort, applicable only if, after utilizing the other relevant aids to statutory construction, 

the enacting body’s intent remains obscured. See, e.g., People v. Thoro Prods. Co., 70 

P.3d 1188, 1198 (Colo. 2003) (quoting from Muscarello v. United States, 524 U.S. 125, 138 

(1998), to the effect that the “rule of lenity applies only if, after seizing everything from 
12

which aid can be derived, . . . we can make no more than a guess as to what Congress 

intended,” and from United States v. Wilson, 10 F.3d 734, 736 (10th Cir. 1993), to the 

effect that the “rule of lenity is a rule of last resort, to be invoked only after traditional 

means of interpreting the statute have been exhausted”); BP Am. Prod. Co. v. Patterson, 

185 P.3d 811, 814 (Colo. 2008) (holding that rule favoring longer, rather than shorter, of 

two arguably applicable statutes of limitation, like analogous rules of choice applicable 

to statutes or contractual provisions generally, is a rule of last resort); cf. Lee R. Russ & 

Thomas F. Segalla, Couch on Insurance § 22:16 (3d ed. 1995) (characterizing the familiar 

principle that ambiguity in insurance contracts must be construed in favor of insured as 

a rule of last resort).7

 

7 While Colorado retains, as a last resort, these rules of construction favoring one over 

another class of litigants affected by the specific type of legislation at issue, many 

commentators actually argue that these presumptions have been, or should be, 

discontinued altogether. E.g., Antonin Scalia & Bryan A. Garner, Reading Law: The 

Interpretation of Legal Texts 359–63 (2012) (“Like any other governmental intrusion on 

property or personal freedom, a tax statute should be given its fair meaning, and this 

includes a fair interpretation of any exceptions it contains. . . . . [As to all such 

presumptions,] [t]he expressions to the contrary find their source either in a judicial 

proclivity to make difficult interpretive questions easy, or else in an inappropriate 

judicial antagonism to limitations on favored legislation.”); see also Jasper L. 

Cummings, Jr., The Supreme Court’s Federal Tax Jurisprudence, Ch. II.B. (2nd ed. 2016) 

(tracing history of presumptions in federal tax statutes, and concluding, “the tilt toward 

taxpayers in construing the federal tax statutes did not long survive the enactment of 

the income tax”); Singer & Singer, Sutherland Statutes & Statutory Construction, §§ 66:1

–:2 (listing as many applications of exceptions and contrary presumptions as 

applications of the original presumption against the government); Cooley, supra, at 205 

(“There may and doubtless should be a distinction taken in construction of those 

provisions of revenue laws which points out the subjects to be taxed, and indicate the 

time, circumstances and manner of assessment and collection, and those which impose 

penalties for obstructions and evasions. There is no reason for peculiar strictness in 

construing the former. Neither is there reason for liberality.”).
13

¶18 It is also widely accepted that where the body enacting particular legislation has 

not expressly defined a term or otherwise limited its meaning, that term must be given 

its ordinary meaning. See Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, ___, 132 S.

Ct. 1997, 2002 (2012); Marquez v. People, 2013 CO 58, ¶ 8, 311 P.3d 265, 268. Because, 

however, terms frequently have more than one ordinary meaning, or at least more than 

one shading or nuance of meaning, and because even a dictionary definition broad 

enough to encompass a particular sense of a word does not establish that the term is 

ordinarily understood in that sense, Taniguchi, 566 U.S. at ___, 132 S. Ct. at 2003, the 

precise meaning intended by an undefined term often must be determined by reference 

to other considerations, like the context in which it is used and the apparent purpose for 

its use, Marquez, ¶ 8, 311 P.3d at 268; see also Curious Theater Co. v. Colo. Dep’t of 

Pub. Health & Env’t, 220 P.3d 544, 549 (Colo. 2009). In particular, we have often held 

that in the absence of some express indication to the contrary, a term or provision that is 

part of a greater statutory scheme should be interpreted, to the extent possible, 

harmoniously with the other provisions and purpose of that scheme. Gypsum Ranch

Co., 244 P.3d at 131; Frank M. Hall & Co. v. Newsom, 125 P.3d 444, 448 (Colo. 2005). In 

this regard, a tax statute is no different from any other statute. Welby Gardens v. 

Adams Cty. Bd. of Equalization, 71 P.3d 992, 995 (Colo. 2003); see also Walgreen Co. v. 

Charnes, 819 P.2d 1039, 1043 & n.6 (Colo. 1991) (requiring that particular Denver sales 

tax ordinance be construed in pari materia with entire scheme to effectuate the 

legislative intent).
14

¶19 The two issues resolved by the court of appeals by construing the lodger’s tax 

article, or better, by declining to fully construe the lodger’s tax article and instead 

resolving any perceived ambiguity in favor of the taxpayer, analytically involve one 

substantive question, concerning tax liability, and a separate administrative question, 

concerning the responsibility to collect whatever tax is due and remit it to the city. 

While it might appear that the more logical sequence for dealing with these two 

questions would be to address the existence and extent of any tax liability before 

assigning responsibility for its collection and remittance, perhaps because only 

assessments against the OTCs are at issue in this litigation and therefore a 

determination that they are not responsible to collect or remit any lodging tax should 

end the matter, the parties and the intermediate appellate court have not addressed the 

issues in that sequence. For that reason, and because we believe the purchase price of 

lodging, or tax base, to be integrally related to the sale, and therefore the seller, or 

“vendor,” of that lodging, we will follow suit and address the administrative question 

first.

A.

¶20 Although the tax is imposed on the purchaser, the obligation to collect it and 

remit it to the city falls on the vendor, and for that reason, the court of appeals 

appropriately concerned itself with the definition of “vendor” in the article. It 

determined that according to the article’s definition, the term “vendor” refers to a 

person who furnishes lodging, and since the lodger’s tax article itself nowhere defines 

the term “furnish,” the court turned to dictionary definitions of that term and case law 
15

in other contexts to determine its ordinary meaning. Further finding that the OTCs’ 

primary contention—that the person who furnishes lodging is the one who actually 

provides access to a specific room—was at least a reasonable interpretation of the 

article, the intermediate appellate court considered itself bound to accept that 

interpretation.

¶21 While the article somewhat unusually defines “purchase or sale” as a single 

term, there appears to be no dispute that it can only be understood to intend that 

“purchase” refers to the acquisition of lodging within the city by any person for 

consideration, and that “sale” refers to the furnishing of lodging within the city by any 

person for consideration. See § 53-170(4). That being the case, the court of appeals was 

undoubtedly right in concluding that the word “or” in the definition of “vendor” was 

not used in its disjunctive implication but rather to introduce a synonymous phrase. 

See People v. Swain, 959 P.2d 426, 430 n.12 (Colo. 1998) (“Generally, the word ‘or’ is a 

disjunctive particle that denotes an alternative; however, the word ‘or’ may also be 

utilized as a ‘coordinate conjunction introducing a synonymous word or phrase or it 

may join different terms expressing the same idea or thing.’” (quoting State v. Ramsey, 

430 S.E.2d 511, 514 (S.C. 1993))). As the definition of “sale” makes clear, furnishing 

lodging to a purchaser is simply the equivalent of, or another way of saying, making a 

sale of lodging. By concluding, however, that a “vendor” is therefore one who merely 

“furnishes lodging,” the court of appeals too narrowly circumscribed the equivalent 

definitions and thereby mistakenly considered itself free to look to the “ordinary 

meaning” of the term “furnish.”
16

¶22 Read together, the definitions of “purchase or sale” and “vendor” unmistakably 

lead to the conclusion that the term “vendor” does not refer simply to someone who

furnishes lodging, as the court of appeals reasoned, but rather to someone who

furnishes lodging for consideration, and further, only to someone who furnishes 

lodging for consideration to a person who acquires that lodging for that consideration. 

See § 53-170(4), (8). Making a sale of lodging, or furnishing it for consideration, on the 

one hand, and purchasing that lodging, or acquiring it for consideration, on the other, 

are defined as opposite but corresponding aspects, or what could be characterized as 

flip-sides, of the same transaction. While the term “furnish” may not be separately 

defined in the article, as the court of appeals and OTCs correctly point out, the phrase 

“furnishing lodging to a purchaser,” appearing in the definition of “vendor,” is made 

synonymous with “making sales” of lodging, as the court of appeals also explains. 

“Furnishing lodging,” as used in the definition of “vendor” therefore cannot mean 

simply providing a room, in the sense of controlling physical access to it, but can only 

mean making a sale of lodging.

¶23 By contrast with the term “furnish,” the term “lodging” is expressly defined as a 

term of art, and that definition similarly makes clear that furnishing lodging refers to 

selling, or providing for consideration, “the right to use, possess, or occupy qualifying 

accommodations.” While the definition might have been phrased more felicitously in 

terms of the overnight use of certain rooms or accommodations, rather than as “rooms 

or accommodations for overnight use,” when the definition is read as whole and in 

context, the choice of subject and placement of a modifying prepositional phrase creates 
17

no ambiguity. There can be no serious question that “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 meeting all of the specifications of the definition. Because only 

the right to overnight use of rooms can be furnished and acquired for consideration 

without removing the transaction from the definition of “lodging” altogether, 

furnishing lodging for consideration necessarily refers to selling, or providing for 

consideration, the right to overnight use of rooms or accommodations in the 

enumerated hotel-like facilities.

¶24 Although the OTCs maintain that even in merchant-model transactions they do 

not sell, or furnish for consideration, a right to occupy or use the hotel rooms in 

question, no matter what terminology they may choose to use in describing their 

transactions, as a functional matter that is precisely what they do. See Apollo Stereo 

Music Co. v. City of Aurora, 871 P.2d 1206, 1211–12 (Colo. 1994) (holding that vendingmachine owners, rather than owners of stores in which vending machines sit, are the 

vendors for purposes of sales taxes in light of the control they actually exercised over 

the machines, and especially over the access to and distribution of the moneys 

deposited in the machines); People v. Becker, 413 P.2d 185, 186 (Colo. 1966) (“It is a 

familiar and well documented rule of law that taxation is concerned with realities and 

that, in considering tax matters, substance and not form should govern.”).

¶25 However characterized, virtually every aspect of the merchant-model transaction 

objectively places an OTC in the role of “vendor.” The OTC deals directly in the 

transaction with the consumer-purchaser. The OTC sets the price, or consideration, 
18

without the payment of which, the OTC will not sell the consumer the right to use the 

room; the OTC collects the amount of that purchase price directly from the consumer; 

and the OTC adds to the purchase price an amount it determines to be sufficient for the 

lodger’s tax. Whether or not a particular room is specified at that point, in accepting the 

purchase price the OTC sells a reservation for a room of particular specifications to a 

consumer, and by its arrangement with the hotel, the hotel becomes contractually 

obligated to the OTC to provide the consumer with a room meeting those specifications.

¶26 Although the OTCs may choose to characterize themselves as mere 

intermediaries in a transaction between the hotels and the consumers, their relationship 

with the hotels is clearly not one remotely resembling an agency relationship. The 

OTCs are not employed by the hotels nor are they paid a fee, or commission, by the 

hotels for arranging reservations, as in the traditional agency model. The obligations of 

the OTCs and hotels to each other are purely contractual in nature, and to the extent the 

purchaser of lodging acquires rights from the hotel, it is at most as a third-party 

beneficiary of the contractual arrangement between the hotel and OTC. Whoever may 

actually hand the purchaser the key, the lodger is the purchaser in a transaction of sale 

with the OTC.

¶27 By the same token, however, although the OTCs pay an amount that is set by the 

hotels to them for each room reservation the OTCs make, and contractually retain the 

right to charge more in their subsequent sales to lodger-purchasers, neither are their 

arrangements with the hotels in the nature of wholesale purchases. The OTCs’ separate 

transactions, first with the hotels and then with lodgers, are not in the nature of 
19

wholesale and retail sales for the simple reason that the OTCs never acquire the right to 

occupy or use the rooms in question. They merely contract for the authority to sell to 

consumers, or lodgers, the right to occupy or use rooms, in agreed upon numbers or as 

available, at a price largely of their own choosing, in exchange for an agreement to 

return a specified amount to the hotels for each reservation not timely cancelled. If the 

OTCs actually purchased the right to occupy or use the rooms at a wholesale rate and 

resold that right at a retail rate, in the absence of some other provision in the tax code as 

provided for various commodity sales, the first sale would itself be a taxable event, with 

a second sale resulting in at least partial double taxation.8

¶28 The lodger-purchaser in the transaction is in privity of contract with the OTC, 

not the hotel. By virtually all objective criteria, the contract for sale of the right to use a 

hotel accommodation is entered into by the OTC and purchaser, at the time of the 

OTC’s acceptance by receiving payment of the amount it charges for the reservation. 

There is of course nothing improper in attempting to structure transactions to the 

advantage of one’s clients, and within ethical limits, that is precisely what lawyers are 

typically retained to do. But labelling alone is insufficient to alter the structure of a 

transaction. Apollo Stereo Music Co., 871 P.2d at 1211–12; Becker, 413 P.2d at 186. If tax 

obligations are imposed on the basis of function, then objective criteria establishing the 

functional relationships involved in any particular transaction must be determinative of 

the relative tax obligations. Any fair and reasonable interpretation of the city lodger’s 

 

8 At this point, Denver does not claim from the OTCs tax arrearages on the full amount 

of the purchase price paid or charged but only past due lodger’s tax on the OTCs’ 

markup, which has not already been remitted by the hotels.
20

tax article categorizes the OTC in a merchant-model transaction, according to the 

objective criteria of the article’s definitions, as the vendor, with the obligation to collect 

and remit a lodger’s tax to the city.

B.

¶29 Not only is the lodger’s tax imposed on the person actually purchasing lodging 

in the city, but the amount of the tax thus imposed is expressed as a percentage “of the 

price paid or charged” for the purchase in question. § 53-171(a), (b). For the obvious 

reasons that a single money transaction may involve the purchase and sale of more than 

lodging alone and that a vendor may attempt to differentiate the cost of lodging and the 

cost of related goods or services for tax purposes, despite their inseparability from the 

purchase and sale of the lodging itself, the article further specifies that “the price paid 

by the purchaser for any goods, services or commodities other than those directly 

connected with, and included in the price of, the furnishing of rooms or 

accommodations” is not to be included as part of “the purchase price” from which the 

lodger’s tax is to be calculated. § 53-171(c). The court of appeals focused on the 

meaning of the phrase “directly connected with” in the ordinance, and because it had 

already found it reasonable to conclude that the OTCs do not furnish lodging at all, it 

similarly considered it reasonable to conclude that the OTCs’ markups, which they 

characterize as compensation for providing travel-related information and online 

facilitation services, are not directly connected with furnishing lodging.

¶30 Because we reach a different conclusion with regard to the meaning of 

“furnishing” and therefore the OTCs’ role in furnishing lodging, we must similarly find 
21

the intermediate appellate court’s resolution of the tax base question, based on its 

understanding of the meaning of “furnishing,” to be unsupported by the text of the 

article. The appellate court was, however, undoubtedly correct in inferring from the 

context a relationship between the purchase price charged for lodging and the vendor 

charging that price. If, as we now make clear, the OTC is actually the vendor in a

merchant-model transaction, making sales of lodging by exchanging the right to use or 

occupy a room for the purchaser’s payment of the price the OTC has decided to charge 

for the use of that room, it would not be unnatural for the tax scheme to intend by the 

“purchase price paid or charged,” the price assessed by the OTC, without the payment 

of which the OTC would not sell, and the purchaser could not acquire, the room 

reservation in question.

¶31 In emphasizing that certain “goods, services or commodities” are not to be 

considered part of the “purchase price paid or charged for lodging,” for lodger’s tax 

purposes, the article circumscribes the exempted “goods, services or commodities” with 

the limiting phrase, “other than those directly connected with, and included in the price 

of, the furnishing of rooms or accommodations.” There is no dispute that the cost of 

goods, services, and commodities other than those specifically excluded according to 

this formula are instead to be taxed as part of the purchase price paid or charged for the 

lodging. Beeghly v. Mack, 20 P.3d 610, 613 (Colo. 2001) (“Under the rule of 

interpretation expressio unius exclusio alterius, the inclusion of certain items implies 

the exclusion of others.”). While the word “and” is typically, and perhaps even 

presumptively, used as a coordinating conjunction, joining two elements of identical 
22

construction and equal grammatical rank, it is also a word long acknowledged to serve 

a wide-range of different functions, depending upon syntax and context. See, e.g., 

Clyncke v. Waneka, 157 P.3d 1072, 1079 (Colo. 2007) (Coats, J., concurring) (quoting 

Peacock v. Lubbock Compress Co., 252 F.2d 892, 893 (5th Cir. 1958), to the effect that 

“and” is a word having no “single meaning, for chameleonlike, it takes its color from its 

surroundings”); see generally 2 Corpus Juris 1337 (1915) (stating, in definition of “and,” 

that “[w]hile the word is generally used in a conjunctive sense, this is not its invariable 

use; it is often employed to indicate a connection of what follows with what has gone 

before in the way of narration or description”).

¶32 As the Denver ordinances themselves expressly contemplate, the words “and” 

and “or” may be functionally interchangeable, depending upon context and usage in a 

given sentence. See D.R.M.C. § 1-2(10) (“‘Or’ may be read ‘and,’ and ‘and’ may be read 

‘or,’ if the sense requires it.”). More subtly, however, even when a conjunctive, rather 

than disjunctive, meaning is clearly intended, a number of different relationships may 

be intended between the conjoined elements. The conjoined elements may be 

completely independent or synonymous, but often their meanings overlap with one, or 

both, serving to further define or clarify the sense in which the other is being used. See

Arthur v. Cumming, 91 U.S. 362, 364, 23 L. Ed. 328 (1875) (noting “many instances in 

which two phrases with the like conjunction between them have been used to designate 

the same thing,” a construction “obviously done to make clear and certain the meaning 

of the legislature, and to leave no room for doubt upon the subject”).
23

¶33 While the use of commas to set off the second conjoined phrase—“and included 

in the price of”—suggests that it was intended to operate in apposition to, or as the 

functional equivalent of, the first phrase—“directly connected with”—the meaning of 

both phrases is ultimately dictated by context and their use specifically in reference to 

the “furnishing of rooms or accommodations.” See United States v. Ron Pair Enters., 

Inc., 489 U.S. 235, 251 (1989) (“Although punctuation is not controlling, it can provide 

useful confirmation of conclusions drawn from the words of a statute.”). For the 

reasons we have already articulated, the term “furnishing” in this context means 

making sales of, or selling, the right of overnight use of rooms or accommodations 

constituting lodging. There can therefore at least be little doubt that the purchase price 

of services directly connected with and included in the price for which the lodging in 

question is sold is to be included in the tax base.

¶34 Whether or not the conjoined conditions of being directly connected with and 

being included in the selling price of the lodging are precisely synonymous, they are 

clearly attempts to describe a determinable amount that is neither based on the fortuity 

of being included in a single payment by the purchaser nor subject to manipulation by 

the labelling choices of the vendor. Cf. Apollo Stereo Music Co., 871 P.2d at 1211–12; 

Becker, 413 P.2d at 186. Functionally, the selling, and therefore purchase, price of 

lodging is the amount without the payment of which the lodging will not be furnished 

by sale, and therefore cannot be acquired by purchase. However this amount is broken 

out, or characterized, in the billing process, if the purchaser has no option but to pay it 
24

to the vendor as part of the purchase of the lodging in question, it is necessarily both 

included in and directly connected with the price for which that lodging is sold.

¶35 In the typical merchant-model transaction, as described for purposes of these 

proceedings, the OTC’s markup is not distinguished in the billing process from the 

amount to be returned to the hotel at all, much less charged as a separate fee for 

informational and online services. However, whether or not such a fee could be 

objectively justified in terms of the service provided, because the purchaser has no 

option to decline it in making his purchase of lodging from the OTC, and it is therefore 

inseparable from the selling price of the lodging, it is directly connected with, in the 

sense that it is necessarily included in, that selling price. When the related provisions 

and interlocking definitions of the lodger’s tax article are considered as a harmonious 

whole, the conclusion that the OTC’s markup must be included in the purchase price 

paid or charged for lodging is not only one reasonable construction of the article; it is 

sufficiently apparent that it is the fair and reasonable construction embodying the 

legislative intent.

III.

¶36 Because the application of well-accepted aids to statutory construction leads to 

the conclusion that the fair and reasonable interpretation of Denver’s lodger’s tax article 

is that it 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, the 
25

judgment of the court of appeals is reversed, and the matter is remanded for 

consideration of the remaining issues raised on appeal by the parties.

JUSTICE HOOD concurs in the judgment.

JUSTICE GABRIEL dissents, and CHIEF JUSTICE RICE and JUSTICE EID join in the 

dissent.
1

JUSTICE HOOD, concurring in the judgment.

¶37 I agree with the plurality that under Denver’s lodging tax ordinance (“the 

ordinance”), Denver, Colo., Revised Municipal Code §§ 53-166 to -236 (2016), the OTCs 

are vendors who must collect and remit the prescribed tax on the entire purchase price 

of the lodging they sell. However, I disagree with the plurality’s rationale for reaching 

this result. Rather than viewing this outcome as a “fair and reasonable interpretation” 

of the ordinance, pl. op. ¶ 2, I believe the ordinance is unambiguous regarding the 

OTCs’ obligation to collect lodging tax on the entire purchase price. I therefore concur 

in the judgment only.1 

¶38 The primary goal of statutory interpretation is to effectuate the enacting body’s 

legislative intent. BP Am. Prod. Co. v. Colo. Dep’t of Revenue, 2016 CO 23, ¶ 15, 

369 P.3d 281, 285. This requires first looking to the plain language of the ordinance, 

construing words and phrases according to their ordinary meaning. Id. “A tax statute 

is no different than any other statute; it must be construed as a whole in order to give 

consistent, harmonious, and sensible effect to all of its parts.” Welby Gardens v. Adams 

Cty. Bd. of Equalization, 71 P.3d 992, 995 (Colo. 2003). If the language is clear and 

unambiguous, our analysis is complete: we look no further, and we apply the ordinance 

 

1 I am particularly concerned by and specifically decline to join in the plurality’s 

discussion of certain interpretive aids it characterizes as “policy preferences concerning 

the construction of statutes imposing burdens on property or liberty.” Pl. op. ¶ 16. The 

plurality weakens the force of these interpretive aids, referring to them as “rules of last 

resort” and claiming that “many commentators actually argue that these presumptions 

have been, or should be, discontinued altogether.” Id. at ¶ 17 & n.7. Because I consider 

the ordinance unambiguous, I do not believe there is any need to reach the applicability 

of interpretive aids to construction, or to call their value into question.
2

as written. Jefferson Cty. Bd. of Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo. 

2010). But if the language is susceptible to multiple interpretations, and therefore 

ambiguous, we may resort to various aids to statutory construction. Id. 

¶39 The court of appeals began its interpretive inquiry with the definition of 

“vendor,” because the ordinance requires only “vendors” to collect and remit the tax. 

Because the ordinance defines “vendor” as “a person making sales of or furnishing 

lodging,” § 53-170(8), and further defines “sale” as “furnishing for consideration,” see

§ 53-170(4), the court of appeals concluded that a “vendor” under the ordinance “refers 

only to one who actually furnishes lodging,” Expedia, Inc. v. City & Cty. of Denver, 

2014 COA 87, ¶ 38, __ P.3d __. Because the ordinance does not define “furnish,” the 

court of appeals looked to the ordinary meaning of that word, which the court 

determined was “to equip; to provide or supply with something that is necessary, 

useful, or desired.” Id. at ¶ 39 (quoting Broadmoor Hotel, Inc. v. Dep’t of Revenue, 

773 P.2d 627, 629 (Colo. App. 1989)). The court of appeals then accepted the OTCs’ 

argument that they merely facilitate hotel reservations rather than equip, provide, or 

supply rooms, and therefore that they are not vendors. The court concluded that the 

OTCs had articulated a reasonable interpretation of the ordinance, demonstrating that 

the ordinance was at least ambiguous and should be construed in the OTCs’ favor. See

City of Boulder v. Leanin’ Tree, Inc., 72 P.3d 361, 367 (Colo. 2003) (explaining that 

doubts in tax statutes should be resolved against the government and in favor of the 

taxpayer). 
3

¶40 In my view, the court of appeals inappropriately focused on the meaning of 

“vendor” to the exclusion of other provisions in the ordinance, and it thereby neglected 

to follow the well-established principle of statutory interpretation that a tax statute, like 

any other statute, “must be construed as a whole in order to give consistent, 

harmonious, and sensible effect to all of its parts.” Welby Gardens, 71 P.3d at 995; see 

also Colo. Dep’t of Revenue v. Cray Comput. Corp., 18 P.3d 1277, 1282 (Colo. 2001) 

(determining scope of tax exemption based on unambiguous language of statute after 

construing statute as a whole and defining integral term according to common usage); 

Mesa Verde Co. v. Montezuma Cty. Bd. of Equalization, 898 P.2d 1, 5 (Colo. 1995) 

(determining disputed issue based on plain language of statute and noting that “[t]his 

interpretation is consistent with the statute read as a whole”).

¶41 The ordinance levies the tax on “every person exercising the taxable privilege of 

purchasing lodging.” § 53-171(a). “Purchase” and “sale,” though defined as one term 

in the ordinance, mean the acquisition and furnishing, respectively, of lodging for 

consideration. See § 53-170(4). Vendors are made responsible for collecting the tax at 

the time they make a sale. § 53-173(a). A “vendor,” as discussed above, is “a person 

making sales of or furnishing lodging to a purchaser in the city.” § 53-170(8). 

¶42 What, then, is “lodging,” for purposes of the ordinance? “Lodging” is defined as 

“rooms or accommodations for overnight use furnished by any person . . . to any person 

who for consideration uses, possesses, occupies or has the right to use, possess or 

occupy any such room.” § 53-170(2). Using the ordinary meaning of “furnish,” as 

identified by the court of appeals, lodging must mean rooms provided or supplied to 
4

any person who for consideration uses or has the right to use such rooms. Nothing in 

the definition of “furnish”—or elsewhere in the ordinance—limits that term to the 

physical provision of a hotel room. 

¶43 When a customer uses an OTC’s website to purchase a room, the OTC charges 

the customer’s credit card at the time of the booking and is the merchant of record for 

the transaction. The customer receives a hotel confirmation number, but even this 

comes by way of the OTC, and the customer’s entire transactional relationship is with 

the OTC, not the hotel. Thus, the OTCs provide or supply rooms to customers who pay 

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

are vendors furnishing lodging within the plain meaning of the ordinance. 

¶44 This is the only interpretation that harmonizes all parts of the ordinance and 

effectuates its stated intent. Characterizing the OTCs as mere intermediaries 

responsible solely for facilitating the booking of reservations would ignore that 

purchasers acquire rooms by providing consideration to the OTCs, not to hotels. And it 

would render ineffective the ordinance provision governing the collection of the tax, 

which states: “Every vendor making sales to a purchaser . . . at the time of making such 

sales is required to collect the tax imposed by [the ordinance] from the purchaser.” 

§ 53-173(a). In a merchant-model transaction, only the OTC, and not the hotel, collects 

payment from the purchaser.2 Finally, exempting the OTCs from the definition of 

 

2 Because the OTC, and not the hotel, collects payment from the purchaser, under the 

current state of affairs, the OTC also collects the lodging tax levied on the underlying 

room rate charged by the hotel. See pl. op. ¶ 7 (using hypothetical to illustrate 

merchant-model transaction). The OTC later remits both the underlying room rate and
5

“vendor” would leave a portion of the price paid for lodging untaxed, thereby 

frustrating rather than effectuating the city council’s clear intent to tax that purchase.

¶45 For these reasons, under the plain language of the ordinance, the OTCs are 

vendors and must collect and remit the prescribed tax on the entire purchase price of 

any lodging they sell. Because I believe the ordinance to be unambiguous in requiring 

this result, I do not see a need to resort to the use of interpretive aids. I therefore 

respectfully concur in the judgment only. 

 

the tax surcharge to the hotel. See id. In my view, this practice amounts to implicit 

acknowledgment by the OTCs that they are vendors, because they are the ones 

collecting the lodging tax from the purchasers at the time of sale. See § 53-173(a) 

(setting forth provisions governing collection of lodging tax). And, as Denver 

emphasized in its briefs, the OTCs repeatedly presented themselves as “providers” and 

“resellers” of lodging in SEC filings pre-dating this litigation, which further suggests 

that they perceive themselves, at least in a functional sense, as vendors. 
1

JUSTICE GABRIEL, dissenting.

¶46 The plurality concludes that the respondent online travel companies (“OTCs”) 

furnished lodging within the meaning of the Denver Revised Municipal Code (the 

“Code”) because they sold or provided to customers for consideration the right to the 

overnight use of rooms or accommodations. See pl. op. ¶¶ 23–24. The plurality thus 

concludes that the OTCs are “vendors” subject to Denver’s lodging tax. See id. at ¶¶ 25, 

28. The plurality further concludes that the fees charged by the OTCs for their services 

were directly connected with furnishing rooms. See id. at ¶¶ 29–30, 33–35. 

Accordingly, the plurality concludes that these fees were part of the cost of lodging and 

were also subject to Denver’s lodging tax. See id.

¶47 Because I do not believe that Denver’s ordinances support these conclusions, I 

respectfully dissent.

I. Analysis

¶48 I first address the applicable standard of review and principles of construction of 

municipal ordinances such as those at issue here. I proceed to address whether the 

OTCs furnished lodging, which would render them “vendors” subject to Denver’s 

lodging tax. I conclude by considering whether the fees charged by the OTCs to their 

customers were directly connected with the furnishing of rooms or accommodations 

and thus subject to Denver’s lodging tax.
2

A. Standard of Review and Principles of Construction

¶49 When reviewing a municipal ordinance or code, we construe it using the same 

rules that we use when we interpret statutes. See Town of Erie v. Eason, 18 P.3d 1271, 

1275 (Colo. 2001).

¶50 We review de novo questions of law concerning statutory construction. City of 

Littleton v. Indus. Claim Appeals Office, 2016 CO 25, ¶ 27, 370 P.3d 157, 165.

¶51 Our purpose in interpreting a statute or ordinance is to give effect to the intent of 

the legislature or city council. See id. at ¶ 27, 370 P.3d at 165–66. To discern this intent, 

we look first to the language of the statute or ordinance. See id. at ¶ 27, 370 P.3d at 166. 

We construe the statute or ordinance as a whole to give effect and meaning to all of its 

parts, and we avoid interpretations that render provisions either superfluous or absurd. 

Id.; Concerned Parents of Pueblo, Inc. v. Gilmore, 47 P.3d 311, 313 (Colo. 2002).

¶52 If the applicable language is clear and unambiguous, we do not resort to 

legislative history or other rules of construction. City of Littleton, ¶ 27, 370 P.3d at 166. 

Rather, we give the words used their plain and ordinary meanings. See Concerned 

Parents, 47 P.3d at 313.

¶53 If, however, the language of the statute or ordinance is ambiguous, then we may 

examine the legislative intent, the circumstances surrounding the adoption of the 

statute or ordinance, and the possible consequences of various interpretations to 

determine the proper construction of that statute or ordinance. Coffman v. Williamson, 

2015 CO 35, ¶ 23, 348 P.3d 929, 936. A statute or ordinance is ambiguous if it is 

reasonably susceptible of multiple interpretations. Id.
3

¶54 Finally, I note that “[i]t is a longstanding rule of construction in this jurisdiction 

that tax statutes ‘will not be extended beyond the clear import of the language used, nor 

will their operation be extended by analogy. . . . All doubts will be construed against 

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

72 P.3d 361, 367 (Colo. 2003) (quoting Transponder Corp. v. Prop. Tax Admin., 681 P.2d 

499, 504 (Colo. 1984)). In this regard, I disagree with the plurality’s assertion that the 

foregoing “longstanding rule” is akin to the rule of lenity in criminal law and thus is to 

be applied only as a rule of last resort. See pl. op. ¶¶ 16–17. None of the parties made 

any such argument in this case, the plurality cites no case so holding, nor have I seen 

one. Accordingly, although I understand the plurality’s desire to avoid the settled rule 

that ambiguous tax provisions will be construed against the taxing authority,11 I do not 

believe that it can properly do so here.

B. Furnishing Lodging

¶55 Section 53-167(b) of the Code provides, in pertinent part, “[E]very vendor who 

shall make a sale of lodging to a purchaser in the city shall collect the tax imposed by 

this article to the total purchase price charged for such lodging furnished at any one (1) 

time by or to every customer or buyer.” Denver, Colo., Revised Municipal Code 

§ 53-167(b) (2016).

 

11 To reach its conclusions, the plurality must strain against the text of the municipal 

ordinances at issue and ignore reasonable interpretations thereof that differ from its 

own.
4

¶56 The Code defines “vendor” as “a person making sales of or furnishing lodging to 

a purchaser in the city.” § 53-170(8).

¶57 “Sale,” in turn, is defined as the “furnishing for consideration by any person of 

lodging within the city.” § 53-170(4).

¶58 The question presented here is, thus, whether the OTCs furnished lodging within 

the meaning of the Code, thereby rendering them “vendors” subject to Denver’s 

lodging tax.

¶59 Under the Code,

[l]odging shall mean rooms or accommodations for overnight use 

furnished by any person or the representative of any person to any person 

who for consideration uses, possesses, occupies or has the right to use, 

possess or occupy any such room or accommodation in a hotel, apartment 

hotel, lodging house, motel, motor hotel, guest house, guest ranch, resort, 

mobile home, mobile home park, auto court, inn, trailer court, trailer park 

or hotel, under any concession, permit, lease, contract, license to use or 

other similar arrangement.

§ 53-170(2).

¶60 Accordingly, “lodging” is a room or accommodation for overnight use; it is not 

the right to use a room, as the plurality states. See pl. op. ¶ 23. Because it is undisputed 

that the OTCs have not provided either rooms or accommodations, in my view, they 

have not furnished “lodging” within the meaning of the Code. As a result, they are not 

“vendors” subject to Denver’s lodging tax.

¶61 In reaching this conclusion, I acknowledge that section 53-170(2)’s definition of 

“lodging” refers to the right to use a room or accommodation. As I read that portion of 

the definition, however, the phrase “right to use, possess, or occupy any such room or 
5

accommodation” modifies “any person” who has that right. § 53-170(2). Thus, in my 

view, the section plainly means that lodging is a room or accommodation furnished to 

any person who has the right to use, possess, or occupy that room or accommodation. 

Id. To construe this provision to define “lodging” simply as the right to use a room or 

accommodation would read words out of the ordinance, and we cannot do that. See

City of Littleton, ¶ 27, 370 P.3d at 166.

¶62 Even if the language of the ordinance could reasonably be construed to define 

lodging as the right to use a room or lodging, however, any such reading would be one 

of multiple reasonable constructions. Accordingly, at best, this provision is ambiguous, 

and therefore, we must construe it against the city and in favor of the OTCs. See City of 

Boulder, 72 P.3d at 367.

¶63 For these reasons, I would conclude that the OTCs have not furnished lodging to 

customers and, thus, are not “vendors” subject to Denver’s lodging tax.

C. Fees Charged By The OTCs

¶64 With respect to the fees charged by the OTCs, section 53-171(c) of the Code 

provides, “The purchase price paid or charged for lodging shall exclude the price paid 

by the purchaser for any goods, services or commodities other than those directly 

connected with, and included in the price of, the furnishing of rooms or 

accommodations.” Thus, the purchase price that a customer pays to an OTC includes 

any fees “directly connected with” the furnishing of rooms or accommodations. See

§ 53-171(c).
6

¶65 The question presented here thus becomes whether the fees charged by the OTCs 

to their customers were directly connected with or part of the purchase price for 

furnishing rooms or accommodations, so as to render them subject to Denver’s lodging 

tax.

¶66 As noted above, under my reading of the pertinent provisions of the Code, the 

OTCs did not furnish rooms or accommodations to their customers. Thus, by 

definition, the fees that the OTCs charged were not directly connected with or part of 

the purchase price for furnishing rooms or accommodations, and therefore, they were 

not subject to Denver’s lodging tax.

II. Conclusion

¶67 For these reasons, I respectfully dissent.

I am authorized to state that CHIEF JUSTICE RICE and JUSTICE EID join in this 

dissent.