Expedia, Inc., et al., Respondents, Priceline.com Incorporated, et al., Plaintiffs,v.The City of New York Department of Finance, et al., Appellants.

Brief

N.Y.October 9, 2013

~---_. --- Sup. Ct., New York Co. Index No. 650761109 To be argued by ANDREW G. LIPKIN (15 minutes) STATE OF NEW YORK COURT OF APPEALS EXPEDIA, INC., HOTELS.COM, L.P., HOTWIRE, INC., ORBITZ, LLC, TRIP NETWORK, INC. (d/b/a Cheaptickets.com), TRAVELOCITY.COM LP, AMERICAN SOCIETY OF TRAVEL AGENTS, INC., Plaintiffs-Respondents, and PRICELINE.COM INCORPORATED and UNITED STATES TOUR OPERATORS ASSOCIATION, Plaintiffs, -against- THE CITY OF NEW YORK DEPARTMENT OF FINANCE and THE CITY OF NEW YORK, Defendants-Appellants. APPELLANT'S BRIEF MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, Attorney for Defendant-Appellant, 100 Church Street, New York, New York 10007 (212) 356-2114 a1ipkin@law.nyc.gov ANDREW G. LIPKIN JOSHUA M. WOLF ofCounsel. TABLE OF CONTENTS Page TABLE OF AUTHORITIES 111 PRELIMINARY STATEMENT 1 STATEMENT OF mRISDICTION 4 QUESTIONS PRESENTED 4 STATEMENT OF THE CASE 5 THE DECISIONS BELOW 10 1. The Trial Court Decision , 10 2. The Appellate Division Decision 12 ARGUMENT 13 THE DECISION OF THE APPELLATE DIVISION SHOULD BE REVERSED BECAUSE LOCAL LAW 43 WAS UNDENIABLY WITHIN THE SCOPE OF THE AUTHORITY GRANTED TO THE CITY BY THE ENABLING LEGISLATION 13 A. The Plain Language of the Enabling Act Confirms the City's Authority to Enact Local Law 43 13 1. The Enabling Act Authorizes Imposition of the HROT on the Entire Amount Paid by Hotel Room Occupants for Hotel Rooms Within the City 14 2. The Enabling Act Authorizes the City to Require Room Remarketers to Collect and Remit Payments of HROT Received From Occupants of Hotel Rooms 23 B. Local Law 43 is Not Unconstitutional Merely Because it Uses Terms or Phrases Not Found in the Enabling Act 26 C. Plaintiffs' References to Extraneous Information and Other Provisions of Law Apart From the Enabling Act are Unavailing ~....... 30 1. The State Sales Tax Law 31 2. The Proposed 2007 State Budget Legislation 34 3. The 2010 State Budget Legislation 35 4. "40 Years of History" 37 CONCLUSION 42 11 TABLE OF AUTHORITIES CASES Page Bingham v New York City Transit Auth., 99 NY2d 355 [2003] 38 Brooklyn Union Gas Co. v McGoldrick, 270 AD 186 [1st Dept 1945] 29 Clark v Cuomo, 66 NY2d 185 [1995] 34 Capital Cities Commc 'ns, Inc. v State Tax Comm 'n, 65 AD2d 25 [3d Dept 1978] 18, 24 Carey Transp., Inc. v Perrotta, 34 AD2d 147 [1st Dept 1970] 29 Castle Oil Corp. v City ofNew York, 89 NY2d 334 [1996] 26,29 Cohen v Lord, Day & Lord, 75 NY2d 95 [1989] 18 Comptroller ofthe City ofNew York v Mayor ofthe City ofNew York, 7 NY3d 256 [2006] 28,38 Criscione v City ofNew York, 97 NY2d 152 [2001] 18,24 Doctors Council v New York City Employees' Ret. Sys., 71 NY2d 669 [1988] 15 FCC v Pacifica Found., 438 US 726 [1978] III 17 CASES (continued) Page Hudson River Tel. Co. v Watervliet Tpk. & Ry. Co., 135 NY 393 [1892] . 28,38 Kiamesha Concord, Inc. v Chairman ofBd. ofSupervisors, 166AD2d70 [3d Dept 1991] 27 Leader v Maroney, 97 NY2d 95 [2001] 18,24 Majewski v Broadalbin-Perth Cent. Sch. Dist., 91 NY2d 577 [1998] 15 Matter ofMarriott International, Inc., DTA No. 821078, et al., 2010 NY Tax LEXIS 7 [NYS Tax App. Trib. 2010] People v Cook, 34 NY2d 100 [1974] 36 15,27 Plato's Cave Corp. v State Liquor Auth., 68 NY2d 791 [1986] 31 Reed v James W Bell & Co., 69 NYS2d 898 [1st Dept 1947] Reiter v Sonotone Corp., 442 US 330 [1979] 15 17 RKO-Keith-Orpheum Theatres, Inc. v City ofNew York, 308 NY 493 [1955] 27,28 Roberts v Tishman Speyer Props., L.P., 13 NY3d 270 [2009] 11, 34 IV CASES (continued) Samiento v World Yacht Inc., 10 NY3d 70, 2008 NY Slip Op. 1258 [2008] Tarquini v Aurora, 77 NY2d 354 [1991] Page 16,17,19,21 19 United States Steel Corp. v Gerosa, 7 NY2d 454 [1960] 29 Washington Post Co. v New York State Ins. Dept, 61 NY2d 557 [1984] '" 11 CONSTITUTIONAL PROVISIONS NY Const. art. XVI, § 1 STATUTESIRULES 2 L. 2010, Ch. 57, Part AA § 1 9,32,35,36, 37 L. 2010, Ch. 57, preamble 36 Local Law 43 of the Laws of2009 passim NYCPLR3211[a][7] 2 NY Tax Law § 1104[b] 33 NY Tax Law § 1105[e] 33 NYTaxLaw§1109 33 NY Unconsol. Ch. 288-C § 1 ... . . . ... . . . . .. . . . . . . .. . . . .. .. . . . . . . . . .. . . .. .. . ..... passim v STATUTES/RULES (continued) Page NYC Admin. Code § 11-2001 [e] 33 NYC Admin. Code § 11-2501[7] [2009] 8,20,22 NYC Admin. Code § 11-2501[12] [2009] 8,25 NYC Admin. Code § 11-2501[13] [2009] .. 8 NYC Admin. Code § 11-2501[14] [2009] 8 NYC Admin. Code § 11-2502[a][3] 7, 19 NYC Admin. Code § 11-2502[a][4] [2009] 7,20,23,25 NYC Admin. Code § 11-2502 [f][1] [2009] 7 NYC Admin. Code § 11-2502 [fJ[2] [2009] 23,25 19 RCNY § 12-08[a] 39 OTHER AUTHORITIES Black's Law Dictionary [8th ed. 2004] 16,21 McKinney's Cons. Laws of NY, Book 1, Statutes § 94 [1971 ed.] 19 McKinney's Cons. Laws of NY, Book 1, Statutes, § 231 18, 24 Merriam Webster's Collegiate Dictionary [10th ed. 1993] 16, 17, 21 VI PRELIMINARY STATEMENT This appeal concerns the scope of the taxing power granted to the City of New York where the enabling legislation authorizes the City to enact a local law "such as the legislature has or would have the power and authority to impose on persons occupying hotel rooms in such city ...." The Appellate Division, despite this broad grant of authority, reversed the trial court and erroneously held that "the plain language of the enabling legislation did not clearly and unambiguously provide the City with broad taxation powers with respect to imposing a hotel occupancy tax." (R.362) For the reasons set forth below, this Court should reverse the Appellate Division's Order. In this declaratory judgment action, Defendants-Respondents The City of New York Department of Finance and The City of New York (collectively, the "City") appeal from a Decision and Order of the Appellate Division, First Department (R.360-363) which reversed the Order of the Supreme Court, New York County (Ramos, J.) holding that local law 43 of the laws of2009 ("Local Law 43"), an amendment to the City's Hotel Room Occupancy Tax ("HROT"), on its face, was well within the City's broad taxing authority granted by NY Unconsol. Ch. 288-C (the "Enabling Act"). (R.13-26) The Appellate Division answered a question that was not before it, and improperly held that Local Law 43, as applied to Plaintiffs- Respondents ("Plaintiffs"), exceeded the authority granted by the Enabling Act. This Court should reverse the Appellate Division Order, reinstate the trial court's determination, and remand for further proceedings. Plaintiffs pleaded two causes of action in their complaint. (R.72-104) In their first cause of action, which was the subject of the City's motion to dismiss for failure to state a claim pursuant to CPLR 3211(a)(7), Plaintiffs pleaded a facial constitutional challenge to Local Law 43, alleging a violation of NY Const. art. XVI, § 1. The trial court dismissed the first cause of action, holding that Local Law 43 was well within the Enabling Act's grant of authority. Indeed, the Enabling Act granted to the City the same broad authority as the legislature has to impose a hotel room occupancy tax, subject to certain stated limitations. In their second cause of action, which was not addressed in the City's motion to dismiss because, among other reasons, there were factual issues to be resolved, Plaintiffs alleged that Local Law 43 did not apply to them. The court directed the City to serve and file an answer to the second cause of action (R.24). Clearly, Respondents' complaint distinguishes the constitutional question of the City's taxing authority, as asserted in their first cause of action which was before the court, from the fact-based inquiry of 2 whether the HROT applies to Respondents, as asserted in their second cause of action which was not before the court. The Appellate Division mischaracterized Plaintiffs' first cause of action as one seeking "a declaration that [the City] lacked the authority to expand the hotel room occupancy tax to impose it on the fees earned by them." (R.361) Whether the charges paid to Plaintiffs by their customers were "fees earned by them" or "service fees" as alternately denominated by the Appellate Division, or rent or other charge for a hotel room occupancy, or something else entirely, is a factual question that was not before the court. The court equated "additional rent" as defined in the statute with "service fees". It remains to be seen whether the price paid to Respondents by their customers is taxable rent or other charge for hotel room occupancy, as claimed by the City, or something that is not subject to the HROT, as found by the Appellate Division. Consequently, the court erred when it concluded, without any support in the record, that the Enabling Act "did not encompass the service fees charged by the travel intermediaries ... ."(R.362-363) The Appellate Division compounded its error when it seemingly concluded that the tax was imposed upon Plaintiffs, rather than Plaintiffs' 3 customers. The court wrote that the Enabling Act only permitted the City "to impose the tax on 'hotel occupants. '" (R. 362) There is no dispute between the parties in this regard. The parties agree that the HROT is imposed upon the consumer, in this case the hotel occupant. Plaintiffs are required only to collect the tax. This Court should reverse the Appellate Division Order and remand to the trial court for further proceedings on Plaintiffs' second cause of action. STATEMENT OF JURISDICTION This Court has jurisdiction pursuant to CPLR 560 I(b)( I) because a substantial constitutional question is presented. QUESTIONS PRESENTED 1. Did the lower court correctly dismiss count I of Plaintiffs' complaint, where the Enabling Act granted the City broad authority to enact a hotel room occupancy tax on the full amount of the rent or charge paid for a hotel room in New York City, regardless of who collects such rent or charge? Yes. The Enabling Act granted to the City the same authority as the legislature has to impose a tax on persons occupying hotel rooms in the City of New York. The Appellate Division erred when it reversed the trial court's Order dismissing count I of Plaintiffs' complaint. 4 2. Did the Appellate Division err when it held that Local Law 43 was unconstitutional because it was imposed upon Plaintiffs, who are not hotel room occupants? Yes. The parties agree that the tax, similar to the sales tax, is imposed upon hotel occupants, not on Plaintiffs, who are only required to collect the tax. 3. Did the Appellate Division err when it held that Local Law 43 was unconstitutional because it was imposed upon Plaintiffs' service fees and not upon the rent or charge for hotel room occupancy? Yes. There is no evidence in the record that the amounts paid by Plaintiffs' customers are not the rent or charge for hotel room occupancy. STATEMENT OF THE CASE The Enabling Act authorizes the City to impose a tax on persons occupying hotel rooms, as measured by a percentage of the rent or charge paid for such rooms. That is precisely what the HROT had done over its 40- year history, and what the HROT continued to do following the City's enactment of Local Law 43. Nothing in Local Law 43 exceeded the limits of the Enabling Act, and it is therefore constitutional. The Enabling Act can essentially be reduced to three components. First, and critical to the Court's decision here, the Enabling Act provides the 5 City with broad authority to impose a tax on hotel room occupancy. In relevant part, it provides that: Notwithstanding any other provision of law to the contrary, any city having a population of one million or more is hereby authorized and empowered to adopt and amend local laws imposing in any such city a tax in addition to any tax authorized and imposed pursuant to article twenty-nine of the tax law such as the legislature has or would have the power and authority to impose on persons occupying hotel rooms in such city .... (NY Unconsol. Ch. 288-C, § l[lD Second, the Enabling Act sets forth the method of calculating the amount of tax due in connection with a transaction granting the occupancy of a hotel room. As is relevant here, the tax is required to be imposed "on persons occupying hotel rooms ... at a rate up to six percent of the rent or charge per day for each such room" (id., § 1[I-aD. Third, the Enabling Act outlines certain administrative rights and obligations to be implemented under the HROT (see generally id., § 1). In the context ofPlaintiffs' challenge to Local Law 43, the Enabling Act states that the: tax imposed shall be paid by the person liable therefor to the owner of the hotel room occupied or to the person entitled to be paid the rent or charge for the hotel room occupied for and on account of the city imposing the tax and that such owner or person entitled to be paid the rent or charge shall be liable for the collection and payment of the tax .... 6 (Id., § 1[3]) Accounting for these general boundaries, the City is otherwise empowered to craft its HROT to the same extent as the legislature. Following the enactment of Local Law 43, the New York City Administrative Code (the "NYC Admin. Code" or the "Code") imposed, and still imposes: a tax for every occupancy of each room in a hotel in the city of New York ... at the rate of five and seven-eighths percent of the rent or charge per day for each such room .... (NYC Admin. Code § 11-2502[a][3][D]) Whether the rent or charge was paid by a hotel room occupant directly to a hotel operator, or whether that occupant instead paid the rent or charge to a "room remarketer", the entire amount of the rent or charge was subject to tax (see NYC Admin. Code §§ 11-2502[a][4] and [5], [f][1] and [2] [2009]). The post-Local Law 43 HROT provisions went further, however, clarifying that just as hotel operators were required to collect the tax on the full amount paid by a customer for a hotel room, so were room remarketers when customers booked rooms through them instead (see NYC Admin. Code §§ 11-2502[f][1], [2] [2009]). It is primarily these provisions that Plaintiffs contest on constitutional grounds. But Plaintiffs also challenge Local Law 43 's integration of certain defined terms into the HROT. One such term is "room remarketer" (see 7 NYC Admin. Code § 11-2501[12] [2009]. Another is the term "rent" under Local Law 43, which was redefined by Local Law 43 to include both rent and other charges (see NYC Admin. Code § 11-2501 [7] [2009]; R.93-94 ,-r 53). Plaintiffs even object to Local Law 43's division of the term "rent" into two component parts (R.9l-94,-r,-r 48,53-57) so that the total rent paid by a customer was subdivided into "net rent" and "additional rent", with hotel operators responsible for taxes paid on the net rent and room remarketers responsible for taxes paid on any additional rent (NYC Admin. Code §§ 11- 2501[13], [14]). Plaintiffs miss the point. The Enabling Act provides the authority to impose a tax on hotel room occupancy and provides a wide berth for its implementation. The Enabling Act is not a so-called "model act" and does not constrain the City's ability to craft and re-craft the details of the HROT to meet changing circumstances and emerging technologies. Under the plain language of the Enabling Act, the City was well within its right to enact and enforce the HROT as amended by Local Law 43. Lacking any reasonable argument addressing the plain language of Local Law 43 by reference to the plain language of the Enabling Act, in the Appellate Division Plaintiffs turned to: (i) the suggestion that the City is precluded from amending the HROT to include terms not used in the State's 8 sales tax, because Plaintiffs contend, without authority, that the sales tax and HROT must be read in pari materia notwithstanding plain language in the Enabling Act to the contrary (App. Br. at 40-44)1; (ii) a 2007 State budget proposal that was considered, but never enacted, and was therefore never binding law much less relevant to the question under review (id. at 32-35); (iii) a 2010 budget bill (the "2010 Budget Legislation") that did not affect Local Law 43 for the one year that it was operable and did not amend the Enabling Act (see id. at 34-39; L. 2010, Ch. 57, Part AA § 1); and (iv) prior State interpretations of the State sales tax statutes and prior City interpretations of the HROT statute, as they each existed before the enactment of Local Law 43, which Plaintiffs contend now limit the City's authority under the Enabling Act (App. Br. at 44-47). As the City demonstrates more fully below, and as the trial court agreed, none of Plaintiffs' arguments have merit. The Appellate Division's Decision must be reversed and the case remanded for proceedings in connection with Plaintiffs' second cause of action. 1 References in parentheses to "App. Br." refer to Plaintiffs' Appellants' Brief submitted to the Appellate Division. 9 THE DECISIONS BELOW 1. The Trial Court Decision After reviewing the unambiguous language of the Enabling Act, and comparing it to the changes implemented through Local Law 43, the trial court confirmed the City's "broad taxation powers" in the Enabling Act and rejected Plaintiffs' claim that Local Law 43 was unconstitutional (R.24; see also R.14-18, 23 (characterizing as "baseless" Plaintiffs' claim that "the HROT may not be imposed on the room remarketer's service fees and that only the operator is obligated to collect the HROT"». Accordingly, the court granted the City's motion and dismissed count I of the complaint (id. at 24). The lower court noted that "[o]n its face, the statute provides the City with the power to impose a tax 'such as the legislature has or would have the power and authority to impose on persons occupying hotel rooms in such city'" (id. at 20, citing NY Unconsol. Ch. 288-C, § 1[1]). In this regard, the court remarked that while Plaintiffs "consistently argue," as they did on appeal to the Appellate Division, "that the Enabling Act 'does not authorize a new tax on travel booking services ... ', [they] fail to cite to any language in the Enabling Act that supports that conclusion" (R. 23). And, of course, "[i]t is well established that' [w]hen the plain language of the statute is 10 precise and unambiguous, it is determinative'" (R. 23-24, citing Washington Post Co. v New York State Ins. Dept, 61 NY2d 557,565 [1984]). The court below also addressed Plaintiffs' assertions that budget proposals demonstrate that the City's enactment of Local Law 43 required legislative action by the State, and that Local Law 43 was not consistent with the State sales tax. As to the first point, the court stated that "there is no basis whatsoever to infer that consideration of legislation similar to [Local Law 43] by the State establishes the City's inability to enact [such law]" and that '" [l]egislative inactivity is inherently ambiguous and affords the most dubious foundation for drawing positive' inferences" (R.21-22, citing Roberts v Tishman Speyer Props., L.P., 13 NY3d 270,287 [2009]). Regarding the second point, the court held that "the HROT does not incorporate by reference any provision of the Sales Tax, and the Remarketers have failed to cite to any authority that requires the two statutes to be uniform or interpreted consistently" (R.22). After all, "[t]he Enabling Act clearly states that the HROT is enacted '[n]otwithstanding any other provision of law to the contrary' and 'in addition to any tax authorized ... '" (id. at 22-23, citing NY Unconsol Ch 288-C § 1 [1]). Moreover, since certain publications also highlighted by Plaintiffs predated the enactment of 11 Local Law 43, they "offer[ed] no guidance on the issue [at hand, and] ... must be considered irrelevant" (R.23). Concluding, the court summarized its view by stating that, "[n]either the budget proposals, Sales Tax, or publications rebut the fact the plain language of the Enabling Legislation clearly and unambiguously provides the City with broad taxation powers to enact [Local Law 43]" (id. at 24). The trial court correctly reached that conclusion. 2. The Appellate Division Decision The Appellate Division erroneously reversed the trial court. Notwithstanding the City's authorization "to adopt and amend local laws imposing in any such city a tax in addition to any tax authorized and imposed pursuant to article twenty-nine of the tax law such as the legislature has or would have the power and authority to impose on persons occupying hotel rooms in such city," the Appellate Division held that "the plain language of the enabling legislation did not clearly and unambiguously provide the City with broad taxation powers with respect to imposing a hotel occupancy tax. Rather, it permitted the City to impose the tax on 'hotel occupants'." The court continued, "[T]he plain meaning of this phrase did not encompass the service fees charged by the travel intermediaries ...." 12 The Appellate Division's conclusion that the City lacked authority to require Plaintiffs to collect the tax stands in stark contrast to the plain language of the Enabling Act. Consequently, this Court should reverse the Appellate Division's Order and hold that the City did have the constitutional authority to enact Local Law 43, and remand to the trial court for proceedings to address Plaintiffs' second cause of action. ARGUMENT THE DECISION OF THE APPELLATE DIVISION SHOULD BE REVERSED BECAUSE LOCAL LAW 43 WAS UNDENIABLY WITIDN THE SCOPE OF THE AUTHORITY GRANTED TO THE CITY BY THE ENABLING ACT A. The Plain Language of the Enabling Act Confirms the City's Authority to Enact Local Law 43 Plaintiffs allege in count I of their complaint that the City exceeded its authority in enacting Local Law 43, both by applying the HROT to the entire amount of any payment made by a hotel room occupant to a room remarketer, and by requiring room remarketers to collect the HROT and remit a portion of the tax to the City (see R.80-81, 90, 93-94,-r,-r 6-8, 44, 53, respectively). Plaintiffs' allegations are without merit. 13 A plain reading of the Enabling Act undeniably authorizes the City to enact a local law imposing the HROT on the entir:e amount paid for a hotel room by the occupant of such room. This is true notwithstanding how that occupant chooses to pay for the room, be it through a hotel operator, a room remarketer, or otherwise.2 Moreover, the unambiguous language of the Enabling Act expressly provides for the possibility that an entity other than a hotel operator can be required to collect and pay over the entirety of the tax due, never mind a fraction thereof. When coupled with Local Law 43's strong presumption of constitutionality, count I of Plaintiffs' complaint was appropriately dismissed by the trial court. This Court should affirm that Decision, and reverse the Appellate Division Order. 1. The Enabling Act Authorizes Imposition of the HROT on the Entire Amount Paid by Hotel Room Occupants for Hotel Rooms Within the City Plaintiffs contend that Local Law 43 unconstitutionally required the HROT to be imposed on the entire amount paid by a hotel room occupant to a room remarketer for a hotel room (see R.90,-r 44). This is purely a matter of statutory interpretation. It is well established that statutory interpretation 2 Under Plaintiffs' reading of the Enabling Act, when a person pays $100 to a hotel operator for a night at a City hotel room, that person must pay tax on $100. If, however, that same person pays $100 to an intermediary for the same room on the same night (and pays the hotel operator nothing), that person should pay tax only on the lesser amount remitted to the hotel operator by the intermediary. There is no basis in the Enabling Act for discerning between these two business models. 14 begins with a statute's plain meaning (see, e.g., Majewski v Broadalbin- Perth Cent. Sch. Dist., 91 NY2d 577,583 [1998]). If a statute's language is clear on its face, it should be upheld without reference to unrelated provisions of law or tools of statutory interpretation (see Doctors Council v New York City Employees' Ret. Sys., 71 NY2d 669, 674-75 [1988]; Reed v James W Bell & Co., 69 NYS2d 898,900 [1st Dept 1947]. Turning then to the plain language of the statute, the authorizing language of the Enabling Act empowers the City to impose a tax "such as the legislature has or would have the power and authority to impose on persons occupying hotel rooms" (NY Unconsol. Ch. 288-C, § 1[1] (emphasis supplied)). The Enabling Act could not be clearer-the State Legislature has provided the City with the broadest authority to enact a tax on hotel room occupancy (see id.; see also R.24). Indeed, the language "such as the legislature has or would have the power and authority to impose" evidences the legislature's intent to delegate the furthest reaches of the power to tax (see People v Cook, 34 NY2d 100, 112 [1974] (addressing an enabling law with nearly identical phrasing and noting that the "statutory grant of power embrace[d] the full panoply of State power")). In rejecting the methodology for calculating the HROT as set forth by Local Law 43, the Appellate Division ignored this sweeping language in the 15 Enabling Act, in addition to the similarly broad express grant of power to tax the entire amount paid for a hotel room (see R.18-l9). In relevant part, the HROT is calculated on the basis "of the rent or charge per day for each such room" (NY Unconsol. Ch. 288-C, § l[l-a] (emphasis supplied)). The plain meaning of the phrase "rent or charge" under the Enabling Act is therefore crucial to determining the constitutionality of the methodology employed by Local Law 43 (id.). Although the terms "rent" or "charge" are not specifically defined in the Enabling Act (see generally NY Unconsol. Ch. 288-C, § 1), the generally accepted meaning of the terms "rent" and "charge" are easily obtained by resort to the dictionary. Black's Law Dictionary defines "rent" as the "[c]onsideration paid, usu[ally] periodically, for the use or occupancy of property ...." (Black's Law Dictionary 1322 [8th ed. 2004]). A "charge," on the other hand, is defined as "[t]o demand a fee [or] to bill" (id. at 248). Further, in a recent exercise of interpreting the meaning of the word "charge" in the context of other New York enabling legislation, this Court, in addition to its recitation from Black's, also turned to the Merriam Webster's definition (see Samiento v World Yacht Inc., 10 NY3d 70, 79, 2008 NY Slip Op. 1258 at *6 [2008]). Under that dictionary's definition, the word "charge" means an "expense [or] cost [and] the price demanded for 16 something" (id. at 78 n.2, at *5 n.2, citing Merriam Webster's Collegiate Dictionary 192 [10th ed. 1993]). In applying both definitions of the word "charge" the Samiento Court concluded that the phrase "any charge" should be liberally construed (see generally Samiento, 10 NY3d 70, 2008 NY Slip Gp. 1258 [2008]) The Appellate Division applied a limitation to the legislature's use of the phrase "rent or charge" that is nowhere to be found in the Enabling Act. The Appellate Division held that the phrase embodies a single concept-i.e., "rent or charge" really only means "rent", which to the court apparently does not include "services that go beyond the occupant's use and enjoyment of the physical space constituting the room" (R.91-92 ,-r 48; see also App. Br. at 43). The Enabling Act contains no such limitation. Indeed, the Enabling Act is altogether blind to the constituent services that a fee for a room may ultimately represent. Rather, the legislature's choice to insert the word "or" between "rent" and "charge" requires the reader, consistent with the discrete definitions set forth above, to treat each word as a separate concept, each with its own distinct meaning (see Reiter v Sonotone Corp., 442 US 330, 339 [1979] ("Canons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings, unless the context dictates otherwise; here it does not"), citing FCC v Pacifica Found., 438 US 726, 17 739-40 [1978]); see also Capital Cities Commc 'ns, Inc. v State Tax Comm 'n, 65 AD2d 25, 27-28 [3d Dept 1978], citing McKinney's Cons. Laws ofNY, Book 1, Statutes, § 231; Criscione v City ofNew York, 97 NY2d 152,157 [2001]; Leader v Maroney, 97 NY2d 95, 104 [2001] ("Words are not to be rejected as superfluous where it is practicable to give each a distinct and separate meaning"), citing Cohen v Lord, Day & Lord, 75 NY2d 95, 100 [1989]). This does not mean that the Court must view the terms "rent" or "charge" as alternatives to each other. In light of the Enabling Act's broad grant of authority to impose the tax, the legislature's choice to use the phrase "rent or charge" should be viewed as advancing a flexible methodology for calculating the tax, one that furthers the legislature's primary intent rather than undermines it (NY Unconsol. Ch. 288-C, § 1[1-a] (emphasis supplied); see also R.18-19). Thus, the inclusion of the word "or" suggests that the City is authorized to impose the HROT either on rent, on a charge, or on both. When evaluating the constitutionality of the language of Local Law 43, the Court need only ask whether the statutory text fell within the general umbrella of the power granted to the City, and whether it was consistent with the generally accepted and undeniably expansive meanings 18 of either the term "rent" or the term "charge" (see id.; see also Tarquini v Aurora, 77 NY2d 354, 360 [1991] (noting that where an enabling act does not define specific terms set forth therein, definition of such terms by local ordinance is permissible so long as the local ordinance is consonant with the generally accepted meaning of the specific terms set forth in the enabling act); see also Samiento, 10 NY3d at 78, 2008 Slip Op. at *4 ("The language of a statute is generally construed according to its natural and most obvious sense ... in accordance with its ordinary and accepted meaning, unless the Legislature by definition or from the rest of the context of the statute provides a special meaning"), quoting McKinney's Cons. Laws ofNY, Book 1, Statutes § 94 at 191-94 [1971 ed.]). Here, it is beyond serious question that the amendments to the HROT under Local Law 43 fell within the scope of the Enabling Act's mandate that the HROT be calculated on the basis of "the rent or charge per day for each such room" (NY Unconsol. Ch. 288-C, § l[l-a]). As an initial matter, the HROT imposed "a tax for every occupancy of each room in a hotel ... at the rate of five and seven-eighths percent of the rent or charge per day for each such room ...." (NYC Admin. Code § 11- 2502[a][3][D] [2009]). This language almost directly mirrors that set forth in the Enabling Act and is not in dispute (compare NY Unconsol. Ch. 288- 19 C, § 1[1-a] with NYC Admin. Code § 11-2502[a][3]). Instead, Plaintiffs question the City's ability to apply the HROT to the entire amount paid by a customer to a room remarketer. Specifically, Plaintiffs challenge the portion of Local Law 43 providing that "[w]here the occupancy of a room is reserved, booked or otherwise arranged for by a room remarketer, the tax imposed ... shall be determined based on the rent received from the occupant by the room remarketer" (NYC Admin. Code § 11-2502[a][4] (emphasis supplied)). Following the enactment of Local Law 43, the Code defined "rent" as: The consideration received for occupancy valued in money, whether received in money or otherwise, including all receipts, cash, credits, and property or services of any kind or nature, including any service and/or booking fees that are a condition of occupancy, and also any amount for which credit is allowed by the operator or room remarketer to the occupant, without any deduction therefrom whatsoever. (NYC Admin. Code § 11-2501 [7] [2009].) Plaintiffs claim that the City could not define "rent" to include "any service and/or booking fees that are a condition of occupancy" since it had the effect of applying the HROT to amounts paid by occupants in excess of the wholesale price that a room remarketer pays to a hotel operator (see R.93-94 ~ 53). The question, then, 20 is whether "rent" as was defined in the Code is consistent with the generally accepted meaning of "rent or charge" as set forth in the Enabling Act. Plaintiffs' challenge to Local Law 43 is without merit because the definition of "rent" as was set forth in the Code was undeniably consistent with the generally accepted meaning of the phrase "rent or charge" in the Enabling Act. As shown above, "rent or charge" encompasses any payment whatsoever that consists of "[c]onsideration paid ... for the use or occupancy of," or "the price demanded for" a hotel room (see Black's Law Dictionary 1322-23 [8th ed. 2004]; Samiento, 10 NY3d at 78 n.2, 2008 Slip Op. at *5 n.2, citing Merriam Webster's Collegiate Dictionary 192 [lOth ed. 1993]). The focus is on the price an occupant of a hotel room actually pays, or the amount that is demanded from such occupant for a hotel room. This is in direct contrast to Plaintiffs' view of the Enabling Act, which unduly limits the HROT to focus only on what room remarketers-and not their customers-pay for a hotel room (App. Br. at 24-27). Under a plain reading of the Enabling Act, that view is unsupportable. There is no provision in the Enabling Act restricting the operation of the HROT to a certain business model or to instances where hotel room reservations are obtained through one type of business entity rather than another (see generally NY Unconsol. Ch. 288-C, § 1). To the contrary, it is 21 plain from the legislature's grant of broad taxing authority that the imposition of the HROT is intended to be a flexible endeavor, applicable to a multiplicity of circumstances, and calculated only on the basis of the entire amount paid by a hotel room occupant, regardless to whom that amount is paid. Plaintiffs cannot credibly argue that the definition of "rent" under Local Law 43 ever applied beyond payments that were for a hotel room, since under Local Law 43 the imposition of the HROT was expressly limited to "service and/or booking fees that are a condition of occupancy ...." (NYC Admin. Code § 11-2501[7] (emphasis supplied)). Instead, Plaintiffs shifted the Appellate Division's focus to the supposed inapplicability of such language to their own business models., The Appellate Division completely ignored the fact that the applicability of the HROT to Plaintiffs is not under review here. The court then mischaracterized "additional rent" as "service or booking fees rather than consideration for a room despite that under Local Law 43, "additional rent" is statutorily defined so that it must represent consideration for a room. Whether the amounts charged by Plaintiffs are or are not taxable rent or additional rent was not before the Appellate Division. Indeed, there is no 22 record evidence to support the court's conclusion that Plaintiffs' charges were "service fees" that did not constitute rent or additional rent. 2. The Enabling Act Authorizes the City to Require Room Remarketers to Collect and Remit Payments of HROT Received From Occupants of Hotel Rooms Plaintiffs' second avenue of attack is to question the City's ability to require a room remarketer to collect the HROT from occupants and directly remit a portion of such tax to the City's Department of Finance (se~ R.90, 93-94 ~~ 44, 53-54, 57, respectively). Specifically, Plaintiffs challenge Local Law 43's mandate that a room remarketer "collect from the occupant and pay to the commissioner of finance that portion of the tax that is determined based upon the additional rent" (NYC Admin. Code § 11- 2502[a][4] [2009]; see also NYC Admin. Code § 11-2502[fJ[2] [2009]) A review of the plain language of the Enabling Act removes any doubt that the City had the authority to require a room remarketer to collect and remit the HROT. In relevant part, the Enabling Act provides that: any tax imposed shall be paid by the person liable therefor to the owner of the hotel room occupied or to the person entitled to be paid the rent or charge for the hotel room occupied for and on account of the city imposing the tax and that such owner or person entitled to be paid the rent or charge shall be liable for the collection and payment of the tax; and that such owner or person entitled to be paid the rent or charge shall have the same right in respect to collecting the tax from the person 23 occupying the hotel room, or in respect to nonpayment of the tax by the person occupying the hotel room, as if the tax were a part of the rent or charge and payable at the same time as the rent or charge .... (NY Unconsol. Ch. 288-C, § 1[3] (emphasis supplied).) Consistent with both the analysis set forth above concerning "rent or charge" and prevailing judicial precedent, the legislature's choice to insert the word "or" between "owner of the hotel room" and "the person entitled to be paid the rent or charge for the hotel room" requires each phrase to be treated as a separate concept---each with its own distinct meaning (see Capital Cities Commc 'ns, Inc. v State Tax Comm 'n, 65 AD2d 25,27-28 [3d Dept 1978], citing McKinney's Cons. Laws of NY, Book 1, Statutes, § 231; Criscione v City of New York, 97 NY2d 152, 157 [2001]; Leader v Maroney, 97 NY2d, 95, 104 [2001]). Hence, the phrase "person entitled to be paid the rent or charge" must be construed to encompass entities other than hotel owners (NY Unconsol. Ch. 288-C, § 1[3]). Plaintiffs do not allege that room remarketers, as defined by Local Law 43, were not entities "entitled to be paid the rent or charge" for a hotel room. Instead, Plaintiffs and the Appellate Division shifted the focus to Plaintiffs' business models, which are not at issue in this appeal. Under Local Law 43, however, "room remarketers" had the "right, 24 access, ability or authority" to "offer, reserve, book, arrange for, remarket, distribute, broker, resell, or facilitate the transfer of rooms" (NYC Admin. Code § 11-2501[12] [2009]). A "person entitled to be paid the rent or charge" must be different from an "owner of the hotel room" or it would render the statutory phrase superfluous and meaningless. So, by its own terms the Enabling Act allows a local law to require either the "owner of the hotel room" or any other "person entitled to be paid the rent or charge for the hotel room" to collect and pay over the tax to the City, which is precisely what was accomplished with respect to hotel operators and room remarketers under Local Law 43 (id.). Since the Enabling Act provides the City with the authority to require room remarketers to collect and remit the entire amount of the HROT paid by an occupant, there can be no reasonable dispute that the City was also well within the scope of the Enabling Act to require room remarketers to only collect and remit a fraction thereof (see NYC Admin. Code §§ 11- 2502[a][4], [(1[2] [2009]). Furthermore, when read in conjunction with the term "rent or charge", the Enabling Act plainly authorizes the imposition of the HROT on transactions conducted solely by room remarketers. Plaintiffs' claim that Local Law 43 is unconstitutional was properly dismissed by the trial court. The Appellate Division erred when it reversed. 25 B. Local Law 43 is Not Unconstitutional Merely Because it Uses Terms or Phrases Not Found in the Enabling Act Plaintiffs further frame their argument in terms of the City's "expansion of the tax base" (see R.79, 90 ~~ 4,44, respectively). They argue that Local Law 43 exceeded the authority provided by the Enabling Act because the Enabling Act does not mention or define terms used in Local Law 43 such as "room remarketer", "net rent", "additional rent", or "service and/or booking fees" (see R.91-94 ~~ 48,53-57). But the Enabling Act at issue is not a "model act" requiring the City to conform to specific language (see, e.g., Castle Oil Corp. v City ofNew York, 89 NY2d 334 [1996]). Rather, the Enabling Act describes general parameters within which the City was free to design and amend the HROT as it saw fit. Given the broad grant of authority to impose such a tax "such as the legislature has or would have the power and authority to impose on persons occupying hotel rooms"-and the lack of many specifics in the Enabling Act needed to implement the tax-there is no other rational conclusion than that the City is empowered to delineate the details of the tax itself through local legislation, so long as such legislation is consistent with the broader authority conferred by the Enabling Act, or until such time as the State chooses to amend it, as occurred with the 2010 Budget Legislation (NY Unconsol. Ch. 288-C, § 1). 26 Indeed, New York courts have rejected similar arguments that local tax laws should be struck down because such laws inappropriately "expanded" on State authorization (see, e.g., People v Cook, 34 NY2d 100, 110 [1974] (upholding a local tax statute requiring a price differential even though authority for the price differential was not stated in the enabling law); RKO-Keith-Orpheum Theatres, Inc. v City ofNew York, 308 NY 493, 500 [1955] (refusing to void a five percent tax enacted by the City even though its "breakage" provisions resulted in certain customers paying greater than five percent in tax); Kiamesha Concord, Inc. v Chairman ofBd. of Supervisors, 166 AD2d 70,71-73 [3d Dept 1991] (rejecting an argument that a local tax law "enlarged" on the state enabling law by specifying certain procedures not expressly provided for in the enabling law)). In Cook, for example, the Court of Appeals considered a challenge to a City tax law that imposed a different cigarette tax depending on the amount of tar or nicotine a cigarette contained (see Cook, 34 NY2d at 110). Although the State enabling law did not expressly authorize that price differential in the tax, the enabling law utilized nearly identical phrasing as the Enabling Act in this case in that it authorized the City to impose a tax "such as the legislature has or would have the power and authority to impose" (id. at 112 n.3). In rejecting the challenge to the City law, the Court 27 of Appeals noted that the "statutory grant of power embrace[d] the full panoply of State power" (id. at 112). The holding in RKO-Keith Orpheum Theatres was based on a similar principle (see RKO-Keith Orpheum Theatres, 308 NY at 497). Those cases are directly relevant in that they upheld local ordinances that 'filled in gaps' not addressed or expressly provided for by their respective enabling statutes. Similarly, Local Law 43 appropriately incorporated details which, although not expressly mentioned in the Enabling Act, are clearly authorized therein.3 Plaintiffs' complaint identifies several cases that they note stand for the proposition that courts will strike down local tax laws that exceed the scope of their enabling legislation. Those cases are all irrelevant to this appeal. (See R.88 ~ 39.) Some concern scenarios in which the relevant enabling law required the local law to directly track specific language therein. In such instances, it is unremarkable that the courts would strike 3 Plaintiffs' argument that Local Law 43 amounted to an "expansion" of the tax base should also be analyzed in light ofthe principle that statutes should not be construed as frozen in time but, rather, drafted to account for developments over time (see Comptroller ofthe City ofNew York v Mayor ofthe City ofNew York, 7 NY3d 256,266 [2006], citing Hudson River Tel. Co. v Watervliet Tpk. & Ry. Co., 135 NY 393, 403-04 [1892]). It may well be the case that at the time of the HROT's original enactment most hotel rooms were booked and paid for directly with hotel operators. Nevertheless, simply because some transactions are now booked and paid for through room remarketers, using new technology, does not mean that those transactions are not subject to tax-particularly where taxing those transactions is supported by the plain language of the Enabling Act. 28 down local laws that differed from their enabling legislation, because there the local laws undeniably failed to comport with express statutory mandates (see Castle Oil Corp. v City ofNew York, 89 NY2d 334,337 [1996] (where the enabling legislation stated that the local law "shall be, substantially, as follows ...."); Carey Transp., Inc. v Perrotta, 34 AD2d 147 [1st Dept 1970] (noting an enabling act that required the local law to be essentially the "same as" Tax Law § 186-a); Brooklyn Union Gas Co. v McGoldrick, 270 AD 186 [1st Dept 1945], afj'd sub. nom., Brooklyn Union Gas Co. v Joseph, 298 NY 536 [1948]). Here, the Enabling Act is not set forth as a "model act," no such "same as" provision is contained therein, and Local Law 43 has not exceeded the broad authority granted thereby. Other cases cited by Plaintiffs are also distinguishable in that they concern a locality's attempt to modify an expressly defined term or taxable class described in an enabling act (compare United States Steel Corp. v Gerosa, 7 NY2d 454 [1960] (striking down the city's attempt by local law to depart from a defined term within the state authorizing law) with App. Br. 36-39; see also R.88 ,-r 39, citing Soc'y ofthe Plastics Indus., Inc. v City of New York, 68 Misc 2d 366 [NY Sup. Ct. NY County 1971] (the City was not authorized to modify a predetermined taxable class); Glen Cove Theatres, Inc. v City ofGlen Cove, 36 Misc 2d 772 [NY Sup. Ct. Nassau County 29 1962] (same). In direct contrast to those cases, Local Law 43 neither modified an expressly defined term in the Enabling Act nor attempted to expand a taxable class that was predefined therein. To the contrary, Local Law 43 finds unassailable support in the plain language of the Enabling Act as set forth by the legislature. c. Plaintiffs' References to Extraneous Information and Other Provisions of Law Apart From the Enabling Legislation are Unavailing Plaintiffs' remaining arguments all involve the suggestion that this Court examine the "history of the times" (R.3l), and in doing so: (i) read the State sales tax and City HROT in pari materia (RAO-44); (ii) consider a 2007 budget proposal that would have amended the City's HROT ifit had ever been enacted, which it was not (R.31-33); (iii) give weight to the 2010 Budget Legislation, which amended the City's HROT and the State's sales tax, instead of addressing the controlling language of the Enabling Legislation (R.33-36, 38-39); and (iv) look to the prior incarnations of the HROT and State sales tax law-neither ofwhich incorporated the contested provisions of Local Law 43-in addition to pre-Local Law 43 publications interpreting those inapposite statutes, for evidence of the City's lack of authority under the Enabling Legislation (RA4-47). Plaintiffs' arguments are devoid of any merit. 30 1. The State Sales Tax Law Plaintiffs argue that tenns set forth in the State's sales tax and the City's HROT, prior to the 2010 Budget Legislation, should be read in pari materia in order to prevent the City from deviating from those tenns through Local Law 43 (see App. Br. at 16-17,40-44). Plaintiffs cited Plato's Cave Corp. v State Liquor Auth., 68 NY2d 791, 793 (1986), for the proposition that "[i]t has, however, long been held that statutes which relate to the same or to cognate subjects are in pari materia and to be construed together unless a contrary intent is clearly expressed by the Legislature" (emphasis supplied). This raises two problems with Plaintiffs' argument, either one of which is determinative. First, Plaintiffs entirely misunderstand the relevance of canons of statutory construction. There is no need to "construe" any defined tenn in the statutes at issue, because such statutes are unambiguous and the legislative intent can be gathered from their plain language (see supra at 11- 12, 19-20). Second, even if one were to adopt the reasoning advanced in Plato's Cave to the unambiguous statutes at hand, prior to the 2010 Budget Legislation, the legislature had decidedly expressed its intent that the State sales tax and the City's HROT be read as independent statutes. It did this 31 through the plain language of the Enabling Legislation, which authorizes the City to impose the HROT in any manner supportable by the grant of authority therein, "notwithstanding any other provision of law to the contrary" (NY Unconsol. Ch. 288-C, § 1[1] (emphasis supplied)). Even if Local Law 43 were inconsistent with the State sales tax during the single year that it was in force, it was nonetheless constitutional since it retained its consistency with the Enabling Legislation, which is all that was required. In countless locations in the Tax Law, the State Legislature has expressly set forth provisions requiring a particular local tax to be enacted and applied in a manner consistent with similar provisions of state law. Accordingly, when the State Legislature desires to tie the application of a City tax to other provisions of state law, it certainly knows how to do so. This is only further compounded by the fact that the State ultimately did do so, but did so without ambiguity: "[t]he bill would also amend New York City's locally-administered hotel room occupancy tax to conform it to the methodology of the State tax in regard to room remarketers" (L. 2010, Ch. 57, Part AA § 1). To find a requirement of uniformity in administration of a tax, one must look to statutory text, not conjecture. For example, the State and City sales taxes, as well as the State-levied convention center hotel unit fee and 32 Metropolitan Commuter Transportation District (the "MCTD") sales tax, are all administered and enforced by the State of New York as part of an interrelated tax scheme. The HROT, on the other hand, is administered and enforced separately by the City, and on its own terms. (Compare NY Tax Law § 1105[e] (providing for a State sales tax on hotel occupancy, which is collected and administered by the State ofNew York), NYC Admin. Code § 11-2001[e] (incorporating into the City's sales tax the "applicable definitions, transitional provisions, limitations, special provisions, exemptions, exclusions, refunds, credits and administrative provisions" of the State sales tax), NY Tax Law § 1104[b] (providing that the hotel unit fee is "administered and collected in a like manner as the [State sales tax on hotel occupancy]"), and NY Tax Law § 1109 (providing that the MCTD's sales tax "shall be identical to the [State sales tax]" and incorporates by reference the definition and exemption provisions of that section), with NY Unconsol. Ch. 288-C § :I [2] (the HROT "may be collected and administered by the finance administrator or other fiscal officers of such city by such means and in such manner as other taxes which are now collected and administered by such officers in accordance with the charter or administrative code of any such city or as otherwise may be provided by such local law") (emphasis supplied).) 33 Because the City's administration and collection procedures regarding the HROT are severable from those of the State, uniformity in administration is negated by operation of law (id.). Plaintiffs offer no authority to the contrary, and there is no room on appeal for an unsupported contention that the Enabling Legislation must be read in pari materia with State sales tax provisions. 2. The Proposed 2007 State Budget Legislation An additional argument made by Plaintiffs is that because a 2007 gubernatorial budget proposal might have effectuated similar changes as those contained in Local Law 43, ifit had been enacted, an amendment to the Enabling Legislation was therefore a necessary prerequisite to actually adopting the changes in Local Law 43 (see R.95 ,-r,-r 58-61). Their argument is without any support in fact or law and may be dispensed with outright. The State Legislature's consideration of, but failure to adopt, a 2007 budget proposal is inherently ambiguous and susceptible to multiple, and often contradictory, conclusions (see Roberts v Tishman Speyer Props., L.P., 13 NY3d 270, 287 [2009]; see also Clark v Cuomo, 66 NY2d 185, 190-91 [1995] ("Legislative inaction, because of its inherent ambiguity, 'affords the , most dubious foundation for drawing positive inferences"') (internal citation omitted)). Indeed, it is just as likely that the State Legislature believed that 34 the City already had the authority to enact such legislation, and thought it better to allow the City to do so on its own if necessary. Regardless, as long as the City was authorized to enact Local Law 43 under the Enabling Legislation, the State's inaction in 2007 is of no moment (id.). The court below agreed: "there is no basis whatsoever to infer that consideration of legislation similar to [Local Law 43] by the State establishes the City's inability to enact [Local Law 43]" (R.21). 3. The 2010 State Budget Legislation In August of2010, following the parties' briefing ofRespondents' motion to dismiss count I of the complaint, the State enacted the 2010 Budget Legislation (see L. 2010, Ch. 57, Part AA § 1). The amendments therein were intended to: make clear that the right to 'resell' the occupancy, as well as the physical occupancy of a hotel room, are both taxable, thus removing the tax advantage that room remarketers currently have over hotel operators .... [and to] amend New York City's locally-administered hotel room occupancy tax to conform it to the methodology of the State tax in regard to room remarketers. (L. 2010, Ch. 57, Part AA § 1.) Plaintiffs claim that "[i]t was only through these ... changes that the Legislature gave the City the requisite, express authority to impose an occupancy tax on 'room remarketers'" (App. Br. at 35 35). Plaintiffs' assertion reflects a gross misapprehension of the scope of the 2010 Budget Legislation.4 First and foremost, nothing in the 2010 Budget Legislation in any way altered the Enabling Legislation, which remains the same today as it was when Local Law 43 was enacted in 2009, notwithstanding the State's decision to amend the HROT in 2010 (see NY Unconsol. Ch. 288-C § 1; L. 2010, Ch. 57, Part AA § 1). Moreover, the amendments to the HROT under the 2010 Budget Legislation were actually intended to accomplish the same central goal as was first implemented under Local Law 43-taxing the full amount charged for a hotel room.5 The State just chose a different methodology. While the effects of the 2010 Budget Legislation are likely not yet fully realized, what is clear from the plain language of its text is that the State's amendments to 4 Plaintiffs even revived the same argument they offered in connection with the 2007 budget proposal-that the State amended the Enabling Act. Plaintiffs claim that the State "chang[ed] the scope of the City's authority to impose the occupancy tax" in passing the 2010 Budget Legislation (App. Br. at 39-39, 46 (referring to the "new enabling legislation in 2010")). Such an assertion is not just overreaching, but is patently false (see L. 2010, Ch. 57, Part AA §§ 2-5 (amending the State sales tax law), §§ 6-11 (amending the City's Code)). 5 In fact, one of the stated reasons for the adoption of the 2010 Budget Legislation was "to reverse the decision of the Tax Appeals Tribunal in the Marriott International, Inc. matter on rewards program payments" (L. 2010, Ch. 57, preamble). Matter ofMarriott International, Inc., was a New York State Tax Appeals Tribunal case that prevented the State from imposing the sales tax on the full amount charged for a hotel room booked through a "rewards program" administrator, unless it first changed the language of its sales tax to cover such situations (see Marriott, DTA No. 821078, et al., 2, 20 I0 NY Tax LEXIS 7 [NYS Tax App. Trib. 2010]). 36 ---- -- - ------------------ the HROT were largely superficial, and did not alter the substantive focus advanced by Local Law 43 (L. 2010, Ch. 57, Part AA § 1). Occupants of hotel rooms in the City are still required to pay HROT on the full amount paid for a hotel room, regardless of who receives it (see id. §§ 6-11). Rather, if the 2010 Budget Legislation is probative at all, it is only relevant in demonstrating that the State had the power and authority to enact legislation that accomplished precisely what Local Law 43 was designed to do. And since the Enabling Legislation provides that the City is "authorized and empowered to adopt and amend local laws imposing in any such city a tax ... such as the legislature has or would have the power and authority to impose on persons occupying hotel rooms in such city," it is manifest that the City also wielded the same authority at the time it enacted Local Law 43 (NY Unconsol. Ch. 288-C, § 1[1] (emphasis supplied)).6 Consequently, there is no reasonable basis for questioning Local Law 43's constitutionality on the basis of these legislative budgets. 4. "40 Years of History" Plaintiffs claim that "[t]he City's and the State's past practice" show that "they both understood, prior to the enactment of the [2010 Budget 6 The 2010 Budget Legislation may equally suggest that the legislature had no question whatsoever regarding the City's authority to enact Local Law 43. 37 Legislation], that only a hotel 'operator' could be required to collect and remit the hotel taxes" (App. Br. at 44). But the structure and interpretation of the HROT as it existed prior to September 1, 2009 is entirely irrelevant to any evaluation of Local Law 43's constitutionality (R.23). There is nothing in the New York State Constitution, or any other body of law, which prohibits the City from directly amending the HROT so long as the amendment falls within the scope of the Enabling Legislation, as was the case with Local Law 43. Nevertheless, it is well settled that statutes such as the Enabling Legislation should not be construed as frozen in time, but rather drafted to account for developments over time (see Comptroller ofthe City ofNew York v Mayor ofthe City ofNew York, 7 NY3d 256, 266 [2006], citing Hudson River Tel. Co. v Watervliet Tpk. & Ry. Co., 135 NY 393, 403-04 [1892]). Nor can it be disputed that a legislative body "may spontaneously change the law whenever it perceives a public need" (Bingham v New York City Transit Auth., 99 NY2d 355, 359 [2003]). That principle is given particular force when considered in connection with the Enabling Legislation's broad language. Accordingly, simply because the City's previous permutations of the HROT statute did not include certain defined 38 terms or may have defined certain terms differently, nothing in law or equity prevents the City from subsequently adding to or changing those definitions. Similarly, Plaintiffs challenged Local Law 43's definition of "room remarketer," and the City's ability to require room remarketers to collect and remit the HROT, on the basis of City regulations that were promulgated under the HROT's prior incarnation, as well as certain New York State sales tax advisory materials (App. Br. at 44-46). Plaintiffs state that, "before it enacted Local Law 43, the City had acknowledged that, for purposes of the occupancy tax, '[t]he law requires that upon every taxable occupancy, the operator shall charge and collect the tax from the occupant'" (App. Br. at 44, citing 19 RCNY § 12-08[a] (emphasis in original)). While this is an accurate quotation from the cited regulation, Plaintiffs' reference to such material for the proposition that the Enabling Legislation somehow restricts the HROT just to "hotel operators" is entirely misleading given the fact that the HROT regulations Plaintiffs reference were promulgated long before Local Law 43 was enacted, and did not anticipate, take into account, or even purport to address the changes to the law in 2009 (see 19 RCNY § 12-08 (section in original publication July 1, 1991)). Those materials cannot be relied upon either as a basis for limiting the broad authority provided by the Enabling Legislation, or finding Local Law 43 unconstitutional. 39 Similarly, Plaintiffs identified a New York State sales tax advisory opinion7 and a New York State Department of Taxation and Finance publication ("Publication 848"), which Plaintiffs claim support the conclusion that "only hotel 'operators' could be held responsible for collecting and remitting the occupancy and sales taxes" (App. Br. at 45; see also R.212). This is equally misguided. As is expressly discussed therein, the advisory opinion only interpreted and applied the State sales tax (see R.166-71). And as Plaintiffs repeatedly point out, the State sales tax did not include the definitions provided for by Local Law 43-nor was the State sales tax enacted pursuant to the Enabling Legislation under review. The advisory opinion is entirely irrelevant here. Such is equally the case with regard to Publication 848. That publication is only "a guide to New York State and local sales and use taxes administered by the [State] Tax Department ...." (R.206). Moreover, Publication 848 provides that: A publication is an informational document that addresses a particular topic of interest to taxpayers. Subsequent changes to the law or regulations, judicial decisions, Tax Appeals Tribunal decisions, or changes in Department policies could affect the 7 All advisory opinions of this sort are non-binding with respect to the interpretation of City tax statutes and the opinions they express are "limited to the facts set forth therein" (see R.17!). 40 validity of the information presented in this publication. Publications are updated regularly and are accurate on the date issued. (Id. (dated March of2008).) Since Publication 848 predates Local Law 43, and does not even address the City's HROT, Local Law 43, or the Enabling Legislation, it must be completely disregarded. Plaintiffs do not offer any cogent explanation as to how such materials are binding on this Court's decision in this case, or how they might even be relevant to the interpretation of the Enabling Legislation or Local Law 43. It is incredible for Plaintiffs to suggest that this Court must rely on former guidance as a basis for interpreting a new law. Indeed, the Court need not look beyond two legislative enactments to formulate its decision in the instant case-the Enabling Legislation and the text of the HROT as amended by Local Law 43. All the extraneous matter and inapposite provisions oflaw advanced by Plaintiffs must be disregarded as irrelevant. 41 CONCLUSION For the foregoing reasons, this Court should reverse the Appellate Division's Order and remand this case to the Supreme Court for proceedings in connection with Count II of Plaintiffs' complaint. Dated: New York, New York January 30, 2013 42 MICHAEL A. CARDOZO Corporation Counsel of the City of New York Attorneyfor Respondents 100 Church Street, Room 5-214 New York, New York 10007 Tel: (212) 356-2114 Email: alipkin@law.nyc.gov ---~. // By: ....Jo....-O:::::""----=-_--::~----L...-_~( L Andrew G .pkin Senior Counsel