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  • Posts by Miriam Korngold
    Associate

    Miriam Korngold focuses her practice on federal, state, and local taxation. She represents clients in federal and state tax controversies (audits, refunds, administrative appeals, and litigation), and she assists with federal ...

Miriam Korngold is a guest author and a tax attorney at GSB. She can be reached at mkorngold@gsblaw.com or at 206.816.1308.

Oregon’s legislature has broadened Oregon’s tax on short-term room rentals (also called the transient lodging tax). The new law, Enrolled House Bill (EHB) 4120, expands the scope of persons who must collect and remit the tax and file returns.

Background and Prior Law

EHB 4120 comes after a 2013 change in the law meant to treat third-party intermediaries on par with traditional hotels and motels. Apparently, the legislature now believes the earlier change did not go far enough—so in comes the amendment.

The old law and new law both require intermediaries to collect the tax along with short-term rental providers. But the old law defined intermediaries somewhat narrowly as those who simply facilitate and charge for short-term rental sales. While some intermediaries collected and paid the tax under this framework, that approach was not consistent across the market.

For example, some cities and counties reached voluntary agreements with certain intermediary companies to collect the tax; others had to rely on property owners’ individual compliance. Some intermediary companies took the position that the tax did not apply to them.

Today’s post is co-authored by two of my colleagues in our state and local tax practice group, Michelle DeLappe and Miriam Korngold.

It is not every day that Washington’s Department of Revenue issues a determination in which the taxpayer wins. In fact, it is a rare occasion when the Department decides that it was wrong; it is perhaps even rarer for it to publish that it was wrong. Happily, one of these rare occasions recently touched the hospitality industry—specifically, the very hospitable practice of giving free meals to guests.

The taxpayer in question is an extended-stay hotel that provides guests free breakfasts and dinners during their stay. The hotel does not have a restaurant and does not serve meals to the public. The Department audited the hotel and assessed it use tax on the food and beverages used in the meals based on the argument that the hotel uses them in their business.

Washington imposes sales tax on tangible property that a business uses. For hotels, this includes furnishings and amenities provided for guests’ use; hotels even have to pay sales tax on those little bottles of shampoo because they are deemed to have “used” them by simply placing them in the guests’ rooms. And in Washington, as in most other places with a sales tax, if you use something and don’t pay sales tax on it, then you still owe tax: hence, the “use tax.”

Here, when the taxpayer bought food ingredients and beverages, it paid no sales tax. The Department’s auditor, however, argued that the taxpayer was using the food and beverages just as it uses the little bottles of shampoo—even more so because it manipulates the ingredients into meals in the hotel kitchen. The Appeals Division disagreed based on Washington’s sales and use tax exemptions for food and food ingredients and for certain beverages.

So here’s the lesson for hotels and restaurants: if you are providing complimentary food, even prepared meals, you do not need to pay sales or use tax on the food or food ingredients or on exempt beverages. Note that sales or use tax apply to alcoholic beverages and soft drinks, though. There’s still no such thing as a tax-free glass of wine!

Kudos to the Department of Revenue for recognizing the error and publishing a taxpayer-friendly decision that provides helpful guidance.

For more information, the tax determination is available here.   If you have any questions, please feel free to contact me or Michelle or Miriam directly.

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Greg Duff, Editor
Greg Duff founded and chairs GSB’s national Hospitality, Travel & Tourism group. His practice largely focuses on operations-oriented matters faced by hospitality industry members, including sales and marketing, distribution and e-commerce, procurement and technology. Greg also serves as counsel and legal advisor to many of the hospitality industry’s associations and trade groups, including AH&LA, HFTP and HSMAI.

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