After losing in court, big corporations are pushing city policy makers to exempt them from paying hotel taxes
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The major airlines that serve the Bay Area, with the help of the Hotel Council of San Francisco, are trying to get out of paying millions of dollars in taxes to the city by claiming the right to use a law that was designed to help San Francisco's poorest residents. And they're threatening to prevent their employees from staying in the city if the Board of Supervisors doesn't acquiesce to the corporate welfare demand.
At issue is the city's 14 percent Transient Occupancy Tax, which is paid by hotel guests. It is the third-largest source of local tax revenue, after property taxes and payroll taxes, bringing in $177 million in the last fiscal year. The only major exemption from the tax is for permanent hotel residents, generally those on the brink of homelessness who live in the run-down single-room-occupancy hotels for months or even years on end.
Major airlines house hundreds of their employees in San Francisco's hotels each night. They are arguing that because of past court rulings on corporate personhood — in which judges have deemed that corporations have the same rights as individuals — the airlines should be exempt from paying the tax when they rent blocks of rooms for their employees.
The airlines, in collusion with some hotels in the city, have long used the exemption to avoid paying taxes on many of the rooms they rent (about two-thirds, according to the Hotel Council, which translates into millions in lost city revenue every year). A few years ago city officials told the corporations that the exemption didn't apply to them and that they should be paying the tax.
Enacted in 1960, the Permanent Resident Exclusion exempts from the tax individuals who occupy or have the right to occupy the same hotel room for at least 30 consecutive days. "We looked at the legislative history, and it was clearly put there to help formerly homeless people," Treasurer José Cisneros told the Guardian. "The city has always said that 30 consecutive one-night stays are not the same as a 30-night stay by an individual."
The hotels and airlines challenged that interpretation and had their case thrown out of court. So now they've turned to the Board of Supervisors in the hope that they can win this chunk of corporate welfare by using threats of an economic exodus.
In October 2004, American Airlines and the San Francisco Hilton filed a lawsuit against the city arguing that airline crew members staying in San Francisco hotels qualified for an exemption from the hotel tax. The lawsuit was dismissed in May 2006 without going to trial, with Superior Court Judge James Warren ruling that the plaintiffs "did not assert and did not present any evidence that any particular room at the Hilton was continuously registered to American Airlines for more than 30 days."
To clarify any ambiguity in the law, Cisneros in May issued an interpretation stating, "Although an agreement between a person and a hotel may require that the person pay the hotel for a minimum number of 'guaranteed' daily reservations for the person's employees over a period of time longer than 30 days, such an agreement does not create any permanent resident exemption for any guest rooms unless the above criteria are satisfied," referring to criteria that include "a person is a registered hotel guest" and "that person or any of that person's employees continuously occupy or have the right to occupy the same room for 30 days or more."
Yet now, at the request of Sup. Michela Alioto-Pier, the Board of Supervisors' Government Oversight and Auditing Committee has scheduled a Nov. 19 hearing for the purpose of "explor[ing] the unintended consequences of this decision, including the loss of revenue to the City when the airlines inevitably move their crews to another location in the Bay Area where room rates are more competitive."
That implied threat comes from Hotel Council executive director Patricia Breslin, who paints a doomsday scenario if the airlines have to pay the hotel tax on every room they rent. Breslin warns that if the Board of Supervisors does not offer concessions to the airline industry, it could bring about an "economic tsunami" that would hit hotels, restaurants, and city government.
Airline employees occupy an average of 1,050 hotel rooms per night in San Francisco, according to Smith Travel Research, an information and data provider for the lodging industry. Given that the tax is collected by the hotels, Cisneros doesn't have data on how much the airlines should be paying the city. But assuming the airlines negotiate rates of about $100 per night, that would translate into more than $5 million per year.
"We pushed so hard to get them to pay it that they sued us," Cisneros told us.
Breslin said the airlines have been paying about $1.7 million per year in hotel taxes and that sales taxes generated by airline employees bring another $1.4 million into the city, all money that would be lost if the airlines go elsewhere. She said the airlines have threatened to begin putting their employees in hotels in Peninsula cities near the airport, like Burlingame, San Mateo, and even San Jose, to cut costs. Already Mexicana Airlines has stopped using San Francisco's hotels for its employees. Other airlines, such as Virgin Atlantic, United, Cathay Pacific, and Lufthansa, have threatened to follow suit.
Breslin said hotels would be forced to lay off cleaners, servers, and other low-income workers due to the loss of business that would accompany the exodus of airline employees. San Francisco, she argues, would "lose a significant revenue stream" if the airlines lose their appeal.
"It will change the economics of San Francisco," she told us. "This is not a frivolous issue."
Granting the exemption would cost the city millions of dollars, but that isn't the only reason being offered for opposing the gambit. Some city officials simply don't believe the airlines — or their employees, most of whom are union members, many of whom have contracts specifying their accommodations be in urban centers — will abandon San Francisco.
Sup. Chris Daly, who is on the Oversight and Auditing Committee, is against granting the exemption to the airlines. "They blow smoke all the time," he told us, referring to major industries such as the hotel and airline industries. "That's how they get away with not paying taxes."
Cisneros argues the airlines' threat to move their employees into suburban hotels isn't logical, noting that San Francisco hotel rooms are already far more expensive than their suburban counterparts — with or without the hotel tax — and the airlines have always chosen to keep their employees here anyway.
"I just don't think the threat is realistic at all," Cisneros said. "If they were basing their decision on which hotels are cheapest, they would have never been staying in San Francisco."
Recently compiled data and trends in tourism and hotel occupancy rates also suggest that Breslin's warning of a crippling economic backlash are unfounded. According to an August article in the San Francisco Business Times by Ryan Tate, "Next year promises to be by far the most robust for leisure and business travel in San Francisco since the dot-com boom."
He continues, "Convention business will reach more than 900,000 hotel rooms in 2008, well above the 740,000 room nights booked by conventions in 2007." The San Francisco Convention and Visitors Bureau forecasts that overall tourism will top 16 million visitors next year and that visitor spending will exceed last year's record $7.8 billion.
The taxes the city collects from hotels go toward funding a wide range of public services. Some of the money is earmarked for the Convention and Visitors Bureau and for maintaining convention facilities. Some funds are allocated for low-income housing and rent supplements. The War Memorial Department, the Asian Art Museum, and the Arts Commission all receive funding through the hotel tax as well, with excess dollars poured into the city's General Fund.
San Francisco's tourism industry is the city's largest industry and its second-largest employer, after the city and county government. "You want to make sure your number one industry is protected," Breslin told us.
Yet the policy that she's asking the city to enact runs counter to the policies in other major cities, including those thought to be less politically progressive than San Francisco. In Los Angeles, for example, only individuals can be granted exemptions from paying the hotel tax. In Chicago the exemption is even stricter and only applies to people who use hotel rooms as their domicile.