WRIT LARGE
In 2008, 17 Florida counties banded together to
sue four online travel companies—Expedia, Orbitz,
Travelocity and Priceline—over the booking fees they
charge to facilitate hotel reservations. The counties
wanted to start collecting Florida’s so-called “bed
tax” on these fees; the online companies said the
tax should apply only to the room rate.
Tax attorney Mark Holcomb, who represented
the companies, was struck by something he’d
never seen before in a tax case. “By and large, we
were going up against plaintiff’s personal injury
lawyers who were hired by the counties,” Holcomb
says. “That was unique in my experience.”
This, Holcomb believes, resulted in a more ag-
gressive, emotionally charged approach.
It was the kind of challenge he relishes. Some
people might get a little uneasy hearing the words
“taxes” and “creativity” together, but for Holcomb,
56, that’s exactly what appealed to him 32 years ago
when he chose to focus on state and local tax law.
Born in Coral Gables, Holcomb moved to Tal-
lahassee to attend Florida State University College
of Law, and stayed there after graduating in 1985.
He found himself attracted to state and local tax
law: “It brought great clients to work with; it was
suited to my skills—it requires attention to detail
and analytical skills—but mostly it seemed to be a
more creative aspect of tax law, which I enjoyed.”
Whereas federal tax spells everything out in
codes and regulations, he explains, “state laws
require filling in a lot of gray areas.”
He has represented clients across the spectrum:
corporate income and franchise, sales and use,
communication services, insurance premium, ad
valorem. You name it. In 1998, he represented
Newsweek against the Florida Department of
Revenue. The news magazine was seeking a sales
tax refund. Newspapers were exempt; magazines
were not. Newsweek lost in the lower courts but
prevailed at the U.S. Supreme Court. “It was so
clear to the court,” Holcomb says, “that they sum-
marily reversed the decision and remanded it back
to the state court to grant us relief.”
The online travel company case, Alachua County,
et al. vs. Expedia, Inc., et al., pitted the quartet of
online travel companies against Florida counties
with differing notions about how aggressively to
pursue the travel booking agencies over refusing to
Mark E. Holcomb
DEAN MEAD
TAX: BUSINESS
TALLAHASSEE
Have Holcomb, Will Travel
Mark Holcomb: the tax attorney who saved the day for Expedia BY STAN SINBERG
pay taxes on their booking fees—which, according
to a 2010 estimate by The Center on Budget and
Policy Priorities, a Washington, D.C., think tank,
were costing Florida $31 million to $45 million per
year in potential tax revenue.
“Some of the counties took more aggressive
positions than others,” he says. “Some counties
just sought a declaratory judgment from the court
as to whether or not these taxes were owed. But
others wanted to assess not only tax penalties and
interest, but also make claims for civil theft.”
Holcomb demurs that generally, in tax litigation,
“there’s no high drama that occurs in these cases.”
But when Judge Jim Shelfer began announcing his
decision from the Leon County Circuit Court bench,
Holcomb felt his heart drop.
“The judge starts explaining all the reasons why
the county should win and the OTCs should lose.
Then, suddenly, he stops and invokes Johnnie Co-
chran. He says, ‘But if it don’t fit, you must acquit,
I guess,’ and that if the tax doesn’t clearly apply to
the OTCs, then they have to win.” Adds Holcomb,
“It was such a stunning reversal from the direction
we thought he was going in, it took all the lawyers
there aback.”
In 2015, the case made its way to the Florida
Supreme Court, where Holcomb’s team prevailed.
That ruling, Holcomb notes, has ramifications
for other businesses in the so-called “sharing”
economy, like Airbnb.
“I think it sets precedent,” he says.
5 Things Holcomb Doesn’t Find Taxing
;; Hanging out with his three grown children
;; Antiquing with his wife, First District Court of Appeal
Judge Susan Kelsey
;; Driving in his 1946 Chevy pickup
;; Hiking and kayaking
;; Traveling—mostly to national parks out West
(and yes, he does sometimes book online)
Big cases, big clients, big adversaries
