Gov. David Ige recently announced his intention to veto House Bill 1850, a measure that would allow short-term rental internet platforms, like Homeaway, Airbnb and FlipKey, to collect and remit taxes for their users to the state.
In doing so, he cited fears of “unintended consequences” if this measure passed.
But the unintended consequences will be far worse if he vetoes.
Let’s be clear. This is a tax bill designed to fix a longstanding problem that the state has in collecting taxes from short-term and vacation rentals.
Simply put, the tax collection issues surrounding vacation rentals predates the internet and the many benefits that internet-enabled platforms have provided our state’s residents.
As home sharing and short-term rentals (STRs) continue to be a popular option for tourists traveling to Hawaii, state tax enforcement efforts have been unable to keep up.
This measure makes that job easier.
Platforms can sign up to become registered brokers and then automatically collect taxes from STR owners, and remit them to the state.
Contrary to opposition claims, the bill provides the state with greater transparency and additional enforcement tools it would not otherwise have.
Far from shielding anyone, this measure will give the state a way to maximize tax compliance and collect tax revenues that often go unpaid.
More important, alternative proposals made by opponents of HB 1850 are legally impermissible.
Some have suggested that the state can rely on Act 204, which imposes civil and criminal liability on both individual short-term rental operators and all advertisers — including internet platforms and newspapers with classifieds — for any failure to list Tax IDs on all advertisements.
However, this assumption is legally incorrect.
The governor and state policymakers should be aware that the federal Communications Decency Act Section 230 (CDA) provides internet platforms
liability protection from the actions of their users.
Known as “the linchpin of the modern internet,” the CDA allows today’s internet to flourish by protecting responsible internet platforms such as Facebook, Yelp and YouTube from having to police the speech of their users and every piece of content posted to their platforms.
This legislation has allowed the internet to grow and become what it is today.
Courts across the country have consistently found that Section 230 preempts state laws that attempt to hold websites liable for third-party content.
As such, the parts of Act 204 that penalize internet platforms for their users’ actions are unenforceable under federal law.
HB 1850 is the state’s only practical option to avoid losing tens of millions in tax revenue and achieving Act 204’s compliance goals.
The opportunity cost of a veto would be significant: Reliable estimates of TAT and GET revenue to the state of Hawaii from short-term rental platforms could amount to as much as $100 million per year.
Finally, we should keep in mind that this bill was supported and championed by the administration’s own Department of Taxation throughout the legislative session.
It also has broad support from the local tourism industry, including the Hawaii Lodging and Tourism Association and Waikiki Improvement Association.
As a former attorney general, I fully recognize that the issue of updating short-term rental rules and permitting has been ignored for far too long.
Clearly, this issue needs meaningful regulation at the county level.
But our tourism industry and local residents should not have to wait for those fixes before we ensure that the short-term rental industry pays its fair share of taxes now.