Interpacific Resorts Corporation, D/b/a Pacific Islandsclub, Plaintiff-appellee, v. Government of the Territory of Guam, Defendant-appellant.guam Dai-ichi Hotel, Inc., D/b/a Dai-ichi Hotel, Plaintiff-appellee, v. Government of the Territory of Guam, Defendant-appellant.guam Resorts, Inc., D/b/a Guam Hotel Okura, Plaintiff-appellee, v. Government of the Territory of Guam, Defendant-appellant, 70 F.3d 1278 (9th Cir. 1995)

MEMORANDUM^* 

These three appeals present the same issue we decided in our published opinion in Hotels of the Marianas v. Government of the Territory of Guam, No. 94-16413 (Marianas) . Specifically, these three appeals involve the disallowance of rebates on corporate income tax payable by the hotels to the Government of Guam (Guam). Guam's Department of Revenue and Taxation (Department) disallowed rebates on income it defined as passive income.

The district court granted summary judgment in favor of the hotels, concluding that offensive collateral estoppel prevented Guam from relitigating the propriety of the Department's interpretation. Because we affirm for the reasons set forth in our opinion in the Marianas case, we do not reach the collateral estoppel issue.

FACTS

The background facts relating to the statutory rebate scheme and the Department's interpretation are set forth in our Marianas opinion. The following factual statement is limited to the particular Qualifying Certificates (QCs) and investments by the hotels involved in these three appeals.

A. Interpacific Resorts, Appeal No. 94-16629

In 1979, pursuant to the Guam Economic Development Authority's (GEDA) recommendation, the Governor of Guam (Governor) issued QC 162 to Interpacific Resorts.¹  QC 162 provided a 75% rebate of "corporate income tax for a period of ten (10) years." In compliance with QC 162, Interpacific Resorts constructed the Pacific Islands Club.

In 1985, Interpacific Resorts submitted an application for a new QC and proposed a $25 million expansion project. Pursuant to GEDA's recommendation, the Governor issued QC 192 to Interpacific Resorts. QC 192 provides for a "Seventy-Five percent (75%) rebate of corporate income tax for a period of twenty (20) years...."

Interpacific Resorts spent approximately $25 million to complete the expansion. It received a certificate of compliance with QC 192 for the tax year involved in this dispute.

In August 1970, pursuant to GEDA's recommendation, the Governor issued QC 130 to the Guam Dai-Ichi Hotel, Inc. (Dai-Ichi Hotel). QC 130 provided "a corporate income tax rebate of seventy-five (75%) percent of all corporate income tax payable ... for a period of twenty (20) years...." The Dai-Ichi Hotel spent approximately $16 million to construct its hotel.

In 1985, the Dai-Ichi Hotel proposed a $13 million expansion and submitted an application for a new QC. Pursuant to GEDA's recommendation, the Governor issued QC 190 to the Dai-Ichi Hotel. QC 190 provides a "Seventy-Five percent (75%) rebate of corporate income tax for a period of twenty (20) years...." The Dai-Ichi Hotel has received compliance certificates for all years relevant to this dispute.

In May 1970, pursuant to GEDA's recommendation, the Governor issued QC 129 to Guam Resorts, Inc. (Hotel Okura). QC 129 provided a 75% rebate on "all corporate income tax payable to the Government of Guam for twenty (20) years...." In reliance on QC 129, the Hotel Okura constructed a hotel with 226 rooms and opened the hotel in December 1972.

Pursuant to GEDA's encouragement for expansion, the Hotel Okura submitted an application for a new QC in October 1982. GEDA recommended and the Governor issued QC 179 to the Hotel Okura. QC 179 provides a "Seventy-five percent (75%) rebate of corporate income tax for a period of twenty (20) years from the effective date of this Certificate."

Relying on QC 179, the Hotel Okura spent approximately $67 million to expand the hotel facilities. The Hotel Okura has continuously received certificates of compliance with the QCs.

In each of these three cases, the hotels sought the recovery of rebates the Department disallowed based on its active versus passive income distinction.²  The Department disallowed rebates on interest income; income received from third parties who operated gift shops, car rentals and travel services; and in the Hotel Okura case, income received from services such as beach rentals and foreign exchange provided by hotel employees.

In all three cases, the district court granted the hotels' motions for summary judgment and awarded the amount of tax rebates sought. These appeals by Guam followed.

DISCUSSION

We may affirm a district court's grant of summary judgment on any ground supported by the record. Trimble v. City of Santa Rosa, 49 F.3d 583, 584 (9th Cir. 1995). Here, we affirm the summary judgments for the reasons set forth in our opinion in Marianas. Specifically, the Department's active versus passive income distinction is contrary to the plain language of the statutory rebate scheme and the QCs involved in these appeals. The hotels are entitled to the rebates they seek.

We do not reach the collateral estoppel issue.

AFFIRMED.