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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
07-AUG-2026
08:20 AM
Dkt. 61 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---________________________________________________________________
BOOKING.COM B.V.,
Petitioner/Plaintiff-Appellant,
vs.
GARY S. SUGANUMA, in his official capacity as the Director
of Taxation, and STATE OF HAWAIʻI Department of Taxation,
Respondents/Defendants-Appellees.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1CC191000107)
August 7, 2026
DEVENS, C.J., McKENNA, EDDINS, AND GINOZA, JJ., AND CIRCUIT
JUDGE CASTAGNETTI, IN PLACE OF RECKTENWALD, C.J., RECUSED
OPINION OF THE COURT BY McKENNA, J.
I. Introduction and Summary
Hawaiʻi Revised Statutes (“HRS”) § 91-7 (Supp. 2015)1 allows
any interested person to seek declaratory relief regarding the
1 HRS § 91-7 (Supp. 2015), “Declaratory judgment on validity of rules,” provides in relevant part:
(continued . . .)
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validity of administrative rules. We address whether this
includes challenges to the validity of tax administrative rules.
The Department of Tax (“DoTax”) says no, because HRS § 632-1
(2016),2 the general declaratory judgment statute, provides that
declaratory relief may not be obtained in any controversy with
respect to taxes. However, HRS § 91-7 contains no such
restriction.
In 2018, DoTax promulgated Hawaiʻi Administrative Rule
(“HAR”) § 18-237-29.53-10(a)(3) (the “Rule”)3 to clarify when
(. . . continued)
(a) Any interested person may obtain a judicial declaration
as to the validity of an agency rule as provided in
subsection (b) by bringing an action against the agency
in the circuit court [] of the county in which the
petitioner resides or has its principal place of
business. The action may be maintained whether or not
the petitioner has first requested the agency to pass
upon the validity of the rule in question.
(b) The court shall declare the rule invalid if it finds
that it violates constitutional or statutory
provisions, or exceeds the statutory authority of the
agency, or was adopted without compliance with
statutory rulemaking procedures.
2 HRS § 632-1(a) (2016), “Jurisdiction; controversies subject to,” provides in relevant part:
[(a)] In cases of actual controversy, courts of record,
within the scope of their respective jurisdictions, shall
have power to make binding adjudications of right, whether
or not consequential relief is, or at the time could be,
claimed, and no action or proceeding shall be open to
objection on the ground that a judgment or order merely
declaratory of right is prayed for; provided that
declaratory relief may not be obtained [] in any
controversy with respect to taxes[.]
3 HAR § 18-237-29.53-10, “Services performed by commissioned agents,” provides in relevant part:
(continued . . .)
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certain services are considered “used or consumed” in Hawaiʻi and
thereby subject to general excise taxes (“GET”). The new Rule
said that income is used or consumed where the transient
accommodation or travel-related booking is located, not where a
booking agent is situated when making the reservation. The Rule
clearly subjected Booking.com B.V. (“Booking.com”), an online
accommodation reservation platform based in Amsterdam,
Netherlands, to GET on fees collected for Hawaiʻi-based bookings.
In 2019, Booking.com sought declaratory relief under HRS §
91-7 in the Circuit Court of the First Circuit (“circuit court”)
to declare the Rule invalid based on the federal Internet Tax
Free Act (“ITFA”) and the U.S. Constitution’s Commerce and
Supremacy Clauses.
In late 2021, DoTax issued a GET assessment of more than
$19 million to Booking.com for tax years 2010 to 2020.
Booking.com appealed the assessment to the tax appeal court.
(. . . continued)
(a) Except as provided in section 18-237-29.53-04, services
performed by a commissioned agent are used or consumed
where the agent is located at the time the agent’s services
are performed; provided that:
(3) when transient accommodations or travel-related
bookings are sold, purchased, or arranged online through a
commissioned agent, the agent’s service is used or consumed
where the transient accommodation or travel-related booking
is located.
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In 2022, DoTax filed a motion to dismiss the HRS § 91-7
declaratory relief action alleging a lack of subject matter
jurisdiction. It argued the separate tax assessment appeal
rendered the HRS § 91-7 lawsuit a “controversy with respect to
taxes” precluded by HRS § 632-1.
The circuit court granted the motion to dismiss based on
its understanding that the merits of the Rule would be addressed
through the tax appeal court case.
The Intermediate Court of Appeals (“ICA”) affirmed the
dismissal, holding that (1) Booking.com lacked standing under
HRS § 91-7 and (2) declaratory relief was unavailable under HRS
§ 91-7 as this lawsuit involves a “controversy with respect to
taxes.” Booking.com B.V. v. Suganuma, CAAP-XX-XXXXXXX, 2025 WL
1322630, at *3 (Haw. App. May 7, 2025) (SDO). Booking.com
challenges these rulings on certiorari.
Preliminarily, we address subject matter jurisdiction and
mootness.
First, subject matter jurisdiction. HRS § 91-7 says an
interested person may file a lawsuit regarding the validity of
an agency rule “in the circuit court [] of the county in which
the petitioner resides or has its principal place of business.”
At oral argument, Booking.com raised this court’s holding in
Hawaii Home Infusion Associates v. Befitel, 114 Hawaiʻi 87, 157
P.3d 526 (2007). In Befitel, this court dismissed a lawsuit
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filed in the First Circuit court in Honolulu, where the agency
was located, holding that HRS § 91-7 limited subject matter
jurisdiction to the Fifth Circuit court because the plaintiff
entity had its principal place of business on Kauai. 114 Hawaiʻi
at 93, 157 P.3d at 532. Under Befitel, neither Booking.com nor
any out-of-state plaintiff would be able seek HRS § 91-7 relief
in Hawaiʻi.
We overrule Befitel. For reasons further explained below,
we hold that the pertinent language in HRS § 91-7 concerns
venue, not subject matter jurisdiction. Pursuant to the general
civil venue statute, HRS § 603-36(5) (2016),4 out-of-state
plaintiffs can therefore file an HRS § 91-7 lawsuit where the
agency is located, like Booking.com did here.
Second, mootness. While this appeal was pending before the
ICA, the tax appeal court held the Rule invalid and void as a
matter of law. DoTax argues that this case has therefore become
moot.
4 HRS § 603-36 (2016), “Actions and proceedings, where to be brought,” provides in relevant part:
Actions and proceedings of a civil nature within the
jurisdiction of the circuit courts shall be brought as
follows:
(5) Actions other than those specified in paragraphs (1)
to (4) shall be brought in the circuit where the claim for
relief arose or where the defendant is domiciled[.]
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This case is not moot. The issue is whether HRS § 632-1’s
prohibition on declaratory judgments regarding tax controversies
prohibits a HRS § 91-7 declaratory relief action challenging the
validity of a tax administrative rule. That issue is still
alive and squarely before this court. In any event, the public
interest exception to the mootness doctrine would apply.
Turning to the ICA’s holdings, we respectfully disagree.
We hold that Booking.com has standing as an “interested person.”
We also hold that HRS § 632-1’s prohibition on declaratory
judgments for controversies with respect to taxes does not
prohibit a HRS § 91-7 action for declaratory relief regarding
the validity of a tax administrative rule.
Hence, we vacate the ICA’s June 4, 2025 judgment on appeal
and the circuit court’s January 24, 2023 final judgment and we
remand this matter to the circuit court for further proceedings
consistent with this opinion.
II. Background
A. Circuit court proceedings
HAR § 18-237-29.53-10(a) preliminarily states that
“services performed by a commissioned agent are used or consumed
where the agent is located at the time the agent’s services are
performed[.]” But in March 2018, DoTax promulgated the Rule,
which changed how certain services are considered “used or
consumed” in Hawaiʻi. For online bookings, the Rule said income
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is used or consumed where the transient accommodation or travel
related booking is located, not where the booking agent
performed the booking services. This clearly subjected
Booking.com (and other online reservation accommodation
platforms) to GET on fees collected for Hawaiʻi bookings. See
Tax Information Release No. 2018-06, Dep’t of Tax (June 25,
2018).5
On January 18, 2019, Booking.com filed a HRS § 97-1
complaint in the circuit court (of the First Circuit) seeking to
declare the Rule invalid and void based on the ITFA and the U.S.
Constitution’s Commerce and Supremacy Clause.
On February 25, 2019, DoTax filed a motion to dismiss,
basically arguing that the circuit court lacked subject matter
jurisdiction and was prohibited from granting declaratory relief
in any case or controversy involving taxes based on HRS § 632-1,
the general declaratory judgment statute. HRS § 632-1 provides
that declaratory relief may not be obtained in any controversy
with respect to taxes.
According to DoTax, the HRS § 632-1 exception for tax
controversies is based on the federal Declaratory Judgment Act
(“DJA”)’s prohibition against declaratory relief “with respect
to Federal taxes[.]” See 28 U.S.C. § 2201(a).
5 https://files.hawaii.gov/tax/legal/tir/tir18-06.pdf [https://perma.cc/L7D7-5FAW].
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In opposing DoTax’s motion, Booking.com argued that HRS §
91-7 applies independently of HRS § 632-1 and allows any
interested petitioner to challenge the validity of an agency
rule, including a tax rule, even when there is no actual
controversy as required by HRS § 632-1. DoTax countered that
HRS § 91-7 did not create subject matter jurisdiction, but only
liberalized standing. Furthermore, even if HRS § 91-7 was
deemed an independent basis for subject matter jurisdiction,
DoTax contended that HRS § 632-1’s restriction on declaratory
relief for tax controversies should be read in pari materia with
and applied to HRS § 91-7.
The circuit court rejected DoTax’s motion to dismiss,
deeming HRS § 91-7 a proper basis to challenge the Rule.
Then, on November 10, 2021, DoTax served Booking.com with a
“Notice of Final Assessment of General Excise and/or Use Tax”
assessing a total of $19,737,315.28 in GET against Booking.com
for tax years 2010 through 2020. The amount of $9,464,106.71
was the principal allegedly due, while $5,678,463.95 was for
penalties and $4,594,744.62 was for accrued interest.
On December 9, 2021, Booking.com filed a notice of appeal
from the assessment to the tax appeal court, arguing it did not
file tax returns because before the Rule was implemented, it did
not have income subject to Hawaiʻi tax. As in its HRS § 91-7
action, it contended that the Rule violated federal law by
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treating Booking.com’s online activity differently from other
types of services.
On March 14, 2022, in the HRS § 91-7 action, DoTax filed a
renewed motion to dismiss, arguing that Booking.com’s tax appeal
meant that the declaratory relief action would restrain
assessment and collection of taxes in violation of HRS § 632-1.
On May 10, 2022, the circuit court expressed its
inclination to grant the motion to dismiss, not based on DoTax’s
arguments, but on the grounds Booking.com could challenge the
Rule’s constitutionality in tax appeal court. On June 13, 2022,
the circuit court filed an order granting the motion to dismiss
without prejudice, stating that it was relying upon
representations that the Rule’s validity was implicated in the
tax appeal, but inviting Booking.com to reopen the HRS 91-7
lawsuit if the Rule’s validity was not implicated in the tax
appeal.6
Booking.com appealed the circuit court’s decision to the
ICA. While the appeal was pending before the ICA, on July 7,
2022, Booking.com filed a motion with the tax appeal court for
partial summary judgment seeking a ruling that the Rule is
invalid and void. On May 8, 2023, the tax appeal court granted
partial summary judgment for Booking.com, deeming the Rule
invalid and void as a matter of law.
6 See n.7 infra.
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B. ICA proceedings
The ICA affirmed the circuit court’s dismissal, holding
that Booking.com was not “any interested person” entitled to
seek relief under HRS § 91-7 because it did not seek any ruling
regarding application of the Rule to itself. Booking.com, 2025
WL 1322630, at *3. In addition, the ICA ruled that
Booking.com’s request to declare the Rule was invalid was
prohibited by HRS § 632-1, as it would restrain and interfere
with the assessment or collection of taxes. Id.
C. Certiorari proceedings and oral argument
Before this court, the parties largely repeat their
arguments below. DoTax also argues that this case is moot
because the tax appeal court has already deemed the Rule
invalid.
At oral argument, Booking.com brought up a subject matter
jurisdiction issue based on Befitel, 114 Hawaiʻi 87, 157 P.3d
526, which is discussed below. After oral argument, we ordered
supplemental briefing, including as to whether Befitel should be
overruled.
III. Standards of Review
A. Subject matter jurisdiction
The existence of jurisdiction is a question of law that we
review de novo under the right/wrong standard. Tax Foundation
v. State, 144 Hawaiʻi 175, 185, 439 P.3d 127, 137 (2019) (cleaned
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up). Furthermore, lack of subject matter jurisdiction can never
be waived and can be raised at any time. Koga Eng’g & Const.,
Inc. v. State, 122 Hawaiʻi 60, 84, 222 P.3d 979, 1003 (2010).
B. Mootness
“Mootness is a question of law, which this court reviews de
novo.” Kiaʻi Wai O Waiʻaleʻale v. Bd. of Land & Nat. Res., 157
Hawaiʻi 303, 314, 576 P.3d 816, 827 (2025) (cleaned up).
C. Standing
“The issue of standing is reviewed de novo on appeal.” Tax
Found., 144 Hawaiʻi at 185, 439 P.3d at 137 (cleaned up).
D. Statutory interpretation
The interpretation of a statute is a question of law
reviewable de novo. In re Doe, 95 Hawaiʻi 183, 190, 20 P.3d 616,
623 (2001).
In interpreting a statute, we are guided by the following
principles:
Our foremost obligation is to ascertain and give effect to
the intention of the legislature, which is to be obtained
primarily from the language contained in the statute itself.
And we must read statutory language in the context of the
entire statute and construe it in a manner consistent with
its purpose.
Castro v. Melchor, 142 Hawaiʻi 1, 11, 414 P.3d 53, 63 (2018)
(cleaned up).
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IV. Discussion
A. Subject matter jurisdiction exists
1. Overruling Hawaii Home Infusion Associates v. Befitel,
we hold that HRS § 91-7(a) contains optional venue
language, not mandatory subject matter jurisdiction
language
At oral argument, Booking.com raised the question of
whether subject matter jurisdiction exists based on Befitel, 114
Hawaiʻi 87, 157 P.3d 526, which addressed in which circuit court
a HRS § 91-7 declaratory relief action can be filed. HRS § 91-7(a) provides that any interested person can obtain a judicial
declaration regarding the validity of an agency rule by bringing
a lawsuit against an agency in the circuit court of the county
in which the interested person resides or has its principal
place of business.
The petitioner in Befitel, Hawaii Home Infusion Associates
(“HHIA”), a supplier of medical goods and services, sued the
Hawaiʻi Department of Labor and Industrial Relations (“DLIR”)
under HRS § 91-7, challenging an agency rule precluding appeals
from billing decisions. 114 Hawaiʻi at 88-89, 157 P.3d at 527-28. HHIA filed the lawsuit in the First Circuit Court of the
City & County of Honolulu, where DLIR was based, instead of in
the Fifth Circuit Court of Kauaʻi County, where HHIA had its
principal place of business. 114 Hawaiʻi at 89, 157 P.3d at 28.
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This court held that because the plaintiff had its
principal place of business in Kaua‘i County, HRS § 91-7(a)
required the lawsuit to be filed in the Fifth Circuit. Id.
This court deemed this portion of HRS § 91-7(a) to implicate
mandatory subject matter jurisdiction, requiring filing of an
action in the county in which the petitioner resides or has its
principal place of business. 114 Hawaiʻi at 93, 157 P.3d at 532.
We ordered post-oral argument briefing on this subject
matter jurisdiction issue.
Applying rules of statutory interpretation, we now hold
that Befitel was incorrectly decided. We do not overrule
precedent unless the most cogent reasons and inescapable logic
require it. Ahn v. Liberty Mut. Fire Ins. Co., 126 Hawai‘i 1,
10, 265 P.3d 470, 479 (2011). But here, cogent reasons and
inescapable logic compel us to do so.
First, in interpreting a statute, “[o]ur foremost
obligation is to ascertain and give effect to the intention of
the legislature, which is to be obtained primarily from the
language contained in the statute itself. And we must read
statutory language in the context of the entire statute and
construe it in a manner consistent with its purpose.” Castro,
142 Hawaiʻi at 11, 414 P.3d at 63 (cleaned up).
The language of HRS § 91-7 does not refer to jurisdiction.
The legislature says “jurisdiction” when it means jurisdiction.
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See, e.g., HRS § 92F-15(e) (2012) (“The circuit court in the
judicial circuit in which the request for the record is made,
where the requested record is maintained, or where the agency’s
headquarters are located shall have jurisdiction over an action
brought under this section.”) & HRS § 412:1-108 (2025) (“For all
matters requiring or permitting judicial action or remedy in
this chapter, jurisdiction is conferred upon the circuit court
of the judicial circuit in which the principal office in this
State of the affected financial institution is located.”).
Next, the language of HRS § 91-7 says a petitioner “may”
bring a HRS § 91-7 lawsuit where the petitioner resides or has
its principal place of business. It doesn’t say “shall.”
And “[t]he term ‘may’ is generally construed to render
optional, permissive, or discretionary the provision in which it
is embodied; this is so at least when there is nothing in the
wording, sense, or policy of the provision demanding an unusual
interpretation.” State v. Kahawai, 103 Hawai‘i 462, 465, 83 P.3d
725, 728 (2004) (cleaned up). In Befitel, this court conceded
that the legislature could have drafted the statute using
“shall” instead of “may,” but said that the legislature had not
“intended to bestow an extra benefit upon HRS § 91–7 plaintiffs
that they ‘may’ ignore if they prefer to sue outside of their
own domiciles.” 114 Hawaiʻi at 92, 157 P.3d at 531.
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But the legislative intent of HRS § 91-7 was actually to
expand the court’s authority and to liberalize standing in order
to allow “any interested person” to bring a declaratory action
challenging the validity of an agency rule. Asato v.
Procurement Policy Board, 132 Hawaiʻi 333, 343-44, 322 P.3d 228,
238-39 (2014) (citing H. Stand. Comm. Rep. No. 8 in 1961 House
Journal, at 658). The legislature did not express an intent to
prevent a plaintiff from filing where the defendant agency is
located based on the general venue statute, HRS § 603–36(5). By
prohibiting HHIA from bringing the lawsuit in the First Circuit,
Befitel appears to have contradicted legislative intent.
Other rules of statutory interpretation also favor and
support overruling Befitel.
The in pari materia canon of statutory interpretation
provides that when a law is ambiguous, statutes on the same
subject matter can be construed with reference to each other.
Alpha, Inc. v. Bd. of Water Supply, 154 Hawaiʻi 486, 494, 555
P.3d 173, 181 (2024); see also HRS § 1-16 (2009) (“Laws in pari
materia, or upon the same subject matter, shall be construed
with reference to each other. What is clear in one statute may
be called in aid to explain what is doubtful in another.”).
In this regard, to the extent the relevant language of HRS
§ 91-7(a) is purportedly ambiguous with respect to whether it
concerns venue or subject matter jurisdiction, HRS § 603-36(5)
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and HRS § 91–7(a) can be read with each another. HRS § 603-36(5) is the general civil venue statute, which allows actions
to be brought in the circuit “where the claim for relief arose
or where the defendant is domiciled[.]” Before HRS § 91-7(a)
was promulgated in 1961, neighbor island plaintiffs challenging
an agency rule would have been required to file in Honolulu’s
First Circuit Court.
But Befitel recognized that HRS § 91–7(a) is for the
“convenience of the plaintiff” and now allows plaintiffs to file
in the circuit of their domicile, even if the claim for relief
did not arise or the defendant is not domiciled in that circuit.
114 Hawaiʻi at 92, 157 P.3d at 531. Therefore, reading HRS §
603-36(5) and HRS § 91–7(a) together, the second sentence of HRS
§ 91–7(a) is more logically read as expanding venue so that
petitioners can file in the circuit in which they live or have
their principal place of business, and not be required to file
in the circuit where the claim for relief arose or where the
defendant is domiciled. Yet, it could be more convenient for a
plaintiff to file in the defendant agency’s circuit, whether due
to the availability of witnesses, evidence, or specialized
attorneys.
Further, another rule of statutory interpretation is that
courts should avoid absurd results inconsistent with statutory
intent. See Nordic PCL Construction Inc. v. LPIHGC, LLC, 156
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Hawaiʻi 325, 333-34, 574 P.3d 1273, 1281-82 (2025); see also HRS
§ 1-15(3) (“Every construction which leads to an absurdity shall
be rejected.”)
HRS § 91-7 was intended to expand the court’s authority and
to liberalize standing. Booking.com is a foreign corporation
and its principal place of business is not in Hawaiʻi. Under
Befitel, no court in Hawaiʻi would have subject matter
jurisdiction over a HRS § 91-7 action filed by Booking.com or
other similarly situated plaintiffs. Such a result is absurd
and inconsistent with legislative intent.
For these reasons, we overrule Befitel and hold that HRS §
91–7(a) is an optional venue statute that expands venue beyond
HRS § 603-36(5). Pursuant to the latter, out-of-state
plaintiffs can seek declaratory relief regarding validity of an
agency rule in the circuit where the claim for relief arose or
where the defendant is domiciled. Here, as DoTax is domiciled
in Honolulu in the First Circuit, the First Circuit Court had
subject matter jurisdiction over Booking.com’s declaratory
relief action. Therefore, so did the ICA, and now, so does this
court.
B. The issue of the availability of HRS § 91-7 declaratory
relief for tax administrative rules is not moot
Next, DoTax argues this case is moot, because the tax
appeal court has already invalidated the disputed rule. On May
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8, 2023, the tax appeal court granted Booking.com’s motion for
partial summary judgment, ruling that the Rule is invalid and
void in violation of the ITFA.7
A case is moot if it has lost its character as a present,
live controversy of the kind that must exist if courts are to
avoid advisory opinions on abstract propositions of law; a case
is moot if the reviewing court can no longer grant effective
relief. Kahoʻohanohano v. State, 114 Hawaiʻi 302, 332, 162 P.3d
696, 726 (2007) (cleaned up).
Here, the issue on certiorari is not the merits of the
Rule’s validity. The issue is whether the language of HRS §
632-1 prohibiting declaratory relief for tax controversies
prohibits a HRS § 91-7 declaratory relief lawsuit challenging
the validity of a tax administrative rule. So, the case is not
moot.
But even if it was, the public interest exception to the
mootness doctrine applies when an issue “affects the public
interest and an authoritative determination is desirable for the
7 The tax appeal court also has subject matter jurisdiction to rule on the validity of a tax administrative rule pursuant to HRS § 232-12 (2017), “Powers when hearing appeals,” which gives it the powers and authority of a circuit court when hearing tax appeals:
The tax appeal court when hearing appeals, shall, in . . .
otherwise carrying out its duties and functions, have all
the powers and authority of a circuit court.
HRS § 91-7 was not cited in the briefing regarding the motion and opposition.
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guidance of public officials.” Kaho‘ohanohano, 114 Hawai‘i at
333, 162 P.3d at 727 (citation omitted). Factors include (1)
“the public or private nature of the question presented”; (2)
“the desirability of an authoritative determination for the
future guidance of public officers”; and (3) “the likelihood of
future recurrence of the question.” Id. (cleaned up).
Here, all three factors are met. The question before this
court is clearly of a public nature, because HRS § 91-7
declaratory relief is available to the public and implicates all
taxpayers. Second, adjudication on the merits by this court is
desirable, because it would provide guidance to the public and
to DoTax. Third, this issue is also likely to reoccur.
Therefore, even if this case was moot, the public interest
exception would apply.
C. Booking.com does have standing
The ICA held that Booking.com lacks standing. HRS § 91-7(a) provides that “[a]ny interested person may obtain a
judicial declaration as to the validity of an agency rule[.]”
To have standing under HRS § 91-7(a), “any interested person”
does not require an “actual case or controversy” and includes
any plaintiff who has interests that “may have been adversely
affected.” Asato, 132 Hawaiʻi at 343-44, 322 P.3d at 238-39. In
Asato, this court ruled a taxpayer plaintiff qualified as an
“interested person,” because a taxpayer challenging a specific
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bidding procedure may be “adversely affected” by the validity of
a regulation allegedly allowing an illegal expenditure of public
funds. 132 Hawaiʻi at 343, 322 P.3d at 238.
The ICA ruled Booking.com lacks standing based on language
in its briefing that it “does not seek any ruling regarding the
application of the Rule to [Booking.com] in this action.”
Booking.com, 2025 WL 1322630, at *3. The ICA therefore held
that “[i]f Booking.com doesn’t seek a ruling that HAR § 18-237-29.53-10(a)(3) does not apply to it, it is not ‘any interested
person’ entitled to declaratory relief under HRS § 91-7.” Id.
But in its initial filing at circuit court, Booking.com
pled it “may have been adversely impacted” by the Rule.
Booking.com argued it had standing because, as an online
accommodations platform based in the Netherlands, it would
likely be and, as shown by the subsequent tax assessment, was
impacted by the Rule. Booking.com’s briefing before the ICA
merely expressed its position that it was not challenging the
application of the Rule to it under HRS § 91-7; rather, it
challenges the Rule’s validity. See Puana v. Sunn, 69 Haw. 187,
189, 737 P.2d 867, 869 (1987) (“Although HRS § 91–7 does not
give the circuit court jurisdiction to hear a challenge to the
application of a rule, it clearly does provide for attacks on a
rule’s validity.”).
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Booking.com, as a business which facilitates bookings in
Hawaiʻi, is obviously an “interested person” with respect to the
validity of the Rule. Therefore, the ICA erred by ruling
Booking.com does not have standing.
D. HRS § 632-1’s prohibition on declaratory judgments for
controversies with respect to taxes does not prohibit a HRS
§ 91-7 action for declaratory relief regarding the validity
of a tax administrative rule
When construing a statute, our foremost obligation is to
ascertain and give effect to the intention of the legislature,
which is to be obtained primarily from the language contained in
the statute itself.
Nothing in the language of HRS § 91-7 says declaratory
relief cannot be granted regarding the validity of a tax
administrative rule. DoTax argues that HRS § 632-1’s
prohibition on declaratory judgments in tax controversies should
be read in pari materia and superimposed to also govern HRS §
91-7. This argument is without merit.
The in pari materia doctrine applies when a statute is
ambiguous. Earlier, we construed HRS §§ 91-7(a) and 603-36(5)
in pari materia because Befitel deemed language in the former
ambiguous with respect to whether it concerned venue or subject
matter jurisdiction. But HRS § 91-7 is not ambiguous with
respect to whether a tax administrative rule can be challenged.
It contains no language prohibiting such a challenge.
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HRS § 632-1(b) actually says that where a statute provides
a special form of remedy for a specific type of case, that
statutory remedy is to be followed. Thus, an action seeking
declaratory relief regarding the validity of an agency rule is
to be brought under HRS § 91-7, not HRS § 632-1.
HRS § 632-1 and HRS § 91-7 are separate, independent
statutes. HRS § 632-1’s tax controversy prohibition does not
apply to a HRS § 91-7 lawsuit bringing a facial challenge to
invalidate a tax administrative rule.
The ICA held that the circuit court lacked jurisdiction
over Booking.com’s lawsuit as it would restrain and interfere
with the assessment or collection of taxes. Booking.com, 2025
WL 1322630, at *3. It cited this court’s opinion in Ocean
Resort Villas Vacation Owners Ass’n v. Cnty. of Maui, 147 Hawai‘i
544, 465 P.3d 991 (2020), which held that a circuit court lacked
jurisdiction over a taxpayer lawsuit seeking declaratory relief
regarding the legality and constitutionality of Maui County’s
timeshare real property tax classification. 147 Hawaiʻi at 547,
465 P.3d at 994. The ICA said that the “proper recourse is
through the tax appeal procedures.” Booking.com, 2025 WL
1322630, at *3 n.6.
But Ocean Resorts was a HRS § 632-1 action challenging a
county ordinance, not a HRS § 91-7 action seeking declaratory
relief regarding an agency rule. Further, HRS § 91-7 only
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allows challenges to the validity of an administrative rule, not
to its application. Puana, 69 Haw. at 189, 737 P.2d at 869.
Hence, Ocean Resorts is inapposite.
This case is a prime example of why a “proper recourse”
should not be limited to tax appeal procedures. DoTax argues
that Booking.com should not have challenged the Rule under HRS §
91-7, but should have waited until DoTax assessed taxes against
it and appealed to tax appeal court. Before the Rule,
Booking.com did not file Hawaiʻi tax returns based on its belief
that it had no income taxable by Hawaiʻi. DoTax’s eventual GET
assessment was for the previous ten years, totaling over $19
million, half of which was for penalties and accrued interest.
Booking.com and other taxpayers should be able to facially
challenge the validity of tax administrative rules, even if they
cannot challenge its application to them.
Based on the plain language of HRS § 91-7, HRS § 632-1’s
prohibition on declaratory judgments for controversies with
respect to taxes does not prohibit a HRS § 91-7 action for
declaratory relief regarding the validity of a tax
administrative rule.
V. Conclusion
For the foregoing reasons, we vacate the ICA’s June 4,
2025, judgment on appeal as well as the circuit court’s January
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24, 2023 final judgment and remand to the circuit court for
further proceedings consistent with this opinion.
Nathaniel Higa /s/ Vladimir P. Devens
for petitioner
/s/ Sabrina S. McKenna
Lauren Chun
for respondent /s/ Todd W. Eddins
Thomas Yamachika /s/ Lisa M. Ginoza
for amicus curiae
Tax Foundation of Hawai‘i /s/ Jeannette H. Castagnetti
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