The property tax “open rolls” period is here for Louisiana taxpayers. While this annual inspection period is important in any year, legislation which took effect in 2022 has altered the process of appealing a parish assessor’s valuation determination. Therefore, it is critical for taxpayers to take early and appropriate action.

The “open rolls” period in any Louisiana parish is the annual opportunity for taxpayers to check property tax assessments and determine whether they are correct. More importantly, it is a time to act quickly or lose your rights to contest property tax valuations. The property tax rolls are scheduled to be “open” for public inspection in selected Louisiana parishes as follows:

PARISHOPEN ROLLS DATES
Caddo08/17-08/31/2023
Calcasieu08/15-08/29/2023
East Baton Rouge08/24-09/08/2023
Jefferson08/22-9/6/2023
Lafayette08/17-09/01/2023
Lafourche08/31-9/15/2023
Livingston08/15-08/29/2023
Orleans07/15-08/15/2023
Plaquemines08/16-09/01/2023
St Bernard08/15-9/2/2023
St Charles08/15-08/29/2023
St Mary08/15-08/29/2023
St Tammany08/15-08/29/2023
Terrebonne08/21-9/5/2023
Washington08/15-9/8/2023

Open rolls dates for other parishes can be found on the Louisiana Tax Commission website. The current property tax year for Orleans Parish is 2024. For all other Louisiana parishes, the current property tax year is 2023.

In evaluating a property tax assessment during “open rolls,” information for prior tax years can be useful in determining whether there has been a change, and this information may be included on a parish assessor’s website. However, note that some parishes may not have current or accurate information online, and in those cases, it will be necessary to contact or meet with the assessor’s office for updated information. The compressed “open rolls” time window requires diligence and quick work. In addition, the property tax assessments in some parishes can be viewed through the Louisiana Tax Commission website. The website for Orleans Parish is: www.nolaassessor.com.

It is important to know that if you or your client wishes to challenge the correctness (i.e., dispute the value) of a property tax assessment and preserve rights to challenge it, the “open rolls” period is your only chance to do so. During this time (if not earlier), it’s important to review the assessor’s data and conclusions, discuss the assessor’s stance on valuation, and provide all available information to the assessor that supports the correct value. Under recent statutory changes (La. Acts 2021, No. 343, eff. January 1, 2022), a taxpayer must furnish the assessor with all information that supports the taxpayer’s valuation prior to the deadline for filing an appeal with the local Board of Review. Although the deadline date varies by parish, it is typically just a few days after the “open rolls” period closes. Beware of this very short time frame! Under the new law, which governs property tax appeals filed on or after January 1, 2022, the Tax Commission may allow additional evidence that was not provided to the assessor to be presented at the property tax hearing before the Commission. However, the recommended course is to provide the assessor all available evidence to support the correct value during, or prior to, the open rolls inspection period.

In short, August brings a different kind of heat to Louisiana property taxpayers. If you or your clients have questions or need assistance with these and other property tax matters, contact Kean Miller’s State and Local Taxation group.

On May 25, 2023, the United States Supreme Court ruled in favor of landowners seeking to build a modest home on “wetlands” in Sackett v. EPA. This ruling represents not only a clarification of a major law relevant to companies seeking to develop land near water bodies, but also a significant limitation on the EPA’s and Army Corps of Engineer’s power to regulate wetlands. The Supreme Court’s clarification of the Clean Water Act’s jurisdictional reach significantly benefits landowners from the standpoint of concerns over federal regulation of their property. However, the landowners must still comply with state and local requirements.

In 2004, the Sacketts purchased a plot of land near Priest Lake in Idaho. In preparation for building their home, they began backfilling their property with dirt and rocks. A short while later, the EPA sent the Sacketts a compliance order informing them their backfilling violated the CWA because their property contained protected wetlands. The EPA demanded the Sacketts to immediately restore the site and threatened the Sacketts with penalties of over $40,000 per day if they did not comply, despite their lot being worth only $23,000.[1]

The Sacketts filed suit alleging that the EPA lacked jurisdiction because any wetlands on their property were not “waters of the United States.” The District Court entered summary judgment for the EPA and the Ninth Circuit affirmed, holding that the CWA covers adjacent wetlands with a significant nexus to traditional navigable waters and that the Sacketts’ lot satisfied that standard. The United States Supreme Court granted certiorari to decide the proper test for determining whether wetlands are “waters of the United States.”

The Supreme Court recognized the need for clarification of the definition of “wetlands” under the CWA, due to the Act’s severe consequences even for justifiably ignorant violations. Property owners who unknowingly violate the CWA can face criminal penalties, including imprisonment, or fines of over $60,000 per day.  

Before the Court’s recent opinion, agency guidance instructed officials to assert jurisdiction over wetlands “adjacent” to non-navigable tributaries when those wetlands had “a significant nexus to a traditional navigable water.” In looking for evidence of a “significant nexus,” field agents were told to consider a wide range of open-ended hydrological and ecological factors.[2]  The significant nexus test and other obscure rules promulgated by the agencies over the years resulted in decades of uncertainty for permit applicants. Without a uniform rule established by the Court, the EPA and the Corps were free to implement a system of vague rules granting themselves broad jurisdictional reach. These interpretations led to rulings such as United States v. Deaton, where the Court held that a property owner violated the CWA by piling soil near a ditch 32 miles from navigable waters.[3]

In Sackett, the Court rejected the “significant nexus” test (from earlier decisions) in favor of a more objective rule. A five-Justice majority held that “the CWA extends to only those wetlands that are as a practical matter indistinguishable from waters of the United States. This requires the party asserting jurisdiction over adjacent wetlands to establish “first, that the adjacent [body of water constitutes] . . . ‘water[s] of the United States,’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”[4] Note that a wetland must be affirmatively connected to, not just close to, a navigable waterway in order to qualify. The Court acknowledged that a surface connection could be interrupted by “low tides or dry spells” without precluding an area from qualifying as a wetland, but the text of the opinion makes clear that, in the Court’s view, a continuous surface connection to a navigable waterbody must be maintained the majority of the time in order for an area to so qualify.

The EPA attempted to argue that “wetlands are “adjacent” when they are “neighboring” to [CWA] covered waters, even if they are separated from those waters by dry land.” The Court rejected this interpretation as “inconsistent with the text and structure of the CWA,” and also stated that such a broad scope of authority would “give[] rise to serious vagueness concerns in light of the CWA’s criminal penalties.”

The Supreme Court’s new interpretation of wetlands covered under the CWA will effectively limit the geographical reach of the EPA’s jurisdiction. Obviously, the Sackett decision does not impact state and local wetlands regulations. We encourage the reader to carefully evaluate all of the applicable requirements when dealing with wetlands issues.

[1] Sackett v. EPA Case Story | Pacific Legal Foundation

[2] Rapanos v. United States, 547 U.S. 715 (2006).

[3] United States v. Deaton, 332 F.3d 698, 702 (C.A.4 2003).

[4] Sackett, 143 S. Ct. at 1324 (quoting Rapanos, 547 U.S., at 755, 742, 126 S.Ct. 2208. Pp. 1338–41).

The 2023 Regular Session of the Louisiana Legislature wrapped on June 8, 2023. During this session, the Louisiana Legislature enacted a number of bills in the energy and environmental sector of the law. Below is a brief summary of all new relevant adopted provisions:

Energy

Act 150 (SB 103) changes the name of the Department of Natural Resources to the “Department of Energy and Natural Resources.”[1] Act 150 has an effective date of January 1, 2024. Act 455 (SB 154) establishes a new statutory framework for “renewable energy leases” and regulates leases for wind, solar, and hydroelectric energy production. The Act outlines the rights and obligations of the parties involved in said leases. Act 455 enacts new statutory provisions, R.S. 30:1161-1179,[2] and has an effective date of June 28, 2023.

DEFINITION OF RENEWABLE ENERGY LEASE

Per Act 455, a “renewable energy lease” is a defined term described as:

A lease of immovable property that is entered for the primary purpose of the lessee’s engaging in the production of wind, solar, or hydroelectric energy using the leased immovable, and any other lease pursuant to which the lessee’s primary activity on the leased immovable is the production of wind, solar, or hydroelectric energy.[3]

Act 455 further provides that the lessee’s rights in a renewable energy lease are susceptible of mortgage, as well as his rights in the buildings, improvements, and other constructions.[4] The provisions of the Act explicitly state that a renewable energy lease is not a mineral lease; however, it is evident that many provisions are similar in nature to those found in the Mineral Code.[5]

RIGHTS AND OBLIGATIONS OF PARTIES INVOLVED

Reasonable regard is required to be exercised between the owner of land burdened by a renewable energy lease and the lessee of a renewable energy lease, and the lessee of a renewable energy lease shall not unreasonably interfere with the rights of others lawfully exercising their rights in the land, subject to the laws of registry.[6] The language of the new law also establishes an obligation for the lessee to act as a reasonably prudent operator.[7]

TERMINATION AND REMEDIES FOR VIOLATION

Act 455 establishes that a renewable energy lease terminates at the expiration of the agreed term or upon the occurrence of an express resolutory condition, and if the lease is violated, the aggrieved party has a right to relief for violation.[8] The law further adopts substantially similar written notice requirements and remedies to the provisions found in the Mineral Code which govern the violation of a mineral lease. As such, the lessor is required to provide written notice of the asserted breach of performance and allow a reasonable time for performance prior to a judicial demand for damages or dissolution of the lease.[9] The lessee thereafter has 30 days after the receipt of notice to pay the rent or respond in writing stating a reasonable cause for non-payment.[10]

Moreover, dissolution is unavailable when the lessee pays the rent or royalties due within 30 days of receiving notice unless it is found that the original failure to pay was fraudulent.[11] The court has discretion to award additional damages in an amount not to exceed the amount of rent or royalties that were not timely or properly paid, interest on that sum from the date due, and reasonable attorney fees if the lessee pays the rent or royalties due within thirty days of receiving the required notice but the original failure to pay rent or royalties was either fraudulent or willful and without reasonable grounds.[12] In all other cases, damages shall be limited to interest on the rent or royalties computed from the date due, and reasonable attorney fees if such interest is not paid within thirty days of the written demand.[13] The court may dissolve the lease if the lessee fails to pay rent or royalties due and fails to inform the lessor of a reasonable cause for failure to pay, and, additionally, the court may award as damages the amount of rent or royalties due, interest on that sum from the date due, and reasonable attorney fees regardless of the cause for the original failure to pay.[14]

LESSOR’S PRIVELGE

The lessor of a renewable energy lease has a privilege on all equipment, machinery, and other property of the lessee on or attached to the property leased for the payment of his rent and other obligations of the lease.[15] This right also extends to equipment, machinery, and other property of a sublessee on or attached to the property leased, but only to the extent that the sublessee is indebted to his sublessor at the time the lessor exercises his right.[16] The lessor may also seize the property subject to his privilege before the lessee removes it from the released premises, or within 15 days after it has been removed by the lessee without consent, if: (1) it continues to be the property of the lessee and (2) it can be identified.[17]

Act 378 (HB 571) requires revenue sharing for carbon capture sequestration projects on state lands or water bottoms as follows: 30% to parishes, 30% to the Mineral and Energy Board, and 40% to the state general fund. It also increases funding for the Carbon Dioxide Geologic Storage Trust Fund.[18] Act 378 requires proper notice to parishes when the Mineral and Energy Board, the Department of Natural Resources, or Department of Wildlife and Fisheries receive an application for a permit related to carbon capture and sequestration.[19] An environmental analysis must be submitted as part of the application for a Class VI injection well permit.[20] Lastly, the enacted law also increases reporting requirements and further aligns liability provisions with current Department of Natural Resources practices and Environmental Protection Agency standards.[21]

SR 123 requests the U.S. Environmental Protection Agency to take actions necessary to timely review and grant the state of Louisiana’s application for primacy in the administration of Class VI injection well permitting.[22]

Coastal Protection and Restoration Authority (CPRA)

SCR 17 approves the comprehensive master plan for integrated coastal protection. Importantly, the “coastal master plan” must include a list of projects and programs required for the protection, conservation, enhancement, and restoration of the coastal area.[23] It must also include the action required of each agency to implement said project or program and a schedule and estimated cost for the implementation of each included in the plan.[24] In addition, the state’s “coastal master plan” must be updated every six years and outlines the strategy to combat coastal land loss and storm surge flood risk.[25] The 2023 state master plan projects include: 65 restoration; 12 structural risk reduction; $11 billion for nonstructural risk reduction; and $19 billion for dredging.[26] Lastly, SCR 6 approves the annual integrated coastal protection plan for Fiscal Year of 2024.

Conclusion

In conclusion, the legislature has enacted several additions to Louisiana’s energy and environmental laws — including adopting a new framework for “renewable energy leases.” These new laws affect the rights and obligations of owners, lessors, lessees, and operators in these developing areas of the law. Kean Miller will continue to monitor these developments. For questions or to discuss any of the foregoing, please contact Kean Miller’s Energy/Environmental Litigation Team.

[1] (Emphasis added).

[2] Although Act 455 enacts the new statutory provisions comprised of R.S. 30:1161-1179, the final statutory numbers may be redesignated by the Louisiana State Law Institute as necessary.

[3] Section 1161. Renewable energy lease.

[4] Id.

[5] Id. (Emphasis added).

[6] Section 1162. Preservation of rights.

[7] Section 1163. Lessee’s obligation to act as a reasonably prudent operator.

[8] Section 1167. Termination of renewable energy lease; Section 1168. Right to relief for violation.

[9] Section 1170. Written notice; requirements and effect on claims for damages or dissolution of lease.

[10] Section 1172. Required response of lessee to notice; effect of response.

[11] Section 1172(A). Required response of lessee to notice; effect of response.

[12] Section 1172(B). Required response of lessee to notice; effect of response.

[13] Id.

[14] Section 1172(C). Required response of lessee to notice; effect of response.

[15] Section 1176. Lessor’s privilege.

[16] Id.

[17] Section 1177. Right to seize property on premises or within fifteen days of removal.

[18] Title 30, Section 1109(A)(4). Cessation of storage operations; limited liability release.

[19] HB 571.

[20] Title 30, Section 1104.1. Environmental analysis.

[21] Title 30, Section 1107.1. Reporting; record keeping.

[22] Senate Resolution No. 123.

[23] Senate Concurrent Resolution No. 17.

[24] Id.

[25] Id.

[26]https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwi8uJmDyoeAAxVFlWoFHd_pBDUQFnoECB4QAQ&url=https%3A%2F%2Fhouse.louisiana.gov%2FAgendas_2023%2FSession%2520Wrap%2520-%25202023%2520RS.pdf&usg=AOvVaw1gAmGUkgPMd-GvadHIjE4r&opi=89978449.

On June 8, 2023, the U.S. Supreme Court narrowed the reach of the aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1). Criminal defense attorneys and federal prosecutors alike were anxiously awaiting the result in Dubin v. United States, 599 U.S. ____ (2023). The stakes were high. Commonly charged in mail, wire, bank, and healthcare fraud prosecutions, the aggravated identity theft offense revolves around the illegal use of a means of identification of another person. With its mandatory two years of imprisonment, an aggravated identity theft count tends to attract the attention of white-collar defendants.

Dubin is important for criminal practitioners because it narrows the “use” and “in relation to” elements of the aggravated identity theft offense in the context of fraud or deceit crimes involving healthcare billing. After Dubin, the government will need to prove the means of identification specifically was used in a manner that was fraudulent or deceptive, such as misrepresenting who received a service. Moreover, to meet the “in relation to” the predicate offense element, the government will need to show the misuse of the means of identification was at the crux of what made the conduct criminal.

In Dubin, Petitioner David Fox Dubin (“Dubin”) was the managing partner of a psychological clinic (the “Clinic”) in Austin, Texas. The Clinic often received referrals from an emergency shelter for children and sometimes billed Medicaid for treatment of certain patients.

Following an investigation and prosecution by the FBI, Texas Attorney General’s Medicaid Fraud Control Unit, and Department of Justice, a jury convicted Dubin of conspiracy to commit healthcare fraud, one count of substantive healthcare fraud, and one count of aggravated identity theft.

The evidence showed Dubin overbilled in four respects: (1) he billed at the licensed psychologist rate when, in fact, a clinician without that credential saw the patient; (2) he instructed employees to bill the maximum number of hours permitted by Medicaid even if they actually spent less time with the patient; (3) he billed for a full evaluation when only a partial was completed; and (4) he falsified the date that the services were provided.

The aggravated identity theft count involved a specific patient, a minor referred to as “Patient L,” who had undergone psychological testing at the Clinic. For purposes of the aggravated identity theft count, the allegedly misused “means of identification” was Patient L’s name and Medicaid identification number.

Among other grounds, Dubin appealed the aggravated identify theft conviction to the U.S. Fifth Circuit, arguing that he did not “use” Patient L’s identity within the meaning of the statute. Dubin lost his initial appeal but requested a rehearing, which was granted. In an Opinion on March 3, 2022, an en banc (and sharply divided) Fifth Circuit affirmed the conviction. The U.S. Supreme Court granted certiorari.

In a 9-0 Opinion authored by Justice Sotomayor (concurrence by Justice Gorsuch), the Supreme Court vacated Dubin’s aggravated identity theft conviction.

Mindful that it could not construe a criminal statute on the basis that the government would act with restraint, the Court rejected what it called a “sweeping” and “boundless” interpretation of the statute, one that covers “defendants who fraudulently inflate the price of a service or good they actually provided.” Justice Sotomayor used examples of a lawyer who rounds up their hours and a waiter who serves flank steak but charges for filet mignon. The Court was particularly concerned with the reach of the aggravated identity theft statute. “If [the aggravated identity theft statute] applies virtually automatically to a swath of predicate offenses, the prosecutor can hold the threat of charging an additional two-year mandatory prison sentence over the head of any defendant who is considering going to trial.”

In Dubin’s case, the Court found that his use of Patient L’s name and Medicaid number was not at the crux of what made the underlying healthcare overbilling fraudulent. The crux was Dubin’s misrepresentation about the “qualifications of [an] employee.” Patient L’s name was “an ancillary feature of the billing method employed.” Borrowing a formulation from the Sixth Circuit, Justice Sotomayor found that “[Dubin’s] fraud was in misrepresenting how and when services were provided to a patient, not who received the services.”

Moving forward, Dubin may provide criminal defense attorneys fertile ground for a targeted bill of particulars, non-pattern jury instructions, and Rule 29 arguments in cases involving alleged aggravated identity theft.

Because it was a fiscal session, the Louisiana Legislature enacted a number of key tax changes in the 2023 Regular Session that concluded on June 8, 2023. Below you will find the important substantive tax updates and their implications for taxpayers, which are addressed by tax type. A number of these changes represent welcome relief for taxpayers and improvements to the climate for business in this state. Highlights of the legislative session are discussed below.

Corporation Franchise Tax

L. 2023, SB1, SB3 (Act 435) and SB6 – Diminishing Returns: Repeal of the Corporation Franchise Tax (Vetoed by the Governor)

Although the Louisiana corporation franchise tax (“CFT”) was roundly disliked by the courts, the Department of Revenue and the business community[1] as a result of its significant complexity and potential to discourage capital investment in the state, the tax nonetheless proved difficult to kill and, has in fact, survived the most recent attempt to rid the State of this tax. In what appears to have been a bipartisan effort in this most recent legislative session, the franchise tax was slated for eventual repeal.[2] The CFT was to be phased out at the cost of certain reductions to incentive programs, discussed below. The phase-out would have begun in the 2025 CFT year (which is the 2024 income tax year) and would have been reduced by 25% for each year in which overall corporate tax collections (from the CFT and the Corporation Income Tax) exceed $600 million. The reduction was to take effect in the year following such excess. The first 25% reduction was expected to occur within the next two years and would have resulted in significant savings for corporations currently subject to the tax, with a potential for complete elimination of the tax by the 2029 CFT year. While these amendments passed both the House and Senate, on June 27, 2023, the Governor vetoed SB1 and returned it to the Senate.[3] However, if the Legislature goes back into session, it can override the veto if House and Senate each vote by a two-thirds majority to approve SB1. In that case, SB1 will become law without the Governor’s approval. While this would be a welcome development, there is not yet any firm indication that there will be such a special session.

As noted above, if the CFT repeal had gone into effect, a portion of the cost of the phase-out would have been offset by a reduction of the sales/use tax rebate and the project facility expense rebate under the Quality Jobs program, to the extent of 50% of the CFT reduction for that year. This reduction would have only affected projects for which advance notifications under the Quality Jobs program are filed after December 31, 2023, which would have been an important planning point for projects intending to apply. While these amendments, set out in SB6, passed both the House and Senate, their provisions were rendered moot by the Governor’s veto of the CFT repeal legislation, and on June 28, 2023, the Governor also vetoed SB6.[4]

SB3 was introduced with SB1 and SB6 to change the month for the annual determination of automatic rate reductions for corporation income and franchise tax from April to January. This amendment has been signed into law and applies from January 1, 2024 onwards.

Corporation Income Tax

L. 2023 HB631 (Act 430) – The “Throwout Rule” Has Been Thrown Out

The sourcing rules used to determine the sales factor for Louisiana corporation income tax apportionment have been amended to repeal the “throwout rule,” which previously excluded certain sales of intangible property from both the numerator and denominator of the sales factor. Also, sales that are now classified as generating allocable income (rental/lease/license of immovable and tangible personal property, lease/license of intangible property) have been removed from the apportionment-related sourcing provisions. The amendments have been signed into law and apply to tax years beginning on or after January 1, 2024.

Individual Income Tax

L. 2023 SB89 (Act 242) – The LDR Must Promulgate Regulations Related to the Net Capital Gain Deduction for Sale of a Louisiana Business

Act 242 requires the Louisiana Department of Revenue (“LDR”) to promulgate regulations related to the individual income tax exclusion of net capital gains arising from the sale or exchange of an equity interest or substantially all of the assets of a non-publicly traded corporation, partnership, limited liability company, or other business organization commercially domiciled in Louisiana. In addition to reducing the administrative requirements for claiming the deduction, the regulations are also expected to restrict eligibility for the deduction where a majority of the physical assets of the business organization are located outside Louisiana or where the transactions are between related parties. These amendments have been signed into law and apply for taxable periods on or after January 1, 2023.

L. 2023 HB618 (Act 413) – Still No Taking All the Credit for Taxes Paid to Other States

Restrictions on the availability of a credit for net income taxes paid in another state have been extended – (i) the credit is limited to the amount of Louisiana income tax that would have been imposed if the income earned in the other state had been earned in Louisiana, (ii) the credit is not allowed for tax paid on income that is not subject to tax in Louisiana, and (iii) the credit is not allowed for income taxes paid to a state that allows a nonresident a credit for taxes paid or payable to the state of residence. Act 413 also provides that any deductions claimed by an individual partner/shareholder/member for another state’s entity level tax are in lieu of the credit and not in addition to it, i.e., no double benefit will be allowed.

In addition, the requirement of reciprocity in order to take a credit for taxes paid to another state (i.e., that the other state must grant a similar credit against Louisiana individual income tax) is eliminated. These amendments have been signed into law and will apply to taxable years beginning on or after January 1, 2023.

Pass-Through Entity Tax

L. 2023 HB428 (Act 450) – Expanded Access to the Pass-Through Entity Exclusion for Partnerships, Estates and Trusts

The pass-through entity exclusion (the “SALT cap workaround”) has been extended to partnerships, estates, and trusts, which will enable such entities to exclude net income or losses received from a related entity in which the partnership, estate or trust is a shareholder, partner, or member, provided that payor entity properly filed an entity-level Louisiana tax return that included the net income or loss in question. The exclusion will not apply to any amount attributable to income that does not bear the entity-level tax for any reason. Previously, this exclusion was only available to individuals.[5] These amendments have been signed into law and will apply to taxable years beginning on or after January 1, 2023.

Sales and Use Tax

L. 2023 HB171 (Act 15) – Thresholds Modified for Remote Sellers and Marketplace Facilitators

Previously, the Louisiana threshold for a remote seller or marketplace facilitator to register, report and remit use tax (both state and local) was gross revenue for sales delivered into Louisiana in excess of $100,000, or more than 200 transactions. Act 15 repeals the 200-transaction threshold. This development comes on the heels of South Dakota repealing the same transaction threshold earlier this year – that threshold was acknowledged in Wayfair[6] as one of the benchmarks to determine if a remote seller availed itself of the substantial privilege of carrying on business in a state so as to justify an obligation to remit the tax.

Act 15 also provides that only remote retail sales (and not excluded transactions such as resales) would be counted towards the $100,000 threshold for marketplace facilitators. These amendments have been signed into law and take effect from August 1, 2023.

Interestingly, Halstead Bead Inc., a small out-of-state retailer that challenged Louisiana’s decentralized local sales and use tax administration in federal court[7], informed the U.S. Court of Appeals for the Fifth Circuit that this amendment rendered its pending appeal moot because it does not expect to cross the higher $100,000 threshold and will therefore not be liable to report and remit tax in Louisiana. But the parishes in the matter counter-argued that the challenge was only mooted to the extent of the 200-transaction threshold but not the $100,000 threshold, and also that the new law would not take effect until August 1, 2023, ostensibly in a bid to persuade the court not to dismiss the matter and to issue a decision that Louisiana’s decentralized system is constitutional. The Fifth Circuit ultimately issued a decision on July 7, 2023 that Halstead Bead Inc.’s challenge to the Louisiana tax system was barred by the Tax Injunction Act.

L. 2023 HB558 (Act 375) – Centralized Remittance and Reporting of Local Sales and Use Tax

The Uniform Local Sales Tax Board (“ULSTB”) has been tasked with setting up a uniform return and remittance system where a taxpayer can file returns and deposit all local sales/use taxes electronically within a single portal. This responsibility previously lay with the LDR but the ULSTB already has experience with setting up similar uniform programs for multi-parish audits, refunds and voluntary disclosure in a bid to simplify local tax administration.[8] The new uniform return and remittance system must be available for use no later than January 1, 2026, and once implemented, should ease compliance with Louisiana local sales/use tax although its exact features remain to be seen. The new system will also include information on the applicable tax rates and exemptions, which is to be provided to the ULSTB by the parish collectors, and any rate changes[9] are to be notified in advance. A taxpayer’s reliance on the rates and exemptions in the new system will be an absolute defense against any claim for a taxing authority’s sales and use tax. These appear to be “hold harmless” clauses designed to protect taxpayers and parish collectors when parish sub-jurisdictions delay reporting boundary changes or rate changes. These amendments have been signed into law and will take effect on January 1, 2024.

L. 2023 HB629 (Act 382) – Sales and Use Tax Exemption for Certain Topical Drugs

The exemption from local sales and use tax for prescription drugs administered exclusively to a patient in a medical clinic (as defined) has been extended to cover those administered by topical system. In addition, drugs for neuropathic pain have also been included under the exemption. These amendments have been signed into law and will take effect on July 1, 2023.

L. 2023 HB161 (Act 62) – Sales and Use Tax Exemptions Benefitting the Seafood Industry

The exemption for various materials and supplies to commercial fisherman[10] as well as related seafood processing facilities has been made mandatory for local sales and use tax. Previously, each parish could determine whether and to what extent to adopt the exemption. The amendment effects uniform treatment for such transactions at a state and local level. The scope of the exemption is fairly wide – covering materials and supplies necessary for repairs to the vessel or facility that become a component part of the vessel or facility, materials and supplies that are loaded upon the vessel or delivered to the facility for use or consumption in the maintenance and operation, and repair services performed upon the vessel or facility – and may therefore be relevant to a number of industries. This amendment has been signed into law and will take effect on August 1, 2023.

L. 2023, SB8 (Act 249) – No Interest When Local Sales/Use Taxes Paid Under Protest

In a welcome move, interest is no longer payable where a collector prevails against an unsuccessful taxpayer in a suit in which the taxpayer has paid the taxes under protest. This amendment repeals the interest liability that was introduced just last year as part of the 2022 Regular Session and was roundly criticized as double-dipping by collectors who could invest the disputed funds while the matter was pending resolution. It should also be noted that there is no interest liability when it comes to state sales/use tax[11] and the amendment reintroduces parity on that count.

On the downside, where interest is payable on a refund of tax paid under protest (i.e., when a taxpayer prevails), the interest rate has been reduced from 12% per annum to the judicial interest rate (currently, 6.5% per annum). These amendments have been signed into law and will take effect on August 1, 2023. Based on a 2015 change to the law, where a parish collector has deposited the monies into an interest-bearing escrow account, the taxpayer will be paid only the interest actually earned and received by the collector.

Ad Valorem Tax

L. 2023, SB5 (Act 284) – New Alternatives to Payment Under Protest When Challenging Property Tax Assessments

Taxpayers are no longer forced to pay ad valorem property taxes under protest in order to contest legality or correctness before the Board of Tax Appeals or a district court. Instead, a taxpayer may timely[12] file a rule for bond or other security (which includes a pledge, collateral assignment, lien, mortgage, factoring of accounts receivable, or other encumbrance of assets). The Board of Tax Appeals or district court may permit the posting of a bond or other security for all or part of the taxes at its discretion. No collection action will be taken in relation to the assessment of tax and interest unless the taxpayer fails to furnish such bond or security. Note that if a bond or other security is posted and the taxpayer is ultimately unsuccessful, interest will run until the date the taxes are paid (because there was no payment under protest to stop the interest clock).

The amendments also clarify that a taxpayer challenging the correctness of an assessment before the Louisiana Tax Commission (“LTC”) does not need to pay the tax or post security, including during an appeal against the LTC’s determination by any other party. If the taxpayer appeals against the LTC’s determination, the amount of the payment under protest or alternate security will be based upon the LTC’s determination. These amendments have been signed into law and will take effect on August 1, 2023.

L. 2023 HB279 (Act 161) – Modification to Rules on Confidentiality of Assessment Information Provided to the LTC

The provisions relating to confidentiality of information submitted to the LTC have been modified. Any current-year assessment information submitted to the LTC on or after January 1, 2024, may be provided to any individual or other entity for use in a business unless it is deemed or designated confidential by an assessor, or relates to public service properties. For assessment information submitted to the LTC prior to January 1, 2024, historical information held by the LTC and viewable from the LTC’s website that is at least one year old may be provided to a taxpayer in electronic form. The one-year requirement will not apply to assessment information submitted to the LTC on or after January 1, 2024. This amendment has been signed into law and will take effect on January 1, 2024.

Common Administrative Provisions for State Taxes

L. 2023, SB75 (Act 289) – Deadline for Payment under Protest of Self-Assessed State Taxes

In recent case Barron, Heinberg & Brocato, LLC vs. Louisiana Department of Revenue, State of Louisiana, the Board of Tax Appeals recently held that a taxpayer can choose to pay under protest any state tax self-assessed on a return, finding that there was no clear deadline in the applicable statute.[13] Act 289 substantively changes the law in relation to the Barron decision and requires a taxpayer to pay self-assessed taxes under protest within 60 calendar days of the date of a notice of tax due going forward.[14] The notice must be sent by certified mail where the amount due exceeds $1,000. The provisions of Act 289 apply to assessments and notices mailed on or after October 1, 2023.

Conclusion

This year’s regular session was particularly contentious, but the Legislature nonetheless came together to address a number of important tax matters including the eventual elimination of the franchise tax and the imposition of interest on taxes paid under protest at the local level in certain circumstances. Unfortunately, the governor vetoed the franchise tax repeal but other changes became law. The list above is not exclusive. It’s important to keep an eye on developments as they occur. For questions or to discuss any of the foregoing, please contact Kean Miller’s tax team: Jaye Calhoun at (504) 293-5936, Willie Kolarik at (225) 382-3441, Phyllis Sims at (225) 389-3717, or Divya Jeswant at (504) 293-5766.

[1] Our colleague, William J. Kolarik, II, wants you to know that he is not celebrating the Governor’s veto as a public policy matter. While we had mentioned earlier that he is in the minority in that he would have missed the franchise tax, having figured it all out at this point, as we have spent a significant part of our careers assisting clients with franchise tax issues, he nonetheless understands that its unwieldy structure and anti-economic development policy was not good for the State.

[2] Interestingly, a 25% reduction based on current collections would arguably never have resulted in complete repeal in that simply reducing the tax by 25% each time the condition is met results in a continuously diminishing fraction which, while producing almost negligible tax liability, would nonetheless never reach zero.

[3] https://gov.louisiana.gov/assets/SB1Veto.pdf.

[4] https://gov.louisiana.gov/assets/2023Vetoes/SB6.pdf.

[5] La. R.S. 47:297.14.

[6] South Dakota v. Wayfair, Inc., 138 S. Ct. 2080 (2018).

[7] Halstead Bead, Inc. v. Richard, 5th Cir., No. 22-30373.

[8] https://www.salestaxportal.com/.

[9] A rate change includes a new tax, a change in the rate of tax, a change in the boundary of a parish sub-jurisdiction, the introduction/repeal/modification of an exemption etc.

[10] Who own, lease or exclusively contract a vessel operated primarily for the conduct of commercial fishing as a trade or business.

[11] La. R.S. 47:1576.

[12] Within the usual appeal deadline in the case of a correctness challenge, and before the taxes are due in the case of a legality challenge.

[13] No. 12963C c/w 12984C, (La. Bd. Tax App. July 13, 2022).

[14] La. R.S. 47:1568. Note that the initial proposal was for a thirty-day deadline but was amended to ensure that a taxpayer had sufficient time to make payment after receiving the notice of tax due.

United States District Court Judge P. Kevin Castel issued an opinion on June 22, 2023, imposing sanctions and other penalties on the attorneys who relied on the artificial intelligence application, ChatGPT, in citing to fake cases in pleadings submitted to the court earlier this year.

Judge Castel’s thirty-four page opinion details the missteps of the lawyers, including filing the submission citing the fake cases, failing to withdraw the submission after opposing counsel identified the fake cases, doubling down on the existence of such cases when their validity was called into question, offering false information to the court in order to obtain an extension to a court ordered deadline, and providing “shifting and contradictory explanations” as to how and why the bogus case citations were submitted to the court.

The opinion makes clear that the real issue was the fact that the lawyers continued to mislead the court. Judge Castel wrote that, had the lawyers come clean about their actions shortly after they received the opposing parties’ brief questioning the existence of the cases, the outcome may have been different. While “poor and sloppy research” would amount to mere “objectively unreasonable” actions, the court found that the lawyers acted with subjective bad faith in violation of Federal Rule of Civil Procedure 11 based on all the subsequent failures to disclose.

Luckily for the offending attorneys, the court found that their submission of the fake opinions did not constitute a violation of 18 U.S.C. § 505. The statute states that it is a crime to knowingly forge the signature of a United States Judge or the seal of a federal court. Because the fake opinions did not include a signature or seal, the statute was not violated. But the court noted that the submission of fake opinions raises concerns with protecting the integrity of federal judicial proceedings and is an abuse of the adversary system.

Ultimately, the implicated lawyers were required to pay a penalty of $5,000 and to send letters to each individual judge falsely identified as the author of the fake opinions. Judge Castel’s opinion is a reminder that while a court may be forgiving of a lawyer’s choice to cut corners, lying to the court is still sanctionable.

Cite: Mata v. Avianca, Inc., No. 22-cv-1461, slip op. (S.D. NY. June 22, 2023).

On Tuesday, May 16, 2023, the D.C. Circuit denied in part and dismissed in part a petition for review filed by environmental groups, the Center for Biological Diversity, and the Sierra Club (collectively, “Petitioners”). Ctr. for Biological Diversity v. FERC, D.C. Cir., No. 20-01379, 5/26/2023. The petition sought a review of the Federal Energy Regulatory Commission’s (“FERC”) approval of a controversial $39 billion liquefied natural gas (“LNG”) project in Alaska.

This Alaska LNG project would build liquefaction facilities on the Kenai Peninsula to uptake gas and ready it for transportation through an 807-mile pipeline. A pipeline that can transport up to 3.9 billion cubic feet of gas daily to the plant.

According to the Petitioners, FERC’s approval of the project and its associated environmental impact statement violated the National Environmental Policy Act (“NEPA”), which requires agencies to “take a hard look at the environmental consequences before taking a major action.” Petitioners raised two central challenges to FERC’s decision: (1) the ruling erroneously failed to comply with NEPA, and (2) FERC’s substantive decision to authorize the LNG project was arbitrary and failed to satisfy the Natural Gas Act (“NGA”).

Concerning their first challenge, Petitioners asserted five arguments in support: (1) FERC failed to comply with NEPA because it inadequately considered alternatives to the LNG project; (2) FERC acted arbitrarily and contrary to law by refusing to employ the “social cost of carbon” metric to estimate the significance of the project’s direct emissions of greenhouse gases; (3) FERC failed to consider the project’s indirect greenhouse gas emissions; (4) FERC failed to adequately consider the impact of the project on the endangered Cook Inlet beluga whales; and (5) FERC’s evaluation of the project’s impacts on the wetlands was arbitrary and capricious.

The three-judge panel rejected all of the Petitioners’ arguments. First, the Court ruled it lacked jurisdiction to consider the Petitioners’ challenge regarding the “social cost of carbon” because the groups’ rehearing petition did not raise that issue. While the Petitioners discussed the social cost of carbon in their petition, they did not root their argument in the proper regulation, 40 C.F.R. § 1502.22. The panel noted the Petitioners only cited the regulation one time, in a “see, e.g.,” citation, which was not sufficient to put FERC on notice of the applicability of 40 C.F.R. § 1502.22, nor was it enough to properly raise the argument before the Circuit.

Next, the panel ruled FERC adequately considered reasonable alternatives but rejected them because they wouldn’t have furthered the project’s purpose or reduced environmental impacts. The Court also determined Petitioners’ remaining arguments failed because FERC’s decision not to consider the indirect effects of Alaska-bound gas was lawful, FERC adequately considered how noises and ship traffic might harm the endangered beluga whales, and how the construction of the liquefaction facilities could impact wetlands.

What’s more, the Court reasoned that under FERC’s delegated authority, it “‘shall issue’ authorization for LNG facilities ‘unless’ it determines doing so ‘will not be consistent with the public interest.’” Thus, FERC’s approval of the LNG project comported with the NGA because the agency concluded the project was in the public interest due to its substantial economic and commercial benefits, which outweighed any projected environmental impacts. The Circuit concluded its opinion by noting, “[i]n approving the Alaska Liquid Natural Gas Project, the Commission complied with the NGA, NEPA and the APA.” In sum, while the Petitioners “may disagree with the [FERC]’s policy choice to approve the Project, … the Commission comported with its regulatory obligations.”

When President Joe Biden expressed his concerns about children’s Internet usage during his 2023 State of the Union address, Louisiana certainly agreed with that concern. On June 8, 2023, the Louisiana legislature enrolled for Governor John Bel Edwards a bill intended to extend parental consent requirements on social media use by children under the age of 16. This bill is only one of many that have been proposed and passed by states and the federal government to restrict or limit children’s access to social media. Some of the most notable include California’s Age Appropriate Design (requiring tech companies to design applications that implement privacy by default), the Utah social media regulation amendments (requiring parental consent for users under 18, imposing a curfew for social media use, and restricting messaging abilities), and the proposed federal Protecting Kids on Social Media Act (setting a minimum age of 13 for social media). If signed, the Louisiana bill would become effective on July 1, 2024.

The bill applies only to social media companies, as it is a direct response to rising concerns about child mental health and development, cyberbullying, addiction, and data collection associated with social media platforms.  “Social media company” means a person or entity that provides a social media platform that is an interactive computer service to at least 5 million users. A “social media platform” is a public or semipublic internet-based service or application with Louisiana users that connects users for social interaction and allows users to do all of the following: (1) construct a profile for signing in and using the service; (2) create a list of other users that the user has a social or virtual connection, including subscribing to content related to other users; and (3) create content viewable to others. Certain services for K-12 schools are not considered to meet the criterion for connecting users for social interaction.

In an effort limit the applicability to just the large social media companies, the bill lists 21 exceptions to the definition “social media platform.” The services included in that list are services where the predominant or exclusive function are:

  • Email.
  • A service that does not allow minors to use the platform and uses commercially reasonable age assurance mechanisms to prevent minors from becoming a user.
  • Streaming services that only provides media to end users.
  • News, sports, entertainment, or other non-user generated content providers where any user interaction is limited to commenting on the service provided content.
  • Online shopping where the only user interaction is limited to uploading items for sale or submitting product reviews.
  • Interactive or virtual gaming where the user-provided content and communication is for the purpose of the gaming, educational entertainment, or associated entertainment.
  • Photographic editing services where interaction is limited to liking or commenting.
  • Sufficiently moderated single purpose community groups for public safety.
  • Business-to-business software, teleconferencing services, and technical support.
  • Cloud computing services, including cloud storage and shared document collaboration.
  • Academic, scholarly, or genealogical research.
  • Internet access and broadband service.
  • Classified advertising services with limited user interaction.
  • Services used under the direction of an educational entity where the majority of content is provider-created or posted and the ability to interact is directly related to the provider’s content.

If an online service does qualify as a social media platform that is not subject to these exceptions, then the social media company must obtain express parental consent for a minor to use its services. “Minor” is any person under the age of 16 that is not emancipated or married. Express parental consent has been a requirement since 2000 for websites directed towards children under the age of 13 through the Children’s Online Privacy Protection Act (COPPA). The Louisiana bill will extend that requirement to children under 16 for the social media companies, regardless of whether they are directed at children.

The bill does offer several methods to obtain express parental consent but allows for “any other commercially reasonable method” to allow for changes in technology. Methods include a form the parent can mail in or sign, a telephone number to call in consent, video conferencing to confirm consent, collecting the parent’s ID and then deleting it after verification, and responding to an email and taking additional steps to verify the parent’s identity (known as the “email plus” method). Interestingly, some of the methods listed in the bill are methods that the Federal Trade Commission has said are not sufficient for age verification under COPPA. Namely, the “email plus” method is only acceptable under COPPA if the child’s information is only used internally and will not be disclosed to others. The Department of Justice may develop additional rules for age verification and parental consent.

The social media platform must also offer the consenting parent additional controls over their child’s use of the services by enabling account supervision functionality. This function must allow a parent to view the minor accounts’ privacy settings, set daily time limits for the service, schedule breaks, and offer the minor the option to notify their parents when reporting a person or issue. The bill is silent on whether the account supervision will be turned off once the user is 16.

The social media platform must also curtail the way they use data collected from users under 16. First, the social media platform must prohibit adults from direct messaging a minor unless the minor is already connected to the adult on the service. This requirement is similar to one imposed by the FTC in a consent judgment against Meta. Second, the social media company cannot base advertising to the minor on any personal information other than age and location. Last, the social media company cannot collect or use the minor’s personal information from posts, content, messages, or usage activities for reasons beyond what is necessary for the original reason it was collected or disclosed.

Enforcement is solely by the division of public protection of the Department of Justice, and no private right of action is available. However, any person can submit a complaint to the division. Penalties for non-compliance can be an administrative fine of up to $2,500 per violation, injunctions, forfeiture of any profits, damages to the aggrieved person, and any other relief the court considers reasonable and necessary. The bill does provide for a 45-day cure period for violators to cure the violation before enforcement. Any money collected by the division for violations are to be used for consumer protection and education purposes.

With this bill, Louisiana joins a growing collection of states acting to effectively raise COPPA applicability for social media companies. Whether the efforts will be effective in limiting problematic social media use for children remains to be seen, but the bill provides for an annual reporting requirement on its effectiveness. Considering the FTC heavy focus on children’s privacy (accompanied by heavy fines), social media use by children will continue being strictly scrutinized.

Images from Opinion of the Supreme Court of the United States.

On June 8, 2023, the United States Supreme Court unanimously ruled in favor of Jack Daniel’s in the case of Jack Daniel’s Properties, Inc. v. VIP Products LLC, 599 U.S. ___ (2023). The case arose from Jack Daniel’s complaint about VIP’s sale of a dog toy designed to resemble a bottle of Jack Daniel’s whiskey. As shown below, there is no question that the VIP bottle is designed to resemble the Jack Daniel’s bottle, although several of the notable components are modified for comedic purposes.  For example, “Jack Daniel’s” is replaced with “Bad Spaniels”, and references to Old No. 7, is replaced with a numeric nod to dog excrement.

Jack Daniel’s sent a cease and desist letter to VIP shortly after the product launched. VIP filed suit, seeking a declaratory judgment that Bad Spaniels neither infringed nor diluted the Jack Daniel’s brand. Jack Daniel’s countersued, and the District Court initially ruled in favor of Jack Daniel’s, finding both infringement and dilution by tarnishment.

The 9th Circuit reversed on appeal. Finding that the design of the Bad Spaniels bottle was an “expressive work” parodying the elements of the Jack Daniel’s bottle for non-commercial purposes, the 9th Circuit held that the District Court erred in not applying the threshold First Amendment test derived from Rogers v Grimaldi, 875 F. 2d 994, 999 (2nd Cir. 1989). The goal of the Rogers test is to limit the application of the Lanham Act to expressive works where “the public interest in avoiding consumer confusion outweighs the public interest in free expression.” Under the Rogers test, the use of another’s mark in an expressive work will not be actionable under the Lanham Act unless it “has no artistic relevance to the underlying work whatsoever, or if it has some artistic relevance, unless [it] explicitly misleads as to the source or content of the work.” These factors are not a rigid test to be applied mechanically, but instead a balancing test that recognizes that the trademark rights of the senior user and the public’s right to not be confused must be carefully weighed against the artistic license granted to the junior user. The 9th Circuit remanded the dispute to the District Court to review in light of the Rogers test, where the District Court found that Jack Daniel’s could not prove the VIP product had no artistic relevance nor that the product was explicitly misleading.  The 9th Circuit affirmed the ruling, and the Supreme Court granted certiorari.

In a 9-0 opinion drafted by Justice Elena Kagan, the Supreme Court reversed the 9th Circuit’s holding. The Supreme Court criticized the 9th Circuit’s opinion that “because Bad Spaniels ‘communicates a humorous message,’ it is automatically entitled to Rogers’ protection.” The Court noted that applying Rogers to all matters where there is an expressive element would impermissibly extend Rogers to nearly all facets of life and potentially supplant the purpose of trademark law.  The Court explained that trademarks act “as source identifiers—as things that function to ‘indicate the source’ of goods, and so to ‘distinguish’ them from ones ‘manufactured or sold by others.’ And because of this, “trademarks are often expressive, in any number of ways.”

The opinion stresses that the defendant’s use must be considered in determining the applicability of the Rogers test. Citing to a litany of cases, the Court noted that the Rogers test has traditionally been used only in the context of “non-trademark” use, i.e., where the defendant has used the mark at issue in a “non-source-identifying way”, typically in an expressive function. For example, as noted by J. Kagan, the Ninth Circuit applied the Rogers test to evaluate the band Aqua’s song “Barbie Girl” when toymaker Mattel sued the group for trademark infringement. Here, the record presented evidence—including even VIP’s own admission—that VIP used the design elements as a source identifier for its products. As such, the Rogers test should not have been applied. 

The Court further reversed the 9th Circuit’s ruling as to the “fair use” defense related to dilution by tarnishment. The 9th Circuit opined that VIP’s use of the mark was non-commercial in nature even if it was used to sell a product because it “parodies” and “conveys a humorous message.” Without setting the limits of “noncommercial use”, the Court expressly rejected the opinion that every parody or humorous commentary would automatically benefit from this defense. Instead, the Court again turned to the purpose of the use as codified in Section 43 of the Lanham Act, finding that the defense does not apply when the use is as a designation of source for the person’s own goods or services, as VIP had admitted its use to be. 

In summation, the Court held as follows and remanded the case for further proceedings consistent therewith:

Today’s opinion is narrow. We do not decide whether the Rogers test is ever appropriate, or how far the “noncommercial use” exclusion goes. On infringement, we hold only that Rogers does not apply when the challenged use of a mark is as a mark. On dilution, we hold only that the noncommercial exclusion does not shield parody or other commentary when its use of a mark is similarly source-identifying. It is no coincidence that both our holdings turn on whether the use of a mark is serving a source-designation function. The Lanham Act makes that fact crucial, in its effort to ensure that consumers can tell where goods come from.

As the opinion notes, the Court did not make any decisions as to whether VIP actually infringed Jack Daniel’s trademark rights. That decision will be in the Ninth Circuit’s hands, who are ordered to review the dispute without using the Rogers test. Jack Daniel’s must still demonstrate that VIP’s products are likely to confuse an ordinary consumer as to the affiliation between VIP and Jack Daniel’s and dilute Jack Daniel’s brand, although such was already determined when the matter was first heard by the District Court. This case will likely be watched closely by famous brands who often find their brands parodied in unrelated products, as they seek to prevent any damage to their brand image.

We also note that this is the second case within the past month where the Supreme Court reined in a fair-use defense in the context of the nature of the use. In Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. ___ (2023), which we discussed here, the Supreme Court declined to extend fair use to the Andy Warhol Foundations’ licensing of a Warhol print that was based on a photograph of Prince. In that case, the Court focused on the economical use and purpose of the original photograph. The Supreme Court is clearly sending a message that fair use will continue to be fact intensive to the specific issue at hand and that the specific use of the contested material is a crucial focus point. 

With the revamp of the residential short-term rental regulations passed recently, the New Orleans City Council has turned its attention to commercial short-term rental (“CSTR”) regulations.  The City Council has asked the City Planning Commission (“CPC”) to study the regulations to determine the overall impact of CSTRs on the City’s neighborhoods.  In particular, the CPC is to analyze the overall impact of CSTRs on the availability of both affordable and market-rate housing and make recommendations on possible solutions to mitigate CSTR impacts on citizens’ quality of life.  Areas for analysis include:

  1. Limitation on number of units per building;
  2. Limitation on number of rooms and guests, by unit;
  3. Other density limitations, which may vary by zoning district, zoning district classification, future land use designation, or other such land use designation;
  4. Number of commercial permits allowed per owner and/or operator;
  5. Requirement that each permit holder is a natural person, not a juridical person;
  6. Strengthened requirements, including density limitations and other new standards, for CSTRs that 1) abut residential or mixed-use zoning districts, and/or 2) are located in the building that also houses long-term residents, so as to mitigate quality-of-life impacts;
  7. A ban on whole home or whole building CSTRs;
  8. A requirement for CSTRs to be located on the same lot, parcel, or building as other commercial uses;
  9. Possible use of CSTR allowances to incentivize the development and/or preservation of affordable housing;
  10. In buildings with units used for both long-term and short-term housing, requiring separate entrances to access short-term dwelling units;
  11. Requiring other standards for entry, including keypads;
  12. Requiring on-site operators; and
  13. Overall impact of CSTRs on the availability of long-term housing, both affordable and market rate, and possible measures to mitigate such impacts, including but not limited to, an overall cap on persons or permits who may participate in the commercial short-term rental market, and increasing the price of a commercial short-term rental owner and/or operator permit.

At the CPC’s public hearing on the topic, there were comments for and against strengthening the current CSTR regulations.  Those in favor of strengthening the regulations argued that CSTRs are affecting New Orleans residents’ quality of life due to CSTRs creating nuisances such as increased noise, parking, and litter.  They also argued that CSTRs replace affordable housing and hotels.  Those against strengthening the current CSTR regulations argue that CSTRs foster other commercial growth in neighborhoods in need of redevelopment and CSTRs could be used as a mechanism to require affordable housing development as a component of approval of CSTRs.  There will be another public hearing before the City Planning Commission with the revised study to be introduced by August 23, 2023, which will be open to public comment in person or by email.  In the meantime, there is still an Interim Zoning District in effect that prohibits the issuance of new CSTR licenses in certain zoning districts.  Those licensees that currently hold licenses should be grandfathered in absent legislation that would phase out CSTRs.