STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FORT LAUDERDALE LIONS CLUB, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1567

) STATE OF FLORIDA, DEPARTMENT OF ) REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, at 2:00

P.M. on January 13, 1976, in Room 821 of the Broward County Courthouse, Ft. Lauderdale, Florida.

APPEARANCES

For Petitioner: Mr. Charles G. Brackins

Rogers, Morris & Ziegler 700 Cumberland Building 800 East Broward Boulevard

Ft. Lauderdale, Florida 33301

For Respondent: Mr. Stephen E. Mitchell

Assistant Attorney General Department of Legal Affairs Tallahassee, Florida 32304

Mr. Gaylord A. Wood

603 Courthouse Square Building

200 South East 6th Street

Ft. Lauderdale, Florida 33301 INTRODUCTION

The issue presented for decision in this case is whether petitioner is entitled to a charitable exemption from ad valorem taxation for the tax year 1973. More specifically, the issue is whether the late filing by petitioner of its ad valorem tax exemption application and return results in a waiver of the exemption privilege, pursuant to F.S. 196.011.

It is the petitioner's position that the respondent's recommendation to invalidate the Broward County Board of Tax Adjustment's (BTA) action granting the exemption is overly stringent. Petitioner contends that in this case sufficient excusable neglect exists for the untimely filing of the exemption application and that the local BTA is entitled to apply a less stringent standard than that set forth in the respondent's staff recommendation. The

Broward County Property Appraiser's position is that the property qualifies for charitable exemption and that it would have been exempted were it not for the late filing of the application and the waiver language of F.S. 196.011.

Respondent contends that 196.011 is unequivocal and must be strictly construed, that failure to timely file must result from an excuse which renders it legally impossible to comply with the law and that clerical error or neglect is not such an excuse.

In accordance with F.S. 193.122(1) and the case of Hollywood Jaycees, Inc.

1. State Department of Revenue, 306 So.2d 109 (Fla. 1975), the hearing in this cause was limited to the scope of the record established before the Broward County Board of Tax Adjustment (BTA). Inasmuch as a transcript of the proceedings before the BTA was not available, the parties stipulated that the testimony of Byron Kurtgis would accurately reflect the testimony presented to the BTA, although Mr. Kurtgis himself did not testify before the BTA.

   
   

   FINDINGS OF FACT

   
   

   Having heard oral argument on the issues and considered the record transmitted to the respondent by the BTA, as supplemented by the testimony of Mr. Kurtgis, the following relevant facts are found:

   
   

   1. Petitioner is the owner of that property located at 114 S.W. 10th Street in Ft. Lauderdale, Florida, more particularly described as

      
      

      "Lot's 15, 17 Block 7 /Croissant Park, River

      Station 7-50B. Lot's 19, 21, 23 Block 16 Croissant Park, River Section 7-50B"

      
      

   2. Byron P. Kurtgis was the petitioner's Secretary from July of 1972 through July of 1973. In February of 1973, Kurtgis experienced a broker finger and was unable to use his hand for at least one month. For this reason, he got behind in his affairs and was unable to process the exemption application or to turn necessary documents over to the Club's certified public accountant. His regular employment took precedence over his club work, and he turned the papers over to the CPA when he realized he would not make the April 1st deadline.

      
      

   3. The exemption application and return was dated April 12, 1973, and received by the Tax Assessor on April 16, 1973.

      
      

   4. On June 1, 1973, the Tax Assessor notified petitioner that the application for tax exemption had been denied for the reason that it was received after April 1st.

      
      

   5. Were it not for the untimely filing of the exemption application, the Tax Assessor would have granted petitioner a charitable exemption from ad valorem taxation.

      
      

   6. Upon appeal by petitioner to the Broward County BTA on the stated grounds of "clerical error and mistake in failure to file return on time, and denial was contrary to law," the BTA granted the tax exemption to petitioner on July 18, 1973.

      
      

   7. The BTA notified the respondent of the change in the assessor's action. The staff recommendation of the respondent was to invalidate said change on the ground that petitioner failed to demonstrate that it came within an exception to the waiver rule of 196.011 and therefore the change by the BTA lacked legal

      sufficiency and/or the evidence presented was insufficient to overcome the assessor's presumption of correctness.

      
      

   8. Petitioner requested a hearing to review the staff recommendation, the Executive Director of the respondent requested the Division of Administrative Hearings to conduct the hearing, and the undersigned was assigned as the Hearing Officer.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The issue in this case is whether petitioner's failure to timely file for a charitable exemption from ad valorem taxation results in a waiver of the exemption privilege for the year 1973. For the year in question, 1973, F.S. 196.011(1) required every person or organization whose property is entitled by law to exemption from taxation to file an application for exemption with the county tax assessor before April 1st. That section further provides that "failure to make application, when required, by April 1 of any year shall constitute a waiver of the exemption privilege for that year." The Fla. Supreme Court upheld the reasonableness and validity of a similar homestead exemption filing deadline with the same waiver provision (F.S. 196.131) in the case of Horne v. Markham, 288 So. 196 (Fla. 1974).

      
      

   10. The issue of whether the failure to timely file will absolutely, and in all cases, result in a waiver of the exemption privilege is a matter of statutory interpretation and construction. It is established that taxing statutes conferring authority to impose taxes are to be strictly construed in favor of the taxpayer and against the taxing authority. However, the rule of liberal construction in favor of the taxpayer does not apply to statutes exempting property from taxation. Tax exemptions are in the nature of a special privilege and should be strictly construed against the claimant and in favor of the taxing authority. State v. Inter-American Center Authority, 84 So.2d 9 (Fla. 1955) State ex rel. Szabo Food Services, Inc. v. Dickinson, 286 So.2d 529 (Fla. 1973). As stated in Jar Corp. v. Culbertson, 246 So.2d 144 (Fla. App. 3rd, 1971):

       
       

       ". . .in order for a taxpayer to receive a benefit different in kind from other taxpayers it is necessary for him to strictly comply with all conditions which would be necessary to entitle him to the special treatment."

       
       

       In this case, one of the conditions is that the application for exemption be filed by April 1 of each year, and failure to do so "shall constitute a waiver of the exemption privilege for that year." F.S. 196.011(1). There is also a rule of statutory construction that provisions as to the time when a thing is to be done are regarded as merely directory, unless there is a provision included restraining the doing of it after that time.

       
       

   11. Section 196.011 is silent as to any excuse or justification for failure to timely file for an exemption from ad valorem taxation. However, the case law on the subject indicates that there may exist a legal excuse or justification for failure to file as required by law and that a late filing under circumstances not amounting to laches on the part of the applicant might be excused and no forfeiture of the exemption would result. See Horne v. Markham supra; Christian and Missionary Alliance Foundation, Inc. v. Schoaley,

       289 So.2d 778 (Fla. App. 2nd, 1974); Jasper v. St. Petersburg Episcopal Community, Inc., 222 So.2d 479 (Fla. App. 2nd, 1979); and Gamma Phi Chapter of

       Sigma Chi Building Fund Corp. v. Dade County, 199 So.2d 717 (Fla. 1967). Also, there is an Attorney General's opinion pertaining to the late filing of an application for homestead exemption. That opinion states:

       
       

       "Only in rare cases, if at all, should a belated application for homestead tax exemption be allowed, in the absence of statute making express provision therefor, and then only in cases where it is apparent that the applicant's condition was such as to prevent his filing or directing the filing of such belated claim. Such condition, to authorize a belated filing, should be one of such nature as to disable the applicant from filing the same or directing the filing of the same during that part of the year prior to April 1 of the tax year." AGO 057-374

       
       

       It is thus apparent from the case law and rules of statutory construction that any excuse which would exempt the taxpayer from the waiver provision of 196.011 must be such as to have made it legally impossible for the taxpayer to have complied with the law.

       
       

   12. With the above principles in mind, the determinative inquiry in this case is whether the BTA had before it sufficient evidence to illustrate that it was legally impossible for the petitioner to comply with the April 1st deadline. The undersigned concludes that the broken finger of the petitioner's secretary did not render it legally impossible for the petitioner to timely file its application for ad valorem tax exemption. It is the organization that owns the real property with its entitlement to exemption and not any of the individual members of the organization. While the record illustrates that the petitioner's secretary was ill during February and March of 1973, there is nothing to show that the filing could not have been accomplished earlier or by another member of petitioner's organization. The nature of the secretary's illness was not such as to render him incapable of directing someone else to timely file the application. Petitioner has failed to show that it was legally impossible to comply with the statute and thus it cannot escape the clear language of F.S. 196.011, as well as the rules of statutory construction and case law on the subject.

       
       

   13. In conclusion, it is found that there was not sufficient evidence before the Broward County Board of Tax Adjustment to grant petitioner's property a charitable exemption from ad valorem taxation for the year 1973, the petitioner having failed to timely file its application for exemption.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that the action of the Broward County Board of Tax Adjustment granting the exemption be invalidated.

Respectfully submitted and entered this 12th day of February, 1976, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1976.

COPIES FURNISHED:

Mr. J. Ed Straughn Executive Director Department of Revenue

Room 102, Carlton Building Tallahassee, Florida 32304

Charles G. Brakins, Esquire ROGERS, MORRIS & ZIEGLER

800 East Broward Boulevard 700 Cumberland Building

Fort Lauderdale, Florida 33301

Stephen Mitchell, Esquire Assistant Attorney General Office of Legal Affairs The Capitol

Tallahassee, Florida 32304

Gaylor Wood, Esquire WOOD & GOHEN

603 Courthouse Square Building

200 Southeast Street, 6th Street Ft. Lauderdale, Florida 33301

Docket for Case No: 75-001567

Orders for Case No: 75-001567