STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTH FLORIDA AIR ACADEMY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 75-1598

) 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 10:00

A.M. on January 13, 1976, in Room 831 of the Broward County Courthouse, Ft. Lauderdale, Florida.

APPEARANCES

For Petitioner: John D. Mendez

Post Office Box 4566

Ft. Lauderdale, Florida 33304

For Respondent: Stephen E. Mitchell

Assistant Attorney General Department of Legal Affairs Tallahassee, Florida 32304

For Broward Gaylord A. Wood

County Property 603 Courthouse Square Building Appraiser: 200 South East 6th Street

Ft. Lauderdale, Florida 33301 INTRODUCTION

The issue in this cause is whether petitioner is entitled to an educational exemption from ad valorem taxation for the tax year 1973. More specifically, the issue is whether the untimely 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 contention that the waiver provision of 196.011 is not applicable in this case due to the untimely and tragic death in late 1972 of petitioner's administrative head and president, who had previously filed applications and returns for petitioner. The property appraiser takes the position that an exemption would have been granted were it not for the late filing and that good cause has been shown for the exemption. It is the respondent's position that F.S. 196.011 is unequivocal and must be strictly construed, that any exception must be such as to result in a legal impossibility

to timely file and that the death of the administrative head and president of petitioner does not sufficiently excuse the petitioner corporation from its responsibility to timely file for exemption.

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).

   
   

   FINDINGS OF FACT

   
   

   Having heard oral argument on the issues and considered the pleadings and the record transmitted to the respondent by the BTA, the following relevant facts are found:

   
   

   1. For five years prior to the tax year 1973, petitioner had received an educational exemption from ad valorem taxation. Each of such applications for exemption was prepared and timely filed by Jonathon Dwight, the president and chief administrative officer of petitioner.

      
      

   2. In the fall of 1972, Jonathon Dwight was killed in an airplane crash.

      
      

   3. An application for exemption for the year 1973 was not timely filed, and the Tax Assessor thus disapproved the application for exemption. Were it not for the late filing of the application, the property would have qualified for an educational exemption.

      
      

   4. The decision of the Tax Assessor was appealed by petitioner to the Broward County Board of Tax Adjustment. The BTA was advised that the untimely filing was due to the death of petitioner's president and, upon the recommendation of the assessor, the BTA granted the tax exemption.

      
      

   5. The BTA notified the respondent of the change in assessment. It was the recommendation of respondent's staff to invalidate the action of the BTA for the reason that the BTA did not have before it information legally sufficient to warrant the change made in the tax roll.

      
      

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

      
      

      CONCLUSIONS OF LAW

      
      

   7. There is no need for a discussion of educational exemptions from ad valorem taxation in this order inasmuch as there is no question that petitioner would have been entitled to such an exemption had it timely filed for the same. The only issue herein is whether petitioner's failure to timely file its application for exemption results in a waiver of the exemption privilege for the year in question.

      
      

   8. 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 of each year. 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." In Horne v. Markham, 288 So 2d 196 (Fla. 1974), the

      Florida Supreme Court upheld the reasonableness and validity of a similar homestead exemption filing deadline with the sane waiver provision (F.S. 196.131).

      
      

   9. We are thus left with the issue of whether failure to timely file for the exemption absolutely, in all cases, results in a waiver of the exemption. This involves a matter of construction and interpretation of F.S. 196.011. Taxing statutes conferring authority to impose taxes are 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 laws 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 14 (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.

      
      

   10. Although 196.011 is silent as to any excuse or justification for failure to timely file for an exemption from ad valorem taxation, the case of Horne v. Markham, supra, in adopting a trial court's opinion, indicated that there may exist a "legal excuse or justification for. . .failure to file as required by law." Also see Christian & Missionary Alliance Foundation, Inc. v. Schooley, 289 So.2d 778 (Fla. App. 2nd, 1974); Jasper v. St. Petersburg Episcopal Community, Inc., 222 So. 2d 479 (Fla. App. 2nd, 1969); and Gamma Phi Chapter of Sigma Chi Building Fund Corp. v. Dade County, 199 So.2d 717 (Fla. 1967), where the courts have inferred that a late filing under certain circumstances not amounting to laches on the part of the applicant could be excused and no forfeiture of the exemption would result. And, 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 a 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

       Thus, it is apparent from the rules of statutory construction relating to tax exemptions and from the case law that if any excuse exempts the taxpayer from the waiver provisions of 196.011, that excuse must be such as to have made it legally impossible for the taxpayer to have complied with the law.

       
       

   11. With the foregoing principles in mind, the determinative query 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 death of the petitioner's chief administrative officer in the fall of 1972 did not render it legally impossible for the petitioner to timely file its application for exemption. Were we dealing with Mr. Dwight's personal homestead exemption application, his death may certainly fall within the exception recited in AGO 57-374 quoted above. Here, however, it is the corporate organization that is entitled to the educational exemption, not any of the organization's individual members. The death of one officer of the organization does not render it impossible for other personnel to timely file the application. Ignorance of the law on behalf of other personnel of petitioner's organization does not amount to a legal excuse which would vitiate the clear waiver provision of F.S. 196.011. While the results of this particular case may seem unduly harsh, the undersigned cannot escape the clear language of F.S. 196.011, the rules of statutory construction, the case law or the opinion of the Attorney General interpreting a similar statute.

       
       

   12. In conclusion, it is found that there was not sufficient evidence before the Broward County BTA to grant an educational exemption from ad valorem taxation to the property in question, 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.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Mr. J. Ed Straughn Executive Director Department of Revenue The Capitol

Tallahassee, Florida 32304

John D. Mendez, Esquire Post Office Box 4566

Ft. Lauderdale, Florida 33304

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

Tallahassee, Florida 32304

Gaylord Wood, Esquire Wood & Cohen

603 Courthouse Square Building

200 Southeast 6th Street

Ft. Lauderdale, Florida 33301

Docket for Case No: 75-001598

Orders for Case No: 75-001598