STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HOLLYWOOD HILLS PRIVATE )

SCHOOL, )

)

Petitioner, )

)

vs. ) CASE NO. 75-2082

) 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 11:00

1. on January 14, 1976, in Room 821 of the Broward County Courthouse, Fort Lauderdale, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Barry S. Webber

   Goodman, Lembeck, Pleeter and Webber Post Office Box 8549

   Hollywood, Florida 33024

   
   

   For Respondent: Stephen E. Mitchell

   Assistant Attorney General Department of Legal Affairs The Capitol

   Tallahassee, Florida 32304

   
   

   Gaylord A. Wood

   Attorney for Broward County Property Appraiser

   603 Courthouse Square Building

   200 Southeast 6th Street

   Fort Lauderdale, Florida 33301 INTRODUCTION

   The issue in this case is whether the petitioner, Hollywood Hills Private School, is entitled to an educational exemption from ad valorem taxation for the tax year 1973. More specifically, the issue is whether the change made by the Broward County Board of Tax Adjustment (BTA) in the tax assessor's denial of exempt status to petitioner's property lacked legal sufficiency or whether the evidence presented was insufficient to overcome the assessors presumption of correctness.

   In accordance with F.S. 103.122(1) and the case of Hollywood Jaycees v. 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 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 pertinent facts are found:

   
   

   1. For seven years prior to the tax year 1973, petitioners property had received an educational exemption from ad valorem taxation.

      
      

   2. By letter dated June 1, 1973, petitioner was advised by the tax assessor that its property had been denied tax exemption for the reason that no application for exemption had been received. Upon receipt of this letter, which wascorrectly addressed, petitioner immediately contacted the Exemption Department of the assessors office, advised them that he had not received an application form in the mail, and was informed that the application had been mailed to the wrong address, apparently the address of one of the former owners of petitioner. The reason for the application being sent to the wrong address was because, for the first time, the assessor's office was using new application forms prepared by data processing and the old address had not been changed in posting.

      
      

   3. Upon receipt of the application form, petitioner completed it and returned it to the assessors office on June 11, 1973.

      
      

   4. Had the application form, petitioner completed it and returned it to the assessors office on June 11, 1973.

      
      

   5. Upon appeal to the Broward County BTA, the BTA unanimously granted the tax exemption upon the recommendation of the tax assessor.

      
      

   6. The BTA notified the respondent's Executive Director of the change. It was the respondent's staff recommendation to invalidate the change for the reason that the BTA did not have before it information legally sufficient to warrant such change.

      
      

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

CONCLUSIONS OF LAW

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, 1973, F.S. 196.011(1) required every person or organization whose property is entitled by law to exemption form 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 of any year shall constitute a waiver of the exemption privilege for that year." On or before February 1st of each year, the tax assessor is to mail these application forms to property owners who have received tax exemptions in preceding years. F.S. 194.032(6).

As illustrated by the findings of fact recited above, petitioner did not timely file its application for exemption because it did not receive the application form in the mail from the tax assessor's office. It was admitted by the tax assessor that the form was sent to the wrong address due to the fact that the assessor's office was using new forms prepared by data processing and an old address was still recorded in posting. We are thus left with the question of whether petitioner's failure to timely receive the application form in the mail removes it from the waiver language of 196.011(1). The undersigned would answer this question affirmatively.

The issue of legal excuses sufficient to exempt the taxpayer form the waiver provisions of F.S. 196.011(1) has been addressed by the undersigned in previous recommended orders. 1/ In those cases, it was concluded that if any excuse exempts the taxpayer from said waiver provisions, that excuse must be such as to have made it legally impossible for the taxpayer to have complied with the law. This conclusion is based upon rules of statutory construction relating to exemptions from taxation, case law indicating that there may exist a legal excuse or justification for failure to file as required by law, 2/ and an Attorney General's Opinion interpreting a similar statute. 3/

If is concluded that the action of the assessor's office in mailing the petitioners application form to the wrong address legally excused petitioner from compliance with the April 1st deadline. A tax assessor is presumed to have performed all duties imposed upon him by law. Milos-Sans Souci, Inc. v. Dade County, 296 So. 2d 545 (Fla. App. 3rd, 1974). Thus, a taxpayer should be entitled to rely upon the assessor's compliance with the provisions of 194.032(6), mandating that renewal application forms be mailed to applicants on or before February 1st. Petitioner should not be adversely affected because a change in mailing procedures resulted in the form being sent to the wrong address.

The evidence presented to the BTA was sufficient to overcome the presumption that the assessor complied with the duties imposed upon him by

194.032 (6) - a fact admitted by the assessor as being due to new procedures of mailing, and thus the change made by the BTA was legally sufficient.

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 in granting petitioners property an educational exemption from ad valorem taxation be validated and affirmed.

Respectfully submitted and entered this 23rd 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

ENDNOTES

1/ South Florida Air Academy v. Department of Revenue, Case No. 75-1589 (February 12, 1976); Elks B.P.O.E. v. Department of Revenue, Case No. 75-1525 (February 12, 1976); Fort Lauderdale Lions Club V. Department of Revenue, Case No. 75-1567 (February 12, 1976); and Greater Hollywood Junior Chamber of Commerce v. Department of Revenue, Case No. 75-1528 (February 13, 1976)

2/ Horne v. Markham, 288 So. 2d 196 (Fla. 1974); Christian and Missionary Alliance jFoundation, Inc.v. Schooley, 289 So. 2d 788 (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).

3/ AGO 057-374

COPIES FURNISHED:

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

Tallahassee, Florida 32304

Ms. Barry S. Webber Goodman, Lembeck, Pleeter

& Webber

P.O. Box 8549

Hollywood, Florida 33024

Stephen E. Mitchell Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32304

Gaylord A. Wood

603 Courthouse Square Building

200 S.E. 6th Street

Fort Lauderdale, Florida 33301

Docket for Case No: 75-002082

Orders for Case No: 75-002082