STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
TILFORD FLYING SERVICE, INC., ) AND AIR CAB, INC., D/B/A )
TILFORD'S AVIATION CENTER, )
)
Petitioner, )
)
vs. ) CASE NO. 77-1392
) STATE OF FLORIDA, DEPARTMENT ) OF REVENUE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on July 11, 1979, in West Palm Beach, Florida.
APPEARANCES
For Petitioners: John A. Gentry, III, Esquire
Moyle, Gentry, Jones, Flanigan & Groner, P.A.
707 North Flagler Drive Post Office Sex 3888
West Palm Beach, Florida 33402
For Respondent: David E. Miller, Esquire
Assistant Attorney General Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301
ISSUE
Petitioners' alleged liability for sales tax, interest and penalties under Chapter 212, Florida Statutes.
FINDINGS OF FACT
Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the stipulation of facts entered herein, the following facts are found.
Petitioners are Florida corporations having their principal place of business at Palm Beach International Airport, West Palm 8each, Florida.
Petitioners conduct a fixed base aircraft operation by which they provide services to both aircraft owners and aircraft users. Petitioners are
licensed, qualified and certified by the Federal Aviation Administration, the Civil Aeronautics Board, the State of Florida, and Palm Beach County to conduct its operation. Petitioners employ qualified mechanics, technicians, flight instructors, pilots, and consulting and sales personnel for conducting these services, which are described in detail below. Petitioners lease and occupy facilities appropriate for the storage, use, and repair of aircraft.
Petitioners have written contractual agreements with aircraft owners in which Petitioners obtain the use of the aircraft. Petitioners pay the owners an agreed amount per hour for the use of the aircraft, which amount varies with the aircraft age and type. (Examples of said agreements are attached to Joint Exhibit number 1.)
These agreements use the term "lease" to describe the Petitioners' rights to use the aircraft. The agreements provide that Petitioners will have exclusive supervision, control, and custody of the aircraft during the term of the agreement. The agreements permit the owner of the aircraft to use the aircraft for personal needs, however, so long as such use does not conflict with Petitioners' scheduled use thereof.
Petitioners use the aircraft to conduct approved flight instruction for the public, to engage in charter transportation of passengers and property, and to rent to qualified pilots. Petitioners charge the third parties for instruction, charter, or rental and report the proceeds as "income" on their federal tax returns. Petitioners' payments to the aircraft owners are reflected as an "operating or overhead expense" for federal tax purposes.
When using the aircraft, Petitioners employ and pay qualified flight instructors, pilots, crews and mechanics to fly and service the aircraft. The aircraft owners have no contractual agreement with these persons.
Petitioners are responsible for providing all required inspection, maintenance, and repair services to the aircraft, subject to reimbursement by the owners.
The aircraft owners pay the costs of fuel and lubricants used during Petitioners' use of the aircraft.
Petitioners provide property damage insurance on the aircraft and liability insurance for the pilots, crew, and third parties who charter or use the aircraft.
Petitioners are responsible, at the expiration of the agreement, to return the aircraft to the owner in substantially the same condition as at the commencement of the agreement, except for normal wear and depreciation.
Petitioners advertise themselves to the public as a charter flying service and flying instruction service and actively solicit customers for these services.
Petitioners are also in the business of selling aircraft and are authorized dealers for Cessna and Piper aircraft companies. Some of Petitioners' purchasers enter into agreements like those attached hereto, granting Petitioners exclusive use and control of the aircraft.
Petitioners' purchasers properly pay sale tax under Chapter 212, Florida Statutes, when they purchase aircraft. They do not, insofar as
Petitioners are aware, furnish Petitioners with resale certificates which certify that the purchase is solely for resale, in the manner designated by Rule 12A-1.38, Florida Administrative Code. Some of the purchasers have furnished exemption certificates, however, so those purchases were not taxed.
Petitioners contend that they are an integrated business for the selling, storing, maintenance, and servicing of aircraft for aircraft purchasers and the provision of chartering and instruction services for third parties. Petitioners contend that their experience and expertise in providing all these services to owners and the general public is economically feasible only through an integrated operation of this nature, or through a substantially greater capital investment. Petitioners assert that the agreements by which they obtain exclusive use of the aircraft are agreements to provide expert management services to the owners, and are not subject to sales tax under Chapter 212, Florida Statutes.
Respondent contends that the agreements by which Petitioners obtain exclusive use of the aircraft are separate and distinct from the rest of Petitioners' business, for sales tax purposes. Respondent also contends that the remainder of Petitioners' business is immaterial to the incidence of the tax. Respondent asserts that the agreements described herein are agreements to lease tangible personal property which are taxable as "sales" under Chapter 212, Florida Statutes.
Petitioners also assert that certain of the agreements are not taxable because the aircraft owner paid sales tax on the initial purchase of the aircraft, as described in Paragraph 13 above. The Respondent contends that the prior payment of tax at the time of purchase is immaterial, since the purchase was not for resale.
The issues thus presented herein are:
whether the agreements are taxable transactions, as disputed in Paragraphs
14 and 15; and
whether certain of the agreements are specifically nontaxable by virtue of the owner's payment of tax at the
time of purchase, as disputed in Paragraph 16.
The Respondent originally assessed Petitioners for tax, penalty, and interest in the amount of $19,149.08. It then appeared that in certain of Petitioners' transactions, the aircraft owners were already remitting sales tax. Respondent thereupon revised its assessment. The Respondent now alleges that the following amounts were due on March 15, 1978:
Tax $11,144.68
Penalty 557.22
Interest 1,652.86 Total $13,354.76
The penalty and interest figures are subject to revision with the passage of time. The Respondent will update those figures upon issuance of a final order.
Petitioners have paid no part of the foregoing assessment.
Petitioners have not placed the computation of the amount due in issue, however, in the event they are held to be liable.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Subsection 120.57(1), Florida Statutes.
The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.
The authority of the Respondent, Department of Revenue, is derived from Chapter 212, Florida Statutes, and Rule Section 12A, Florida Administrative Code. Tilford claims that the transactions involved herein are predominantly service transactions, in which the rental of property is an inconsequential element, and the transactions are, therefore, exempt from tax under Subsection 212.08(7), Florida Statutes. The basis for this claim is that Tilford is an "integrated" business operation, which not only provides flight instruction, charter service and rental operations described above, but also provides substantial services to the aircraft owners. Specifically, Tilford assists the owners in selecting aircraft for purchases and in storing, inspecting, maintaining and repairing aircraft. Tilford admits that its fixed space operation requires the use of the aircraft, however, either by lease agreement or by outright purchase, which would require Tilford to make substantial greater capital investment. Respondent, on the other hand, asserts the tax under the theory that the monies paid by Tilford to the aircraft owners were taxable transactions arising from the lease or rental of tangible personal property and thus, subject to the 4 percent sales tax under Chapter 212, Florida Statutes.
It is undisputed that Tilford provided personal services in the form of a management of aircraft on behalf of the owners in the conduct of this operation and use of the planes on behalf of the owners. However, the language of the statutory exemption for such service transactions limit the exemption to those which involve only "inconsequential" sales as an element of the transactions.
Noteworthy also is the fact that rule 12A-1.71(8)(a), Florida Administrative Code, provides as follows:
12A-1.71 Rentals of tangible personal property.
(8)(a) When the owner of equipment furnishes the operator and all operating supplies, and contracts for their use to perform certain work under his direction and according to his customer's specifications, and the customer does not take possession or have any direction or control over the physical operation, the contract constitutes a service transaction
and not the rental of tangible personal property, and the charge therefor is exempt. (Emphasis supplied.)
Thus, in this instance, when Tilford took possession of aircraft owned by others, payment made for the use of such aircraft cannot be characterized as a service transaction. Additionally, Rule 12A.71(8)(b), Florida Administrative Code, provides that:
(8)(b) When the operator of the equipment is on the payroll of the lessee, the contract constitutes a rental of tangible personal property and is subject to the tax.
From the foregoing, it is concluded that the amount in question must be construed as rental payment for the aircraft and, therefore, subject to tax under Chapter 212, Florida Statutes.
The Department, in such instances, may recover the tax due from either the lessor or the lessee under Subsection 212.07(9), Florida Statutes.
The above provisions apply to Tilford's aircraft lease transaction, inasmuch as it obtained possession and control of the aircraft, but not title, for a consideration. Tilford' s possession and use of the aircraft take priority over the owner's possession or use. There is no connection or obligation' between the aircraft owners and Tilford's customers, and, therefore, Tilford is the ultimate consumer of the leased aircraft for purposes of this assessment. Finally, the aircraft owner's payment of sales tax at the time of purchase does not make the subsequent rental exempt. A construction of Subsection 212.02(3)(a), Florida Statutes, provides:
(3)(a) 'Retail sale' or a 'sale at retail' means a sale to a consumer or to any other person for any purpose other than for resale in the form of tangible personal property, and shall mean and include all such transactions that may be made in lieu of retail sales or sales at retail. A resale must be in strict compliance with rules and regulations and any dealer making a sale for resale which is not in strict compliance with rules and regulations shall himself be liable for and pay the tax.
Under this statute, the sale of tangible personal property is exempt for tax only if the purchaser intends to hold it exclusively for resale or re- rental. In such case; the purchaser registers as a sales tax dealer and gives resale certificates to his seller, in conformity with Rule 12A-1.38, Florida Administrative Code. See also Rule 12A-1.71(5), Florida Administrative Code.
In this case, the aircraft owners purchased for their own use as well as for lease to Tilford. They did not nor could they give their seller a resale certificate. Consequently, both the purchase and the rental are taxable transactions. There are two separate and distinct transactions, the purchase and the rental, and each is in itself a taxable privilege. Such does not constitute pyramiding or duplication of tax. Ryder Truck Rental, Inc. v. Bryant, 170 So.2d 822 (Fla. 1964).
Based on the foregoing findings of fact and conclusions of law, it is hereby,
RECOMMENDED:
That the Revised Notice of Proposed Assessment of Tax, Penalties, and Interest under Chapter 212, Florida Statutes, dated March 15, 1978, be asserted against Petitioners pursuant to applicable law, with interest computed to reflect the passage of additional time.
ENTERED this 20th day of August, 1979, in Tallahassee, Florida.
JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
COPIES FURNISHED:
John A. Gentry, III, Esquire David K. Miller, Esquire Moyle, Gentry, Jones, Flanigan Assistant Attorney General
& Groner, P.A. Department of Legal Affairs Post Office Box 3888 The Capitol, LL04
West Palm Beach, Florida 33402 Tallahassee, Florida 32301
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
TILFORD FLYING SERVICE, INC., )
and AIR CAB, INC., d/b/a )
TILFORD'S AVIATION CENTER. )
)
Petitioner, )
)
vs. ) CASE NO. 77-1392
) STATE OF FLORIDA, DEPARTMENT OF ) REVENUE, )
)
Respondent. )
)
SUPPLEMENTAL RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on July 11, 1979, in West Palm Beach, Florida. Pursuant to leave, the parties were permitted through September 15, 1979, to submit Memoranda of law in support of their respective positions. The parties filed Memoranda of Law which have been considered by me in issuance of this Supplemental Recommended Order.
APPEARANCES
For the Petitioners: John A. Gentry, III, Esquire
Moyle, Gentry, Jones, Flanigan & Groner, P.A.
707 North Flagler Drive Post Office Box 3888
West Palm Beach, Florida 33402
For the Respondent: David K. Miller, Esquire
Assistant Attorney General Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301
ISSUE
Petitioners' alleged liability for sales tax, interest and penalties under Chapter 212, Florida Statutes.
FINDINGS OF FACT
Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the stipulation of facts entered herein, the following facts are found.
Petitioners are Florida corporations having their principal place of business at Palm Beach International Airport, West Palm Beach, Florida.
Petitioners conduct a fixed base aircraft operation by which they provide services to both aircraft owners and aircraft users. Petitioners are licensed, qualified and certified by the Federal Aviation Administration, the Civil Aeronautics Board, the State of Florida, and Palm Beach County to conduct this operation. Petitioners employ qualified mechanics, technicians, flight instructors, pilots, and consulting and sales personnel for conducting these services, which are described in detail below. Petitioners lease a occupy facilities appropriate for the storage, use, and repair of aircraft.
Petitioners have written contractual agreements with aircraft owners in which Petitioners obtain the use of the aircraft. Petitioners pay the owners an agreed amount per hour for the use of the aircraft, which amount varies with the aircraft age and type. (Examples of said agreements are attached to Joint Exhibit number 1.)
These agreements use the term "lease" to describe the Petitioners' rights to use the aircraft. The agreements provide that Petitioners will have exclusive supervision, control, and custody of the aircraft during the term of the agreement. The agreements permit the owner of the aircraft to use the aircraft for personal needs, however, so long as such use does not conflict with Petitioners' scheduled use thereof.
Petitioners use the aircraft to conduct approved flight instruction for the public, to engage in charter transportation of passengers and property, and to rent to qualified pilots. Petitioners charge the third parties for instruction, charter, or rental and report the proceeds as "income" on their federal tax returns. Petitioners' payments to the aircraft owners are reflected as an "operating or overhead expense" for federal tax purposes.
When using the aircraft, Petitioners employ and pay qualified flight instructors, pilots, crews and mechanics to fly and service the aircraft. The aircraft owners have no contractual agreement with these persons.
Petitioners are responsible for providing all required inspection, maintenance, and repair services on the aircraft, subject to reimbursement by the owners.
The aircraft owners pay the costs of fuel and lubricants used during Petitioners' use of the aircraft.
Petitioners provide property damage insurance on the aircraft and liability insurance for the pilots, crew, and third parties who charter or use the aircraft.
Petitioners are responsible, at the expiration of the agreement, to return the aircraft to the owner in substantially the same condition as at the commencement of the agreement, except for normal wear and depreciation.
Petitioners advertise themselves to the public as a charter flying service and flying instruction service and actively solicit customers for these services.
Petitioners are also in the business of selling aircraft and are authorized dealers for Cessna and Piper aircraft companies. Some of Petitioners' purchasers enter into agreements like those attached hereto, granting Petitioners exclusive use and control of the aircraft.
Petitioners' purchasers properly pay sales tax under chapter 212, Florida Statutes, when they purchase aircraft. They do not, insofar as Petitioners are aware, furnish Petitioners with resale certificates which certify that the purchase is solely for resale, in the manner designated by Rule 12A-1.38, Florida Administrative Code. Some of the purchasers have furnished exemption certificates, however, so those purchases were not taxed.
Petitioners contend that they are an integrated business for the selling, storing, maintenance, and servicing of aircraft for aircraft purchasers and the provision of chartering and instruction services for third parties. Petitioners contend that their experience and expertise in providing all these services to owners and the general public is economically feasible only through an integrated operation of this nature, or through a substantially greater capital investment. Petitioners assert that the agreements by which they obtain exclusive use of the aircraft are agreements to provide expert management services to the owners, and are not subject to sales tax under Chapter 212, Florida Statutes.
Respondent contends that the agreements by which Petitioners obtain exclusive use of the aircraft are separate and distinct from the rest of Petitioners' business, for sales tax purposes. Respondent also contends that the remainder of Petitioners' business is immaterial to the incidence of the tax. Respondent asserts that the agreements described herein are agreements to lease tangible personal property which are taxable as "sales" under Chapter 212, Florida Statutes.
Petitioners also assert that certain of the agreements are not taxable because the aircraft owner paid sales tax on the initial purchase of the
aircraft, as described in Paragraph 13 above. The Respondent contends that the prior payment of tax at the of purchase is immaterial, since the purchase was not for resale.
The issues thus presented herein are:
whether the agreements are taxable transactions, as disputed in Paragraphs
14 and 15;
whether certain of the agreements are specifically nontaxable by virtue of the owner's payment of tax at the
time of purchase, as disputed in Paragraph 16; and
whether Petitioners' lease transactions here involved are "occasional or isolated sales" and, as such, are specifically exempted pursuant to Rule 12A-1.37, Florida Administrative Code.
The Respondent originally assessed Petitioners for tax, penalty, and interest in the amount of $19,149.08. It then appeared that in certain of Petitioners' transactions, the aircraft owners were already remitting sales tax. The Respondent thereupon revised its assessment. The Respondent now alleges that the following amounts were due on March 15, 1978:
Tax | $11,144.68 |
Penalty | 557.22 |
Interest | 1,652.86 |
Total | $13,354.76 |
The penalty and interest figures are subject to revision with the passage of time. The Respondent will update those figures upon issuance of a final order.
Petitioners have paid no part of the foregoing assessment.
Petitioners have not placed the computation of the amount due in issue, however, in the event they are held to be liable.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Subsection 120.57(1), Florida Statutes.
The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.
The authority of the Respondent, Department of Revenue, is derived from Chapter 212, Florida Statutes, and Rule Section 12A, Florida Administrative Code. Tilford claims that the transactions involved herein are predominantly service transactions, in which the rental of property is an inconsequential element, and that the transactions are, therefore, exempt from tax under Subsection 212.08(7), Florida Statutes. The basis for this claim is that Tilford is an "integrated" business operation, which not only provides flight instruction, charter service and rental operations described above, but also provides substantial services to the aircraft owners. Specifically, Tilford
assists the owners in selecting aircraft for purchases and in storing, inspecting, maintaining and repairing aircraft. Tilford admits that its fixed space operation requires ,the use of the aircraft, however, either by lease agreement or by outright purchase, which would require Tilford to make substantial greater capital investment. Respondent, on the other hand, asserts the tax under the theory that the monies paid by Tilford to the aircraft owners were taxable transactions arising from the lease or rental of tangible personal property and thus, subject to the 4 percent sales tax under Chapter 212, Florida Statutes. It is undisputed that Tilford provided personal services in the form of a management of aircraft on behalf of the owners in the conduct of this operation and use of the planes on behalf of the owners. However, the language of the statutory exemption for such service transactions limit the exemption to those which involve only "inconsequential" sales as an element of the transactions. Noteworthy also is the fact that Rule 12A-1.71(8)(a), Florida Administrative Code, provides as follows:
12A-1.81 Rentals of tangible personal property.
* * *
(8)(a) When the owner of equipment furnishes the operator and all operating supplies, and contracts for their use to perform certain work under his direction and according to his customer's specifications, and the customer does not take possession or have any direction or control over the physical operation, the contract constitutes a service transaction and not the rental of tangible personal property, and the charge therefor is exempt. (Emphasis supplied.)
Thus, in this instance, when Tilford took possession of aircraft owned by others, payment made for the use of such aircraft cannot be characterized as a service transaction. Additionally, Rule 12A-1.71(8)(b), Florida Administrative Code, provides that:
* * *
(8)(b) When the operator of the equipment is on the payroll of the lessee, the contract constitutes a rental of tangible personal property and is subject to the tax.
From the foregoing, it is concluded that the amount in question must be construed as rental payment for the aircraft and, therefore, subject to tax under Chapter 212, Florida Statutes. Petitioners' contention that their lease transactions are isolated or occasional sales has been considered and is rejected for the following reasons. The evidence reveals that Petitioners entered continuous lease agreements with the aircraft owners and, pursuant to such agreements, Petitioners' right and/or claim to use the aircraft supersedes that of the owners. Mr. James D. Tilford, Jr., the founder of Tilford in 1958 and who subsequently sold the business during December of 1976, testified that it was necessary for Petitioners to enter into the lease agreements with the owners due to the tremendous amount of capital required which would adversely affect Petitioners' profitability if the aircraft were purchased outright. For this reason, it cannot be reasonably argued that the sole requirement for the lease arrangement was compliance with F.A.A. regulations.
The Department, in such instances, may recover the tax due from either the lessor or the lessee under Subsection 212.07(9), Florida Statutes.
The above provisions apply to Tilford's aircraft lease transaction, inasmuch as it obtained possession and control of the aircraft, but not title, for a consideration. Tilford's possession and use of the aircraft take priority over the owner's possession or use. There is no connection or obligation between the aircraft owners and Tilford's customers, and, therefore, Tilford is the ultimate consumer of the leased aircraft for purposes of this assessment. Finally, the aircraft owner's payment of sales tax at the time of purchase does not make the subsequent rental exempt. A construction of Subsection 212.02(3)(a), Florida Statutes, provides:
(3)(a) 'Retail sale' or a 'sale at retail' means a sale to a consumer or to any person for any purpose other than for resale in the form of tangible personal property, and shall mean and include all such transactions that may be made in lieu of retail sales or sales at retail. A resale must be in strict compliance with rules and regulations and any dealer making a sale for resale which is not in strict compliance with rules and regulations shall himself be liable for and pay the tax.
Under this statute, the sale of tangible personal property is exempt for tax only if the purchaser intends to hold it exclusively for resale or re- rental. In such case, the purchaser registers as a sales tax dealer and gives resale certificates to his seller, in conformity with Rule 12A-1.38, Florida Administrative Code. See also Rule 12A-1.71(5), Florida Administrative Code.
In this case, the aircraft owners purchased for their own use as well as for lease to Tilford. They did not nor could they give their seller a resale certificate. Consequently, both the purchase and the rental are taxable transactions. There are two separate and distinct transactions, the purchase and the rental, and each is in itself a taxable privilege. Such does not constitute pyramiding or duplication of tax. Ryder Truck Rental, Inc. v. Bryant, 170 So.2d 822 (Fla. 1964).
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of law, it is hereby,
RECOMMENDED
That the Revised Notice of Proposed Assessment of Tax, Penalties, and Interest under Chapter 212, Florida Statutes, dated March 15, 1978, be asserted against Petitioners pursuant to applicable law, with Interest computed to reflect the passage of additional time.
ENTERED this 19th day of October, 1979, in Tallahassee, Florida.
JAMES E. BRADWELL
Division of Administrative Hearings The Collins Building, Room 101 Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1979.
COPIES FURNISHED:
John A. Gentry, III, Esq.
Moyle, Gentry, Jones, Flanigan & Groner, P.A. Post Office Box 3888
West Palm Peach, Florida 33402
David K. Miller, Esq. Assistant Attorney General Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301
Attachment 1 AMENDMENT TO RULE 12-3
BY AMENDING SUBSECTIONS .02, .03, .04 and .05
DEPARTMENT OF REVENUE, STATE OF FLORIDA CHAPTER 120, FLORIDA STATUES
Rule 12-3.02 Procedure for Effecting Service of Recommend Orders and Presenting Exceptions Thereto.
All recommended orders which result from proceedings under Section 120.57, Florida Statutes, or otherwise, wherein the substantial interests of a person are subject to determination by the Department of Revenue shall be considered by the Governor and Cabinet as head of the Department, at a public meeting, or by the Executive Director who shall take final agency action for the Department in proceedings before the Department which arise pursuant to Section 120.57(1) and (2), Florida Statutes, and which involve any excise tax administered by the Department where the amount in controversy does not exceed $25,000; provided however, the Executive Director shall submit to the Governor and Cabinet for consideration any recommended order which, in the opinion of the Executive Director, establishes a new precedent order constitutes a departure form established departmental policy. Unless the recommended order has been previously served on the parties by the hearing authority, upon receipt thereof, the Department's Executive Director shall cause the recommended order to be served on the parties. Within twenty-five (25) days from the date the recommended order is served, the parties shall be entitled to submit written exceptions thereto. All such written exceptions shall be accompanies by a
supporting memorandum of law and a proposed substituted order and shall be served on the above parties to the proceedings. The title of any proposed substituted order shall clearly reflect the identity of the party in whose behalf the proposed substituted order is submitted. Within fifteen (15) days from the date of service of such written exceptions, memorandum of law and proposed substituted order, the parties shall be entitled to respond thereto by submitting and serving a reply memorandum and written exceptions to the proposed substituted Order, the parties shall be entitled to respond thereto by submitting and serving a reply memorandum and written exceptions to the proposed substituted Order.
The above time limitations may be extended in any case by the Executive Director or Governor and Cabinet for cause or by the parties upon their written stipulation. Any such stipulated extensions shall likewise extend the ninety
(90) day requirement within which final agency action is to be taken pursuant to Section 120.59, Florida Statutes.
Specific Authority 120 FS.
Law Implemented 20.05, 120.53(1), 120.57(1)(2) FS.
History - New 4-16-78.
Rule 12-3.03 Procedure for Conduct of Proceedings Before Head of Department.
Proceedings involving which involve consideration of recommended orders before the head of the Department, or the Executive Director, as the case may be, shall not be de-novo de novo hearings, but shall be confined to the record of proceedings before the hearing authority and the documents authorized to be filed by these rules. No new evidence shall be submitted. Oral arguments shall be limited to fifteen (15) minutes to each of the parties, unless limited or extended by the head of the Department, where he has been authorized by the head of the Department to take final agency action. Oral argument shall be deemed waived on any issue not raised in the written exceptions and memorandum of law.
Specific Authority 120 FS.
Law Implemented 20.05, 120.53(1)(c), 120.57(1)(2), FS.
History - New 4-16-78,
Rule 12-3.04 Authority of Head of Department Respecting Modification or Rejection of Findings of Fact and Conclusions of Law.
The head of the Department, or the Executive Director, where he has been authorized by the head of the Department to take final agency action, may reject or modify conclusions of law and interpretations of administrative rules contained in the recommended order, but, in such event shall separately state with particularity in the final order the specific legal authority upon which each such modification or rejection is based. The agency head, or the Executive Director, as the case may be, may reject or modify findings of fact upon a review of the complete record, if such findings of fact were not based upon competent substantial evidence or if the proceedings on which such findings were based did not comply with the essential requirements of law, but, in such even, shall separately state with particularity in the final order the specific part(s) of the record and reasoning relied upon in making each such rejection or modification.
Specific Authority 120 FS.
Law Implemented 20.05, 120.53(1)(c), 120.57(1)(2) FS.
History - New 4-16-78,
Rule 12-3.05 Authority of Head of Department to Establish Content of Final Order.
Subject to the foregoing provisions of Rule 12-3.04, and after considering all written exceptions, memoranda of law and proposed substituted orders submitted by the parties, and hearing all oral argument made, the head of the Department, or the Executive Director, as the case may be, shall be authorized to determine the content of any final order.
Specific Authority 120 FS.
Law Implemented 20.05, 120.53(1)(c), 120.57(1)(2) FS.
History - New 4-16-78
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF REVENUE TALLAHASSEE, FLORIDA
TILFORD FLYING SERVICE, INC., AND AIR CAB, INC., d/b/a/ TILFORD'S AVIATION CENTER,
Petitioner,
vs. 77-1392
STATE OF FLORIDA, DEPARTMENT OF REVENUE,
Respondent.
/
NOTICE
TO: JON C. MOYLE JOHN A. GENTRY, III MOYLE, GENTRY, JONES, MOYLE, GENTRY, JONES,
FLANIGAN & GRONER FLANIGAN & GRONER ATTORNEYS AT LAW ATTORNEYS AT LAW
707 NORTH FLAGLER DRIVE 707 NORTH FLAGLER DRIVE
P. O. BOX 3888 P. O. BOX 3888
WEST PALM BEACH, FL 33402 WEST PALM BEACH, FL 33402
DAVID K. MILLER
ASSISTANT ATTORNEY GENERAL DEPARTMENT OF LEGAL AFFAIRS THE CAPITOL LL04 TALLAHASSEE, FL 32301
You will please take notice that the Executive Director of the Department of Revenue, on February 26, 1980, at 10:00 A. M. in Room 104 Carlton Building, Tallahassee, Florida, acting in behalf of the Governor and Cabinet as authorized by Rules 12-3.02-3.05, inclusive, F.A.C., considered and approved the Recommended Order of the Division of Administrative Hearings. This constitutes final agency action by the Department of Revenue.
JON D. MORIARTY
DEPUTY GENERAL COUNSEL DEPARTMENT OF REVENUE STATE OF FLORIDA
ROOM 104, CARLTON BUILDING TALLAHASSEE, FLORIDA 32301
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Notice has been furnished by Mail to Mr. Jon C. Moyle, Moyle, Gentry, Jones, Flanigan & Groner, Attorneys at Law, 707 North Flagler Drive, P. 0. Box 3888, West Palm Beach, Florida 33402; Mr. John A. Gentry, III, Moyle, Gentry, Jones, Flanigan & Groner, Attorneys at Law, 707 North Flagler Drive, P. O. Box 3888, West Palm Beach, Florida 33402; by hand delivery to Mr. David K. Miller, Assistant Attorney General, Department of Legal Affairs, The Capitol LL04, Tallahassee, Florida 32301; and Mr. James E. Bradwell, Hearing Officer, Division of Administrative Hearings, Department of Administration, Room 101 Collins Building, Tallahassee, Florida 32301, this 3rd day of March, 1980.
JON D. MORIARTY
DEPUTY GENERAL COUNSEL DEPARTMENT OF REVENUE STATE OF FLORIDA
ROOM 104, CARLTON BUILDING TALLAHASSEE, FLORIDA 32301
| Issue Date | Proceedings |
|---|---|
| Mar. 03, 1980 | Final Order filed. |
| Aug. 20, 1979 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 03, 1980 | Agency Final Order | |
| Aug. 20, 1979 | Recommended Order | Aircraft leased from owners who paid sales tax on purchase is subject to tax itself; consideration of maintenance exchanged hands and exclusive use. |
