STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI CIVIC ASSOCIATION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-224

) STATE OF FLORIDA, OFFICE OF THE ) COMPTROLLER and GERALD A. LEWIS, ) COMPTROLLER OF FLORIDA, )

)

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 May 24, 1979, in Miami, Florida.

APPEARANCES

For Petitioner: James H. Wakefield, Esquire

Hodges, Gossett, McDonald & Wakefield

3325 Hollywood Boulevard, Suite 305

Hollywood, Florida 33021

For Respondent: Linda C. Procta, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301

ISSUE

At issue herein is whether or not the Petitioner, a not-for- profit organization is entitled to a refund of taxes collected and paid to Respondent pursuant to the exemption provision of Subsection 212.04(2)(b)2., Florida Statutes.

FINDINGS OF FACT

1. Based on the testimony of the Petitioner's witness, the arguments of counsel and Respondent's brief submitted on June 5, 1979, the following relevant facts are found.

   
   

2. The Petitioner, Miami Civic Music Association, is seeking a refund of taxes collected and paid prior to October 1, 1978, on the sale of membership fees. The Petitioner obtained a certificate qualifying it as a not-for-profit organization from the United States Internal Revenue Service since approximately 1945. This status has been submitted to Respondent. Prior to October 1, 1978,

   Petitioner submitted to Respondent approximately $1,602.33 based on the sale of membership dues received for musical performances which were to he held subsequent to October 1, 1978, i.e., October 25, 1978 through April, 1979.

   
   

3. Petitioner bases its refund claim on the fact that the actual concert series which gave rise to the ticket sales occurred after October 1, 1978.

   
   

4. Respondent's position is that the Petitioner is not entitled to a refund, first, on the ground that the tax collections for which the refund is being sought were collected prior to October 1, 1978, and therefore not properly refundable under the exemption provision of Subsection 212.04(2)(b)2., Florida Statutes. Secondly, Respondent contends that Petitioner is without standing to seek a refund since the sales tax applicable to admission charges purportedly collected must first be refunded to the respective subscribers which the Petitioner has not done in this case.

   
   

5. Subsection 212.04(2)(b)2., Florida Statutes, provides:

   
   

   No tax shall be levied on dues, membership fees, and admission charges imposed by not- for-profit sponsoring organizations or community or recreational facilities. To receive this exemption, the sponsoring organization or facility must qualify as a not-for-profit entity under the provisions

   of s. 501(c)(3) of the United States Internal Revenue Cede of 1954, as amended.

   
   

6. This exemption became effective October, 1978. The membership fees here in question were sold by Petitioner prior to October 1, 1978, and taxes were collected and remitted to the Department of Revenue.

   
   

7. An examination of the legislative intent embodied in Chapter 212, Florida Statutes, reveals that each and every admission is taxed unless specifically exempted. (Subsection 212.21(3), Florida Statutes.) Inasmuch as there was no statutory exemption for Petitioner's organization prior to October 1, 1975, and based on the fundamental rule of statutory construction to the effect that a statute operates prospectively unless the intent is clearly expressed that it operates retrospectively. State, Department of Revenue v. Zuckerman-Vernon Corporation (Florida 1977) 354 So.2d 353. Subsection 212.04(2)(b)2., Florida Statutes, reveals no legislative intent that this amendment was to be applied retrospectively.

   
   

8. Finally, since an admissions tax like sales taxes, are collected on behalf of the State by the operator, it is in effect a form of excise tax upon the customer for exercising his privilege of purchasing the admission, the Petitioner herein lacks standing inasmuch as it did not pay the taxes, but merely remitted to the Department of Revenue the tax which was paid by subscribers of the memberships from the organization. See, for example, Scripto, Inc. v. Carson, 101 So.2d 775 (Florida 1958) and State ex rel Szabo Food Services, Inc. of N.C. v. Dickinson, 250 So.2d 529 (Florida 1973). In this case, in the absence of the Petitioner showing that it was the party entitled to a refund of the taxes herein based on a claim of either an overpayment, a payment where no tax was due or a payment erroneously made, Petitioner failed to advance a basis upon which its claim can be granted. Section 215.26, Florida Statutes. For these reasons, I shall recommend that the Petitioner's claim for a refund herein be denied.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57, Florida Statutes.

   
   

10. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

11. The authority of the Respondent is derived from Chapter 212, Florida Statutes.

    
    

12. Insufficient evidence was offered to establish that the Petitioner is entitled to an exemption based on the proviso of Subsection 212.04(2)(b)2., Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby,

RECOMMENDED:

That the Petitioner's claim for a refund herein be DENIED. ENTERED this 29th day of June, 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:

James H. Wakefield, Esquire Hedges, Gossett, McDonald

& wakefield

3325 Hollywood Boulevard, Suite 305

Hollywood, Florida 33021

Linda C. Procta, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301

Docket for Case No: 79-000224

Orders for Case No: 79-000224