STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITIZENS FIRST NATIONAL )

BANK OF CITRUS COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2328

)

STATE OF FLORIDA, OFFICE )

OF THE COMPTROLLER, )

)

Respondent. )

)

RECOMMENDED ORDER

By Petition for Request for Administrative Hearing, Citizens First National Bank of Citrus County, Petitioner, by and through its attorney, requested a hearing on the denial of its application for refund of taxes by The Comptroller of Florida, Respondent. This petition was received in the Division of Administrative Hearings on December 12, 1980 and assigned to this Hearing Officer. Upon contacting the attorneys representing the parties it was determined that no material facts are in dispute. The parties entered into a Joint Stipulation of Facts, which are reproduced below as the sole findings of facts; agreed to submit memorandums of law within 10 days of the filing of the stipulation; and waived formal hearing thereby requesting this Recommended Order be submitted without further proceedings. The following appearances were entered.

APPEARANCES

For Petitioner: Richard S. Fitzpatrick, Esquire

213 North Apopka Avenue Inverness, Florida 32650

For Respondent: John Browdy, III, Esquire

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

FINDINGS OF FACT

1. The Petitioner paid intangible personal property taxes in the amount of

   $2,706.26 on March 22, 1977 for the tax year of 1977. The said taxes were not due until June, 1997.

   
   

2. The Petitioner filed an application with the Respondent, Office of the Comptroller, State of Florida, on May 5, 1980, requesting a refund of the taxes paid because of the subsequent discovery by the Petitioner that the monies had been paid by mistake or in error.

3. The Respondent, Office of The Comptroller, served a Notice of Intent to Deny by U.S. Mail upon the Petition on November 12, 1980.

   
   

4. Respondent's Notice of Intent to Deny Refund is based upon the three- year statute of non-claim, as provided in Section 199.252, Florida Statutes.

   
   

5. The issues to be determined are whether the right to refund accrued to the Petitioner when the taxes were paid (March 22, 1977) or when the taxes were due (June 30, 1977).

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

   
   

7. Section 199.252, Florida Statutes, provides in pertinent part:

   
   

   1. Any person or his heirs, personal representatives, or assigns shall be entitled to a refund of any tax or penalty levied under this Chapter, whether payment was made voluntarily or involuntarily, which should not have been paid. No refund shall be allowed unless proper application

      has been made and delivered to the department within 3 years from the date the right to refund shall have accrued.

      
      

8. Section 215.26, Florida Statutes, contains a similar provision for refunds of other taxes, namely, that applications for refunds shall be filed with the Comptroller within 3 years after the right to such refund shall have accrued else such right shall be barred.

   
   

9. These statutory provisions, and their predecessors, which originally allowed only a one-year period in which to file for refund after the right to refund accrued, have been before the courts on several occasions.

   
   

10. Petitioner's position, that denying the refund in this case penalizes the taxpayer for early payment of taxes, has a certain appeal; however, it is not supported by the cited cases.

    
    

11. In State ex rel Victor Chemical Works v. Gay, 74 So.2d 560 (Fla. 1954), the specific issue of when the right to a refund accrued was before the court. In holding this right to refund accrued when taxes were paid, the court quoted 51 Am Jur, Taxation Section 1179 in stating at p. 562:

    
    

    The recovery of illegally exacted taxes is solely a matter of governmental grace. In the absence of an authoritative statute, taxes voluntarily, although erroneously,

    paid cannot be voluntarily refunded, although there may be justice in the claim *** Sometimes conditions are annexed to the right to a refund which must be complied with, such

    as the making of the claim within a specified time period. IT seems that defects in the

    form of sufficiency of the claim may be waived, but the statutory requirement that the claim be filed in the prescribed time may not be waived.

    
    

    then concluded:

    
    

    In short it is the universal rule that a statute of non-claim runs from the time the taxes are paid and is not postponed until the legality of the tax has been judicially determined. 84 C.J.S., Taxation, Section 639(c).

    
    

12. In Grunwald v. Department of Revenue, 343 So.2d 973 (Fla. 1st DCA 1977) the court adopted the language of the trial court that:

    
    

    The right to a refund for intangible taxes is available for a period of three years from the date of payment. Fla. Stat.

    Section 199.252 and 215.26.

    
    

13. More recently in Stuart Arms Apartments, Ltd. v. Department of Revenue, 362 So.2d 1003, 1005 (Fla. 1st DCA 1978) the court stated:

    
    

    The general rule seems to be that when a claim for refund of taxes must be

    made within a stated period of time after the refund accress, the time period commences when the tax is paid.

    
    

14. The above cited cases are on all fours with the facts here involved and lead to the inescapable conclusion that the time period for the filing of a claim for refund of taxes erroneously paid on March 22, 1977 ended on March 22, 1980 and Petitioner's claim for refund filed subsequent to that date is barred by Section 199.252, Florida Statutes. It is therefore,

RECOMMENDED that Citizens First National Bank of Citrus County's claim for refund of taxes in the amount of $2,706.26 be DENIED.

ENTERED this 26th day of February, 1981 in Tallahassee, Leon County, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1981.

COPIES FURNISHED:

Richard S. Fitzpatrick, Esq.

213 North Apopka Avenue Inverness, Florida 32650

John Browdy, III, Esq. Assistant Attorney General Department of Legal Affairs The Capitol, Room LL04 Tallahassee, FL 32301

Docket for Case No: 80-002328

Orders for Case No: 80-002328