Judges: LARRY J. SARTIN
Agency: Department of Financial Services
Latest Update: Aug. 18, 1987
Summary: Refund of fuel tax paid before petitioner received special fuel license. Not entitled to exemption for resale until license obtained.
87-1641STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LINCOLN OIL CO., INC., )
)
Petitioner, )
)
vs. ) CASE NO. 87-1641
)
OFFICE OF COMPTROLLER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written notice, a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on July 22, 1987, in Tallahassee, Florida.
APPEARANCES
For Petitioner: James E. Farish, Jr., Pro Se
President
Lincoln Oil Co., Inc. Post Office Box 2904
Gainesville, Georgia 30503-0294
For Respondent: Edwin A. Bayo, Esquire
Assistant Attorney General Department of Legal Affairs Tax Section
The Capitol
Tallahassee, Florida 32399-1050 PROCEDURAL STATEMENT
On or about February 25, 1987, the Petitioner, Lincoln Oil Co., Inc., filed an application for special fuel tax refund in the amount of $7,995.86 with the Department of Revenue, as agent for the Respondent, the Office of Comptroller.
On March 18, 1987, the Respondent denied the application.
By letter dated April 10, 1987, the Petitioner requested an administrative hearing to contest the Respondent's proposed denial of its application for refund of tax. On May 27, 1987, an Order Granting Motion to Dismiss was issued by the undersigned dismissing the request for hearing for failure to file a request for hearing consistent with Rule 28-5.201, Florida Administrative Code. Within ten (10) days of the date of the Order Granting Motion to Dismiss, the Petitioner filed an amended request for hearing in compliance with Rule 28- 5.201, Florida Administrative Code.
At the final hearing James E. Farish, Jr., the President of the Petitioner, testified on behalf of the Petitioner. No exhibits were offered into evidence.
The Respondent did not call any witnesses or offer any exhibits into evidence.
At the commencement of the formal hearing, the Petitioner admitted the truth of the matters which the Respondent had requested the Petitioner to admit or deny in its Request for Admissions dated June 29, 1987.
The Respondent has filed a proposed recommended order containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto. The Petitioner did not file a proposed recommended order.
FINDINGS OF FACT
The Petitioner was acquired by Mr. Farish in November 1985. The Petitioner is a Georgia corporation.
In December 1985, the Petitioner bid on a federal contract to provide fuel to federal installations in the southeastern United States.
The Petitioner was awarded a contract to provide fuel oil for off-road use at Patrick Air Force Base, which is located in Florida.
The Petitioner requested an application from the Department of Revenue for a special fuel license. The Petitioner was sent a motor fuel license application instead of a special fuel license application.
The Petitioner filed the motor fuel license application with the Department of Revenue.
The Petitioner subsequently filed a special fuel license application. It was received and validated by the Department of Revenue on June 24, 1986. The Petitioner was informed on July 9, 1986, that in order to receive the license, the Petitioner needed to file a copy of a certification to do business in Florida, which could be obtained from the Secretary of State's office.
On or about January 9, 1987, the Petitioner forwarded to the Department of Revenue the certification from the Secretary of State's office needed to complete the Petitioner's license application.
The Petitioner's special fuel license was issued and became effective January 9, 1987.
The Petitioner began purchasing and selling special fuel in Florida on or about April 1, 1986.
Between April 1, 1986 and January 9, 1987, the Petitioner paid
$7,995.86 in Florida fuel tax liability for purchases of special fuel in Florida.
On or about February 25, 1987, the Petitioner filed an application for special fuel tax refund in the amount of $7,995.86.
The Respondent denied the tax refund application filed by the Petitioner by Order dated March 18, 1987.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1986 Supp.).
Section 206.87(1), Florida Statutes (1986 Supp.), imposes an excise tax upon the sale or use of special fuel in Florida. A "dealer" may purchase special fuel, however, without imposition of the tax on the first sale or transfer of title in the State. Section 206.87(2)(a), Florida Statutes (1986 Supp.).
Section 206.89(1), Florida Statutes (1985), provides that no person shall act as a dealer in the State unless he holds a valid dealer's license issued by the Department of Revenue. To procure a license as a dealer, a person is required to comply with Section 206.89(2), Florida Statutes (1985):
To procure a dealer's license, a person shall file with the department an application in such form as the department may prescribe, with a bond. No license shall be issued upon an application unless accompanied by such bond . . . .
As a part of the licensing process for out-of-state corporations, the Department of Revenue requires that a certification to do business in the State must be submitted by the applicant.
Once a seller of special fuels is licensed as a dealer, it must provide vendors from whom special fuels are purchased in the State with a resale certificate in order to avoid paying the special fuels tax pursuant to the exemption of Section 206.87(2)(a), Florida Statutes (1986 Supp.). See also Rule 12B-5.03, Florida Administrative Code. If a purchase of special fuels is completed before a license is issued, a resale certificate cannot be provided upon the purchase, and special fuels tax must be paid. If the purchaser subsequently receives a license as a dealer, the purchaser cannot then provide a resale certificate for purchases which were made before being licensed and no refund of any special fuel tax previously paid can be obtained. See Department of Revenue v. Anderson, 403 So.2d 397 (Fla. 1981).
In this case, the Petitioner began purchasing special fuel in Florida prior to January 9, 1987. Upon the purchase of the fuel it was required to pay the special fuel tax because it had not been licensed as a dealer in special fuels. If the Petitioner had been qualified as a dealer it would have provided a resale certificate to its vendors upon the purchase by the Petitioner of the fuel and the transaction would have been exempt from tax-pursuant to Section 206.87(2), Florida Statutes (1986 Supp.).
The Petitioner's license as a dealer in special fuels did not become effective until January 9, 1987, because of the Petitioner's failure to provide a certification to do business in Florida from the Secretary of State's office as required by the Department of Revenue. The Petitioner was, therefore, not qualified as a dealer when it purchased special fuels prior to January 9, 1987, and could not provide the required resale certificate. Having failed to qualify as a dealer to purchase the special fuels prior to January 9, 1987, without the
imposition of the special fuels tax, the Petitioner is not entitled to now claim that it made the purchases for an exempt purpose.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order denying the Petitioner's application for
refund be issued by the Respondent.
DONE and ENTERED this 18th day of August, 1987, in Tallahassee, Florida.
LARRY J. SARTIN
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 18th day of August 1989.
APPENDIX TO RECOMMENDED ORDER CASE No. 87-1641
Only the Respondent filed a proposed Recommended Order containing proposed findings of fact. The Respondent failed to number its proposed findings of fact. The Respondent has, however, only proposed essentially 3 proposed findings of fact: that the Respondent denied the Petitioner's claim for refund and the justification therefore, the Petitioner made four admissions and the Petitioner is a Georgia corporation.
The Respondent's first proposed finding of fact has been accepted in paragraph 12, the second proposed finding of fact has been accepted in paragraphs 6-8 and the third proposed finding of fact has been accepted in paragraph 1.
COPIES FURNISHED:
Honorable Gerald Lewis, Comptroller Department of Banking and Finance The Capitol
Tallahassee, Florida 32399-0305
James E. Farish, Jr.
President
Lincoln Oil Co., Inc. Post Office Box 2904
Gainesville, Georgia 30503-0294
Edwin A. Bayo, Esquire Assistant Attorney General Department of Legal Affairs Tax Section
The Capitol
Tallahassee, Florida 32399-1050
Docket for Case No: 87-001641
Orders for Case No: 87-001641
| Issue Date |
Document |
Summary |
|
Sep. 15, 1987 |
Agency Final Order
|
|
|
Aug. 18, 1987 |
Recommended Order
|
Refund of fuel tax paid before petitioner received special fuel license. Not entitled to exemption for resale until license obtained.
|
