STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CAMDEN CORPORATION, )
)
Petitioner, )
)
vs. ) CASE NO. 94-1452
)
DEPARTMENT OF REVENUE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written notice, a formal hearing was held in this case on February 21 and 22, 1996, at Fort Lauderdale, Florida, before Errol H. Powell, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Harris K. Solomon, Esquire
Kenneth E. Keechl, Esquire Brinkley, McNerney, Morgan,
Solomon and Tatum
200 East Las Olas Boulevard Fort Lauderdale, Florida 33301
For Respondent: Nancy Francillon
Assistant Attorney General Office of the Attorney General The Capitol - Tax Section Tallahassee, Florida 32399-1050
STATEMENT OF THE ISSUE
The issue for determination is whether Petitioner is liable for use tax, pursuant to Chapter 212, Florida Statutes, to the Florida Department of Revenue for the use and storage of a vessel.
PRELIMINARY STATEMENT
On October 10, 1992, the Florida Department of Revenue (Respondent) issued a Special Programs Section Billing for Additional Tax, Penalty and/or Interest to Camden Corporation (Petitioner). Respondent assessed Petitioner as of April 10, 1992: a tax of $337,080, representing 6 percent of the purchase price of
$5,618,000 for the motor yacht, "Camden"; a penalty of $84,270; a specific penalty of $168,540; and interest of $59,826.60. On October 26, 1992, Respondent sent a Notice of Final Assessment for Tax Penalty and Interest Due on a Boat to Petitioner which included the above assessment and the facts and reasons for the assessment, including legal reasons. On January 14, 1994, Respondent issued a Notice of Reconsideration and Revised Notice of Final Assessment for Tax, Penalty and Interest to Petitioner in which Respondent
withdrew the specific penalty of $168,540 and sustained the remainder of
$503,113.02 assessment, plus accrued interest. On March 14, 1994, Petitioner filed a petition contesting the revised assessment and requesting a hearing. On March 22, 1994, this matter was referred to the Division of Administrative Hearings.
At the hearing, Petitioner presented the testimony of four witnesses and entered three exhibits into evidence. Respondent presented the testimony of one witness and entered 10 exhibits into evidence.
A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. The parties filed proposed findings of fact which are addressed in the appendix to this recommended order.
FINDINGS OF FACT
Camden Corporation (Petitioner) is a foreign corporation, incorporated in Delaware on August 7, 1990. Petitioner is a solely owned, closed corporation. Petitioner has two officers: a President, who is the sole owner, and a Treasurer.
At all times material hereto, Petitioner's President and Treasurer were residents of Jacksonville, Florida.
Petitioner's business address is in Jacksonville, Florida. Petitioner's officers handled its day-to-day activities and records from Jacksonville, Florida.
Prior to the Petitioner's incorporation, its President wanted to purchase a vessel to take a world wide cruise. He obtained the services of a law firm to advise him on avoiding a state's sales and use tax on the purchase of a vessel, with Florida being one of the states.
A lawyer in the firm contacted the Florida Department of Revenue (Respondent) and inquired, without relating any of Petitioner's factual circumstances, as to whether the case of Department of Revenue v. Yacht Futura,
510 So.2d 1047 (Fla. 1st DCA 1987) was still good case law in Florida. Yacht Futura was a case in which the parameters of Florida's sales and use tax were interpreted regarding repairs and personal use of vessels while in Florida waters. Respondent's representative informed the firm's lawyer that Yacht Futura was still being followed by Respondent and that no exceptions existed; but Respondent's representative further cautioned that the factual circumstances must conform to Yacht Futura.
The firm's lawyer prepared a memorandum advising Petitioner's President, among other things, that no liability for Florida's sales and use tax would be incurred for repairs and personal use of a vessel in Florida's waters, so long as the circumstances complied with Yacht Futura.
After having received the firm's advice and advice from tax advisors, Petitioner's President created and incorporated Petitioner.
On August 14, 1990, Petitioner purchased a used motor vessel in international waters for $5,618,000. The vessel was a 131' Feadship with Coast Guard documentation number 623589. Petitioner named the vessel "CAMDEN."
The CAMDEN was the only assest owned by Petitioner.
Petitioner did not pay any Florida sales tax at the time of CAMDEN's purchase.
From August 14, 1990 through October 15, 1990, the CAMDEN was outside the State of Florida. Petitioner's President had taken the vessel on a cruise.
During the time period that the vessel was on the cruise, Petitioner did not pay any sales or use tax in any jurisdiction in the United States.
Also, during the time period that the vessel was on the cruise, Petitioner did not license, title, or register the CAMDEN in any jurisdiction in the United States.
On October 15, 1990, relying on the law firm's advice, Petitioner imported the CAMDEN into Florida waters for major repairs, with the intention of departing after the repairs and not returning to Florida waters.
Petitioner obtained the services of Huckins Yacht Corporation, a registered repair facility, in Jacksonville to perform repairs to the CAMDEN, which had a dock in Huckins Marina. However, the dock at Huckins Marina was unable to accommodate a vessel the size of the CAMDEN. The vessel was docked at Southbank Marina which could accommodate the vessel and which was the closest marina to Huckins Marina.
Petitioner's President was not in the State of Florida when the CAMDEN arrived in Florida waters. He did not return to Florida until October 24, 1990.
Petitioner did not have a written contract with Huckins Yacht Corporation (Huckins) to perform any repairs on the CAMDEN. However, Huckins did perform some minor repairs to the CAMDEN.
Also, Huckins arranged for a major repair to the CAMDEN. It arranged for Petitioner to purchase a global position satellite electronic system as a nonwarranty repair. The electronic system was to be installed by someone who was not an employee of Huckins and who did not have a contractual agreement with Huckins for the installation. The electronic system was installed on the CAMDEN at the Southbank Marina.
During the time that repairs were being made to the CAMDEN, its crew remained on board.
Petitioner never received any bill from Huckins for any repairs made to the CAMDEN, including the installation of the electronic system.
While the vessel was docked for repairs at the Southbank Marina, it was used for personal entertainment.
On October 25, 1990, Petitioner's President and his friends had an open house type of party on the CAMDEN.
On October 26, 1990, Petitioner had a luncheon cruise on the CAMDEN.
On October 27, 1990, Petitioner had a dinner cruise and a birthday party for the daughter of Petitioner's President.
On October 28, 1990, Petitioner took the CAMDEN from Jacksonville to St. Augustine for a pleasure trip.
Leaving St. Augustine, the CAMDEN traveled to Miami, Florida and docked there on October 30, 1990, to get the vessel prepared for world travel. In Miami, the CAMDEN was docked at the Moorings Yacht Services, Inc. (Moorings), a registered repair facility. In November 1990, the Moorings began repairs to the CAMDEN, and in December 1990, the vessel departed the Moorings.
In November 1990, Petitioner hired a tax consultant, who was a former employee of Respondent, for advice regarding Petitioner's liability for sales and use tax of the CAMDEN in Florida. The tax consultant advised Petitioner to register the CAMDEN as a charter for sales and use tax. Further, he advised Petitioner to late-file with Respondent an Exemption Affidavit for Boats Placed in a Registered Repair Facility, referred to as a Safe Harbor Affidavit, pursuant to Subsection 212.08(7)(t), Florida Statutes.
On December 19, 1990, a Safe Harbor Affidavit was executed by both Huckins and Petitioner's President. The Safe Harbor Affidavit indicated, among other things, that Huckins was a registered repair facility in Jacksonville, Florida and that, from October 16, 1990 through October 25, 1990, the CAMDEN was under the care, custody, and control of Huckins for the purpose of installing electronics, which was the electronic system. Even though the Safe Harbor Affidavit does not provide that Huckins installed the electronic system on the CAMDEN, it does infer that Huckins had installed the electronic device.
Respondent interprets "care, custody, and control" as the vessel being in the "physical" care, custody, and control of the registered repair facility.
Clearly shown on the Safe Harbor Affidavit is that it is to be filed with the Respondent within 72 hours after the repair facility takes possession of the vessel. Additionally, clearly shown on the Safe Harbor Affidavit is that a copy of it is to be filed with Respondent within 72 hours after the work is completed and the vessel is released to the owner.
On or about December 22, 1990, the CAMDEN departed Florida waters for a pleasure cruise to the Bahamas. In early January 1991, the vessel returned to Florida.
The CAMDEN remained in Florida until mid-January 1991, when it traveled to the Caribbean. Around mid-May 1991, the vessel returned to Florida.
In 1990, Petitioner was not issued a permit by any agency of the United States government to use the CAMDEN in Florida waters.
In April 1991, one of Respondent's representatives discovered, during a routine examination of the records of the Miami Marina, that the CAMDEN was named as a boat docked in Florida with an out-of-state hailing port.
On May 13, 1991, Respondent's representative sent a Declaration for Florida Sales and Use Tax (Declaration) to Petitioner for it to complete and return to Respondent.
Instead of completing the Declaration, on December 10, 1991, Petitioner's tax consultant delivered the Safe Harbor Affidavit executed on December 19, 1990, to Respondent's representative. Additionally, Petitioner's tax consultant verbally supported the Safe Harbor Affidavit by stating that the
CAMDEN was docked at Southbank Marina in Jacksonville while the repairs to the vessel were being completed by Huckins and the nonemployee.
The Moorings filed a Safe Harbor Affidavit with Respondent, providing that the CAMDEN entered the facility in November 1990 and departed in December 1990. The Safe Harbor Affidavit was not submitted to Respondent within 72 hours of the CAMDEN either entering the facility for repairs or departing the facility after the repairs were completed. 1/
Respondent has a practice of accepting late-filed Safe Harbor Affidavits, with the condition that all documents supporting repairs are also to be submitted. A subsequent review of all the documents submitted would determine whether a person would be responsible for sales and use tax.
On December 10, 1991, based on the Safe Harbor Affidavit and the representations by Petitioner's tax consultant, Respondent's representative closed her file regarding the sales and use tax, without assessing any sales or use tax against Petitioner. However, she forwarded neither a closing letter nor a closing agreement to Petitioner.
Even though Petitioner had not received a closing letter or a closing agreement from Respondent, it believed that Respondent had terminated its inquiry of any assessment against it.
In or around November 1991, another of Respondent's representative (Respondent's second representative) observed, while performing a routine marina check, the CAMDEN docked at the Palm Harbor Marina in West Palm Beach, Florida. Subsequently, he opened a new file on the CAMDEN. Petitioner was unaware that Respondent's second representative had opened a new file.
Respondent's second representative performed an investigation of the vessel, including reviewing the Safe Harbor Affidavit submitted to the Respondent's other representative on December 10, 1991. His investigation led to the assessment at issue.
The investigation by Respondent's second representative showed, and it is determined as a finding of fact here, that the CAMDEN was not in the physical care, custody, and control of Huckins during the repairs for the period October 16, 1990 through October 25, 1990.
From October 15, 1990, when the CAMDEN entered in Florida waters for repairs, the vessel remained in Florida for more than a total of 10 days.
Petitioner decided to sell the CAMDEN and listed it for $6.9 million. On February 14, 1992, Petitioner sold the CAMDEN for $5.3 million, which was
$1.6 million less than it was originally listed.
For 1991 and 1992, Petitioner's President treated the CAMDEN as his personal second home and took a home interest deduction for federal income tax purposes.
On October 10, 1992, Respondent notified Petitioner that it was assessed, as of April 10, 1992, a tax of $337,080, representing: 6 percent of the CAMDEN's purchase price of $5,618,000; $84,270 in penalty; $168,540 in specific penalty; and $59,826.60 in interest. On October 26, 1992, Respondent issued a notice of final assessment to Petitioner which included the above
assessment and the facts and reasons, including legal reasons, for the assessment. Petitioner contested the assessment.
On January 14, 1994, Respondent issued a notice of reconsideration of the assessment and revised final assessment, withdrawing the $168,540 in specific penalty but sustaining the remaining assessment of $503,113.02, which represented: $337,080 tax; $84,270 penalty; and $81,763.02 interest.
In its notice of reconsideration, Respondent determined, among other things, that Petitioner was issued an out-of-state registration, effective December 1, 1990, as a result of Petitioner submitting an application for sales and use tax registration, listing the major business activity as rental of tangible personal property. Additionally, Respondent determined, among other things, that Petitioner, as the corporation, maintained control and use of the CAMDEN during the period December 1990 through February 1992 when the CAMDEN was sold. No tax at issue was assessed for this period of time.
Petitioner protested the revised assessment.
Petitioner has not paid any Florida use tax.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
This matter is a taxpayer contest proceeding. Respondent's burden of proof is limited to showing that an assessment was made against Petitioner and to showing the factual and legal grounds upon which the assessment was made. Subsection 120.575(2), Florida Statutes. Respondent has met its burden of proof.
Petitioner, as challenger, has the burden of proof in showing that the assessment is improper, whether in whole or in part. Homer v. Dadeland Shopping Center, Inc., 229 So.2d 834, 837 (Fla. 1969). A tax assessment has a presumption of correctness and in its proof, Petitioner must exclude every reasonable hypothesis of a valid assessment, i.e., Petitioner must show the assessment to be so unreasonable as to be arbitrary and capricious. Homer, supra; District School Board of Lee County v. Askew, 278 So.2d 272, 277 (Fla. 1973).
Every person who uses or stores for use any tangible personal property in the State of Florida is exercising a taxable privilege. Sections 212.05 and 212.06, Florida Statutes.
Section 212.05, Florida Statutes (Supp. 1990), provides in pertinent part:
For the exercise of such privilege, a tax is levied on each taxable transaction or incident, which tax is due and payable as follows:
* * *
(b) At the rate of 6 percent of the cost price of each item or article of tangible personal property when the same is not sold
but is used, consumed, distributed, or stored for use or consumption in this state.
* * *
The tax shall be collected by the dealer, as defined herein, and remitted by him to
the state at the time and in the manner hereinafter provided.
Section 212.06, Florida Statutes (1989), provides in pertinent part: (1)(a) The aforesaid tax at the rate of . .
. 6 percent of the cost price as of the moment of commingling with the general mass of property in this state . . . shall be collectible from all dealers as herein defined on the . . . use, the consumption,
. . . and the storage for use or consumption in this state of tangible personal property
. . . taxable under this part.
* * *
(2)(c) The term "dealer" is further defined to mean every person . . . who has in his possession . . . for use, consumption, or
. . .; for storage to be used or consumed in this state, tangible personal property
. . . .
* * *
It is however, the intention of this chapter to levy a tax on . . . use, the consumption, . . . and the storage to be used or consumed in this state of tangible personal property after it has come to rest in this state and has become a part of the mass property of this state.
In the case at hand, it has been demonstrated that Petitioner has commingled the CAMDEN with the general mass of property in Florida and that Petitioner has either used, or stored to use, the CAMDEN in Florida beginning October 15, 1990 through December 1, 1990. Petitioner has failed to demonstrate that the assessment is improper.
However, Petitioner argues that it is exempt from Florida's use tax pursuant to Subsection 212.08(7)(t), Florida Statutes (Supp. 1990).
Subsection 212.08, Florida Statutes (Supp. 1990), provides in pertinent part:
The . . . use, the consumption, . . . and the storage to be used or consumed in this state of the following are hereby specifically exempt from the tax imposed by this part.
* * *
Miscellaneous Exemptions
* * *
(t) Boats temporarily docked in state.--
1. Notwithstanding the provisions of chapters
327 and 328, pertaining to the registration of vessels, a boat upon which sales tax has not been paid, which has not been licensed, titled, or registered in another taxing jurisdiction within the United States, or which is being used in the waters of this state under a permit issued by an agency of the United States government is exempt from the use tax under this chapter if it enters and remains in this state for a period not to exceed a total of 10 days in any calendar year calculated from the date of first dockage or slippage at a facility, registered with the department [Department of Revenue], that rents dockage or slippage space in this state. If a boat brought into this state for use under this paragraph is placed in a facility, registered with the department, for repairs, alterations,
refitting, or modifications and such repairs, alterations, refitting, or modifications are supported by written documentation, the 10- day period shall be tolled during the time the boat is physically in the care, custody, and control of the repair facility. The 10- day period may be tolled only once within a calendar year when a boat is placed for the first time that year in the physical care, custody, and control of a registered repair facility; however, the owner may request
and the department may grant an additional tolling of the 10-day period for purposes of repairs that arise from a written guarantee given by the registered repair facility, which guarantee covers only those repairs or modifications made during the first tolled period. Within 72 hours after the date upon which the registered repair facility took possession of the boat, the facility must furnish to the department,
on forms prescribed by the department, an affidavit which states that the boat is under its care, custody, and control and that the owner does not use the boat. Upon completion of the repairs, alterations, refitting, or modifications, the registered repair facility must furnish the department, within 72 hours after the date of release, with a copy of the release and any other information the department requires. . . .
An exemption in a taxing statute is to be strictly construed against the person claiming the exemption. State ex rel. Szabo Food Services, Inc. v. Dickinson, 386 So.2d 529 (Fla. 1973); Capital City Country Club v. Tucker, 613 So.2d 448 (Fla. 1993). Moreover, doubtful language in exemption statutes is construed against the person claiming the exemption. United States Gypsum Co. v. Green, 110 So.2d 409 (Fla. 1959).
Petitioner has failed to demonstrate that it has satisfied all the requirements for the exemption and, therefore, has failed to demonstrate its entitlement to the exemption. Petitioner's vessel, the CAMDEN, was not in the physical care, custody, and control of registered repair facility during the repair period of October 15, 1990 through October 26, 1990. Although Petitioner late-filed the Safe Harbor Affidavit, the documentation supporting the Affidavit did not show that the CAMDEN was in the physical care, custody, and control of the registered repair facility. Additionally, the owner of the CAMDEN continued to have personal use of the vessel during the repair period. As a result, there was no tolling of the 10-day period.
Regarding the late-filed Safe Harbor Affidavit, Petitioner argues and presented testimony through Respondent's former employee and Petitioner's consultant that Respondent has a practice of accepting late-filed Safe Harbor Affidavits and automatically granting the exemption based upon the Affidavit without requiring more. However, Respondent argues and presented testimony that, while it may accept late-filed Affidavits, supporting documentation must accompany the Affidavit and, therefore, there is no automatic granting of the exemption based solely on the Affidavit. Given the conflicting testimony, Petitioner's argument is not persuasive. State Department of Revenue v. Anderson, 403 So.2d 397, 400 (Fla. 1981). Moreover, given the requirement that the exemption provision be strictly construed against Petitioner, it is not unreasonable for Respondent to require documentation more than the late-filed Affidavit.
Further, Petitioner argues that several factors show that Respondent should be estopped from denying the exemption. As pointed out in Anderson, supra at 400:
As a general rule, equitable estoppel will be applied against the state only in rare instances and under exceptional circum- stances. North American Co. v. Green,
120 So.2d 603 (Fla. 1959). Another general rule is that the state cannot be estopped through mistaken statements of the law. Department of Revenue v. Hobbs, 368 So.2d 367 (Fla. 1st DCA), appeal dismissed, 378 So.2d
345 (Fla. 1979); Austin v. Austin, 350 So.2d
102 (Fla. 1st DCA 1977), cert. denied, 357 So.2d 184 (Fla. 1978). In order to demonstrate estoppel, the following elements must be shown: 1) a representation as to a material fact that is contrary to a later- asserted position; 2) reliance on that representation; and 3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon. Greenhut Construction Co. v. Henry
A. Knott, Inc., 247 So.2d 517 (Fla. 1st DCA 1971).
Petitioner has failed to show the necessary elements for estoppel and, therefore, its arguments are not persuasive.
Also, contrary to any argument forwarded by Petitioner, Chapter 327, Florida Statutes, has no substantive impact to the exemption in the case at hand.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order affirming
the assessment of use tax against the Camden Corporation in the amount of
$503,113.02, plus accrued interest.
DONE AND ENTERED on this 30th day of September, 1996, in Tallahassee, Leon County, Florida.
ERROL H. POWELL, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1996.
ENDNOTE
1/ This was a finding in Respondent's notice of reconsideration issued on January 14, 1994. Respondent's finding was not disputed at hearing and is determined to be a finding of fact in the case at hand.
APPENDIX
The following rulings are made on the parties' proposed findings of fact: Petitioner
Partially accepted in finding of fact 47. Also, see Preliminary Statement.
Partially accepted in finding of fact 47. Also, see Preliminary Statement.
Partially accepted in finding of fact 47.
Partially accepted in finding of fact 48. Also, see Preliminary Statement.
Partially accepted in finding of fact 50. Also, see Preliminary Statement.
Partially accepted in finding of fact 1.
Partially accepted in finding of fact 8.
Partially accepted in findings of fact 4 and 14.
Partially accepted in finding of fact 11.
Partially accepted in finding of fact 5.
Partially accepted in finding of fact 5.
Rejected as not being supported by the evidence.
Partially accepted in finding of fact 4.
Partially accepted in finding of fact 14.
Partially accepted in findings of fact 15 and 25.
Partially accepted in findings of fact 1 and 16.
Partially accepted in finding of fact 15.
Partially accepted in findings of fact 21, 22, 23, and 24.
Partially accepted in findings of fact 21, 22, 23, and 24.
Partially accepted in findings of fact 15 and 43.
Partially accepted in finding of fact 18.
Rejected as being subordinate, or unnecessary.
Partially accepted in findings of fact 27 and 28.
Partially accepted in finding of fact 28.
Partially accepted in finding of fact 28.
Partially accepted in finding of fact 38.
Partially accepted in finding of fact 38.
Rejected as being irrelevant, or argument.
Rejected as being subordinate, unnecessary, or irrelevant.
Partially accepted in finding of fact 35.
Partially accepted in finding of fact 36.
Partially accepted in finding of fact 36.
Partially accepted in findings of fact 36, 38, and 39.
Partially accepted in finding of fact 39.
Partially accepted in finding of fact 41.
Partially accepted in findings of fact 41 and 45.
Partially accepted in finding of fact 45.
Partially accepted in findings of fact 41 and 45.
Partially accepted in findings of fact 41 and 45.
Partially accepted in finding of fact 5.
Partially accepted in finding of fact 5.
Rejected as being argument, or a conclusion of law.
Rejected as being argument, or a conclusion of law.
Rejected as being argument, or a conclusion of law.
Rejected as being argument, or a conclusion of law.
Respondent
Partially accepted in finding of fact 1.
Partially accepted in findings of fact 1 and 2.
Partially accepted in finding of fact 1.
Partially accepted in finding of fact 2.
Partially accepted in finding of fact 2.
Partially accepted in finding of fact 3.
Partially accepted in finding of fact 4.
Partially accepted in finding of fact 5.
Partially accepted in finding of fact 5.
Partially accepted in finding of fact 5.
Partially accepted in finding of fact 6.
Partially accepted in finding of fact 6.
Partially accepted in findings of fact 7 and 8.
Partially accepted in findings of fact 8 and 9.
Partially accepted in finding of fact 11.
Partially accepted in findings of fact 6 and 10.
Partially accepted in finding of fact 15.
Partially accepted in findings of fact 6, 27, and 36.
Partially accepted in finding of fact 12.
Partially accepted in finding of fact 13.
Partially accepted in finding of fact 33.
Partially accepted in finding of fact 44.
Partially accepted in findings of fact 4, 11, 21-26, 31-32, and 46.
Partially accepted in finding of fact 21.
Partially accepted in finding of fact 22.
Partially accepted in finding of fact 23.
Partially accepted in finding of fact 24.
Partially accepted in finding of fact 25.
Partially accepted in finding of fact 26.
[This paragraph omitted by Respondent.]
Partially accepted in findings of fact 26 and 31.
Partially accepted in finding of fact 32.
Partially accepted in finding of fact 27.
Partially accepted in finding of fact 27.
Partially accepted in finding of fact 27.
Partially accepted in finding of fact 34.
Partially accepted in finding of fact 35.
Partially accepted in finding of fact 36.
Partially accepted in finding of fact 39.
Partially accepted in finding of fact 41.
Partially accepted in findings of fact 41 and 42.
Partially accepted in finding of fact 28.
Partially accepted in finding of fact 15.
Partially accepted in findings of fact 17 and 18.
Partially accepted in findings of fact 17, 18, and 20.
Partially accepted in finding of fact 18.
Partially accepted in finding of fact 18.
Partially accepted in finding of fact 18.
Partially accepted in finding of fact 18.
Partially accepted in findings of fact 26 and 37.
Partially accepted in finding of fact 37.
Partially accepted in finding of fact 37.
Partially accepted in findings of fact 10 and 51.
Partially accepted in finding of fact 47. Also, see Preliminary Statement.
See Conclusions of Law.
See Conclusions of Law.
See Conclusions of Law.
NOTE: Where a proposed finding has been partially accepted, the remainder has been rejected as being subordinate, irrelevant, unnecessary, cumulative, not supported by the evidence, argument, or conclusion of law.
COPIES FURNISHED:
Harris K. Solomon, Esquire Kenneth E. Keechl, Esquire Brinkley, McNerney, Morgan,
Solomon and Tatum Post Office Box 522
Fort Lauderdale, Florida 33302-0522
Albert J. Wallerman Assistant Attorney General
Office of the Attorney General The Capitol - Tax Section Tallahassee, Florida 32399-1050
Larry Fuchs Executive Director Department of Revenue 104 Carlton Building | |
Tallahassee, Florida | 32399-0100 |
Linda Lettera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida | 32399-0100 |
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Mar. 28, 1997 | Final Order filed. |
| Mar. 17, 1997 | (Respondent) Notice filed. |
| Feb. 03, 1997 | Amended Petitioner`s Exceptions to Recommended Order; Amended Petitioner`s Exception to Respondent`s Exceptions to Recommended Order, Memorandum of Law and Proposed Changes to Order (amends certificate of service only); Cover Letter filed. |
| Jan. 29, 1997 | Petitioner`s Exceptions to Recommended Order; Petitioner`s Exception to Respondent`s Exceptions to Recommended Order, Memorandum of Law and Proposed Changes to Order filed. |
| Jan. 17, 1997 | (Respondent) Amended Notice; Proposed Final Order filed. |
| Jan. 13, 1997 | (Respondent) Notice; Proposed Final Order filed. |
| Dec. 05, 1996 | (Petitioner) Notice of Stipulation for Extension of Time filed. |
| Dec. 05, 1996 | (Petitioner) Notice of Stipulation for Extension of Time filed. |
| Dec. 03, 1996 | (Petitioner) Notice of Stipulation for Extension of Time (filed via facsimile). |
| Sep. 30, 1996 | Order sent out. (Motion for costs is denied) |
| Sep. 30, 1996 | Recommended Order sent out. CASE CLOSED. Hearing held 02/21-22/96. |
| May 20, 1996 | Petitioner`s Proposed Findings of Fact and Recommended Order filed. |
| May 20, 1996 | Pages 3-13 of Petitioner`s Proposed Findings of Fact and Recommended Order (pages 1-2 were filed on 5-17-96) filed. |
| May 17, 1996 | Petitioner`s Proposed Findings of Fact and Recommended Order (faxed, pages 1 and 2) filed. |
| May 17, 1996 | Respondent`s Proposed Recommended Order filed. |
| Apr. 30, 1996 | Order sent out. (Motion to file the assessment file subsequent to hearing is denied; Motion to proffer the assessment file subsequent to hearing is granted) |
| Apr. 17, 1996 | Petitioner`s Response to Respondent`s Motion for Extension of Time to File Proposed Recommended Order filed. |
| Apr. 17, 1996 | Order Granting Extension of Time sent out. (request for telephone conference is denied; PRO`s are due 5/17/96) |
| Apr. 17, 1996 | Department of Revenue`s Motion for Extension of Time to File Proposed Recommended Order filed. |
| Apr. 17, 1996 | Petitioner`s Response to Respondent`s Motion for Extension of Time to File Proposed Recommended Order filed. |
| Apr. 17, 1996 | Department of Revenue`s Motion for Extension of Time to File Proposed Recommended Order filed. |
| Mar. 20, 1996 | Notice of Filing of Transcript sent out. (Proposed Recommended Order`s due 30 days from 3/19/96) |
| Mar. 19, 1996 | Day II Transcript of Proceedings filed. |
| Mar. 15, 1996 | Respondent`s Memorandum of Law in Support of its Motion to File or in the Alternative Proffer the Assessment File Subsequent to the Hearing filed. |
| Mar. 14, 1996 | Transcript filed. |
| Mar. 11, 1996 | Petitioner`s Response to Respondent`s Motion to File or in the Alternative Proffer the Assessment File Subsequent to the Hearing filed. |
| Mar. 06, 1996 | (2) Subpoena Duces Tecum; (2) Return of Service Affidavit filed. |
| Mar. 01, 1996 | Respondent`s Motion to File or in the Alternative Proffer the Assessment File Subsequent to the Hearing; Certification filed. |
| Feb. 26, 1996 | Subpoena Duces Tecum (From K. Keechl); Return of Service Affidavit filed. |
| Feb. 21, 1996 | CASE STATUS: Hearing Held. |
| Feb. 20, 1996 | Petitioner`s Pre-Trial Statement filed. |
| Feb. 20, 1996 | Respondent`s Motion for Costs filed. |
| Feb. 19, 1996 | Respondent`s Pre-Trial Statement filed. |
| Feb. 16, 1996 | Return of Service Affidavit filed. |
| Feb. 13, 1996 | (Respondent) Third Amended Notice of Taking Corporate Deposition Duces Tecum and Inspection of Documents filed. |
| Feb. 12, 1996 | (Petitioner) Re-Notice of Taking Depositions filed. |
| Feb. 12, 1996 | Order Granting Motion to Compel sent out. |
| Feb. 08, 1996 | Letter to EHP from Nancy Francillon (RE: request for Production of documents) filed. |
| Feb. 06, 1996 | Respondent`s Emergency Motion to Compel Production of Documents Prior to Deposition filed. |
| Feb. 05, 1996 | Petitioner`s Emergency Motion for Continuance of Depositions filed. |
| Feb. 05, 1996 | (Petitioner) Notice of Emergency Telephonic Hearing filed. |
| Feb. 02, 1996 | (Respondent) Second Amended Notice of Taking Corporate Deposition Duces Tecum and Inspection of Documents; Notice of Taking Deposition filed. |
| Feb. 01, 1996 | Order sent out. (Motion for Protective Order is moot) |
| Feb. 01, 1996 | Order sent out. (re: depositions) |
| Jan. 31, 1996 | (Respondent) Amended Notice of Taking Corporate Deposition Duces Tecum and Inspection of Documents filed. |
| Jan. 31, 1996 | (Petitioner) Notice of Emergency Telephonic Hearing; Petitioner`s Emergency Motion for Continuance of Depositions filed. |
| Jan. 30, 1996 | (Petitioner) Notice of Taking Depositions filed. |
| Jan. 22, 1996 | (Petitioner) Motion for Protective Order filed. |
| Dec. 14, 1995 | (Respondent) Notice of Taking Corporate Deposition Duces Tecum filed. |
| Sep. 12, 1995 | Order Rescheduling Hearing sent out. (hearing rescheduled for Feb. 21-22, 1996; Ft. Lauderdale) |
| Sep. 08, 1995 | (Petitioner) Notice to Court filed. |
| Sep. 05, 1995 | Respondent`s Status Report filed. |
| Sep. 01, 1995 | Notice of Filing Answers of Petitioner to Respondent`s Second Set of Service of Interrogatories; Answers to Interrogatories filed. |
| Aug. 31, 1995 | Petitioner`s Response to First Request for Admissions; Petitioner`s Response to Respondent`s Second Request for Production of Documents filed. |
| Aug. 24, 1995 | Order sent out. (available hearing dates due in 10 days) |
| Jul. 31, 1995 | (Respondent) Joint Status Report; Notice of Serving Second Set of Interrogatories; Second Request for Production of Documents filed. |
| Jul. 26, 1995 | Respondent`s First Request for Admissions to Petitioner filed. |
| Jun. 27, 1995 | Department of Revenue`s Response to Request for Production filed. |
| Jun. 15, 1995 | Order Granting Continuance and Requiring Response sent out. (hearing cancelled; parties to file status report by 7/28/95) |
| May 30, 1995 | Petitioner`s Motion for Continuance filed. |
| May 17, 1995 | Notice of Filing Answers of Petitioner to Respondent`s Initial Interrogatories; (Petitioner) Request for Production of Documents filed. |
| Apr. 06, 1995 | Petitioner`s Response to Respondent`s First Request for Production of Documents filed. |
| Apr. 03, 1995 | (Petitioner) Notice of Taking Deposition filed. |
| Apr. 03, 1995 | (Respondent) Notice of Appearance filed. |
| Mar. 27, 1995 | Subpoena for Deposition Duces Tecum (for Hearing Officer signature); Cover Letter filed. |
| Jan. 23, 1995 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for June 28-29, 1995; 9:00am; Ft. Laud) |
| Jan. 20, 1995 | Petitioner and Respondent`s Joint Motion for Continuance; Cover Letter filed. |
| Sep. 27, 1994 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for February 1-2, 1995; 9:30am; Ft. Lauderdale) |
| Sep. 20, 1994 | Petitioner and Respondent`s Joint Motion for Continuance filed. |
| Aug. 18, 1994 | Order Granting Extension of Time sent out. (Motion for Extension of time granted) |
| Aug. 02, 1994 | (unsigned) Agreed Order on Petitioner`s Motion for Extension of Time w/cover ltr filed. (From Kenneth E. Keechl) |
| Jul. 14, 1994 | (Petitioner) Motion for Extension of Time filed. |
| Jun. 17, 1994 | (Respondent) Request for Production of Documents filed. |
| Jun. 17, 1994 | (Respondent) Notice of Serving Interrogatories filed. |
| Apr. 28, 1994 | Prehearing Order sent out.(prehearing stipulation due no later than 10 days prior to the date set for final hearing) |
| Apr. 28, 1994 | Notice of Hearing sent out. (hearing set for 10/5-6/94; at 9:00am; in Ft. Lauderdale) |
| Apr. 20, 1994 | Joint Response to Initial Order filed. |
| Apr. 20, 1994 | Respondent`s Answer To Petition filed. |
| Mar. 31, 1994 | (Respondent) Unopposed Motion for Extension of Time to Respond to Petition and Initial Order filed. |
| Mar. 22, 1994 | Notice of Reconsideration filed. (From Judy Langston) |
| Mar. 22, 1994 | Initial Order issued. |
| Mar. 17, 1994 | Agency referral letter; Petition for Formal Proceedings filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 27, 1997 | Agency Final Order | |
| Sep. 30, 1996 | Recommended Order | Petitioner failed to show that respondent's assessment was improper and that it was entitled to an exemption from use tax/affirm assessment. |
DEPARTMENT OF REVENUE vs. OCEANIA CHARTERS, INC., 94-001452 (1994)
HMY NEW YACHT SALES, INC. vs DEPARTMENT OF REVENUE, 94-001452 (1994)
AMERICAN TELEPHONE AND TELEGRAPH COMPANY vs. DEPARTMENT OF REVENUE, 94-001452 (1994)
DEPARTMENT OF REVENUE vs. VOLPE CONSTRUCTION COMPANY, INC., 94-001452 (1994)
FLORIDA PROPERTY CARE, INC. vs DEPARTMENT OF REVENUE, 94-001452 (1994)
