STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NANA'S PETROLEUM, INC., ) EDILIA PEREZ, and EMILIO PEREZ, )

)

Petitioners, )

)

vs. ) CASE NO. 94-3605

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on January 11-12, 1995, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Dean L. Willbur, Jr., Esquire

319 Clematis Street, Suite 600

West Palm Beach, Florida 33405-0917

Andrew Helgesen, Esquire

11380 Prosperity Farms Road, Suite 201 Palm Beach Gardens, Florida 33410

For Respondent: Lealand L. McCharen, Esquire

Francisco M. Negron, Jr., Esquire Office of the Attorney General The Capitol-Tax Section Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue presented is whether Petitioners are responsible for unpaid taxes as alleged in the Notices of Final Assessment issued in this cause.

PRELIMINARY STATEMENT

On September 13, 1990, and on April 25, 1994, the Department issued Notices of Final Assessment for Fuel Tax, Penalty, and Interest Due and Notices of Jeopardy Findings against Petitioners Nana's Petroleum, Inc., Emilio Perez d/b/a Nana's Stations, Emilio Perez as vice president of Nana's Petroleum, Inc., Edilia Perez as secretary of Nana's Petroleum, Inc., and against Sun Petroleum, Inc., and Emilio Perez as president and manager of Sun Petroleum, Inc.

Petitioners timely filed their Petition for Contest of Assessment Issued by the Department of Revenue and requested a formal hearing regarding the Department's

Notices. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the formal proceeding.

At the commencement of the final hearing, Sun Petroleum, Inc., and Emilio Perez as president and manager of Sun Petroleum, Inc., withdrew their protest of the Notices of Final Assessments issued against them, and the style of this cause was accordingly amended.

Petitioners presented the testimony of Emilio Perez, and Petitioners' composite Exhibits numbered 1-3 were admitted in evidence. The Department presented the testimony of John W. Thornton, Charlie Ann Bullington, Valerie Garrett, and Fred Stanley. Additionally, the Department's Exhibits numbered 1- 49, most of which were composite Exhibits, were admitted in evidence as was Joint Exhibit numbered 1.

Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Petitioner Nana's Petroleum, Inc. (hereinafter "Nana's"), has been licensed by the Department to sell special fuel (diesel) and gasoline. At all times material hereto, Emilio Perez has been the vice president of Nana's, and Edilia Perez has been the secretary.

   
   

2. At all times material hereto, Nana's has been required to file with the Department on a monthly basis, and Nana's did so file, Special and Alternative Fuel Tax Returns, including Local Option Tax Schedules, and Refiner, Importer and Jobber Gasoline Tax Returns. Although the Department cannot locate its copy of Nana's May 1988 return, the Department does have copies of the other returns for the six years in question. If the Department had not received the May 1988 return from Nana's, it would have sent a delinquency notice at that time, and no delinquency notice was sent to Nana's.

   
   

3. Nana's purchased its fuel from two suppliers at Port Everglades: Belcher Oil Co., n/k/a Coastal States Refinery and Marketing, and Union Oil Co. of California under the same procedures. Nana's sent its trucks to Port Everglades. The driver used a loading card (similar to a credit card) which carried the identification number of the purchaser. The driver put the loading card in the loading rack and received a manifest, which the driver signed and dated, noting the time on it. After the truck was loaded and left the Port, an invoice was issued by the supplier, referencing the manifest and specifying the amount of fuel obtained and when, and whether the fuel was diesel or gasoline. The invoice also specified the amount and kind of taxes charged, or if the purchase was tax exempt, and provided a total purchase figure.

   
   

4. The invoices were then sent by the suppliers to Nana's, and Nana's paid those invoices within ten days in order to obtain a 1 percent discount. Nana's kept each invoice, using each to provide the detailed information required on its monthly tax returns. Also, when the Department audits a license holder such as Nana's, the Department audits the invoices against the invoice numbers shown on the tax returns.

   
   

5. Each Special and Alternative Fuel Tax Return filed by Nana's itemized fuel acquired or received in Florida by invoice number, the date received, the point of origin, the point of delivery, the name and license number of the

   supplier, and the invoiced gallonage. Nana's computed any tax due by county for local option taxes. It itemized any gallonage exempt from taxes and why. It further included an itemization of the number of gallons sold, the purchaser's name and license number, the point of delivery, and the invoice number and date. The Refiner, Importer and Jobber Gasoline Tax Returns filed by Nana's were similar and contained a detailed listing of fuel acquired or received in Florida tax paid, specifying the county of origin, the county of destination, the supplier's name and license number, the date, the invoice number, and the number of gallons.

   
   

6. Nana's was audited by the Department in 1987, with the audit running through November of that year. As a result of that audit, Nana's hired an accountant in January of 1988 in order to assure that its books and records were properly kept. In 1992, the Department began another audit by sending an employee to the office of Nana's for one day. The Department then contacted Nana's and advised that it was too far for them to come from Ft. Pierce to the office of Nana's in Pahokee and told Nana's to bring its books and records to the Department. Nana's took boxes of records to the Ft. Pierce office. Two weeks later, the Department contacted Nana's, advising that the Department would not be completing the audit and that Nana's should come and pick up its records. In April of 1994, pursuant to a subpoena, Nana's supplied 35 or 36 boxes of records to the Department. Those boxes contained Nana's original invoices from 1987 forward and the original certificates it had obtained from its purchasers reflecting tax exempt status.

   
   

7. On April 25, 1994, the Department issued to Edilia Perez as secretary of Nana's its Notice of Final Assessment for Fuel Tax, Penalty and Interest Due for the period of December 1987 through June 1990 in the amount of $414,714.67. That Notice of Final Assessment was accompanied by a Notice of Jeopardy Findings.

   
   

8. On April 25, 1994, the Department issued to Emilio Perez as vice president of Nana's its Notice of Final Assessment for the period of December 1987 through June 1990 in the amount of $515,240.25. That Notice of Final Assessment was accompanied by a Notice of Jeopardy Findings.

   
   

9. On April 25, 1994, the Department issued to Nana's its Notice of Final Assessment for the period of April 1992 through August 1993 in the total amount of $27,947.84. That total figure represented tax due in the amount of

   $18,083.17, interest of $2,786.23, and penalty of $7,078.44. That Notice of Final Assessment was accompanied by a Notice of Jeopardy Findings.

   
   

10. On September 13, 1990, the Department had previously issued to Nana's its Notice of Final Assessment for the period of December 1987 through June 1990 in the total amount of $573,988.67. That total figure represented tax due of

    $414,714.67, penalty of $97,201.36, and interest of $62,072.64. That Notice of Final Assessment was accompanied by a Notice of Jeopardy Findings.

    
    

11. On September 13, 1990, the Department had previously issued to Emilio Perez d/b/a Nana's Stations its Notice of Final Assessment for the period April 1988 through June 1989 in the amount of $147,291.20. That total figure represented tax due of $100,625.58, penalty of $25,156.43, and interest of

    $21,509.19. That Notice of Final Assessment was accompanied by a Notice of Jeopardy Findings.

    
    

12. On May 23, 1994, an evidentiary hearing was conducted by the Circuit Court of the Fifteenth Judicial Circuit of Florida in and for Palm Beach County

    on a Petition for Review of the Jeopardy Findings filed by the Petitioners in this cause. In a detailed Order Reversing the Department of Revenue's Jeopardy Findings and Releasing Seizure of Assets, entered June 2, 1994, Circuit Judge Lucy Brown analyzed the deficiency of the notice given by the Department in its two groups of Jeopardy Findings and accompanying Notices of Final Assessments: the September 13, 1990, group and the April 25, 1994, group. In her factual determinations, Judge Brown determined that the Department had not provided notice as required of the Department as to its September 13, 1990, Notices of Final Assessment and Notices of Jeopardy Findings issued to Nana's and to Emilio Perez d/b/a Nana's Stations in that the Department knew at the time that Emilio Perez was the principal of Nana's and that Perez was not at the time present at the address used by the Department to serve notice on him and on Nana's, that no officer or director or employee of Nana's was shown to have received notice of the issuance of the Notices of Final Assessment and Notices of Jeopardy Findings, and that the Department made no attempt to effectuate personal service. It was further found that no notice or knowledge of the outstanding September 19, 1990, Notices of Final Assessment and of Jeopardy Findings was received prior to April 1994. After concluding that the Department did not fulfill its obligation to provide notice of its September 13, 1990, Notices of Final Assessment and Notices of Jeopardy Findings, and after concluding that the Department had not shown the existence of jeopardy upon which its April 25, 1994, Notices of Jeopardy Findings were based, Judge Brown reversed both groups of Notices of Jeopardy Findings and further set aside and vacated the Department's seizure of Petitioners' assets. The Department did not file an appeal from that Order. Accordingly, the Circuit Court determination that Petitioners were not notified that the Department was seeking additional taxes from them until April 1994 cannot be disputed herein.

    
    

13. The Special and Alternative Fuel Tax Returns filed with the Department by Nana's for the months of February 1990 through June 1990 each declared that money was due from Nana's to the Department. The Department has no record of payment being received with each of those returns or thereafter. The Department's summary sheet itemizes the tax due with penalty and interest computed through August 1990 as follows:

    
    

    Nana's Petroleum 10011605

    
    

    DATE	TAX DUE AS REPORTED	PENALTY THRU 8/19/90	INTEREST THRU 8/14/90	TOTAL DUE
    2/90	26,376.57	6,594.14	1,274.75	34,245.46
    3	16,459.04	3,291.81	627.70	20,378.55
    4	8,287.07	1,243.06	234.31	9,764.44
    5	11,339.26	1,133.93	205.04	12,678.23
    6	11,822.56	591.13	97.17	12,510.86
    	74,284.50	12,854.07	2,438.97	89,577.54

    
    

    Accordingly, Nana's is responsible for unpaid taxes in the amount of $74,284.50, together with the increasing penalty and interest until date of payment.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

15. In support of its remaining five assessments, the Department alleges that Petitioners underreported and underpaid taxes due in five different ways, as follows: (1) Nana's underreported the number of gallons it purchased from two suppliers: Belcher n/k/a Coastal and Union; (2) Nana's records show fuel purchases by Nana's to have been tax paid but records of the two suppliers reflect the purchases were made tax free; (3) Nana's tax returns filed with the Department reflected that tax was due but no payment was sent for those due taxes; (4) Nana's purchased tax paid fuel from Coastal, then told Coastal the purchase should have been tax free and received a credit or refund from Coastal for those taxes; and (5) Nana's "linked" seven of its retail locations under one license number (a procedure approved by the Department) but then cancelled the reporting license and ceased filing returns for the seven outlets although fuel continued to be delivered to those stations. The Department offered competent evidence only in support of its third allegation, and Petitioners offered no proof that the taxes reported due to the Department for the months of February 1990 through June 1990 were in fact paid.

    
    

16. The deficiency in the Department's several theories as to the methodology utilized by Petitioners to avoid the payment of state and local option taxes results from the Department's reliance on hearsay to support not only its ultimate conclusions but also to support the individual components leading to the Department's conclusions. For example, the Department provided extensive testimony regarding information contained in the Department's computers, as perceived by that witness, without offering the computer records to support that witness' testimony. The Department also offered numerous charts and summary sheets compiled from underlying documentation without offering the documentation supportive of those conclusory documents. Further, the Department offered admittedly hearsay evidence under the belief that it would be corroborative of competent evidence but was unable to offer such evidence with the result that the uncorroborated hearsay evidence cannot support a finding of fact. Section 120.58(1)(a), Florida Statutes.

    
    

17. In support of its allegation that Petitioners under-reported the number of gallons of fuel purchased with such under-reporting resulting in an underpayment of taxes due, the Department relied on the tax returns filed by Nana's and computer printouts from two suppliers: Coastal (Belcher) and Union. The computer printout alleged by the Department to be that of Union Oil Company does not itself purport to be such and was not authenticated in any way. No one testified from Union Oil Company; rather, the Department's witness testified that someone from the Department obtained a computer printout from Union Oil Company and the document admitted in evidence as the Department's Exhibit numbered 25 is the document received although the Department can no longer locate the letter transmitting the document to the Department. The document does not contain a legend interpreting the codes contained thereon, does not give any explanation surrounding the entries made on the document, and offers no explanation of how the document was prepared or by whom. The document does not fall within any of the exceptions to the hearsay rule as a business record of the Department since the evidence is that it is not a record which is normally prepared in the course of the Department's normal business, and no evidence was offered by any witness from Union Oil Company to support a finding that the summary printout is the kind of record that would qualify as an exception to the hearsay rule.

    
    

18. As to Coastal's computer printout the Department presented the testimony of an employee of Coastal whose testimony as to the preparation of the printout was limited to the fact that she is the regional office manager and oversees all clerical duties for the southern region of Coastal and that the

    document about which she testified was a computer printout of the billing records for Nana's. Although she was able to interpret the codes used in the computer printout, she was not able to testify as to the accuracy of that document.

    
    

19. Although the Department argues, and prepared summaries reflecting, discrepancies between Nana's returns and the computer printouts, no explanation is offered for why the Department has deemed the computer printouts to be more accurate than Nana's tax returns. It is apparent that the best evidence of the amount of fuel purchased by Nana's from Coastal or from Union is the actual invoices themselves (the documents used by the Department when performing audits), and the invoices were not offered in evidence. The computer printouts do not, therefore, prove that Nana's underreported its tax liability. Rather, the Department merely proved that there are discrepancies in the records of different companies.

    
    

20. For some of the months in question, the Department introduced as exhibits the tax returns of Coastal and of Union for comparison with the tax returns of Nana's. From the discrepancies found, the Department then prepared summaries reflecting that Nana's, therefore, must have underreported its fuel purchases from those two companies. As with the computer printouts, the best evidence is the invoices themselves, and the Department has offered no evidence or explanation as to why it chooses to believe the returns of Coastal or Union and disbelieve the returns filed by Nana's.

    
    

21. Similarly deficient for the same reasons is the Department's proof of its allegation that Nana's underpaid taxes due from it in those situations where Nana's records reflect that the fuel was purchased tax paid but the records of the suppliers reflect the fuel was purchased tax free. The Department argues that when the records are matched up, the differences are revealed. While that may be true, what is not revealed is any basis for the Department's apparent belief that the suppliers' records are accurate but that the records of Nana's are not.

    
    

22. In support of its position that Nana's purchased fuel tax paid from Coastal and then received a credit or refund from Coastal for those taxes, thereby purchasing the fuel tax free, the Department offered the testimony of the Coastal employee who recited that Coastal's computer printout showed that Nana's was charged tax on its purchases for the months of October, November, and December 1988 and the computer printout reflects a credit given Nana's thereafter in the amount of those combined taxes. When asked why the credit had been given, the witness admitted that she did not know why but that it must have been for a good reason. While the Department referred to the "credit or refund" as though those terms mean the same thing, common sense requires a conclusion that they do not. Other than showing a figure with a minus sign on a summary computer printout, the Department offered no evidence that either a credit or a refund had in fact been given to Nana's or had been made, and Emilio Perez denied that such had happened. Again, an invoice or a check would have been the best evidence.

    
    

23. The Department's witness testified that seven of Nana's retail stations had been "linked" for purposes of reporting taxes due by those retail sellers. The witness further testified that the license for "Station #129" was subsequently cancelled, causing the records for all seven stations to be deleted from the Department's computer. Although the testimony was that a formal written request must be made in order to "link" retail sellers, the witness did not know if stations could be "unlinked" upon only a verbal request. In support

    of this contention, the Department offered no document requesting that the stations be linked, no document requesting that the stations be unlinked, no document requesting that the license of the reporting station be cancelled, and no evidence as to which of the 15 stations owned by either Nana's or Emilio Perez d/b/a Nana's Stations were the seven stations that were linked and subsequently ceased filing reports or being licensed. Further, the source of the witness' knowledge was not identified.

    
    

24. Similarly, the Department offered in evidence correspondence purporting to be from Rodrigo Tire Discount bearing a postmark of May 1993, and carrying the Department's received stamp of May 12, 1993, stating that business' account should be closed since it would not be applying for a 1993 state gasoline dealer license. The other document in that Exhibit purports to be signed by the accountant who sent the notification letter and carries the Department's received stamp of June 2, 1993. The uncontroverted testimony was that all licenses expire in December. The Department's witness testified that when a retailer is licensed and buys gasoline, the retailer is responsible for reporting and paying the taxes. The witness reasons, therefore, that since Rodrigo Tire was not licensed in 1993 and Nana's reported that it sold fuel products to Rodrigo Tire during March of 1993, then Nana's is responsible for paying those taxes. To support that conclusion, the witness testified that she checked the Department's computer in January 1993 to see if Rodrigo Tire's license was renewed, and it was not. She never actually looked at the Department's file for Rodrigo Tire to see if the license was renewed thereafter and never checked to see if the license was reinstated. The Department offered no certification from its records custodian as to the licensure or non-licensure status of Rodrigo Tire in March 1993 but relies solely on the two hearsay documents which purport to have come in the same envelope but were received by the Department on different days. Such evidence is insufficient to support its conclusion that the responsibility for paying taxes borne by Rodrigo Tire shifted back to Nana's.

    
    

25. Another basis for the Department's Final Assessments lies in its contention that Nana's avoided responsibility for additional taxes by claiming that it sold fuel to retail dealers when in fact Nana's either sold or consigned the fuel to Sun Petroleum, Inc., and Nana's or Sun then consigned the fuel to the retail dealers to pump the gas, paying those alleged retail dealers so many cents per gallon. Under that purported scheme, the dealers were not in fact responsible for paying taxes since they never owned the fuel, and the tax liability is therefore on Nana's, the true owner and seller of the fuel. In support of that contention, the Department offered the testimony of its employee that she concluded Nana's consigned fuel to Sun based on her review of invoices from two retailers but that the Department does not have those invoices or copies of them. The Department also offered a witness that Nana's trucks delivered fuel to retail locations, that the people operating retail outlets were paid on a commission basis per gallon sold, that the money for sales was then collected at the retail stations and deposited to Nana's account. Unfortunately for the Department, the witness did not know who purchased the fuel that was delivered and did not know that there was any difference between Nana's Petroleum, and Nana's Service Stations, and Emilio Perez doing business as Nana's Service Stations. The witness also did not know who employed him.

    For purposes of assessing additional taxes due, it is the Department's responsibility to determine which legal entity it contends owes taxes.

    
    

26. In further support of that consignment argument, the Department offered excerpts from the deposition of Lorenzo G. Gonzalez of "Lorenzo Service", a business reported by Nana's on its tax returns to the Department as

    being a licensed retail dealer to whom Nana's sold its product. Gonzalez testified that he pumped gas for "Sun Petroleum or whatever." Gonzalez does not know who owns the service station, but as far as he is concerned, Emilio Perez does. He was clear in his testimony that he pumped gas for 3 cents a gallon, that he did not know what company delivered the fuel to him, and that he used some of the money from the sale of the gasoline to pay his security deposit and last month's rent for the location where he did business. He also testified clearly that Emilio Perez made him get a retail dealer's license, and Emilio Perez told him that Gonzalez was required to file tax returns with the Department and that Gonzalez had to pay tax to the Department. The witness's testimony is not consistent with the Department's position. The Department offered no documentation as to who owned the business, and the Department was vague as to which Petitioner in this proceeding and which assessment in this proceeding the evidence allegedly involves, bearing in mind the different time periods involved in the assessments, the various legal entities, and the different amounts involved in the assessments covering the same time periods.

    
    

27. As to the time periods involved in this proceeding, the Department seeks payment of taxes from December 1987 through August 1993. There has been a judicial determination that two of the five assessments involved in this proceeding--the September 13, 1990 assessments against Nana's and against Emilio Perez doing business as Nana's Stations--were never provided to Nana's or Emilio Perez since they were included in the same envelope with the Notices of Jeopardy Findings which were never received. The Department did not appeal that Order, and the findings contained therein are now the law of this case under the doctrine of res judicata. The Department's argument that the circuit court Order can be appealed in this proceeding and the Department's accompanying argument that the undersigned has the authority to reverse the findings of the Circuit Court Judge are not worthy of discussion.

    
    

28. Since it has been judicially determined that the first notice the Petitioners in this cause had that the Department claimed additional taxes from them occurred in April 1994, the limitations period contained in Section 95.091(2) and (3)(a)1a, Florida Statutes, bars the Department from claiming taxes beyond a 5-year period. Petitioners argue that the dispositive date beyond which the Department cannot seek unpaid taxes from them is April 28, 1989. The Department has not disputed that date as the appropriate date if the statute of limitations is applied. The Department presented no argument as to why the statute of limitations would be inapplicable here other than its argument that the undersigned should reverse the Circuit Court Order determining that the Department did not attempt to collect on its 1990 assessment until April 1994. Since the Circuit Court Order is final and since the Legislature clearly limited the time period for which the Department could claim unpaid taxes, the Department is barred from recoverying most of the money it claims from Petitioners, even had the Department proven its case.

    
    

29. Further, two of the assessments in this case issued by the Department on April 25, 1994, must be set aside since they lack any evidentiary support. One of those assessments was issued to Edilia Perez as secretary of Nana's, and the other was issued to Emilio Perez as vice president of Nana's. Since the Department seeks unpaid taxes from them in their corporate capacities, the Department is restricted by the language in Section 213.29, Florida Statutes. That statute permits the Department to collect taxes from

    
    

    . . .any officer or director of a corporation who has administrative control over the col- lection and payment of such tax and who

    willfully directs any employee of the cor- poration to fail to collect or pay over, evade, defeat, or truthfully account for such tax. . . .

    
    

    The Department offered no evidence, and Emilio Perez denied, that Edilia Perez had any active role in Nana's. Although Emilio Perez admittedly is the principal in Nana's, no evidence was offered that he had administrative control over the collection and payment of taxes and that he willfully directed any employee to fail to collect or pay to the Department those taxes. To the contrary, Emilio Perez testified that he hired an accountant in January 1988 to keep Nana's books and records.

    
    

30. Finally, the Department argues that Emilio Perez' denial of each of the Department's allegations is insufficient evidence. It is the Department's reliance on hearsay which formed the basis for most of the Department's documentary evidence and most of its testimony which is insufficient to overcome the direct testimony of Emilio Perez. Further, Petitioners introduced some of the underlying documentation which proved the inaccuracies in the Department's summaries and in Coastal's computer printout. For example, the Coastal employee testified using her computer printout that in June and July 1989 Nana's was not charged diesel fuel taxes. The Department's witness then compared Nana's tax returns showing taxes paid for those months and concluded that Nana's had filed erroneous reports and owed the taxes. Yet, Petitioners' composite Exhibits numbered 1 and 2 are copies of the actual invoices from Coastal (Belcher) for those two months which clearly reflect that Nana's was charged taxes on its purchases. By way of further example, Petitioners' composite Exhibit numbered 3 is copies of cancelled checks for individually licensed service stations for a time period when the Department's summaries allege that the licenses had been cancelled and that local option gas taxes were not paid. The quality of evidence offered by the Department has not refuted the quality of evidence offered by Petitioners.

    
    

31. Equally unpersuasive is the Department's argument that the 1990 Final Assessments against Nana's and against Emilio Perez d/b/a Nana's Stations cannot be contested in this proceeding since Nana's and Perez did not contest those assessments within sixty days from their issuance. It is axiomatic that one cannot dispute something one does not know exists. The Circuit Court having previously determined that the Petitioners were not notified of the existence of the 1990 Final Assessments until April 1994 forecloses any merit to the Department's argument. Since the Department did not notify Petitioners of the existence of the Final Assessments, then, a fortiori, it did not notify Petitioners of their right to contest the Final Assessments, and Petitioners' right to so contest after receipt of notice cannot be foreclosed by the Department.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered sustaining Petitioners' contest

of the assessments issued against them but for that portion of the September 13, 1990, Notice of Final Assessment issued to Nana's encompassing the months of February 1990 through June 1990 wherein Nana's reported tax due in the total amount of $74,284.50 but failed to pay that amount to the Department, together with the statutory penalty and interest on that amount through date of payment.

DONE and ENTERED this 16th day of May, 1995, at Tallahassee, Florida.

LINDA M. RIGOT, 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 16th day of May, 1995.

APPENDIX TO RECOMMENDED ORDER

1. Petitioners' six un-numbered paragraphs in that portion of its proposed recommended order entitled "Factual Findings" have been adopted to the extent that they include any findings of fact which were intermingled with Petitioners' conclusions of law and argument of counsel contained within those un-numbered paragraphs.

2. Respondent's proposed findings of fact numbered 1-6, 8, 9, 12, 21, and

   34 have been adopted either verbatim or in substance in this Recommended Order.

3. Respondent's proposed findings of fact numbered 7, 10, 13-18, 20, 22- 27, 29, 39-47, 49, and 50 have been rejected as not being supported by the weight of the competent evidence in this cause.

4. Respondent's proposed finding of fact numbered 11 has been rejected as being irrelevant.

5. Respondent's proposed findings of fact numbered 19, 28, 30-33, 35-38, and 48 have been rejected as being subordinate to the issues in this cause.

COPIES FURNISHED:

Andrew Helgesen, Esquire Harris, Kukey, and Helgesen

11380 Prosperity Farms Road, Suite 201 Palm Beach Gardens, Florida 33410

Dean L. Willbur, Jr., Esquire

319 Clematis Street, Suite 600 Post Office Box 6917

West Palm Beach, Florida 33405-0917

Lealand L. McCharen, Esquire Francisco M. Negron, Jr., Esquire Office of the Attorney General Capitol Building - Tax Section Tallahassee, Florida 32399-1050

Linda Lettera, General Counsel Department of Revenue

204 Carlton Building Tallahassee, Florida 32399-0100

Larry Fuchs, Executive Director 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.

Docket for Case No: 94-003605

Orders for Case No: 94-003605