STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WHI LIMITED PARTNERSHIP, d/b/a ) WYNDHAM HARBOUR ISLAND HOTEL, )
)
Petitioner, )
)
vs. )
)
DEPARTMENT OF REVENUE, )
)
Respondent. )
Case No. 98-1194
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case on January 22 through 24, 2003, and June 8, 2004, in Tampa, Florida, before Susan B. Harrell,1 a designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Allen H. Libow, Esquire
William M. Shaheen, Esquire Eric J. Stockel, Esquire Jeffrey M. Glotzer, Esquire Libow & Shaheen, LLP
3351 Northwest Boca Raton Boulevard Boca Raton, Florida 33431
For Respondent: Nicholas Bykowsky, Esquire
Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
STATEMENT OF THE ISSUES
Whether an assessment should be made against Petitioner for additional sales and use tax, interest, and penalty in
connection with the business operations of WHI Limited Partnership relating to Wyndham Harbour Island Hotel in Tampa, Florida, for the audit period July 31, 1990, through June 30, 1995, and, if so, in what amount.
PRELIMINARY STATEMENT
Respondent, Department of Revenue (Department), audited Petitioner, WHI Limited Partnership (WHI), for the period July 31, 1990, through June 30, 1995 (the audit period), for sales and use tax and indigent care surtax. By letter dated June 25, 1996, the Department issued a Notice of Proposed Assessment of the sales and use tax, penalty, and interest of
$561,854.84 for the audit period, with interest continuing to be computed from July 26, 1996, at a rate of $103.62 per day. The Department also assessed the indigent care surtax, penalty, and interest at $32,918.20, with interest continuing from June 26, 1996, at a daily rate of $6.17.
WHI made a payment of $108,950.61, and protested the proposed assessments. On October 15, 1997, the Department issued a Notice of Decision, indicating that the amount of sales and use tax, penalty, and interest was adjusted to $358,380.05. The amount paid by WHI reduced the balance to $265.770.50. The amount of indigent care surtax was reduced to $19,601.77, with a balance due of $21,110.14. The combined interest for both assessments continued to accrue at a daily rate of $33.94.
WHI filed a response to the Notice of Decision, and the Department issued a Notice of Reconsideration dated December 23, 1997, changing the sustained amount of sales and use tax to
$391,162.21, and stating that the balance due was $303,865.14, with interest accruing from December 15, 1997, at a daily rate of $36.32. The sustained amount of indigent care surtax was changed to $21,952.57, and the balance due was set at
$24,165.72, with interest accruing from December 15, 1997, at a daily rate of $4.11.
WHI filed a petition challenging the assessed amount and requesting an administrative hearing. The case was referred to the Division of Administrative Hearings for assignment to an administrative law judge.
The final hearing was initially commenced on January 22, 2003, with Administrative Law Judge Carolyn Holifield presiding. Prior to the taking of testimony, the case was reassigned to Administrative Law Judge Susan B. Harrell, who began taking testimony on January 23, 2003. At the final hearing held from January 22 through 24, 2003, Petitioner called no witnesses, and Petitioner's Exhibits 1 through 6, and 10 through 26 were admitted in evidence. Petitioner's Exhibits 8 and 9 were not admitted. At the final hearing held from January 22 through 24, 2003, Respondent's Exhibits 1 through 15, 17, 19 through 27, 30,
31, 38, and 39 were admitted; Respondent's Exhibits 33 through
37 were proffered; and Respondent called the following witnesses: Linda Bridges, Richard R. Parsons, Araks Navasartian, Sofia Metcalf, and Peter James Steffens.
Respondent had appealed an order of Judge Niki Clark of the Second Judicial Circuit Court, compelling Respondent to release tax information relating to other tax payers. The record in the final hearing held on January 22 through 24, 2003, was left open, pending a ruling from the First District Court of Appeal on the discovery issue to allow testimony and exhibits on the limited issue of the use by the Department of a square foot methodology in determining tax assessments.
The final hearing was recommenced on June 8, 2004.
Petitioner filed Petitioner's Motion for Judicial Notice on June 4, 2004. The motion was treated as a request for official recognition and was ruled on at the final hearing on June 8,
2004. Official recognition was taken of documents identified by Petitioner as Items A through L, and O. Petitioner withdrew its request for official recognition for Item N. Petitioner called Linda Bridges as its witness. Petitioner's Exhibits 29 through
40 were admitted in evidence, and Petitioner's Exhibits 34 through 40 were placed under seal. Petitioner's Exhibit 42 was rejected and placed under seal. Respondent called the following witnesses: Linda Bridges, Charles T. Wallace, and Sophia
Metcalf. Respondent's Exhibits 39A2 through 45 were admitted under seal.
The last volume of the five-volume Transcript was filed on June 23, 2004. The parties filed their proposed recommended orders on July 22, 2004.
On July 14, 2004, the Department filed Respondent Department of Revenue's Notice of Filing Supplemental Authority and Request to Take Judicial Notice, requesting judicial notice be taken of the Final Judgment entered by the Circuit Court for Orange County in SKFW Management Corporation v. Department of
Revenue, Case No. CIO-00-8680, Division 37 (Fla. 9th Cir. Ct. June 16, 2004). Official recognition is taken of the final judgment.
On April 13, 2005, the Department filed Respondent Department of Revenue's Motion for Leave to File an Amended Answer to the Second Amended Petition of WHI Limited Partnership. The motion is denied.
On June 30, 2005, the Department filed Respondent Department of Revenue's Notice of Filing Supplemental Authority and Request to Take Official Notice of the Order entered by the Fifth District Court of Appeal in SKFW Management Corporation v. Department of Revenue, Case No. 5D04-2457, June 28, 2005, per
curiam affirming the final judgment of the Orange County Circuit Court. The request is granted.
FINDINGS OF FACT
On March 1, 1988, Lincoln Island Associates No. 1, Limited (Lincoln Island Associates) and WHI entered into a 30-year Lease and Agreement (Lease), whereby WHI leased from Lincoln Island Associates a tract of land on Harbour Island, Tampa, Florida, and the Harbour Island Hotel located on the tract of land.
Section 5.5 of the Lease provides:
Use of Leased Property. Lessee may use the Leased Property only for the purpose of operating the Hotel (and ancillary activities) as a hotel and will not do or permit any act or thing that is contrary to any Legal Requirement or Insurance Requirement, or that may impair the
value (subject to ordinary wear and tear), useful life or usefulness of the Leased Property or any part thereof, or that constitutes a public or private nuisance or waste of the Leased Property or any part thereof provided that Lessee may use the Leased Property for purposes other than as a hotel with the prior written consent of the Lessor.
The Department is authorized to administer the tax laws of Florida pursuant to Section 213.05, Florida Statutes (1990- 1994).3 The Department conducted an audit of WHI to determine its compliance with Florida sales and use tax laws. The audit covered the period from July 31, 1990, through June 30, 1995.
Based on the audit, the Department determined that the hotel property was a multiple-use property and was subject to
taxable allocation pursuant to Section 212.031, Florida Statutes. The Department considers to be taxable the portions of the hotel property which are used by the hotel operator for functions that do not involve guest accessibility or use, are used by the hotel operator to carry on commercial businesses serving the general public, and are not used by the hotel operator to serve guests exclusively at no charge as part of the guests' accommodations.
WHI takes the position that the hotel property is not a multiple-use property; the hotel property is used exclusively as dwelling units; the lease agreement between WHI and Lincoln Island Associates is a capital lease and thus a sale; the Department is estopped from assessing a tax based on a previous audit in which the Department found that the hotel property was not subject to taxation; Lincoln Island Associates is the proper party against whom the assessment should be made; and the Department improperly determined the amount of taxable property based on an unpromulgated rule by using the square footage of the property.
The Department conducted a sales and use tax audit for the audit period of December 28, 1988, through May 31, 1990 (first audit), on Wyndham Hotel Co., Ltd (Wyndham) on the same property at issue in the instant case. During the first audit, WHI and Wyndham had a principal and agency relationship. WHI
leased the hotel property from Lincoln Island Associates, and Wyndham operated the hotel. WHI and Wyndham are separate entities and have separate taxpayer identification numbers.
In the first audit, the Department originally determined that 15.892 percent of the hotel property was not subject to rentals to guests and was therefore taxable. Wyndham protested the assessment, and a letter of reconsideration was issued on May 14, 1992, finding that zero percentage of the property was taxable.
The 1992 letter of reconsideration was drafted by Richard Parsons, who was a tax audit specialist with the Department and whose responsibilities included handling protested audit cases. He acknowledged that the reconsideration letter was in error and that the property subject to taxation should not have been reduced to zero percentage. He attributes this error to the auditor having revised the audit based on an updated floor plan submitted by Wyndham and his adoption of the auditor's revisions. When asked why he did not change the assessment when it came to him, Mr. Parsons stated:
Well, because when it came back to me, the audit had been revised and at the time that this was issued, we were under a heavy backlog and it probably wasn't a material amount of money, so we issued the NOR [Notice of Reconsideration] as it came back.
The Department audited WHI for the hotel property for the period July 31, 1990, through June 30, 1995 (the second audit). Araks Navasartian conducted the second audit for the Department. She personally observed the layout of the hotel and whether guests were permitted to visit or were restricted from areas of the hotel. Ms. Navasartian correctly found that the hotel property was multiple-use property based on the hotel's rental of conference rooms and banquet halls; the operation of a bar and catering services; the use of a loading dock; the use of kitchens by hotel employees; the use of laundry areas; the utilization of warehouse storage, a phone room, and maintenance area; and the operation by WHI of accounting, security, and personnel offices.
Ms. Navasartian requested WHI to provide her with plans or schematic drawings of the hotel so that she could determine the areas that were being used by WHI. She was not provided with any plans or drawings of the hotel, but WHI did provide a list of areas used by WHI with a square footage measurement of each area. However, the auditor was unable to identify the areas in the hotel itself based on the list provided by WHI.
Because WHI did not provide sufficient information on which Ms. Navasartian could determine the amount of square footage that was being used by WHI rather than hotel guests, she
calculated the square footage of the various areas by measuring the length of her pace, pacing the areas, and calculating the square footage based on the number of paces and the length of her pace. Ms. Navasartian determined the square footage that was being used exclusively for guests and the square footage that was being used by WHI and calculated the percentage of the property which would be subject to taxation. She did not calculate the commercial rentals tax on parts of the hotel that were being used as sleeping quarters or guest rooms.
Ms. Navasartian determined that approximately 25 percent of the hotel was being used by WHI for taxable purposes and applied that percentage to the total rent to determine the taxable portion of the lease payment.
The use of square footage to determine the ratio for calculating the amount of rental charge that would be taxable was an appropriate method to determine the amount of tax that was due on the multiple-use property at issue. While the second audit was being conducted, WHI did not suggest or offer an alternative method for determining the taxable portion of the commercial rentals portion of the lease with Lincoln Hotel Associates.
After the audit was completed, the Department issued a Notice of Proposed Assessment of Tax, Interest and Penalty to WHI for the audit period July 31, 1990, through June 30, 1995.
On August 23, 1996, WHI made a payment of $108,950.61, which was applied to reduce the sales and use tax liability.
On February 17, 1997, WHI filed a protest letter of the tax assessment and provided to the Department an old set of blue prints which may not have accurately reflected the current areas in the hotel. On October 15, 1997, the Department issued a Notice of Decision, which reduced the taxable percentage of lease payments and stated:
The auditor also included conference and meeting rooms as taxable that WHI has since established were rerented with taxes paid on those charges. These areas have been reclassified as nontaxable for purposes of proration.
The auditor requested and was not provided with a blueprint to assist her in determining how various portions of the property were used. As a result, she was forced to estimate non-exempt usage based on visual inspection. A blueprint has now been provided. It is, however, almost 14 years old and may not accurately reflect current size and usage of all areas. For purposes of this notice, the list of areas the auditor determined were taxable have been used. Certain areas that are either rerented or are used by hotel guests at no additional cost to them have been eliminated. Space used by WHI for storage, security, maintenance, laundry, management and accounting offices is treated as taxable. These areas are used by WHI for functions that do not involve guest accessibility or use. Space used for the restaurant and bars is taxable, as is the kitchen. These areas are used by WHI to carry on commercial businesses serving the general public, not to serve hotel guests
exclusively at no charge as part of their accommodations. The square footage of taxable areas as estimated by the auditor have been compared to the blueprints and adjusted if more accurate measurements were available for any particular area. As a result of eliminating certain areas from the taxable category and revising the estimated measurements where the blueprints contain a clearly comparable area, the percentage of taxable rent is reduced to 13.50 percent for purposes of this Notice.
WHI filed a Petition for Reconsideration dated November 13, 1997. Because the blueprints which WHI had submitted with its protest dated February 17, 1997, were old, WHI hired a contractor to determine the areas and square footages dedicated to various uses. In the petition, WHI contended that the taxable rental percentage should be five percent or less based on the new square footage dimensions provided by its contractor. WHI also raised the issue of its reliance on the Department's first audit in which the Department found that the taxable rental percentage of the hotel property was zero. Such reliance, WHI concluded, constituted grounds for finding doubt as to liability and served as a basis for the Department compromising WHI's liability pursuant to Subsection 213.21(3)(a), Florida Statutes (1997).
WHI knew that the Department was in error when the Department found the taxable rental percentage for the first audit was zero. During the second audit, an employee of WHI,
Tray Seamans, told Ms. Navasartian that five percent would have been agreeable in the first audit, but the Department "goofed up" and reduced it to zero.
On December 23, 1997, the Department issued a Notice of Reconsideration and recalculated the percentage of taxable real property rentals as follows:
Taxpayer has now provided an updated list of areas and square footages prepared by a building contractor. Based on this list,
6.90 percent of Taxpayer's space is used as offices, 4.29 percent is "support space,"
65.79 percent is "guest space" and 23.102 percent is "public space." Taxpayer asserts that the taxable percentage should be approximately 5 percent or less. The guidelines for proration were discussed earlier. All of the office space (6.90 percent) is taxable. All of the support space (kitchen, laundry and storage) is taxable. The guest space (guest rooms and corridors on guest room floors) is exempt. The Taxpayer treats all "public space" as not taxable. This includes function spaces and corridors and the entire lobby (except for the kitchen and office spaces, which are specifically identified and classified as office or support space). The lobby level also includes a bar, restaurant space, front lobby area, cooler room, storage space, phone system space, registration area, and a room labeled by the auditor as "President's Club." According to Taxpayer, the President's Club is actually a meeting room that is re-rented. The registration area provides services to overnight guests exclusively. The remaining lobby areas identified by the auditor are taxable.
Using the more accurate measurements of the contractor rather than the auditor's visual estimates, the additional taxable lobby
space is 10,745 square feet. When this is added to the office space and support space as measured by Taxpayer's contractor, the total taxable square footage is 37,485, which is 15.684 percent of the total 238,994 square foot facility. The auditor's report and the contractor's measurements are the best information available upon which to base proration. For purposes of this Notice, it is determined that 15.684 percent of the real property rentals paid by the Taxpayer for its facility are taxable.
Based on the recalculation of the percentage of taxable real property, the Department assessed the tax liability for sales and use as of December 15, 1997, at $303,865.14, which included a penalty of $83,132.69 and interest accrued
December 15, 1997, less the $108,950.61 payment in August 1996. Interest continued to accrue at the rate of $36.32 per day for the sales and use tax. The tax liability for the indigent care surtax totaled $24,165.72, which included interest through December 15, 1997. Interest continued to accrue at the rate of
$4.11 per day for the indigent care surtax.
During the protest period and after WHI filed its petition for reconsideration, the Department made it clear to WHI that the Department would consider methodologies, other than the use of square footage, to determine the portion of the property rentals which would be taxable. WHI did not suggest another method for attributing the taxable portion of the hotel property not used exclusively as dwelling units.
When conducting the second audit of WHI's hotel operations, the Department did not rely on any method found in any Department training manual to compute the amount of tax on WHI's multiple-use property. The Department's auditors are not required to follow any particular methodology in assessing the liability for multiple-use property, and have some discretion in determining the manner in which the audit is conducted.
The Department uses at least three different methodologies for allocating the taxable and non-taxable portions for multiple-use properties under Section 212.031, Florida Statutes: square footage, revenue, and percentage of sales. When the square footage method is used, as it was in the instant case, the percentage of taxable property is determined by comparing the square footage of hotel property not used exclusively by the guests to the total square footage of the hotel property.
If a revenue method is used, the Department would look at the revenue generated by the different areas of the property and compare that to the total revenues of the property. For example, if a department store subleases a portion of its store to a jewelry concessionaire and the jewelry concession takes up one percent of the square footage of the store, but generates ten percent of the revenues of the store, the Department could
value the jewelry location as ten percent of the value of the building rather than one percent.
If a percentage of sales method is used, the Department would look at the percentage of sales of the concessionaires. For example, in one case a store's prime lease was based on a percentage of sales that took place for the entire store. Parts of the store were subleased to concessionaires, and the concessionaires' rent was based on a percentage of their sales. The Department determined what portion of the total sales were attributable to individual concessionaires and gave credit to the taxpayer for that amount.
A revenue method of allocation of taxes for multi-use hotel property is used for several hotels in the Orlando area. The taxpayers are leasing property from the Walt Disney Corporation and are operating hotels on the property. This method of allocation based on revenue is sometimes referred to as the Disney method.
Typically the cases that involve an assessment method other than square footage are a result of an agreement between the auditor and the taxpayer that the assessment method is a fair way to determine the non-taxable portion of the commercial lease. The vast majority of the audits involving the use of square footage to determine the tax liability is a result of an
agreement between the auditor and the taxpayer that square footage is appropriate.
The Lease between WHI and Lincoln Island Associates identifies WHI as the Lessee and Lincoln Island Associates as the Lessor. Pursuant to the Lease, WHI is to pay Lincoln Island Associates basic rent, additional rent, and contingent rent. With certain exceptions, Lincoln Island Associates is required by Section 6 of the Lease to "keep the foundation, roof and structural portions of the Improvements in good order, condition, and repair."
Section 21.9 of the Lease provides that before Lincoln Island Associates may sell the leased property, but "before any sale of the Leased Property to an Unaffiliated Assignee, the Lessor shall first offer the Leased Property to the Lessee for sale on the same terms and conditions offered to such Unaffiliated Assignee for the sale of the Leased Property." Section 39 of the Lease provides: "Lessee shall have the right to purchase the Leased Property on the last day of the Term, at a price equal to the Fair Market Sales Value of the Leased Property on the date of such purchase." Fair Market Sales Value is defined in Section 34 of the Lease as follows:
the fair market sales value that would be obtained in an arms'-length transaction between an informed and willing buyer and an informed and willing seller, under no compulsion to buy or sell, and neither of
which is a subsidiary, Affiliate or a Person related to the Mortgagee, the Lessor, or the Lessee, for the purchase of the Leased Property, assuming that the Leased Property is in the condition and repair required to be maintained by the terms of the Lease (including compliance with all Legal Requirements[)].
Section 35 of the Lease provides the following:
End of Lease Term. Upon the expiration or other termination of this Lease, except an expiration or other termination at which Lessee purchases the Leased Property, Lessee, at its expense, shall quit and surrender to Lessor the Leased Property in good order and condition, ordinary wear and tear excepted, in compliance with all Legal Requirements, provided that the Lessor shall pay to the Lessee amounts for certain additions and improvements not removed from the Hotel as provided in Section 6. (emphasis in original)
Attached to the Lease as Exhibit D is a tax indemnity agreement dated March 1, 1988, between WHI and Lincoln Island Associates. The agreement provides:
SECTION 2. Tax Assumptions. Basic Rent during the Term has been calculated by the Lessor, and the Lease is being entered into by the Lessor partly on the basis of certain Federal income tax assumptions, including the following assumptions referred to herein as the "Tax Assumptions":
Lessor will, as owner of the Leased Property, be required and entitled to take into account in computing its tax liability all items of income, gain, loss and deduction regarding the Leased Property allowed by law (including depreciation deductions with respect to the Improvements);
The Lease will be a true lease for Federal income tax purposes, and throughout the Term of the Lease, the Lessor will be treated as the owner and the lessor of the improvements;
From and after the commencement of the Term of the Lease, the Lessor, as the owner of the Improvements, will be entitled to such deductions and other benefits as are provided by the Code to the owner of Improvements, and such deductions and benefits will be allowed, including, but not limited to depreciation deductions with respect to 100 percent of the Lessor's tax basis for the Improvements at the commencement of the Term of the Lease, determined under Section 168 of the Internal Revenue Code of 1954 for 15-year real property ("Depreciation Deductions");
The Lessor will not realize any income in connection with the transaction in any taxable year of the Lessor during the Term other than Basic Rent and Contingent Rent in the amounts and at the times set forth in Sections 2 and 3 of the Lease.
The Lessor will not realize any recapture of investment tax credit previously claimed with respect to the Leased Property (the "Investment Tax Credit").
SECTION 3. No Inconsistent Action. Neither the Lessee nor any Affiliate of the Lessee will claim any tax benefits, file any tax returns or take any other actions that would be inconsistent with Section 2(a), (b),
and (c).
Tori Lambert, a certified public accountant licensed in Texas, reviewed the lease between WHI and Lincoln Island Associates and concluded that WHI was characterizing the Lease as a capital lease for financial accounting purposes. Her determination that it was a capital lease was based on her
finding that the life of the lease was equal or greater than 75 percent of the economic life of the hotel and that the net present value of the cash flows were greater or equal to 90 percent of the fair value of the asset. The expected useful life of the hotel was 40 years and the lease term was 30 years. The value of the hotel at the inception of the lease was 18.3 million dollars, and the value of the lease payments was 18 million.
Ms. Lambert is not licensed in Florida. She has never conducted a Florida sales or use tax audit. From 1990 to the time of her deposition in 2002, none of Ms. Lambert's practice has related to Florida sales and use tax matters. She does not consider herself an expert in any aspect of Florida tax law.
Linda Bridges, an attorney with over 20 years' experience in tax law, opined that for the purposes of Chapter 212, Florida Statutes, the Lease was a true lease and not a capital lease or sale.
Ms. Bridges is currently a revenue program administrator with the Department. She has worked for the Department since 1996 and is familiar with the Florida sales and use tax laws. In determining whether the Lease is a true lease or a sale in the form of a capital lease, she considers whether there is a purchase at the end of the term of the lease and whether it is for fair market value or for a nominal amount. If
the property is to be purchased at the end of the lease for the fair market value, it is not generally viewed as a capital lease.
WHI did not present any evidence that it paid the taxes that are being assessed to its landlord, Lincoln Island Associates, for payment to the Department.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2000).
Subsection 120.80(14)(b), Florida Statutes (1997), relates to taxpayer contest proceedings and provides:
In any administrative proceeding brought pursuant to this chapter as authorized by s. 72.011(1), the taxpayer shall be designated the "petitioner" and the Department of Revenue shall be designated the "respondent" . . . .
In any such administrative proceeding brought pursuant to s. 120.57, the applicable department's burden of proof, except as otherwise specifically provided by general law, shall be limited to a showing that an assessment has been made against the taxpayer and the factual and legal grounds upon which the applicable department made the assessment.
In IPC Sports, Inc. v. Department of Revenue, 829 So. 2d 330, 332 (Fla. 3d DCA 2002), the court adopting the Recommended Order of the hearing officer stated:
Section 120.57, Fla. Stat., limits respondent Department of Revenue's burden of proof in a taxpayer contest proceeding to a showing (1) that an assessment has been made against the taxpayer; and (2) the factual and legal grounds for making the assessment. Section 120.80(14)(b)2, Fla. Stat. Once the Respondent has met this initial burden of proof, the burden shifts to the taxpayer to demonstrate by a preponderance of the evidence that the assessment is incorrect.
The Department has met its burden of proof. It has demonstrated that it made an assessment against WHI for sales and use and indigent care surtax for the audit period, and has demonstrated the factual and legal grounds upon which it based the assessment. Thus, WHI has the burden to establish that the assessment is incorrect.
The Department assessed WHI sales and use tax and indigent care surtax in connection with the lease of the Harbour Island Hotel and property on Harbour Island pursuant to
Section 212.031, Florida Statutes (1990-1994), which provides:
(1)(a) It is declared to be the legislative intent that every person is exercising a taxable privilege who engages in the business of renting, leasing, letting, or granting a license for the use of any real property unless such property is:
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2. Used exclusively as dwelling units.
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(b) When a lease involves multiple use of real property wherein a part of the real property is subject to the tax herein, and a part of the property would be excluded from the tax under . . . subparagraph (a)2, . . .
the department shall determine, from the lease or license and such other information as may be available, that portion of the total rental charge which is exempt from the tax imposed by this section.
WHI contends that the provision in Subsection 212.031(1)(a)2., Florida Statutes, which provides that the lease of real property used exclusively as dwelling units is not subject to taxation pursuant to Section 212.031, Florida Statutes, is an exclusion rather than an exemption, as the Department contends. Subsection 212.21(2), Florida Statutes, states: "It is hereby declared to be the specific legislative intent to tax each and every sale, admission, use, storage, consumption, or rental levied and set forth in this chapter, except as to such sale, admission, use, storage, consumption, or rental as shall be specifically exempted therefrom by this chapter subject to the conditions appertaining to such exemption." Property used exclusively as dwelling units is an exemption from taxation assessed pursuant to Section 212.031, Florida Statutes. Subsection 212.031(1)(b), Florida Statutes, requires the Department to determine in multiple-use property situations "that portion of the total rental charge which is exempt from the tax imposed by this section." In Department of Revenue v. Vanjaria Enterprises, Inc., 675 So. 2d 252, 253 (Fla. 5th DCA 1996), the court considered the provision to be an exemption and stated: "Subsection 212.031(1)(a)2 specifically
exempts from taxation those portions of the property 'used exclusively as dwelling units.'"
Exemptions from taxation are strictly construed against the taxpayer. See Capital City Country Club, Inc. v. Tucker, 613 So. 2d 448, 452 (Fla. 1993); State ex re. Szabo Food Services v. Dickinson, 286 So. 2d 529, 530-531 (Fla. 1973).
"[A]dministrative construction of a statute by the agency or body charged with its administration is entitled to great weight and will not be overturned unless clearly erroneous." Fort Pierce Utilities Authority v. Florida Public
Service Commission, 388 So. 2d 1031, 1035 (Fla. 1980). The Department's interpretation of Subsection 212.031(1)(a)2, Florida Statutes, is succinctly stated in its Notice of Reconsideration dated December 23, 1997:
Section 212.031, F.S., provides a general rule that the renting of real property is taxable unless certain specified exemptions apply. The primary exemption relevant to this case is the one granted to property used exclusively as dwelling units. The Department has taken the position that hotel sleeping accommodations are in effect transient dwelling units. Other areas of a hotel facility whose use is appurtenant to and included in the price of the room itself are treated as an extension of the room and therefore as part of a dwelling unit. This would include, for example, hallways and stairways in guest room areas, a parking space if provided with the room at no charge, the registration desk area, or a swimming pool provided for guest use. It would not include those areas used by the
hotel to carry on its business such as management or administrative offices, storage areas, employee lounges, or loading docks. It also would not include areas in which the hotel carries on commercial activity that is not provided at no additional charge to those renting sleeping accommodations, such as restaurants, bars, banquet and meeting rooms, or gift or other shops.
The Department correctly determined that the hotel property was a multiple-use property and that those portions of the property not used exclusively by the guests, not used by the hotel operators exclusively for the service of guests without further payment by the guests, or not relet to others were taxable. WHI argues that the Department was limited to a review of the Lease to determine whether the property was multiple use and based on the language of the Lease that the property was to be used solely as a first class hotel. Thus, WHI contends that because the property is used as a hotel that it constitutes dwelling units which are not subject to taxation pursuant to Subsection 212.031(1)(a)2, Florida Statutes. WHI's argument is ill conceived and places form over substance.
Subsection 212.031(1)(b), Florida Statutes, does not mean that the Department must rely entirely on the language of the Lease to determine whether the property leased is multiple- use property. The statute provides that in addition to the lease the Department shall use "such other information that is
available." In the instant audit, the Department did rely on other available information such as the visual observations of the auditor conducting the audit, blueprints of the hotel, and updated area and square footage information prepared by a building contractor for WHI.
Additionally, the language of the Lease does not preclude the property from being deemed multiple-use property. The requirement that the property be used to operate a first class hotel does not mean that the entire hotel is used for the accommodations of guests. It is not unusual for a first class hotel to have a bar, restaurant, gift shop, and other areas that are not exclusively for the use of overnight guests or that are not used exclusively to provide services to overnight guests.
In its argument that property used for a hotel is property used exclusively as dwelling units, WHI relies on Subsection 212.02(10), Florida Statutes, which provides:
(10) "Lease," "let," or "rental" means leasing or renting of living quarters or sleeping or housekeeping accommodations in hotels, apartment houses, roominghouses, tourist or trailer camps and real property, the same being defined as follows:
Every building or other structure kept, used, maintained, or advertised as, or held out to the public to be, a place where sleeping accommodations are supplied for pay to transient or permanent guests or tenants, in which 10 or more rooms are furnished for the accommodations of such guests, and having one or more dining rooms or cafes where meals or lunches are served to such
transient or permanent guests, such sleeping accommodations and dining rooms or cafes being conducted in the same building or buildings in connection therewith, shall, for the purpose of this chapter, be deemed a hotel.
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(d) In all hotels, apartment houses, and roominghouses within the meaning of this chapter, the parlor, dining room, sleeping porches, kitchen, office, and sample rooms shall be construed to mean "rooms."
Subsection 212.02(10), Florida Statutes, defines what constitutes a hotel for purposes of Chapter 212. Section 212.031, Florida Statutes, does not include the term "hotel" in listing uses of real property which are exempt from the taxation. The term "hotel" is used in Subsection 212.031(3), Florida Statutes, in connection with certain duties of tax collecting and record keeping. Therefore the definition of a hotel is applicable to Section 212.031, Florida Statutes, only to the extent that it determines whether an establishment is a hotel for collection and record keeping requirements of Subsection 212.031(3), Florida Statutes.
The term "dwelling units" is not defined in
Chapter 212, Florida Statutes. "'One of the most fundamental tenets of statutory construction requires that we give statutory language its plain and ordinary meaning, unless words are defined in the statute or by the clear intent of the legislature. . . . When necessary, the plain and ordinary
meaning of words can be ascertained by reference to a dictionary.'" Seagrave v. State, 802 So. 2d 281, 286 (Fla. 2001), quoting Green v. State, 604 So. 2d 471, 473 (Fla. 1992).
In Webster's II New Riverside University Dictionary (1988), a dwelling is defined as an abode or residence, and a unit is defined as "an individual, group, structure, or other entity regarded as an elementary structural or functional component of a whole." It is a reasonable interpretation that a dwelling unit is a place where a hotel guest resides while he is a guest in the hotel. A hotel has multiple dwelling units within the hotel building. In discussing the fashioning of search warrants when a building contains multiple dwelling units, the court in Fance v. State, 297 So. 2d 331, 333 (Fla. 3rd DCA 1968), stated: "[I]t is true where a building contains multiple dwelling units and the State knows or reasonably should have known that a more particular description can be had, it is the duty of the State to give a particular description and a general description of the building will not suffice. This rule applies to multiple housing accommodations such as hotels where several families are living." (citations omitted)
In order for the lease of real property to not be subject to taxation pursuant to Section 212.031, Florida Statutes, the property must be exclusively used as dwelling units. "Exclusively" is defined in Webster's II New Riverside
University Dictionary (1988) as solely, completely, and wholly. Thus, if the property is used for purposes other than the residences of guests, parts of the property may be subject to taxation as the legislature provides in Subsection 212.031(1)(b), Florida Statutes. Areas of the hotel property, such as the restaurant, kitchen, laundry room, and storage rooms, are not used exclusively for the guests of the hotel and are, therefore, taxable.
WHI relies on Beverly Enterprises-Florida, Inc. v.
Department of Revenue, No. 94-2259-CA-16-0 (Fla. 18th Cir. Ct. April 30, 1996), for the proposition that the lease of the entire hotel should not be taxed. In Beverly, the Seminole County Circuit Court considered the issue of whether a nursing home, inclusive of all its support facilities for its residents, constituted real property used exclusively as dwelling units pursuant to Subsection 212.031(1)(a)2., Florida Statutes (1989). The court, finding that the nursing home property was not a multiple-use property, stated:
Nursing homes for the elderly, disabled or infirmed persons are not operated by merely providing bedrooms, dining halls, and 'normally accessed' areas. To the obvious contrary, each of the component parts of a nursing home, including the kitchen, laundry room, employees' lounge, linen closet, hallways connecting non-accessible rooms, oxygen storage closets, nurses' stations, administrator's office, electrical room, janitor's closet, etc., are necessary to
provide a "dwelling" benefiting those persons who, by their unfortunate physiological or cognitive deficiencies, necessarily require a more complete support base than those persons or more fortuitous health who "dwell" in a home, apartment, or condominium that they can individually maintain.
The greater weight of the evidence shows that the business office, cafeteria, employee lounges and other areas not used exclusively for special care and attention of patients cannot be apportioned for "multiple use." Rather, these areas all contribute to the ultimate care of the residents in their unfortunate state of declining health.
The assessment by the Department of Revenue for "multiple use" apportionment is an inappropriate criterion for taxation in the present case because all the component parts of the nursing home are directed toward and reasonably necessary to the efficient functioning of the nursing home for the benefit of those persons who dwell there.
Nursing homes are not hotels. Nursing homes provide care for patients, including providing the patients' meals and laundry. The day rooms, dining rooms, and therapy rooms are normally for the use of the residents and not for use by the general public. The use of hotel restaurants and bars are areas that are intended to be used by the general public as well as hotel guests.
In 1998, Subsection 212.031(1)(b), Florida Statutes, was amended to include apportionment of premises leased by a for-profit entity providing a residential facility for the aged
as multiple-use property. In other words, contrary to the finding in Beverly, nursing homes could be considered multiple- use property. WHI argues that because the legislature specifically did not include hotels in the amendment that the legislature intended that hotels should not be deemed multiple- use property. Such argument is without merit. Nursing homes had been excluded by the court in Beverly, the 1998 amendment made it clear that nursing homes should be included in multiple- use properties, not that nursing homes were the only leased dwelling unit properties that could be considered multiple-use property.
In SKFW Management Corp. v. Department of Revenue, No. CIO-00-8680 (Fla. 9th Cir. Ct. June 16, 2004), aff'd per curiam, SKFW Management Corp. v. Department of Revenue,
No. 5D04-2457 (Fla. 5th DCA June 28, 2005), the court held in its Final Judgment that the hotel property in that case was multiple-use property, stating:
The lease in question is a ground lease of property owned by Lake Buena Vista Communities, Inc., an unrelated entity.
Pursuant to the ground lease, Plaintiffs erected and operated a hotel complex consisting of guest rooms, offices, retail shops, restaurants, cocktail lounges, parking lots, fountains, convention space, and other amenities. Certain portions of the hotel were utilized by the general public as well as hotel guests. Therefore, the Court finds that the hotel property is to be considered a multiple-use property.
The use of the hotel property in SKFW is very similar to the use of the property in the instant case.
The court in SKFW rejected the taxpayer's argument that the property could not be multiple-use because the lease required the property to be used exclusively as a first class hotel. The court stated:
For the Refund Period, Plaintiffs, under the assumption that the property was not a multiple use property, requested a refund.
The refund was based on the premise that under the lease the property is limited exclusively to the operation of a first class hotel, which the Plaintiffs contend is not multiple use, because if considered multiple use then the Plaintiffs would be in breach of lease. However, the lease is not the sole controlling factor as to the determination of how the property is to be taxed.
WHI contends that the Department's use of square footage in assessing the non-exempt portion of the hotel property was an unpromulgated rule and is therefore unenforceable. Subsection 120.52(15), Florida Statutes (1997), defines a rule as follows:
(15) "Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. . . .
Section 120.54, Florida Statutes (1997), requires that each agency statement meeting the definition of a rule be adopted as a rule through the procedures set forth in Section 120.54, Florida Statutes (1997). Failure to do so constitutes an invalid exercise of delegated legislative authority pursuant to Subsection 120.52(8), Florida Statutes (1997).
WHI relies on Department of Revenue v. Vanjaria, in which the Fifth District Court of Appeal held that the square footage method the Department used was an unpromulgated rule. Vanjaria, 675 So. 2d at 256. In Vanjaria, the Department's auditors were required to use the methodology set forth in the Department's sales and use tax training manual to determine exempt versus non-exempt uses of multiple-use properties. The training manual which was used for the audit period in Vanjaria, March 1, 1983, through February 28, 1986, provided that the assessment would be based on the ratio of exempt square footage to non-exempt square footage. The court noted that the auditors did not have discretion to take action outside the training manual. Id. at 254, 256.
Vanjaria is distinguished from the audit in the instant case. In Vanjaria, the audit occurred several years prior to the audit in the instant case, and the audit in the instant case occurred after the opinion in Vanjaria was issued. In the instant case, the auditor was not required to follow any
training manual in determining the manner in which non-exempt uses of the hotel property would be assessed. The auditor was given some discretion in determining the method of assessment. WHI did not suggest another method to be used for assessment. WHI now takes the position that none of the hotel property should be taxed.
WHI contends the Department's use of a square footage method of assessments in Technical Assistance Advisements (TAAs) issued by the Department demonstrates that the use of such an assessment constitutes an unpromulgated rule. Subsection 213.22(1), Florida Statutes, provides:
The department may issue informal technical assistance advisements to persons, upon written request, as to the position of the department on the tax consequences of a state transaction or event, under existing statutes, rules, or policies. . . .
Technical assistance advisements shall have no precedential value except to the taxpayer who requests the advisement and then only for the specific transaction addressed in the technical assistance advisement, unless specifically stated otherwise in the advisement. Any modification of an advisement shall be prospective only. A technical assistance advisement is not an order issued pursuant to s. 120.565 or s.
120.59 or a rule or policy of general applicability under s. 120.54. The provisions of s. 120.53(2) are not applicable to technical assistance advisements.
It is clear from the statutory language authorizing the issuance of TAAs that the TAAs are not to be considered
rules or policies of general applicability and that the Department is not required to promulgate as rules the positions that the Department takes in the TAAs. In Regal Kitchens, Inc. v. Department of Revenue, 641 So. 2d 158, 164, (Fla. 1st DCA 1994), the court held that a TAA is not an expression of policy because a TAA establishes the position the Department is taking regarding a single taxpayer and a specific transaction.
The evidence established that the Department has used other methods to assess non-exempt property in multiple-use property situations. The Department has made assessments of multiple-use property based on revenue and on percentage of sales. Thus, the use of square footage to determine the assessment of the non-exempt portion of the hotel property in the instant case does not constitute the use of an unpromulgated rule.
In SKFW, the court found that the use of square footage did not constitute an unpromulgated rule and stated:
There was also testimony that the Department had used other methods of apportionment for multiple-use property for purposes of section 212.031 of the Florida Statutes.
Thus, the square footage method of apportionment is not the only method available to the Department auditors in assessing multiple-use property. Since the square footage method is not applicable to all situations, it does not need to be promulgated by rule. See Fla. Stat.
120.52(8) and (15).
WHI contends that the Department should be assessing the tax against Lincoln Island Associates, the landlord, because Subsection 212.031, Florida Statutes, requires the lessee to pay the tax to the landlord, who is to remit the tax to the Department. Section 212.031, Florida Statutes, provides:
(2)(a) The tenant or person actually occupying, using or entitled to the use of any property from which the rental or license fee is subject to taxation under this section shall pay the tax to his or her immediate landlord or other person granting the right to such tenant or person to occupy or use such real property.
* * *
The tax imposed by this section shall be in addition to the total amount of the rental or license fee, shall be charged by the lessor or person receiving the rent or payment in and by a rental or license fee arrangement with the lessee or person paying the rental or license fee, and shall be due and payable at the time of the receipt of such license fee payment by the lessor or other person who receives the rental or payment. The owner, lessor, or person receiving the rent or license fee shall remit the tax to the department at the times and in the manner hereinafter provided for dealers to remit taxes under this chapter. The same duties imposed by this chapter upon dealers in tangible personal property respecting the collection and remission of the tax; the making of returns; the keeping of books, records, and accounts; and the compliance with the rules and regulations of the department in the administration of this chapter shall apply to and be binding upon all persons who manage any leases or operate real property, hotels, apartment houses, roominghouses, or tourist and trailer camps and all persons who collect or receive rents
or license fees taxable under this chapter on behalf of owners or lessors.
However, Subsection 212.07(9), Florida Statutes,
provides:
Any person who has purchased at retail, used, consumed, distributed, or stored for use or consumption in this state tangible personal property, admissions, communication or other services taxable under this part, or leased tangible personal property, or who has leased, occupied, or used or was entitled to use any real property, space, or spaces in parking lots or garages for motor vehicles, docking or storage space or spaces for boats in boat docks or marinas, and cannot prove that the tax levied by this chapter has been paid to his or her vendor, lessor, or other person is directly liable to the state for any tax, interest, or penalty due on any such taxable transactions.
WHI did not establish that it had paid the tax assessed pursuant to Section 212.031, Florida Statutes, to Lincoln Associates.
Thus, WHI is directly liable to the State of Florida for the tax, and the Department may assess the tax against WHI.
WHI claims that the assessment of the tax violates Subsection 212.031(2)(b), Florida Statutes, which provides:
It is the further intent of this Legislature that only one tax be collected on the rental or license fee payable for the occupancy or use of any such property, that the tax so collected shall not be pyramided by a progression of transactions, and that the amount of the tax due to the state shall not be decreased by any such progression of transactions.
Such claim is without merit. The tax assessment does not include the rooms that are rented to hotel guests and those areas which are used exclusively by the hotel guests at no additional cost to the guests. The rentals from those areas would be taxed pursuant to Section 212.03, Florida Statutes. The tax assessment also does not include other types of areas which would be rerented such as conference and meeting rooms. Therefore, there is no pyramiding of taxes.
WHI argues that the Lease is not a true lease, but is a capital lease which is a financing agreement or mortgage, tantamount to a sale of the real property, which is not subject to taxation pursuant to Section 212.031, Florida Statutes. Section 212.031, Florida Statutes, does not distinguish between a capital lease or an operating lease for purposes of taxation. However, the greater weight of the evidence establishes that the Lease is a true lease and not a sale. Subsection 212.02(15)(e), Florida Statutes, defines a sale as "[a] transaction whereby the possession of property is transferred but the seller retains title as security for the payment of the price."
The Lease designates the agreement between the parties as a "true lease" for income tax purposes. Lincoln Island Associates was designated as owner of the hotel property and was entitled to take such federal income tax deductions as depreciation on the improvements. Lincoln Associates held title
to the property and could sell the property. The Lease did provide a right of first refusal to WHI. The Lease also provided an option to purchase at the end of the lease, but the purchase price was for fair market value and not a bargain or nominal price. Lincoln Island Associates was responsible for keeping the foundation, roof, and structural portions of the improvements to the property in good order, condition, and repair.
WHI cites Bridgestone/Firestone, Inc. v. Department of Revenue, DOAH Case No. 92-2483, 15 FALR 4874 (Nov. 5, 1993), for the proposition that the lease at issue is a sale. The instant case differs from Bridgestone/Firestone, which dealt with a sale and leaseback transaction, where Bridgestone/Firestone sold its retail outlets to Firestone Real Estate Leasing Corporation (FIRELCO), which was established for the purpose of achieving Bridgestone/Firestone's goal of off-balance sheet financing. FIRELCO had issued commercial paper to pay for the sale. On the same day as the sale, FIRELCO leased the stores back to Bridgestone/Firestone. Through this type of arrangement, Bridgestone/Firestone was able to secure financing at an interest rate on commercial paper rather than a long-term mortgage rate and was also able to secure off-balance sheet financing so that it ended up with only cash on its books while transferring the land and buildings to FIRELCO, along with
substantial debt to be recorded on FIRELCO's books. No evidence was presented that WHI and Lincoln Island Associates had a similar arrangement and that the Lease was really a sale rather than a true lease.
WHI argues that based on Subsection 213.015(4), Florida Statutes, the Department is estopped from taxing the lease of the hotel property because the Department had found in the first audit that the property was not multiple-use property, was used as dwelling units, and was not taxable pursuant to Subsection 212.031, Florida Statutes. Section 213.015, Florida Statutes, enumerates certain rights of Florida taxpayers and provides:
The right to freedom from penalty attributable to any taxes administered by the Department of Revenue; freedom from payment of uncollected sales, use, motor, or special fuel, or other transaction-based excise taxes administered by the Department of Revenue, when the taxpayer reasonably relies upon binding written advice furnished to the taxpayer by the department through authorized representatives in response to the taxpayer's specific written request which provided adequate and accurate information (see ss. 120.565 and 213.22).
WHI did not request a declaratory statement pursuant to Section 120.565, Florida Statutes, or a TAA pursuant to Section 213.22, Florida Statutes, concerning whether the hotel property was multiple-use property and subject to taxation pursuant to Section 212.031, Florida Statutes. Therefore,
Section 213.015, Florida Statutes, is not applicable to the instant case.
In Department of Revenue v. Anderson, 403 So. 2d 397 (Fla. 1981), the Florida Supreme Court discussed the application of estoppel against a state agency and stated:
As a general rule, equitable estoppel will be applied against the state only in rare instances and under exceptional circumstances. 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).
In Davis & Sons, Inc. v. Askew, 343 So. 2d 1329 (Fla.
1st DCA 1977), the court discussed circumstances in which estoppel may apply.
Ordinarily, where a tax legally owing by a citizen is not collected due to error of the taxing officials, the state should not be estopped from back assessing and collecting the tax. The citizen is merely paying at a later date that which he should have paid in the beginning. But when a state makes a private business, in effect, its agent for
the collection of taxes from others, and makes the business liable for the tax it fails to collect as means of enforcing the collection, a different situation is presented.
* * *
While as a general rule, substantive tax liability may not be discharged by estoppel, here we do not have the usual tax situation in which an estoppel has been denied. This is not a tax which the taxing authority, through error or mistake in interpreting the law, failed to assess against a taxpayer and upon later discovering the error, seeks to now require the taxpayer to pay what he should have paid at the previous time.
Here, the tax, is one which the law requires the taxpayer to collect for the state. The taxpayer is, in a sense, collecting agent for the state. . . . There is no way that appellant can now reverse time and go back and collect this tax from its past patrons."
Id. at 1331-1332.
WHI has demonstrated no exceptional circumstances which would estop the Department from collecting the tax liability. WHI is the taxpayer who owes the tax. It is not a situation in which WHI was collecting taxes owed by its guests to the Department. Also, WHI was aware that the finding of zero tax liability in the First Audit relating to multiple-use property was in error. Thus, WHI's tax liability is not discharged by estoppel.
WHI is liable for taxes, penalties, and interest assessed by the Department.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a final order be entered:
Denying WHI's request for relief.
Assessing the sales and use tax, indigent care surtax, penalty, and interest as set forth in the Notice of Reconsideration dated December 23, 1997.
DONE AND ENTERED this 29th day of July, 2005, in Tallahassee, Leon County, Florida.
S
SUSAN B. HARRELL
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2005.
ENDNOTES
1/ At the time of the final hearing, the Administrative Law Judge was named Susan B. Kirkland.
2/ At the final hearing on June 8, 2004, the deposition of Charles Wallace dated April 21, 2004, was received into evidence and was also marked as Respondent's Exhibit 39. For the sake of
clarity, the deposition of Charles Wallace is renumbered as Respondent's Exhibit 39A.
3/ All references to the Florida Statutes are to the versions existing from 1990 to 1994, unless otherwise indicated.
COPIES FURNISHED:
Nicholas Bykowsky, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
Allen H. Libow, Esquire William M. Shaheen, Esquire Eric J. Stockel, Esquire Jeffery M. Glotzer, Esquire Libow & Shaheen, LLP
3351 Northwest Boca Raton Boulevard Boca Raton, Florida 33431
Bruce Hoffmann, General Counsel Department of Revenue
204 Carlton Building Tallahassee, Florida 32399-0100
James Zingale, Executive Director Department of Revenue
104 Carlton Building Tallahassee, Florida 32399-0100
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of 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 | Document | Summary |
|---|---|---|
| Oct. 17, 2005 | Agency Final Order | |
| Jul. 29, 2005 | Recommended Order | The taxpayer`s hotel was a multiple-use property. Respondent`s use of square footage to assess tax was not a rule, Respondent is not estopped by a prior audit from assessing tax liability, and Respondent could assess tax against the lessee. |
| Feb. 27, 2003 | Mandate | |
| Apr. 17, 2000 | Opinion |
