STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POLISH MISSION FOUNDATION, INC., )

)

Petitioner, )

)

vs. ) Case No. 99-3394

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on November 4, 1999, at Fort Lauderdale, Florida, before Administrative Law Judge Michael M. Parrish, of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Michael Gastom, President

Polish Mission Foundation, Inc.

1700 South Ocean Boulevard, Suite 12D Pompano Beach, Florida 33062

For Respondent: Kevin J. O'Donnell, Esquire

Department of Revenue Post Office Box 668

Tallahassee, Florida 32314-6668 STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner, Polish Mission Foundation, Inc., qualifies under Section 212.08(7)(o), Florida Statutes, for a consumer certificate of exemption as a "charitable institution," or as a "religious institution."

PRELIMINARY STATEMENT

At the final hearing, Mr. Michael Gastom, who is the president of the Polish Mission Foundation, Inc. (Foundation), testified on behalf of the Foundation. The Foundation did not call any additional witnesses, nor did it offer any exhibits. The Department of Revenue (Department) presented the testimony of one witness, and offered one composite exhibit, which was received in evidence.

At the conclusion of the hearing, the parties were allowed

20 days from the filing of the transcript within which to file proposed recommended orders. The transcript was filed with the Division of Administrative Hearings on December 1, 1999. Thereafter, the Department filed a timely proposed recommended order containing proposed findings of fact and conclusions of law. As of the date of this Recommended Order, the Foundation has not filed any post-hearing document.

FINDINGS OF FACT

1. The Foundation is a recently organized not-for-profit corporation. It does not yet have any funds of its own. Having no funds, it has no history of expenditures. 1/ More specifically, the Foundation does not have a history of expending in excess of 50 percent of its operational expenditures towards "qualified charitable services," as defined

   in the Department's rules. The Foundation has not provided any such "qualified charitable services."

2. The Foundation does not have an established physical place of worship where it regularly conducts religious services and activities.

3. In the future, the Foundation plans to raise funds for the purpose of providing financial assistance to various activities of a church. Some of the activities to which the Foundation plans to provide financial assistance would be "qualified charitable services," others would not.

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case pursuant to Section 120.57(1), Florida Statutes.

5. The Department is authorized to issue tax exemption certificates to qualified entities pursuant to Section 212.08, Florida Statutes. To qualify for an exemption, the Foundation must show that it meets all of the statutory and rule criteria for exemption. The provisions of law that authorize a tax exemption must be strictly construed against the person claiming the exemption. Asphalt Pavers, Inc. v. Department of Revenue,

   584 So. 2d 55, 57 (Fla. 1st DCA 1991); see also Department of Revenue v. Skop, 383 So. 2d 678, 680 (Fla. 5th DCA 1980)("While

   doubtful language in taxing statutes should be resolved in favor

   of the taxpayer, the reverse is true in construction of exceptions and exemptions from taxation."); Wanda Marine v. Department of Revenue, 305 So. 2d 65, 69 (Fla. 1st DCA 1974)("tax exemptions must be strictly construed against the claimant").

6. The Foundation fails to qualify for tax exemption as a "charitable institution," because it has not shown that its primary function is to provide, to those who are unable to pay, any of the services described in Section 212.08(7)(o)2.b., Florida Statutes.

7. The Foundation fails to qualify for tax exemption as a "religious institution," because it does not have an established place for worship at which non-profit religious services and activities are regularly conducted and carried on, as required by Section 212.08(7)(o)2.a., Florida Statutes.

RECOMMENDATION

Based on all of the foregoing, it is RECOMMENDED that the Department issue a final order in this case denying the Petitioner's application for a consumer certificate of exemption.

DONE AND ENTERED this 21st day of January, 2000, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 21st day of January, 2000.

ENDNOTE

1/ The funds expended for the formation and incorporation of the Foundation have been paid from the personal funds of

Mr. Gastom, the Foundation's president.

COPIES FURNISHED:

Linda Lettera, 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

Michael Gastom, President Polish Mission Foundation, Inc.

1700 South Ocean Boulevard, Suite 12D Pompano Beach, Florida 33062

Kevin J. O'Donnell, Esquire Department of Revenue

Post Office Box 668

Tallahassee, Florida 32314-6668

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.

Docket for Case No: 99-003394

Orders for Case No: 99-003394