STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LESLIE W. AND ELIZABETH GULRICH, )

)

Petitioners, )

)

vs. ) CASE NO. 75-1460

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter has been referred to the Division of Administrative Hearings on the petition of the taxpayer, Leslie W. Gulrich, seeking review of the proposed action by the State of Florida, Department of Revenue, Division of Ad Valorem Tax, to invalidate the relief granted by the 1974 Lee County Board of Tax Adjustment. The taxpayer, Gulrich, owns approximately 16 acres of land in Lee County. This property was assessed by the Lee County Property Assessor, which action was challenged by the taxpayer before the Lee County Board of Tax Adjustment. A hearing was held before that Board October 3, 1974.

1. The evidence presented at this hearing indicated that the property in question consists of approximately 16 acres which is presently being farmed under a lease agreement. The lessee farms the taxpayer's parcel in addition to other neighboring parcels he leases from those owners. The taxpayer testified that this parcel was bought as a farm and was farmed until the 1926 hurricane ruined him (the transcript says 1926 hurricane, but it appears more likely that it was the 1946 hurricane, since he has owned the land 28 years). After several years of hard times, Mr. Gulrich moved to Akron, Ohio, where he obtained a job. He stated he stayed with that job until he could retire with a pension and has now returned to his original farm. There is no indication in the record as to the purchase price of the property. The taxpayer denies any intention or plans to sell the property. He did not state that he intends to actively farm the land, but apparently the land has been under cultivation for several years at least. According to the tax assessor, the land is worth approximately $80,000 ($5,000 an acre). The only statement Mr. Gulrich made as to what use he plans for the land is "to supplement my pension." There was no indication of what type of crop was planted there, if any, by the lessee, what agricultural methods were used, whether the property was fertilized, tilled, mowed, or used in any customary manner of cultivation or raising of livestock.

   
   

2. The standard for review of a decision challenging a county board of tax adjustment is found in Section 193.122, F.S., which limits the scope of review to the record of the hearing at the board of tax adjustment. It has been previously decided that a taxpayer challenging the tax assessor has an affirmative burden to overcome the assessor's presumption of correctness. Homer

   v. Dadeland Shopping Center, Inc., 229 So.2d 834 (Fla. 1970). In this case, the taxpayer had to satisfy the requirements of Section 193.461(3)(b), (4)(c).

   These sections require that for lands to be classified as agricultural they must be in bona fide agricultural use. Bona fide agricultural use is defined as good

   faith commercial agricultural use of the land. It appears the lessee uses at least part of this 16-acre parcel in an agricultural endeavor. However, this is only a small part of the total farming operation conducted by the lessee and, of course, it is the landowner here, not the farmer himself, who is claiming the exemption. The statute in question, however, speaks only of the use of the land.

   
   

3. Section 193.461(3)(b) contains specific guidelines for determining whether an agricultural use is bona fide. That section states:

   
   

   "In determining whether the use of the land for agricultural purposes is bona fide, the following factors may be taken into consideration:

   1. The length of time the land has been so utilized;

   2. Whether the use has been continuous;

   3. The purchase price paid;

   4. Size, as it relates to specific agricultural use;

   5. Whether an indicated effort has been made to care sufficiently and adequately for the land in accordance with accepted commercial agricultural practices, including, without limitation, fertilizing, liming, tilling, mowing, reforesting, and other accepted agricultural practices;

   6. Whether such land is under lease and, if so, the effective length, terms, and conditions of the lease; and

   7. Such other factors as may from time to time become applicable."

      
      

4. After reviewing all these factors and applying them specifically to the facts in this case, it appears that the land is presently being farmed, but there is no indication as to whether this is part of a commercial operation, and whether the landowner plans to pursue farming as a commercial venture.

   
   

5. However, it must be noted that the record of the hearing before the Board of Tax Adjustment has not given adequate answers to the seven criteria mentioned above. It is unclear how long this parcel has been farmed and whether that use has been continuous. The purchase price of this property has not been noted, but this hearing officer can at least take notice that it must have been considerably lower than the stated $5,000 per acre at which the assessor estimated its value. It is only clear that the parcel is approximately of 16 acres and that it is under an agricultural lease which requires a 6-month notice for termination. The landowner/taxpayer, Mr. Gulrich, does not appear to be in the business of farming. His lessee probably is (although that is even unclear from the record) and the lessee can only successfully farm this parcel by combining it with others.

   
   

6. The record of the hearing before the Lee County Board of Tax Adjustment does not contain the affirmative proof required to overcome the assessor's presumption of correctness. See Walden v. Fletcher Avenue Development Corp., 313 So.2d 65.

It is, therefore, RECOMMENDED that the decision of the Lee County Board of Tax Adjustment be overruled and that the evaluation imposed by the Lee County Appraiser be made final.

DONE and ORDERED this 12th day of January, 1976, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Sheldon E. Finman, Esquire Allen, Knudsen, Swartz, DeBoest,

Rhoads & Edwards, P.A. Post Office Box 1480

Fort Myers, Florida 33902 Attorney for Petitioners

Larry DeFrances, Esquire Ad Valorem Tax Counsel Department of Revenue

Room 102, Carlton Building Tallahassee, Florida 32304

J. Ed Straughn Executive Director Department of Revenue

Room 102, Carlton Building Tallahassee, Florida 32304

Mrs. Winnie Wentworth Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32304

Harry Schooley

Lee County Property Appraiser Lee County Courthouse

Fort Myers, Florida 33902

Zollie M. Maynard, Jr., Esquire Assistant Attorney General Department of Legal Affairs

The Capitol

Tallahassee, Florida 32304

Docket for Case No: 75-001460

Orders for Case No: 75-001460