STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELKS B.P.O.E., )

)

Petitioner, )

)

vs. ) CASE NO. 75-1525

) STATE OF FLORIDA, DEPARTMENT ) OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearing, at 9:30

1. on January 14, 1976, in Room 821 of the Broward County Courthouse, Ft. Lauderdale, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Mr. Thomas M. Coker, Jr.

   328 Bayview Building 1040 Bayview Drive

   Ft. Lauderdale, Florida 33304

   
   

   For Respondent: Mr. Stephen E. Mitchell

   Assistant Attorney General Department of Legal Affairs Tallahassee, Florida 32304

   
   

   Mr. Gaylord A. Wood Attorney for Broward County

   Property Appraiser

   603 Courthouse Square Building

   200 Southeast 6th Street

   Ft. Lauderdale, Florida 33301 INTRODUCTION

   The issue presented for decision in this cause is whether the late filing by petitioner of its ad valorem tax exemption application and return in 1973 results in a waiver of the exemption privilege for that year, pursuant to F.S. Section 196.011.

   
   

   It is the petitioner's position that the late filing was due to the illness of the petitioner's secretary and that such excuse was legally sufficient to take this case out of the waiver provisions of the statute in question. The Property Appraiser's position is that the petitioner's property partially qualifies for a charitable exemption and that such exemption would have been granted had the application been timely filed *-* from an excuse which renders

   it legally impossible to comply with the law and that the illness of one of the corporate officers of petitioner's organization is not such an excuse.

   
   

   In accordance with F. S. Section 193.122(1), and the case of Hollywood Jaycees Inc. v. State Department of Revenue, 306 So.2d 109 (Fla. 1975), the hearing in this cause was limited to the scope of the record established before the Broward County Board of Tax Adjustment (BTA).

   
   

   FINDINGS OF FACT

   
   

   Having considered the pleadings and the record as reconstructed by the parties, as well as oral argument on the issues, the following pertinent facts are found:

   
   

   1. For the years previous to 1973 and for the years subsequent to 1973, petitioner has been granted a partial charitable exemption from ad valorem taxation, pursuant to F.S. 196.012(6).

      
      

   2. Petitioner's secretary, who was the only full-time salaried employee and officer of petitioner's organization, had the responsibility of reviewing and answering all correspondence addressed to petitioner. Due to the secretary's illness and subsequent demise, an application for ad valorem tax exemption for 1973 was not timely filed, and the property appraiser thus denied the exemption.

      
      

   3. For the tax year 1973, a charitable exemption would have been granted petitioner had it timely filed its application and return by April 1, 1973.

      
      

   4. Upon appeal by petitioner to the Broward County BTA on the stated grounds of "change of officers," the BTA granted the exemption upon the recommendation of the tax assessor.

      
      

   5. The BTA notified the respondent of the change in the assessor's action. The staff recommendation of the respondent was to invalidate said change on the ground that petitioner failed to demonstrate that it came within an exception to the waiver rule of Section 196.011 and therefore the change by the BTA lacked legal sufficiency and/or the evidence presented was insufficient to overcome the assessor's presumption of correctness.

      
      

   6. Petitioner requested a hearing to review the staff recommendation, the Executive Director of the respondent requested the Division of Administrative Hearings to conduct the hearing, and the undersigned was assigned as the Hearing Officer.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The issue in this case is whether petitioner's failure to timely file for a charitable exemption from ad valorem taxation results in a waiver of the exemption privilege for the year 1973. For the year in question, 1973, F.S. Section 196.011(1) required every person or organization whose property is entitled by law to exemption from taxation to file an application for exemption with the county tax assessor before April 1st. That section further provides that "failure to make application, when required, by April 1 of any year shall constitute a waiver of the exemption privilege for that year." The Fla. Supreme Court upheld the reasonableness and validity of a similar homestead exemption filing deadline with the same waiver provision (F.S. Section 196.121) in the case of Horne vs. Markham. 288 So. *-*

   8. The issue of whether the failure to timely file will absolutely, and in all cases, result in a waiver of the exemption privilege is *-* to be strictly construed in favor of the taxpayer and against the taxing authority. However, the rule of liberal construction in favor of the taxpayer does not apply to statutes exempting property from taxation. Tax exemptions are in the nature of a special privilege and should be strictly construed against the claimant and in favor of the taxing authority. State v. Inter-American Center Authority, 84 So.2d 9 (Fla. 1955), State ex rel. Szabo Food Services, Inc. v. Dickinson, 286 So.2d 529 (Fla. 1973). As stated in Jar Corp. v. Culbertson, 246 So.2d 144 (Fla. App. 3rd, 1971):

"...in order for a taxpayer to receive a benefit different in kind from other taxpayers it is necessary for him to strictly comply with all conditions which would be necessary to entitle

him to the special treatment."

In this case, one of the conditions is that the application for exemption be filed by April 1 of each year, and failure to do so "shall constitute a waiver of the exemption privilege for that year." F.S. Section 196.011(1). There is also a rule of statutory construction that provisions as to the time when a thing is to be done are regarded as merely directory unless there is a provision included restraining the doing of it after that time.

Section 196.011 is silent as to any excuse or justification for failure to timely file for an exemption from ad valorem taxation. However, the case law on the subject indicates that there may exist a legal excuse or justification for failure to file as required by law and that a late filing under circumstances not amounting to laches on the part of the applicant might be excused and no forfeiture of the exemption would result. See Horne v. Markham supra; Christian and Missionary Alliance Foundation, Inc. v. Schooley, 289 So.2d 778 (Fla. App.

2nd 1974); Jasper V. St. Petersburg Episcopal Community, Inc., 222 So.2d 479 (Fla. App. 2nd, 1979); and Gamma Phi Chapter of Sigma Chi Building Fund Corp. v. Dade County, 199 So.2d 717 (Fla. 1967). Also, there is an Attorney General's opinion pertaining to the late filing of an application for homestead exemption. That opinion states:

"Only in rare cases, if at all, should a belated application for homestead tax exemption be allowed, in the absence

of statute making express provision therefor, and then only in cases where it is apparent that the applicant's condition was such as to prevent his filing or directing the filing of such belated claim. Such condition, to authorize a belated filing, should be one of such nature as to disable the applicant from filing the same or directing the filing of the same during that part of the year prior to April 1 of the tax year." AGO 057-374

It is thus apparent from the case law and rules of statutory construction that any excuse which would exempt the taxpayer from the waiver provision of Section

196.011 must be such as to have made it legally impossible for the taxpayer to have complied with the law.

With the above principles in mind, the determinative inquiry in this case is whether the BTA had before it sufficient evidence to illustrate that it was legally impossible for the petitioner to comply with the April 1st deadline.

The undersigned concludes that the*

It is the corporate organization which owns the real property in question and is entitled to an exemption from ad valorem taxation, and not any of its individual members or officers. It has not been shown *-* impossible for another of petitioner's members to comply with the law. While the result in this case may appear harsh, petitioner has not presented sufficient evidence to overcome the clear language of F.S. Section 196.011, as well as the rules of statutory construction, case law or Attorney General's opinion on the subject.

In conclusion, it is found that there was not sufficient evidence before the Broward County Board of Tax Adjustment to grant petitioner's property a charitable exemption from ad valorem taxation for the year 1973, the petitioner having failed to timely file its application for exemption.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that the action of the Broward County Board of Tax Adjustment granting the exemption be invalidated.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 12th day of February, 1976.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings Carlton Building, Room 530

2009 Apalachee Parkway

Tallahassee, Florida 32304

(904) 488-9675

NOTE: Text within the *-* is unreadable on the document on file with the Division. Therefore, the complete text is not available in this ACCESS document.

COPIES FURNISHED:

Mr. J. Ed Straughn Executive Director Department of Revenue The Capitol Tallahassee, FL 32304

Mr. Thomas M. Coker, Jr.

328 Bayview Building 1040 Bayview Drive

Ft. Lauderdale, FL 33304

Mr. Stephen E. Mitchell Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, FL 32304

Mr. Gaylord A. Wood

603 Courthouse Square Building

200 SE 6th Street

Ft. Lauderdale, FL 33301

Docket for Case No: 75-001525

Orders for Case No: 75-001525