on January 14, 1976, in Room 821 of the Broward County Courthouse, Ft. Lauderdale, Florida.
For Petitioner: Jerome M. Rosenblum
For Respondent: Stephen E. Mitchell
For Broward Gaylord A. Wood
Ft. Lauderdale, Florida 33301 INTRODUCTION
The issue presented for decision in this case is whether petitioner is entitled to a charitable exemption from ad valorem taxation for the tax year 1973. More specifically, the issue is whether the late filing by petitioner of its ad valorem tax exemption application and return results in a waiver of the exemption privilege, pursuant to F.S. 196.011.
In accordance with F.S. 196.122(1) and the case of Hollywood Jaycees 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). Due to the unavailability of a verbatim transcript and the incompleteness of the record transmitted to the respondent by the BTA, petitioner and respondent stipulated to the facts upon which the BTA
relied in granting petitioner's exemption (Reconstruction of Incomplete Record, Exhibit 1).
Having heard oral argument on the issues and considered the record transmitted to the respondent by the BTA, as supplemented by the "Reconstruction of Incomplete Record", the following pertinent facts are found:
For some years preceding 1973 and for the years subsequent to 1973, petitioner has timely applied and has been granted a charitable exemption from ad valorem taxation.
For the tax year 1973, the Tax Assessor did not grant petitioner a charitable exemption because the application for exemption was not timely filed.
Petitioner appeared before the Broward County Board of Tax Adjustment for the purpose of securing relief from a late filing of the requested tax exemption. The BTA was informed that the late filing was a result of great confusion in the Club due to the impeachment and removal from office of the president of the Club on an alleged charge of embezzling the Club's funds and that the impeached president of the Club had left with many of the papers belonging to the Club.
The Tax Assessor recommended that the BTA grant the charitable exemption to petitioner, noting that the exemption would have been granted were it not for the late filing.
The BTA, noting the above and that a changing of petitioner's officers had resulted in the late filing, granted petitioner a charitable exemption from ad valorem taxation. The respondent's Executive Director was notified of the change.
After certain legal proceedings culminating in the decision of Hollywood Jaycees, Inc. v. State Department of Revenue, 306 So.2d 109 (Fla. 1975), respondent issued its staff recommendation for the invalidation of the action of the BTA. This recommendation was based upon the conclusion that the BTA did not have information before it legally sufficient to warrant the change made in the tax roll since petitioner failed to demonstrate that it was excepted from the waiver provision of F.S. 196.011.
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
Counsel for petitioner devoted some time at the hearing challenging the validity of F.S. 193.122(1), which provides for the respondent's invalidation of any change made by the BTA when it finds the change lacks legal sufficiency or that the evidence presented was insufficient to overcome the assessor's presumption of correctness. The petitioner's challenge of the constitutionality of 193.122 was not considered by the undersigned for several reasons: Administrative agencies do not determine the constitutionality of statutes under which they act, the validity of which must be assumed until a judicial declaration to the contrary; the facial validity of F.S. 193.122(1) was upheld
by the Florida Supreme Court in a case involving the petitioner herein - Hollywood Jaycees v. State Department of Revenue, 306 So.2d 109 (Fla. 1975); and, prior to this hearing, the undersigned granted respondent's motion to strike those portions of the petition attacking the constitutionality of F.S. 193.122(1).
Thus, the only 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. 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. 196.131) in the case of Horne v. Markham, 258 So. 196 (Fla. 1974).
The issue of whether the failure to timely file will absolutely, and in all cases, result in a waiver of the exemption privilege is a matter of statutory interpretation and construction. It is established that taxing statutes conferring authority to impose taxes are 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. 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 for 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 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 factual circumstances presented to the BTA as a reason for the untimely filing did not render it legally impossible for the petitioner to comply with the law. It is the organization which owns the real property with its entitlement to exemption, and not any of the individual members of the organization. Here, there is no evidence that the application for exemption could not have been filed before or even after the petitioner's president was impeached or absconded with "many of the papers belonging to the Club." There was no evidence of the dates upon which the actions concerning said former president occurred. The activities of one member of petitioner's organization do not excuse or prevent other members from complying with the law. Petitioner has simply failed to demonstrate that it was legally impossible for it to comply with the April 1st deadline, and thus it cannot escape the clear waiver language of F.S. 196.011, as well as the rules of statutory construction, the case law or the 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.
