STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SPORT-CRAFT, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 75-1986

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-styled cause pursuant to Notice at 10:00

1. in the Collins Building, Tallahassee, Florida on March 17, 1976 before Stephen F. Dean, assigned Hearing Officer at the Division of Administrative Hearings.

   
   

   This matter arose upon the assessment of $671.50 of documentary tax stamp tax pursuant to Section 201.08, F.S. upon an Amendment and Modification of Note and Mortgage, and $671.50 of penalty pursuant to Section 201.77 F.S. against the taxpayer. The Taxpayer requested a formal hearing and the matter was referred to Division of Administrative Hearings to conduct the hearing.

   
   

   APPEARANCES

   
   

   For Petitioner: Edgar M. Moore, Esquire

   Smith and Moore, P.A. Post Office Box 1169

   Tallahassee, Florida 32302

   
   

   For Respondent: Joseph C. Mellichamp, III, Esquire

   Assistant Attorney General Department of Legal Affairs The Capitol

   Tallahassee, Florida 32304 ISSUES

   1. Whether there is situs in Florida of the transaction evidenced by the amendment which would permit assessment of the tax.

      
      

   2. Whether the amendment is a written obligation to pay money.

      
      

   3. Whether the amendment is exempt as a renewal of the previous obligation upon which the tax was paid.

FINDINGS OF FACT

1. On March 20, 1973 the taxpayer executed in Taylor County, Florida a promissory note for $500,000 at 9 percent interest per annum payable in 28

   quarterly payments the last payment due April 1980, to Wachovia Bank and Trust Company, N.A. of North Carolina secured by a mortgage executed and recorded in Taylor County Tax stamp on the note were affixed and cancelled.

   
   

2. On April 1, 1975, the taxpayer executed in Taylor County, Florida an amendment and modification to the aforementioned mortgage to the original mortgagee - obligee bank. Said amendment and modification provided for the payment of $419,000 of the original note plus $28,748.75 of accrued interest or interest to accrue between July 1, 1974 and April 1, 1975, payable in 21 payments the last payment due April 1980, at 10 percent interest per annum. The documentary tax stamps were not attached to this instrument.

   
   

   CONCLUSIONS OF LAW

   
   

3. To be taxed there must be a Florida transaction evidenced by a written obligation to pay money. Section 201.08(1) F.S.

   
   

4. The Amendment and Modification was clearly executed in Florida and there is taxable situs for the transaction.

   
   

5. The Amendment clearly evidences a transaction between the taxpayer and the bank pursuant to which the taxpayer was obligated to pay sums of money to the bank.

   
   

6. Such a taxable obligation will be exempt if it meets the standards of Section 201.09, F.S.

   
   

7. The instrument in question does not meet the standards of $ 201.09 because it specifically includes a portion of the accumulated interest on the original obligation.

   
   

8. Therefore the instrument evidencing the transaction is taxable at its face amount of $447,748.75.

   
   

9. The document stamps not having been attached to the instrument tax penalty is also due. See Section 201.17(2), F.S.

RECOMMENDATION

The Hearing Officer based upon the foregoing findings of facts and conclusion of law recommends that the tax and penalty be assessed.

DONE and ORDERED this 17th day of May, 1976, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Edgar M. Moore, Esquire Smith and Moore, P.A. Post Office Box 1169

Tallahassee, Florida 32302

Joseph C. Mellichamp, III, Esquire Assistant Attorney General Department of Legal Affairs

The Capitol

Tallahassee, Florida 32304

Docket for Case No: 75-001986

Orders for Case No: 75-001986