STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WEST BROWARD CHAMBER OF COMMERCE, )

)

Petitioner, )

)

vs. ) CASE NO. 79-0570

) DEPARTMENT OF REVENUE, STATE ) OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on July 26, 1979, in Fort Lauderdale, Florida.1

APPEARANCES

For Petitioner: James T. Moore, Esquire

1265 Northwest 40th Avenue Lauderhill, Florida 33313

Robert A. White, Esquire

5460 North State Road 7, Suite 220 Fort Lauderdale, Florida 33319

For Respondent: Cecil L. Davis, Jr., Esquire

Assistant Attorney General The Capitol, LL04 Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue herein is whether the Department of Revenue's sales tax assessment against West Broward Chamber of Commerce as a result of the purchase of promotional books by the Chamber from Creative Public Relations and Marketing, Inc., is valid.

FINDINGS OF FACT

1. The West Broward Chamber of Commerce (Petitioner) entered into an oral contract with Mr. Randy Avon, a representative of Creative Public Relations, to purchase a promotional booklet pertaining to the West Broward area for distribution to the public. (Petitioner's Exhibit #1). Creative Public Relations in turn contracted with International Graphics to print the booklet.

   
   

2. Mr. Bernard Fox, the Department of Revenue's (Respondent Area Manager in the Fort Lauderdale office and Mr. James W. Darrow, who worked with International Graphics during the time the transaction in question took place,

   testified and established that Mr. Randy Avon secured a sales tax number for the purchase of the promotional books in issue and presented the sales tax number to International Graphics. International Graphics sold the books to Mr. Avon for resale, without tax.

   
   

3. The Department of Revenue issued an assessment against Petitioner for sales tax, penalty and interest due on the purchase of the books in question by Petitioner in the total amount of $1,307.56. Evidence reveals that said assessment was due as of December 20, 1978, and that since that time interest is accruing at a daily rate of $.31. This assessment was based on a total purchase price of $24,214.10, which, according to Mr. Fox and the statements contained in Respondent's Exhibit #1, was the price that Mrs. Gail Duffy, Petitioner's Executive Director informed the Respondent that the Chamber paid for the promotional booklets. Petitioner's treasurer, Helen Kerns, also testified that the total purchase price paid by Petitioner for the books was $22,104 and that part of the purchase price was paid directly to Creative Public Relations due to a dispute with an officer of the contracting entity, International Graphics. Mrs. Kerns testified that commissions were, however, paid by the Petitioner to Creative Public Relations, which commissions were not included in the purchase price as testified to by Mrs. Kerns.

   
   

4. James W. Darrow, a witness who was allegedly privy to the agreement and understanding between the Petitioner and the seller, Creative Public Relations, testified that the oral contract price specifically included sales taxes on the transaction. Additionally, Mrs. Duffy testified that in her opinion, the sales taxes due on the purchase by Petitioner had been paid because she under stood that the total purchase price paid to Creative Public Relations by Petitioner included the sales tax.

   
   

5. No sales invoices, receipt, or other tangible evidence of sales were offered into evidence at the hearing herein.

   
   

6. Petitioner contends that the sales tax in question was included in the total purchase price. Based thereon, Petitioner contends that Creative Public Relations is now liable for the tax. Respondent, on the other hand, takes the position that the taxes from the sales transaction can be imposed on either the seller or the purchaser.

   
   

   CONCLUSIONS OF LAW

   
   

7. The purchase of the books in question by Petitioner from Creative Public Relations is clearly subject to sales tax under the provisions of Section 212.05, Florida Statutes. Subsection 212.07(4), Florida Statutes, provides in pertinent part that a dealer engaged in any business taxable under this chapter shall not advertise or hold out to the public, in any manner, . . . that he will relieve the purchaser of payment of all or any part of the tax or that the tax will not be added to the selling price. . . .

   
   

8. This statutory provision gives notice to all parties to a transaction that the seller cannot hold out to the buyer that he will absorb the tax or relieve the purchaser of payment of the tax.

   
   

9. Additionally, Subsection 212.07(2), Florida Statutes, requires that sales tax be separately stated on any charge tickets, sales slips, invoices or other tangible evidence of sale, and that the tax shall be a debt from the purchaser or consumer to the dealer until paid. Such a requirement is also found in Rule Section 12A-1.86, Florida Administrative Code.

10. Additionally, the Respondent has the statutory authority to collect the sales tax from the seller or the purchaser in any such transaction. [Emphasis supplied.] Subsection 212.07(9), Florida Statutes. The Department of Revenue's authority to hold Petitioner directly liable to the sales tax in question is further supported by Rule Section 12A-1.91(13), Florida Administrative Code.

    
    

11. Based on the foregoing, and inasmuch as the Respondent's area supervisor, Mr. Bernard Fox, personally reviewed the assessment and related work papers respecting this transaction, Mr. Fox was competent to produce the documents introduced herein as Respondent's Exhibits #1 and #2.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Subsection 120.57(1), Florida Statutes.

    
    

13. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

14. The authority of the Respondent is derived from Chapter 212, Florida Statutes, and Rule Section 12, Florida Administrative Code.

    
    

15. Competent and substantial evidence was offered to establish that the Respondent's assessment against the Petitioner as set forth herein is proper and should be upheld.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Revenue's sales tax assessment against Petitioner be upheld.

DONE AND ENTERED this 10th day of September 1979 in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of September 1979.

COPIES FURNISHED:

James T. Moore, Esquire 1265 Northwest 40th Avenue Lauderhill, Florida 33313

Cecil L. Davis, Jr., Esquire Assistant Attorney General The Capitol, Room LL04 Tallahassee, Florida 32301

Robert A. White, Esquire

5460 North State Road #7, Suite 220 Fort Lauderdale, Florida 33319

Docket for Case No: 79-000570

Orders for Case No: 79-000570