STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LARRY OVERBAY, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0313

)

OFFICE OF THE COMPTROLLER, )

STATE OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

By Petition dated January 14, 1984, Petitioner, pro se, seeks a refund of

$222.50 for sales tax paid by Petitioner when he purchased a used car. The parties stipulated to the facts and to the introduction of 18 exhibits, and requested that a Recommended Order be submitted on the stipulated facts and briefs submitted by the parties.

FINDINGS OF FACT

1. Petitioner purchased a used car in Florida in May of 1983 and paid 5 percent sales tax.

   
   

2. Petitioner did not title said car in the State of Florida.

   
   

3. When Petitioner returned to Maryland, his state of residence, Maryland imposed a 5 percent tax on said car when Petitioner titled said car.

   
   

4. Petitioner applied for a sales tax refund to the Department of Revenue in the amount of $225.00. Respondent issued a Notice of Intent to deny said refund application on December 1, 1983.

   
   

5. From the exhibits to which the parties stipulated, additional facts are found by the Hearing Officer. A bill of sale indicates that Petitioner purchased a 1979 Buick Regal from Eddy Auto Sales on May 14, 1983.

   
   

6. A temporary registration and receipt issued by the State of Maryland on June 17, 1983, shows that Petitioner paid a "title tax" of $222.50 to the State of Maryland.

   
   

7. By letter dated January 27, 1984, Agnes Stoicos of the Maryland Department of Transportation indicates that the Maryland tax is a 5 percent excise tax upon the issuance of all original and subsequent certificates of title, and the tax is used primarily for the construction and the maintenance of the Maryland highway system.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, these proceedings.

   
   

9. It is stipulated that Petitioner, a resident of Maryland, purchased and accepted delivery in Florida of a used car. The purchase and delivery constituted a sale as defined in Section 212.02(2), Florida Statutes, and therefore a taxable transaction occurred. A tax is imposed on this transaction pursuant to Section 212.05(1)(a), Florida Statutes, which provides in pertinent part:

   
   

   It is hereby declared to be the legislative intent that every person is exercising a taxable privilege who engages in the business of selling tangible personal property at re- tail in this state. . . .

   1. For the exercise of such privilege, a tax is levied on each taxable transaction or incident, which tax is due and payable as follows:

      (a)1. At the rate of 5 percent of the sales price of each item or article of tangible personal property when sold at retail in this state, computed on each taxable sale for the purpose of remitting the amount of tax due

      the state, and including each and every retail sale. . . .

      
      

10. Petitioner asserts that imposition of this tax was either illegal or resulted in double taxation when be had to pay a 5 percent "title tax" when he titled the car in Maryland. A thorough examination of the above-cited statute fails to reveal any support for Petitioner's assertion that he was illegally taxed.

    
    

11. Sales tax is in the nature of a privilege tax to do business. See Sections 212.05 and 212.07(1), Florida Statutes; United States v. Associated Developers of Florida, Inc., 400 So. 2d 17 (Fla. 1st DCA 1981). As further recognized in Ryder Truck Rental, Inc., v. Bryant, 170 So. 2d 822 (Fla. 1964):

    
    

    . . . The sale or use tax is a tax on the privilege of engaging in a particular busi- ness or occupation. The tax is not levied against the consumer, but upon the business- man who is engaged in the business or occupa- tion. (Citations omitted) Thus, the sales tax is assessed against the businessman- seller of the motor vehicle, not against the appellant-purchaser thereof. . . .

    
    

    In Ryder Truck, supra, the Supreme Court of the State of Florida acknowledged that "in each case the tax is passed on by the taxpayer to his or its customer .

    . ." Id. at p. 825. However, this did not change the character of the tax as a privilege tax. Privilege and occupation taxes are cataloged uniformly under the general heading of excise taxes. Gaulden v. Kirk, 47 So. 2d 567 (Fla. 1950).

12. Under the statutory scheme in the State of Florida, this tax is actually imposed upon the dealer and is only passed on to the consumer. Therefore the dealer was required to collect and remit this tax on the sale of this used car. The only way that the tax could have been avoided in Florida would be as a result of a statutorily specified exemption.

    
    

13. Section 212.08, Florida Statutes, provides an exhaustive list of the specified exemptions from the tax imposed on sales and use of tangible personal property. A partial exemption is available for motor vehicles sold to residents of another state. Specifically, Section 212.08(10), provides in pertinent part:

    
    

    The tax collected on the sale of a new or

    used motor vehicle in this state to a resident of another state shall be an amount equal to the sales tax which would be imposed on such sale under the laws of the state of which the purchaser is a resident, except that such

    tax shall not exceed the tax that would otherwise be imposed under this chapter. At the time of the sale, the purchaser shall execute a notarized statement of his intent to license the vehicle in the state of which be is a resident within 10 days of the sale and of the fact of the payment of the State of Florida of a sales tax in an amount equivalent to the sales tax of his state of residence and shall submit the statement to the appropriate sales tax collection agency in his state of residence.

    
    

    It is well recognized that exemptions from taxation are to be strictly construed against the claimant and in favor of the taxing power. See 51 Fla. Jur. 2d, Taxation, s. 20:27 and cases cited therein. In the present case, the Petitioner has not established entitlement to any exemption. Specifically there has been no showing that Petitioner complied with the requirements of Section 212.08(10), Florida Statutes. Further, the documents established that the car was purchased on May 14, 1983, but was not titled in Maryland until June 17, 1983, well beyond the ten days mentioned in the exemption statute. It is therefore concluded that Petitioner was not eligible to receive any exemption found in Section 212.08, Florida Statutes.

    
    

14. Having concluded that the tax was legally imposed and was not subject to any exemption, an examination must be made of Petitioner's claim that he has been subjected to double taxation. It is frequently stated that before double taxation may be said to exist, both taxes must have been imposed in the same year, for the same purpose, on property owned by the same person, and by the same taxing authority. See 50 Fla. Jur. 2d, Taxation, s. 4:1. Cf. American Video Corp. v. Lewis, 389 So. 2d 1059 (Fla. 1st DCA 1980). In the present case, three of the criteria are not met. The taxing authorities are not the same, one being the State of Florida and the other, the State of Maryland. The taxpayers are not the same. In Florida, the taxpayer was the dealer. In Maryland, apparently the taxpayer was the Petitioner. Finally, the taxable transactions were different. In Florida, the taxable transaction was the sale subject to a sales tax on the privilege of engaging in business in Florida. In Maryland, the transaction was the issuance of title on the automobile and the tax was in the nature of a use tax for the use of the highway system of Maryland.

Double taxation is not prohibited by the Federal Constitution or the Florida Constitution. See Davidson v. New Orleans, 96 U.S. 97, 24 L. Ed. 616 (1878); Baker v. Druesedow, 263 U.S. 137, 44 S. Ct. 40, 68 L. Ed. 212 (1923);

Klemm v. Davenport, 100 Fla. 627, 129 So. 904 (1930). Under the circumstances of this case, it can only be concluded that payment of the sales tax in Florida did not constitute double taxation and is not subject to any prohibition against double taxation. It is therefore

RECOMMENDED that the Petition for a refund be DENIED.

DONE AND ENTERED this 29th day of March, 1984, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1984.

COPIES FURNISHED:

Larry Overbay

3322 Dublin Manor Road Street, Maryland 21154

Edwin A. Bayo, Esquire Assistant Attorney General Department of Legal Affairs Room LL04, The Capitol Tallahassee, Florida 32301

Honorable Gerald A. Lewis Comptroller

The Capitol

Tallahassee, Florida 32301

S. Craig Kiser, Esquire General Counsel Department of Banking and

Finance

The Capitol, Plaza Level Tallahassee, Florida 32301

Docket for Case No: 84-000313

Orders for Case No: 84-000313