COLEMAN & JANET BEEBE, )
)
Petitioners, )
)
vs. ) CASE NO. 84-3153
) STATE OF FLORIDA, DEPARTMENT ) OF REVENUE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled cause on June 24, 1986 at Tallahassee, Florida.
APPEARANCES
For Petitioner: Not present or represented. For Respondent: Sharon A. Zahner, Esquire
Department of Legal Affairs
The Capitol
Tallahassee, Florida 32301
By Statement of Protest dated June 1, 1984, E. Coleman and Janet Beebe, Petitioners, contested the assessment by the Department of Revenue, Respondent, of $353.43 intangible taxes plus penalty and interest for the years 1979, 1980 and 1981.
The hearing in this cause was held in abeyance upon representations of the parties that they were preparing a stipulation of facts to present in lieu of calling witnesses at a live hearing. On December 16, 1985 the parties filed a STIPULATION stating the issue regarding the validity of the assessment is whether the Fidelity Daily Income Trust Fund is subject to the intangible tax; and the parties would submit briefs on this issue.
Also on December 16, 1985 Respondent moved that these proceedings be continued for at least 90 days as the parties were engaged in settlement negotiations. That motion was granted with the caveat that if nothing further was received from the parties prior to March 17, 1986 these proceedings would be dismissed. Nothing has been received from Petitioner. On March 17, 1986 Respondent advised that the parties had resolved the issue and that Petitioner was filing a Notice of Voluntary Dismissal to be sent along with the tax owed.
The voluntary dismissal was not received by Respondent who asked this case be scheduled for hearing. The Notice scheduling the hearing was dated May 13, 1986. At the hearing Respondent presented the assessment, as amended by letter dated February 28, 1986, and a letter from Petitioner's attorney dated February 17, 1986, all of which were admitted into evidence as composite Exhibit 1.
Respondent has submitted a Proposed Recommended Order. Proposed Findings of Fact included therein and not included below were deemed unnecessary and immaterial to the conclusions reached.
FINDINGS OF FACT
On February 28, 1986 Respondent submitted a revised tax assessment to Petitioner for intangible taxes for the years 1979, 1980 and 1981 on assets held by Petitioners in the Fidelity Daily Income Trust Fund. Based on recomputed taxable percentages of these assets of 25.1 percent, 21.2 percent and 36.8 percent for the years 1979, 1980 and 1981 the recomputed tax is:
1979 - $ 26.57
1980 - 22.45
1981 - 45.94
TOTAL $ 94.96 (Exhibit 1)
Adding penalties and interest through January 22, 1986 to the taxes owed results in a total owed as of January 22, 1986 of $193.98 (Exhibit 1).
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 199.232 Florida Statutes (1985) lists the powers of the Department of Revenue. These include the right to inspect the books and records of the taxpayer and to levy assessments for taxes found to be owed.
Subparagraph (4) thereof provides:
Following an assessment, the Department shall collect the assessed amount from the taxpayer. The assessment shall be considered prima facie correct, and the taxpayer shall have the burden of showing any error in it.
Here the taxpayer presented no evidence that the assessment as noted in the findings above contained error.
From the foregoing it is concluded that E. Coleman and Janet Beebe owe intangible taxes, penalty and interest on shares of the Fidelity Income Trust owned by them for the years 1979, 1980 and 1981 in the amount of $94.96 plus penalty and interest until paid. It is
