STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LORAL CORPORATION & SUBSIDIARY, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4113

)

OFFICE OF THE COMPTROLLER, )

STATE OF FLORIDA, )

)

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, case on February 13, 1985 at Tallahassee, Florida.

APPEARANCES

For Petitioner: Kenneth R. Goldstein, Esquire

Loral Corporation and Subsidiary 600 Third Avenue

New York, New York 10016

For Respondent: Joseph C. Mellichamp, III, Esquire

Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

By Petition to Initiate Formal Proceedings forwarded with letter dated November 1, 1984, Loral Corporation seeks a refund of $2,397.93 in overpayment of taxes in 1981. At the hearing the parties stipulated to the facts which are contained in the findings below and no evidence was presented. The sole issue in this case is the date the three years, in which Petitioner had to apply for a tax refund, began. Proposed conclusions of law submitted by the parties, to the extent incorporated herein, are adopted; otherwise, they are rejected as not consistent with the law or unnecessary to the conclusions reached.

FINDINGS OF FACT

1. American Beryllium Company, Inc. is a subsidiary of Loral Corporation.

   
   

2. On March 16, 1981, American Beryllium Company, Inc. filed a separate company form DR-601-C for Florida Intangible Tax Return reflecting a tax liability of 52,483.00 and paid this amount accordingly upon this date.

   
   

3. The above form and check were processed by the Department of Revenue on April 9, 1981.

4. On April 29, 1981, the Loral Corporation filed a separate company 1981 form DR-601-C reflecting a tax liability of $45.70 and paid this amount accordingly upon this date.

   
   

5. The above form and check were processed by the Department of Revenue on May 4, 1981.

   
   

6. On April 27, 1984, Loral Corporation and American Beryllium Company, Inc., filed a consolidated and amended 1981 form DR-601-C reflecting a tax liability of $35.07.

   
   

7. Also, on April 27, 1984, Loral Corporation and American Beryllium Company, Inc., filed a 1981 form DR-26 refund claim exclusive of interest and penalties in the amount of $2,443.63, which is $85.07 less than the $2,528.70 total amount of taxes reported and paid in 1981.

   
   

8. The above refund claim was received by the Department of Revenue on May 1, 1984.

   
   

9. The Office of the Comptroller denied Petitioner's refund request in the amount of $2,443.63.

   
   

10. The Office of the Comptroller authorized and paid a refund in the amount of $45.70 to the Loral Corporation which it paid as taxes owed on April 29, 1981.

    
    

11. This leaves a remaining balance of $2,397.93 paid by American Beryllium Company, Inc. as tax it paid on March 16, 1981.

    
    

    CONCLUSIONS OF LAW

    
    

12. The controlling statute in this case is Section 199.252, Florida Statutes which provides in part:

    
    

    1. Any person or his heirs, personal repre- sentatives, or assigns shall be entitled to a refund of any tax or penalty levied under

       this chapter, whether payment was was made volun- tarily or involuntarily, which should not have been paid. No refund shall be allowed unless proper application has been made and delivered

       to the department for approval within 3 years from the date the right to such refund shall have accrued.

       
       

13. Section 199.042, Florida Statutes provides that taxes on intangible property shall be received by the department by June 30 of each year and shall be delinquent after July 1. Payments sent by mail postmarked by June 30 are not delinquent. This statute also provides for discounts for early payment, such discount being 4 percent if payment is made in April or prior thereto.

    
    

14. Presumably when Petitioner made the payment April 9, 1981 for taxes on intangible assets held January 1, 1981 the payment made reflected the 4 percent discount for early pay- ment.

15. Respondent takes the position that Petitioner's right to refund of overpayments expired 3 years after the date payment was made, viz. April 9, 1984, while Petitioner takes the position that the right to refund of overpayment expired 3 years after the last date due for payment, viz. June 30, 1984.

    
    

16. Section 215.26, Florida Statutes provides for the refund of taxes which constitute an overpayment, a payment where no taxes are due, or an erroneous payment. Subsection (2) thereof provides in pertinent part:

    
    

    Application for refunds as provided by this section shall be filed with the Comptroller, except as otherwise provided herein, within

    3 years after the right to such refund shall have accrued else such right shall be barred.

    
    

17. These statutory provisions, and their predecessors, which originally allowed only a one-year period in which to file for refund after the right to refund accrued, have been before the courts on several occasions. In State ex rel. Victor Chemical Works v. Gay, 74 So.2d 560 (Fla. 1954),the specific issue of when the right to a refund accrued was before the court. In addition to holding that Section 215.26 is not, strictly speaking, a statute of limitations but is more in the nature of a statute of non-claim, the court, quoting from 51 Am.Jur., Taxation 1179 stated at p. 562:

    
    

    The recovery of illegally exacted taxes is solely a matter of governmental grace.

    In the absence of an authoritative statute, taxes voluntarily, although erroneously, paid cannot be voluntarily refunded, al- though there may be justice in the claim Sometimes conditions are annexed to the right to refund which must be complied with, such as the making of the claim within a specified time period. It seems that defects in the form of sufficiency

    of the claim may be waived, but the statu- tory requirement that the claim be filed in the prescribed time may not be waived.

    
    

    then concluded:

    
    

    In short it is the universal rule that a statute of non-claim runs from the time the taxes are paid and is not postponed until the legality of the tax has been judicially determined. 84 C.J.S., Taxation

    639(c)

    
    

    In Grunwald v. Department of Revenue, 343 So.2d 973 (Fla. 1st DCA 1977) the court adopted the language of the trial court that:

    
    

    The right to a refund for intangible taxes is available for a period of three years from the date of payment. Florida Statute

    199.252 and 215.2G.

    More recently in Stuart Arms Apartments, Ltd. , Department of Revenue 362 So.2d 1003, 1005 (Fla. 1st DCA 1975) the court stated.

    
    

    The general rule seems to be that when a claim for refund of taxes must be made with- in a stated period of time after the refund accrues, the time period commences when the tax is paid.

    
    

18. The above cited cases are all fours with the facts here involved and are identical to the case of Citizens First National Bank of Citrus County v. State of Florida, Office of the Comptroller, DOAH Case No. 80-2328, Final Order entered March 19, 1981. That case held that the time period for filing of a claim for refund of taxes erroneously paid ended three years after the date the taxes were erroneously paid.

    
    

19. From the foregoing it is concluded that Petitioner's period to claim a refund for taxes erroneously paid on April 9, 1981 expired April 9, 1984 and that a subsequent claim for refund of those taxes was beyond the period provided by Section 199.252 and is barred.

It is therefore,

RECOMMENDED, that the Petition of Loral Corporation and Subsidiary for a refund of overpaid taxes in the amount of $2,397.93 be DENIED.

ENTERED this 11th day of March, 1985, at Tallahassee, Leon County, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1985.

COPIES FURNISHED:

Kenneth R. Goldstein, Esquire Honorable Gerald A. Lewis Loral Corporation and Comptroller of Florida

Subsidiary The Capitol

600 Third Avenue Tallahassee, Florida 32301 New York, New York 10016

Joseph C. Mellichamp, III, Esquire Department of Legal Affairs

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 84-004113

Orders for Case No: 84-004113