STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEABURY MARINA, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 88-2353

)

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 case on February 22, 1989, at Tampa, Florida.

APPEARANCES

For Petitioner: Not present or represented. For Respondent: Lealand L. McCharan, Esquire

Department of Legal Affairs

The Capitol

Tallahassee, Florida 32399-1050

By Petition for Formal Administrative Hearing dated May 9, 1988, Seabury Marina, Inc., Petitioner, by and through its attorney, challenged the use tax assessment levied against Petitioner by the Florida Department of Revenue, Respondent, alleging that the vessel owned by Petitioner upon which the tax was levied was not used in Florida so as to subject the owner to the Florida use tax.

This case was initially scheduled to be heard September 1, 1988, was continued until December 6, 1988 upon motion by Petitioner, and was continued until February 22, 1989 upon motion by Respondent. By Order entered February 7, 1989, Petitioner's counsel was granted permission to withdraw from the case and Petitioner's motion for continuance was denied.

At the hearing Respondent called one witness. Proposed findings were not submitted by either party.

FINDINGS OF FACT

1. In June 1986, Petitioner purchased a 55 Ft. Ocean Yacht Super Sport from South Jersey Yacht Sales for $577,055 and took delivery in New Jersey.

   
   

2. Although Petitioner is not a dealer, a dealer's license was used to purchase this vessel and Petitioner paid no sales tax to New Jersey on this sale.

3. The boat was named "SEABURY", entered Florida waters in November 1986 and remained for 105 days, proceeded to Bahama Islands February 22, 1987 and returned to Florida April 7, 1987, and remained in Florida for 31 additional days before returning north.

   
   

4. From bridge logs maintained by bridge tenders over the Intracoastal Waterway and docking receipts at Bahia Mar and other berthing spaces it was concluded the vessel was used in Florida.

   
   

5. Respondent established a prima facie case that the M/V SEABURY entered Florida waters within 6 months of its purchase in New Jersey and was used in this state. No evidence to rebut this prima facie case was presented by Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Section 212.05(1)(b), Florida Statutes provides that it is the legislative intent to levy a use tax on tangible personal property when same is not sold but is used in this state.

   
   

8. Section 212.06(8), Florida Statutes provides:

   
   

   Use tax will apply and be due on tangible personal property imported or caused to be imported into this state for use, consumption, distribution, or storage to be used or consumed in this state; provided, however, that it shall be presumed that tangible personal property used in another state, territory of the United States, or the District of Columbia for 6 months or longer before being imported into this state was not purchased for use in this state. The rental or lease of tangible personal property which is used or stored in this state shall be taxable without regard to its prior use or tax paid on purchase outside this state.

   
   

9. The Yacht SEABURY arrived and was used in this state before it had been used for 6 months in another state following its purchase. Accordingly, it does not come within the presumption that it was not purchased for within this state.

   
   

10. From the foregoing, it is concluded that the Yacht SEABURY was used in this state as alleged in the Notice of Assessment within 6 months of its purchase and thereby became subject to the Florida use tax. It is

RECOMMENDED that the Petition of Seabury Marina, Inc., for relief from the use tax of $29,536.00, plus penalty of $7,384.03 and interest at the rate of 1% per month be dismissed.

ENTERED this 16th day of March, 1989, in Tallahassee, Leon County, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1989.

COPIES FURNISHED:

Lealand L. McCharen, Esquire Department of Legal Affairs Tax Section, The Capitol

Tallahassee, Florida 32399-1050

Bernard A. Barton, Jr., Esquire Holland and Knight

Post Office Box 1288 Tampa, FL 33601

William D. Townsend General Counsel Department of Revenue

203 Carlton Building Tallahassee, FL 32399-0100

Katie D. Tucker Executive Director Department of Revenue

102 Carlton Building Tallahassee, FL 32399-0100

Docket for Case No: 88-002353

Orders for Case No: 88-002353