By notice of assessment and jeopardy findings dated August 28, 1990, respondent, Department of Revenue (Department), determined that taxes imposed under Section 212.0505, Florida Statutes, were due from petitioner, Jesus Sanchez (Sanchez), for the unlawful sale, use, consumption, distribution, manufacture, derivation, production, transportation or storage of a controlled
substance, to wit: cocaine. Specifically, the notice provided Sanchez with a "Notice of Assessment of tax, penalty, and interest on the deficiency" as follows:
Date of Transaction of Incident
(On or About) February 19, 1987
Estimated Retail Price
5 Kilo Cocaine 100,000.00
20% Tax [s.212.0505(1)(a),
F.S.] 20,000.00
25% Surcharge [s.212.0505(1)(b),
F.S.] 0
Penalty of 5% per month, maximum of 25% of Tax and Surcharge Due [s.212.12(2),
5.000.00
Additional Penalty of 50%
[s.212.12(2), F.S.] 0
Interest of 1% per month [s.212.12(3), F.S.],
accrues at the rate of
$6.57 per day. INTEREST
COMPUTED THRU 9/21/90 0
Total Amount Due with
this Notice 25,000.00
The law is well settled in Florida that before a statute of limitations can be applied retroactively, there must be a clear manifestation of legislative intent that it be given retroactive effect. Homemakers, Inc. v. Gonzalez, 400 So.2d 965 (Fla. 1981), Durring v. Reynolds, Smith & Hills, 471 So.2d 603 (Fla. 1st DCA 1985), and Brooks v. Cerrato, 355 So.2d 119 (Fla. 4th DCA), cert. denied, 361 So.2d 831 (Fla. 1978). In this case, the legislature's amendment to Section 95.091(3), through Chapters 87-6 and 87-101, Laws of Florida, evidences no clear intention that the enlarged statute of limitations be given retroactive effect. Accordingly, the three-year statute of limitations established by Section 95.091(3), Florida Statutes (1985), is applicable to the subject tax, and the Department's assessment is untimely. 1/
RECOMMENDATION
Based on the foregoing, it is recommended that the Department enter a final order dismissing the subject notice of assessment and jeopardy findings.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of January 1991.
WILLIAM J. KENDRICK
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1991.
ENDNOTE
1/ At hearing, the Department contended that the provisions of Section 108, Chapter 87-6, Laws of Florida, and Section 66, Chapter 87-101, Laws of Florida, evidenced such intent. Such sections do not, however, address the retroactive application of the statute of limitations but, rather, apply specifically to the retroactive application of new penalties created by those laws. Notably, those sections essentially create a one-year grace period from the effective date of the laws, during which the taxpayer can avoid the retroactive application of the new penalties by making payment prior to July 1, 1988. By so providing, the laws avoid the constitutional proscription inherent in the retroactive application of penalties. Such is the intent of the legislature to be gleaned from these sections, and not any intent to provide for the retroactive application of the increased statute of limitations.
COPIES FURNISHED:
Stuart E. Goldberg, Esquire Ervin, Varn, Jacobs, Odom
& Ervin
Post Office Box 1170 Tallahassee, Florida 32302
James McAuley, Esqurie Assistant Attorney General Tax Section, Capitol Building
Tallahassee, Florida 32399-1050
David Linn, Esquire Assistant General Counsel
Florida Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668
Thomas Herndon Executive Director Department of Revenue
104 Carlton Building Tallahassee, Florida 32399-0100
William D. Moore General Counsel Department of Revenue
104 Carlton Building Tallahassee, Florida 32399-0100
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline far filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA, DEPARTMENT OF REVENUE TALLAHASSEE, FLORIDA
JESUS SANCHEZ,
Petitioner,
vs. Case No. 90-6916
DEPARTMENT OF REVENUE,
Respondent.
/
FINAL ORDER
This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearing in the above-styled case submitted a Recommended Order to the Department of Revenue. A copy of that Recommended Order is attached hereto.
The Hearing Officer recommends that the assessment should be withdrawn on the basis that assessment was facially barred by the statute of limitations. That recommendation is based on an interpretation of law.
The Department, through counsel, filed exceptions to the conclusions of law contained in the recommended order. These exceptions consist of conclusions of law and not findings of fact and are therefore considered as legal argument.
For the reasons expressed below, the Department believes that the assessment is not barred by the statute of limitations.
STATEMENT OF THE ISSUE
The Department hereby adopts and incorporates by reference the Statement of the Issue set forth in the Recommended Order.
STATEMENT OF THE CASE
The Department hereby adopts and incorporates by reference the Statement of the Case set forth in paragraphs 1 through 4 of the Recommended Order.
CONCLUSIONS OF LAW
The Department sets forth the following conclusions of law. To the extent the conclusions of law in the Hearing Officer's Recommended Order are not set forth in this final order, they are modified.
This matter came before the Division of Administrative Hearing which has jurisdiction over the parties to, and the subject matter of, the proceedings.
Pertinent to this case, Section 95.091(3), Florida Statutes (1985), provided:
Except as otherwise provided by law, the amount of any tax may be determined and assessed within 3 years after the first day of the month following the date on which the tax becomes due and payable....
Here, the subject tax, if owed as a consequence of the transaction specified in the notice of assessment and jeopardy findings to have occurred on February 19, 1987, became due and payable March 1, 1987. Section 212.11, Florida Statutes (1985). Consequently, under the provisions of Section 95.091(3), Florida Statutes (1985), the Department' authority to determine and assess such tax expired April 1, 1990.
Through an oversight of counsel for the Department, the Hearing Officer was not afforded the opportunity to rule on the applicability of section 4 of Chapter 88-119, Laws of Florida, to the facts of this case.
Section 4 of Chapter 88-119, Laws of Florida, reads in pertinent part as follows:
"Section 4. Effective July 1, 1988 and applicable to taxes which remain open to assessment on that date, paragraph (a) of subsection (3) of section 95.091, Florida Statutes, is amended to read:
95.091 Limitation on actions to collect taxes. -- (3)(a)1.
With the exception of taxes levied under chapter
198 and tax adjustments made pursuant to s. 220.23, the Department of Revenue may determine and assess the amount of any tax, penalty, or interest due under any tax enumerated in s. 72.011:
Within 5 years after the date the tax is due, any return with respect to the tax is due, or such return is filed, whichever occurs later;"
