STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WINN-DIXIE STORES, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 90-8021
) STATE OF FLORIDA, DEPARTMENT ) OF REVENUE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on March 14, 1991, in Jacksonville, Florida.
APPEARANCES
For Petitioner: Thomas K. Purcell, Esquire
CONE, PURCELL & MILLER, P.A.
One Enterprise Center
225 Water Street, Suite 1235 Jacksonville, Florida 32202
For Respondent: Kevin J. O'Donnell
Leonard F. Binder
Assistant Attorneys General Department of Legal Affairs The Capitol - Tax Section
Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES
Whether the Petitioner is liable for additional Florida intangible tax under Chapter 199, Florida Statutes (1983), together with interest, as set forth in a Notice of Reconsideration dated October 17, 1990?
PRELIMINARY STATEMENT
The Respondent, the Florida Department of Revenue (hereinafter referred to as the "Department"), audited the intangible tax returns of the Petitioner,
Winn-Dixie Stores, Inc. (hereinafter referred to as "Winn-Dixie"), for the years 1985, 1986, 1987 and 1988. As a result of the Department's audit, the Department issued a Notice of Intent to Assess Tax Audit Changes assessing additional intangible taxes plus penalties and interest for the years in question.
Winn-Dixie filed a Petition for Reconsideration questioning its liability for the additional taxes and the penalties and interest. On October 17, 1990, the Department issued a Notice of Reconsideration. Pursuant to the Notice of Reconsideration the Department determined that Winn-Dixie owes $186,181.44 in additional intangible taxes plus $89,957.66 in interest and no penalties.
Winn-Dixie filed a Petition for Administrative Proceedings dated December 12, 1990, requesting a formal hearing to contest the Department's determination. The Petition was forwarded to the Division of Administrative Hearings by the Department on December 17, 1990.
The transcript of the formal hearing was evidently received by the parties on March 25, 1991. The transcript was not filed with the Division of Administrative Hearings until April 25, 1991.
The parties have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
The parties were suppose to file their proposed recommended orders simultaneously within ten days after the transcript was filed. Evidently the Department received its copy of the transcript one day later than Winn-Dixie received its copy. Therefore, the Department received a copy of Winn-Dixie's proposed recommended order before the Department filed its proposed order.
Rather than ignore Winn-Dixie's proposed recommended order, the Department responded to Winn-Dixie's proposed recommended order in the Department's proposed order. It does not appear, however, that Winn-Dixie was prejudiced by the Department's actions. Therefore, the Department's proposed recommended order has been reviewed by the undersigned in preparing this Recommended Order.
FINDINGS OF FACT
Winn-Dixie.
Winn-Dixie is a Florida corporation with its principal offices at 5050 Edgewood Court, Post Office Box B, Jacksonville, Florida. [Stipulation of Facts]. Winn-Dixie's taxpayer identification number is 59-0514290. The Department's audit number is 88-04203785035.
Winn-Dixie's fiscal year ends on the last Wednesday of June.
Winn-Dixie's Intangible Tax Returns.
Winn-Dixie has filed a Florida intangible tax return for every year beginning with the calendar year 1972.
For calendar years 1972 through and including 1988, Winn-Dixie reported the value of its intangible personal property based upon the value of its intangible personal property at the end of its previous fiscal year, the last Wednesday of June. For example, in its 1972 intangible tax return Winn-Dixie reported the value of its intangible personal property as of June 26, 1971.
The decision to use the value of its intangible personal property as of the end of its fiscal year for Florida intangible tax was made by Winn-Dixie without any direction from, or communication with, the Department. When Winn- Dixie began using its fiscal year end as the date to value its intangible
personal property for Florida intangible tax purposes, no representation concerning the appropriateness of this method was made by the Department. Winn- Dixie made no effort to obtain approval of its method of valuation from the Department.
Winn-Dixie indicated on each of its intangible tax returns for 1972 through 1988, that it had determined the value of its intangible personal property based upon its value as of the end of Winn-Dixie's fiscal year.
Winn-Dixie used the fiscal year end value of its intangible personal property as the value of those assets for Florida intangible tax purposes for administrative convenience. It was easier to use such data than it would have been to redetermine the value of its intangible personal property at the end of each calendar year.
When Harry Francis began working for Winn-Dixie in 1978, Mr. Francis was aware that Florida law required that intangible personal property be valued as of the first day of the calendar year. Mr. Francis, who served as director of taxes for Winn-Dixie until 1989, was also aware that Winn-Dixie was using the incorrect valuation date to value its intangible personal property for Florida intangible tax purposes.
When Leon Calvert became the director of taxes for Winn-Dixie in 1989, Mr. Calvert was aware that Florida law required that intangible personal property be valued as of the first day of the calendar year. Mr. Calvert was also aware that Winn-Dixie was using the incorrect valuation date to value its intangible personal property for Florida intangible tax purposes.
The explanations Mr. Francis and Mr. Calvert gave for not changing Winn-Dixie's method of valuing its intangible personal property for Florida intangible tax purposes were not credible. Both Mr. Francis or Mr. Calvert indicated that the valuation practice of Winn-Dixie was followed, in part, because of the need for consistency in the field of accounting. Neither Mr. Francis or Mr. Calvert, however, cited any generally accepted accounting principle to support the use of an incorrect method of valuing assets for tax purposes when that method is clearly contrary to law.
Winn-Dixie does not collect intangible tax as an agent for the State of Florida by separately stating and passing along said tax to its customers. [Stipulation of Facts]. Therefore, Winn-Dixie has not lost any right to pass the asserted additional intangible tax liability along to others.
Subsequent to the audit involved in this case Winn-Dixie prepared an analysis of the difference in the value of its intangible personal property for 1972 through 1984 and the value of its intangible personal property for 1972 through 1984 if it had valued its intangible personal property as of January first of each year. Based upon this analysis, Winn-Dixie over reported the value of its intangible personal property by $78,390,211.00 for the period from 1972 through 1984. [See Stipulation of Facts]. This amounted to an overpayment of taxes of approximately $81,485.00.
Winn-Dixie has not filed any claim for refund of any amount of intangible taxes it may have overpaid as a result of using the value of its intangible personal property as of the end of its fiscal year.
The weight of the evidence failed to prove that the value of Winn- Dixie's intangible personal property as of the end of its fiscal year for any year for which it has filed an intangible tax return was approximately the same as the "just value" of those assets as January first.
1972 and 1973 Intangible Tax Returns.
Winn-Dixie's intangible tax returns for calendar years 1972 and 1973 were examined by the Department. [Stipulation of Facts].
Winn-Dixie's 1972 and 1973 returns clearly indicated that the value of the assets included in the returns was the value as of the last Wednesday of June as of the previous year, Winn-Dixie's fiscal year end.
No changes to Winn-Dixie's valuation method were recommended by the Department to Winn-Dixie's 1972 or 1973 intangible tax returns.
The weight of the evidence failed to prove that any Department employee made any statements as a result of the Department's audit of the 1972 and 1973 returns to Winn-Dixie concerning Winn-Dixie's use of the value of its intangible personal property as of the end of its fiscal year to determine its intangible tax liability.
The weight of the evidence failed to prove that any representation was made to Winn-Dixie by a Department employee that it was okay to use the June value of Winn-Dixie's intangible personal property even if that value was not the same as the January first value of Winn-Dixie's intangible personal property. Therefore, it is possible that the Department made no adjustments to Winn-Dixie's 1972 and 1973 returns because of a determination that the value of Winn-Dixie's intangible personal property in January was not materially different from the June value of its intangible personal property as reported by Winn-Dixie. Such a conclusion is consistent with Harry Francis' belief that there was not much difference in the value of Winn-Dixie's intangible assets at any time during the year. [See Transcript of Formal Hearing, page 90, lines 9- 12].
The weight of the evidence also failed to prove that any representation was made to Winn-Dixie as a result of the audit of the 1972 and 1973 returns by a Department employee concerning the filing of future year intangible tax returns.
1979, 1980 and 1981 Intangible Tax Returns.
Winn-Dixie's intangible tax returns for calendar years 1979, 1980 and 1981 were examined by the Department. [Stipulation of Facts]. The auditor that performed the examination is now deceased. [Stipulation of Facts].
The director of taxes for Winn-Dixie at the time of the audit of the 1979, 1980 and 1981 returns described a conversation he had with the Department's auditor as follows:
The gist of the conversation was why did we use the June year end instead of January 1st. And the answer was as I said before, it was a long-standing practice, it was a consistency
method, it was not a question of cherry picking for a good date and it seemed to do no harm.
The recollection I have is that he was hesitant to make a determination on his own as to whether he required an adjustment or required a recomputation using a different date and that he was checking with some unknown superior in the Department of Revenue and later the no-change audit resulted.
I don't recall if he ever called me about his conversation with the superiors, but I do recall no adjustments of any kind were made
to any of those tax returns. And I would have recalled. I was nervous about those because I had prepared them. And they were the first ones that had been audited since I had been there. So I was relieved that no adjustments were made. And that was the gist of my relationship with the auditor.
[Transcript of Formal Hearing, page 94, lines 17-25, and page 95, lines 1-12].
No changes were recommended by the Department to Winn-Dixie's 1979, 1980 or 1981 intangible tax returns. [Stipulation of Facts]. The weight of the evidence, however, failed to prove why the Department made no changes.
Winn-Dixie did not change its method of reporting its intangible personal property as a result of any representations from a Department employee.
The weight of the evidence failed to prove that any Department employee made any statements to Winn-Dixie as a result of the Department's audit of the 1979, 1980 and 1981 returns concerning Winn-Dixie's use of the value of its intangible personal property as of the end of its fiscal year to determine its intangible tax liability.
The weight of the evidence failed to prove that any representation was made to Winn-Dixie by a Department employee that it was okay to use the June value of Winn-Dixie's intangible personal property even if that value was not the same as the January first value of Winn-Dixie's intangible personal property. Therefore, it is possible that the Department made no adjustments to Winn-Dixie's 1979, 1980 and 1981 returns because of a determination that the value of Winn-Dixie's intangible assets in January was not materially different from the June value of its intangible personal property as reported by Winn- Dixie. Such a conclusion is consistent with Harry Francis' belief that there was not much difference in the value of Winn-Dixie's intangible assets at any time during the year. [See Transcript of Formal Hearing, page 90, lines 9-12].
The weight of the evidence also failed to prove that any representation was made to Winn-Dixie as a result of the audit of the 1979, 1980 and 1981 returns by a Department employee concerning the filing of future year intangible tax returns.
1985, 1986, 1987 and 1988 Intangible Tax Returns.
The Department performed an audit of Winn-Dixie's intangible tax returns for 1985, 1986, 1987 and 1988. For these tax years Winn-Dixie valued its intangible personal property as of the end of the fiscal year preceding the taxable year, consistent with prior years.
As a result of the Department's audit of the 1985, 1986, 1987 and 1988 returns, the Department determined that Winn-Dixie had underpaid Florida intangible tax in the following amounts and issued an assessment for same:
1985 | $(16,244.00) | |
1986 | 21,471.00 | |
1987 | 93,980.00 | |
1988 | 86,974.00 | |
Total | $186,181.00 |
The Department's auditor who performed the audit of Winn-Dixie's 1985, 1986, 1987 and 1988 tax returns determined the value of Winn-Dixie's intangible personal property based on the value of those assets as reasonably close to January first as provided to Winn-Dixie. The information provided by Winn-Dixie was reasonably close to the value of Winn-Dixie's intangible personal property as of January first.
Winn-Dixie filed a Petition for Reconsideration dated August 24, 1990. By letter dated October 17, 1990, the Department issued a Notice of Reconsideration. [Stipulation of Facts].
Other Receivables.
Winn-Dixie has taken the position that it overpaid intangible taxes for 1985, 1986, 1987 and 1988 because it incorrectly treated certain accounts as intangible personal property. The parties agreed that the amount of tax paid on these accounts for the years at issue was as follows:
1985 | $ 8,614.00 |
1986 | 9,823.00 |
1987 | 11,120.00 |
1988 | 13,562.00 |
Total | $43,119.00 |
The parties agreed that the amount of intangible tax paid on the accounts at issue should be refunded to Winn-Dixie if it is determined that Winn-Dixie improperly paid intangible tax on the accounts.
The following are the accounts which Winn-Dixie has argued it should not have treated as intangible personal property:
Account Number 123-2, perishable vendors- billed outside sales warehouse invoices.
Account Number 123-3, vendors debit balances/billed advertising coupons, vendor freight claims, promotion allowances, billings, return merchandise, charges and other debit memo billings.
Account Number 123-4, claims insurance and freight/insurance and freight claims against carriers.
Account Numbers 123-2, 123-3 and 123-4 are listed as "receivables" on Winn-Dixie's federal income tax return balance sheet as of its fiscal year end, Winn-Dixie's accounts receivable trial balances and on Winn-Dixie's SEC public disclosure forms 10-K.
Account Numbers 123-2 and 123-3 are essentially identical except for the type of vendor involved. Account Number 123-2 involves vendors of perishable products and Account Number 123-3 involves vendors of nonperishable products.
Winn-Dixie strives to pay for merchandise it receives within seven to ten days from the date it receives an invoice for the merchandise in order to receive discounts and the best merchandise available.
Winn-Dixie earns trade discounts, promotional allowances and volume discounts on some of the merchandise it handles. When Winn-Dixie pays an invoice on merchandise for which it may receive such reductions in costs, Winn- Dixie may not know the exact amount of the discount. Therefore, it pays the entire amount invoiced.
As a result of the quick payment of invoices and the inability to calculate the exact amount of discounts or other reductions in the amount owed, Winn-Dixie pays more on some invoices than it ultimately may owe on the invoice. The amount of any estimated overpayments is reflected in Account Numbers 123-2 and 123-3.
Winn-Dixie also receives coupons from customers on certain merchandise. The coupons received by Winn-Dixie entitle it to reimbursement on the product sold from the vendor. The amount which Winn-Dixie will ultimately receive for the coupons is also recorded in Account Numbers 123-2 and 123-3. The coupons are ultimately turned over to a coupon handling firm which pays Winn-Dixie for the coupons.
Account Number 123-4 involves claims insurance and freight. It is similar to the other two accounts at issue except that it relates primarily to claims against railroads for misdelivery or damaged merchandise which Winn-Dixie is entitled to.
As is true of other merchandise, Winn-Dixie strives to pay for merchandise shipped to it by rail within seven to ten days to be entitled to the discounts for quick payment. Therefore, Winn-Dixie is not always able to estimate the amount of damaged or missing merchandise it may be entitled to a reduction for. The amount of such reductions are reflected in Account Number 123-4.
When the amounts owed to Winn-Dixie, which are reflected in Account Numbers 123-2, 123-3 and 123-4, are finally determined, Account Number 123-2, 123-3 or 123-4 is debited and the amount received is recorded in another account.
The amounts recorded in Account Numbers 123-2, 123-3 and 123-4 are valued, recorded and returned for tax purposes as accounts receivable.
Account Numbers 123-2, 123-3 and 123-4 are "accounts receivable" under generally accepted accounting principles.
The weight of the evidence failed to prove that all of the amounts recorded in Account Numbers 123-2, 123-3 and 123-4 during the years in question were not due at the time they were entered in the accounts. Therefore, the weight of the evidence failed to prove what portion of Account Numbers 123-2, 123-3 or 123-4 are contingent.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1989).
Equitable Estoppel.
Section 199.103, Florida Statutes, provides, in pertinent part:
All intangible personal property shall be subject to the annual tax at its just valuation as of January 1 of each
year. . . .
Winn-Dixie has not contested the requirement of Section 199.103, Florida Statutes, that intangible personal property be valued for purposes of Florida's intangible personal property tax at its "just valuation as of January 1 "
Nor has Winn-Dixie disputed the fact that it has not paid its Florida intangible tax based upon the just valuation of its intangible personal property as of January first. Winn-Dixie has admitted, and the evidence proved, that it has paid Florida intangible tax based upon the just valuation of its property as of the end of its fiscal year, the last Wednesday of June.
Winn-Dixie's opposition to the proposed assessment of Florida intangible tax based upon the just valuation of its assets as of January first of the years at issue in this proceeding is based upon its argument that the Department should be equitably estopped from preventing Winn-Dixie to use its fiscal year end value. The burden of proving that equitable estoppel should be applied in this case was on Winn-Dixie. See Department of Transportation v.
J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).
The doctrine of equitable estoppel may be resorted to by a Florida taxpayer but only in rare instances and under exceptional circumstances. Department of Revenue v. Anderson, 403 So.2d 397 (Fla. 1981). See also, North American Co. v. Green, 120 So.2d 603 (Fla. 1959). In order for equitable estoppel to apply, the following circumstances must be proved that there has been:
A representation as to a material fact that is contrary to a later-asserted posi- tion;
Reliance on that representation; and
A change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon.
See Anderson, at 400.
Winn-Dixie has argued that the test of equitable estoppel have been met in this case based upon the alleged fact that:
[T]he Department of Revenue, through its agents, represented that the use of the fiscal year end valuation of the intangibles was an acceptable manner in which to comply with their tax reporting requirement. Now, after sixteen years and two audits, the Department of Revenue asserts that the fiscal year end valuation method is not acceptable.
[Page 11 of Winn-Dixie's Proposed Recommended Order].
Winn-Dixie's argument is rejected for two reasons. First, Winn-Dixie failed to meet its burden of proving the essential facts it alleges give rise to the application of the doctrine of equitable estoppel in this case. The weight of the evidence failed to prove that any representation was made by the Department or its employees that Winn-Dixie would be allowed to value its intangible personal property for 1985, 1986, 1987 or 1988, based upon the fiscal year end value of its intangible personal property. The evidence presented by Winn-Dixie merely proved that Winn-Dixie was able to use the value of its intangible personal property as of its fiscal year end for years prior to 1985. Why the Department took no action against Winn-Dixie prior to 1985 to require that it use the value of its intangible personal property as of January first was not proved by Winn-Dixie.
Even if the evidence had proved that the Department represented to Winn-Dixie that it could value its intangible personal property for the tax years at issue based upon the fiscal year end value of its intangible personal property, the weight of the evidence failed to prove that Winn-Dixie reasonably relied upon such a representation. The evidence proved that Winn-Dixie began using the fiscal year end value of its intangible personal property without any representation from the Department. The evidence failed to prove that Winn- Dixie would have altered its practice absent some direction from the Department to cease using its valuation process despite the fact that at least two of Winn- Dixie's tax directors knew that the practice was contrary to Florida law. Finally, even if Winn-Dixie had relied upon some representation from a Department employee it would have been unreasonable for Winn-Dixie to rely upon such a representation in light of the awareness of the contrary requirements of Florida law of two different directors of taxes.
Even if Winn-Dixie had proved that the first two elements of equitable estoppel occurred in this case, Winn-Dixie has failed to prove that the alleged change in the Department's position was detrimental to Winn-Dixie except to the extent that the Department has assessed interest against Winn-Dixie. Winn-Dixie has argued that its detriment was the overpayment of Florida intangible tax in the amount of $81,485.00 during the period from 1972 through 1984. The weight of the evidence, however, failed to prove that the Department's alleged change in position caused this alleged detriment. The only detriment caused by the Department's alleged change in position is the imposition of interest on Winn-
Dixie and the additional tax owed for the years in question. The additional tax cannot be viewed as a detriment because it is Winn-Dixie's obligation under the law to pay the correct amount of intangible tax. Therefore, any detriment to Winn-Dixie from the payment of additional intangible tax is caused by the requirements of Chapter 199, Florida Statutes, and not by any alleged change in position by the Department.
The second reason for rejecting Winn-Dixie's position is that, even if Winn-Dixie had proved the facts it has argued give rise to the application of the doctrine of equitable estoppel, such facts would only prove that Department employees have made a mistaken representation of law which Winn-Dixie relied upon. A mistaken representation of law cannot form the basis for estoppel against the Department.
The courts have ruled that the doctrine of equitable estoppel will not be applied against a state agency where an administrative official has made a mistaken statement as to the law. See Tri-State Systems, Inc. v. Department of Transportation, 500 So.2d 212 (Fla. 1st DCA 1986), rev. denied, 506 So.2d 1041 (1987); Department of Revenue v. Hobbs, 368 So.2d 367 (Fla. 1st DCA 1982), appl. dismissed, 378 So.2d 345 (Fla. 1989); and Austin v. Austin, 350 So.2d 102 (Fla. 1st DCA 1977). Winn-Dixie's allegation concerning the representation from the Department that it has relied upon in this matter is essentially that Chapter 199, Florida Statutes, does not require Winn-Dixie to value its intangible assets as of January first of each year. Such a representation, if it had been made by Department officials, is a misstatement of the law. As such, it cannot form the basis for the application of equitable estoppel in this case.
In support of its position, Winn-Dixie has cited a number of cases in its Proposed Recommended Order. None of those cases deal with facts similar to the facts in this case. All of the cases cited by Winn-Dixie are distinguishable from this case. Fraga v. Department of Health and Rehabilitative Services, 464 So.2d 144 (Fla. 3rd DCA 1984), is distinguishable from this case because Winn-Dixie, unlike Dr. Fraga, did not specifically ask the Department whether its method of valuation was acceptable by the Department and, therefore, the Department, unlike the Department of Health and Rehabilitative Services in Fraga, did not ignore Winn-Dixie's request for assistance. Additionally, this case is not a case of quantum merit for services rendered as was the case in Fraga.
The case of Department of Revenue v. Moebius Printing, 279 N.W. 2d 213 (Wis. 1979), is distinguishable from this case because the weight of the evidence failed to prove that there were any statements made by Department employees to Winn-Dixie that it was okay for Winn-Dixie to ignore the requirements of Chapter 199, Florida Statutes.
Finally, Hardy, Hardy & Associates, Inc. v. Department of Revenue, 308 So.2d 187 (Fla. 1st DCA 1975), is distinguishable because the evidence failed to prove that there were written (or oral) representations from the Department to Winn-Dixie concerning its practice of valuation.
Winn-Dixie has argued that, if it is required to pay additional Florida intangible tax for 1985, 1986, 1987 and 1988, the amount of the additional tax should be reduced pursuant to Section 199.232, Florida Statutes, by the amount of intangible tax it overpaid in prior tax years. Refunds or credits of overpayments of taxes pursuant to Section 199.232, Florida Statutes, is intended to apply only to the tax years which are the subject of the audit.
Section 199.232, Florida Statutes, does not require or authorize the Department to determine whether an overpayment of taxes occurred in tax years not the subject of the audit.
Based upon the foregoing, it is concluded that the weight of the evidence failed to prove that the doctrine of equitable estoppel should be applied in this case. The weight of the evidence also failed to prove that the method utilized by the Department in determining the just valuation of Winn- Dixie's intangible personal property as of January first of 1985, 1986, 1987 and 1988, was improper. The auditor used data concerning the value of Winn-Dixie's intangible assets as close to January first as possible. That data was provided by Winn-Dixie. Winn-Dixie failed to prove that the data used by the Department did not reasonably reflect the value of its intangible personal property as of January first.
Other Receivables.
Winn-Dixie has argued that "[t]he 'other receivables' were too contingent in nature to rise to the level of receivables, taxable as intangibles under Florida Statutes s 199." The weight of the evidence failed to support this argument.
Section 199.032, Florida Statutes, imposes Florida's annual intangible tax on "intangible personal property". The terms "intangible personal property" are defined in Section 199.023(1), Florida Statutes, in pertinent part, as follows:
(1) "intangible personal property" means all personal property which is not in itself intrinsically valuable, but which derives its chief value from that which it represents, including, but not limited to, the following:
. . . .
The weight of the evidence failed to prove that the amounts recorded in Account Numbers 123-2, 123-3 and 123-4 did not represent amounts owed to Winn-Dixie as accounts receivable. The obligations reflected in these accounts were not so contingent that Winn-Dixie was not reasonably able to record the obligations or able to report them to other governmental bodies. At best Winn-Dixie proved that it was unable to precisely determine the exact amount owed to it for discounts, coupons and other matters reflected in the accounts at issue. Such proof was insufficient to prove that the accounts do not constitute intangible assets subject to Florida's intangible personal property tax.
Based upon the foregoing, it is concluded that Account Numbers 123-2, 123-3 and 123-4 are intangible personal property subject to Florida's intangible tax.
In its proposed recommended order, the Department has argued that, even if it had been concluded that the subject accounts are not intangible personal property, Winn-Dixie would not be entitled to a refund of the taxes paid on those accounts as part of this case. This position may be contrary to the agreement of the parties in paragraph 29 of the Stipulation of Facts filed in this case. It is not totally clear from paragraph 29 how the parties contemplated any refund would be made to Winn-Dixie if the accounts at issue had been determined not to be intangible assets. Evidently Winn-Dixie believes that it may obtain such a refund as a part of this proceeding and the Department
believes that such a refund must be pursued under Section 215.26, Florida Statutes. A resolution of this issue in this Recommended Order is not necessary in light of the conclusion that no refund is due to Winn-Dixie. The matter has been raised, however, so that the parties may take any action they deem necessary to resolve this apparent conflict.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department issue a Final Order assessing $186,181.44 in additional intangible tax, plus interest, against Winn-Dixie for 1985, 1986, 1987 and 1988, and dismissing Winn-Dixie's Petition for Administrative Proceedings.
RECOMMENDED this 8th day of May 1991, in Tallahassee, Florida.
LARRY J. SARTIN
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 8th day of May, 1991.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-8021
The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
Winn-Dixie's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1 2-4 and 6.
2 6.
3 15 and 17.
16. See 18-20 and 30. The last sentence is not supported by the weight of the evidence.
21 and 23. The last sentence is not relevant.
See 22. The last sentence is not relevant.
Not relevant.
Not supported by the weight of the evidence.
9 12.
Not supported by the weight of the evidence.
12. The last sentence is not supported by the weight of the evidence.
Not supported by the weight of the evidence.
Not supported by the weight of the evidence. The last sentence is not relevant.
14 32-33, 35 and 40.
15 34.
Not relevant.
See 36 and 41. The weight of the evidence failed to prove that Winn- Dixie was "required to pay" its vendors within seven to ten days.
37-38. The weight of the evidence failed to prove the last sentence.
19 40-41.
20 42.
21 Not supported by the weight of the evidence.
The Department's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1 and 3.
2 and 4.
3 5.
4 7.
5 15 and 21.
6 28.
7 4.
8-9 29.
10-11 11.
12 22.
13 22 and 25-27.
14 24.
15 22.
16 18-20 and 25-27.
17 5.
18 21.
19 12.
20 13.
21 14.
Not relevant.
See 45.
24 35 and 40.
25 37-38 and 43.
26 39.
27 Not relevant.
28 32.
29 See 44.
30 34.
COPIES FURNISHED:
Thomas K. Purcell, Esquire
Suite 1235, One Enterprise Center
225 Water Street Jacksonville, Florida 32211
Leonard F. Binder Kevin O'Donnell
Assistant Attorneys General Department of Legal Affairs Tax Section, Capitol Building
Tallahassee, Florida 32399-1050
J. Thomas Herndon, Executive Director Department of Revenue
104 Carlton Building Tallahassee, FL 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 top submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for 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.
| Issue Date | Proceedings |
|---|---|
| May 08, 1991 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 17, 1991 | Agency Final Order | |
| May 08, 1991 | Recommended Order | Petitioner subject to intangible property tax. Receivables taxed. Respondent not estopped because of audit. |
