STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STREETER CATERING, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 92-3473

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on May 23, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Did not appear and was not represented For Respondent: Eric J. Taylor, Esquire

Assistant Attorney General

Office of the Attorney General The Capitol, Tax Section Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner is liable for payment of sales and use taxes.

PRELIMINARY STATEMENT

Pursuant to an audit, Respondent Department of Revenue advised Petitioner Streeter Catering, Inc., that it was liable for sales and use taxes in the amount of $213,683.87 for the audit period of June 1, 1985 through May 31, 1990. Petitioner timely requested a formal hearing regarding that determination, and this cause was thereafter transferred to the Division of Administrative Hearings on June 8, 1992. On October 9, 1992, the Department issued a second revised audit assessment reducing Petitioner's purported liability to the amount of

$147,924.45.

By Order Granting Continuance and Rescheduling Hearing entered February 15, 1994, this cause was rescheduled for final hearing, for the fifth time, on May 23, 1994. At the final hearing, neither of Petitioner's two attorneys of record appeared and no one else appeared on Petitioner's behalf. Respondent's attorney represented that he had spoken to one of Petitioner's attorneys late in the afternoon of May 20, the Friday before the Monday morning final hearing in this cause, and Petitioner's attorney had advised Respondent's attorney that he would not be appearing for the final hearing. No contact was made with the

undersigned on behalf of Petitioner until Petitioner filed its Objection to Proposed Recommended Order on July 27, 1994. Petitioner's objection is overruled.

The Department presented the testimony of Bill Oglo. Additionally, the Department's Exhibits numbered 1 and 2 were admitted in evidence.

Only the Department submitted post-hearing proposed findings of fact in the form of a proposed recommended order. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Department conducted an audit of the business records of Petitioner, a Florida corporation operating a food catering business, covering the audit period of June 1, 1985 through May 31, 1990. As a result of that audit, the Department determined that Petitioner had failed to collect and remit sales taxes due to the Department and was liable for the payment of those unpaid sales taxes.

   
   

2. The Department issued an assessment determining that Petitioner owed the amount of $213,683.87 in unpaid taxes, interest, and penalty for the audit period.

   
   

3. On October 9, 1992, the Department issued its second revised audit assessment based upon its redetermination of Petitioner's tax liability. On that date, the Department reduced Petitioner's liability to the amount of

   $147,924.45, which sum includes the unpaid tax, the penalty therefor, and interest through that date. Based on its revised calculations, the Department also determined that interest would accrue at the rate of $27.06 per day until the date of payment.

   
   

4. Through the date of the final hearing in this cause, Petitioner has made no payments to satisfy or reduce the amount of assessment.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

   
   

6. Section 120.575(2), Florida Statutes, provides as follows:

   
   

   (2) In any administrative proceeding brought pursuant to s. 120.57, the applicable department's burden of proof, except as otherwise specifically provided by general law, shall be limited to a showing that an assessment has been made against the taxpayer and the factual and legal grounds upon which the applicable department made the assessment.

   
   

   The Department has met its burden of presenting a prima facie case.

   
   

7. Pursuant to Chapter 212, Florida Statutes, the sale of all tangible personal property in Florida is subject to the Florida sales tax, unless the item of tangible personal property has been specifically exempted from taxation

   by the Florida Legislature. The sale of prepared food products for immediate consumption is subject to the Florida sales tax. Section 212.08(1)(a)1 and 4, Florida Statutes.

   
   

8. Once the Department presented evidence that the assessment was made and the basis therefor as reflected in the second revised assessment and the auditor's workpapers supporting that assessment, the burden shifted to Petitioner to show that the assessment was not based in law or fact. Petitioner's failure to present any evidence caused the Department's evidence regarding the amount and propriety of its assessment to stand uncontroverted.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Petitioner liable for the

payment of sales tax, penalty, and interest through October 9, 1992, in the amount of $147,924.45 together with the amount of $27.06 interest per day until the date of payment.

DONE and ENTERED this 18th day of August, 1994, at Tallahassee, Florida.

LINDA M. RIGOT

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 18th day of August, 1994.

APPENDIX TO RECOMMENDED ORDER

1. The Department's proposed findings of fact numbered 1 and 6-8 have been adopted in substance in this Recommended Order.

2. The Department's proposed findings of fact numbered 2-5 and 9-16 have been rejected as not constituting findings of fact but rather as constituting conclusions of law or recitation of the procedural context of this case.

COPIES FURNISHED:

Eric J. Taylor, Esquire Assistant Attorney General Office of the Attorney General The Capitol, Tax Section Tallahassee, Florida 32399-1050

Richard J. Hays, Esquire

7100 West Commercial Boulevard Suite 109

Lauderhill, Florida 33319

Mark D. Cohen, Esquire

121 Southeast First Street Suite 600

Miami, Florida 33131

Linda Lettera, General Counsel Department of Revenue

204 Carlton Building Tallahassee, Florida 32399-0100

Larry Fuchs, Executive Director 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 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.

Docket for Case No: 92-003473

Orders for Case No: 92-003473