n

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NATIONAL COUNCIL OF LA RAZA, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5472

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 13, 1995, in Miami, Florida, before Errol H. Powell, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jan S. Neiman, Esquire

Carrie M. Garazi, Esquire Lamont & Neiman, P.A.

One Biscayne Tower, Suite 3550 Two South Biscayne Boulevard Miami, Florida 33131

For Respondent: Olivia P. Klein

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

STATEMENT OF THE ISSUES

The issue for determination is whether Petitioner is eligible for a consumer certificate of exemption pursuant to Subsection 212.08(7)(o), Florida Statutes.

PRELIMINARY STATEMENT

By Notice of Intent to Deny dated August 22, 1994, the Department of Revenue (Respondent) notified the National Council of La Raza (Petitioner) of its intent to deny Petitioner's application for a consumer certificate of exemption, as a charitable institution, pursuant to Subsection 212.08(7), Florida Statutes. Respondent based its denial on two grounds: (1) Petitioner provides "training, technical assistance and pass through funding to affiliated groups"; and (2) Petitioner's "primary purpose fails to meet the qualifications for sales tax exemption authorized by Section 212.08(7), Florida Statutes." By petition dated September 16, 1994, Petitioner requested a formal hearing. On October 3, 1994, this matter was referred to the Division of Administrative Hearings.

At hearing, the parties entered nine joint exhibits into evidence.

Petitioner presented the testimony of one witness and entered one exhibit into evidence. Respondent presented the testimony of three witnesses and entered four exhibits into evidence.

A transcript of the hearing was ordered. At the request of the parties, the time for submission of posthearing submissions was set for more than ten days following the filing of the transcript. The parties submitted proposed findings of fact which are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. On January 31, 1994, the National Council of La Raza (Petitioner) filed an application with the Department of Revenue (Respondent) for a consumer certificate of exemption as a charitable organization. Petitioner indicated, among other things, on its application that it was a social welfare organization. Petitioner filed the application in anticipation of bringing its annual conference to Miami Beach, Florida in July 1994. 1/

   
   

2. Petitioner is a private, nonprofit organization which was incorporated in 1968 in Arizona. Petitioner's national headquarters is in Washington, D.C. and it has offices in Arizona, California, Illinois, and Texas.

   
   

3. Article III of Petitioner's second amended articles of incorporation provides in pertinent part that one of its purposes is to "operate exclusively for charitable and educational purposes, including, but not limited to improvement of the condition of the Mexican American poor, and the under privileged."

   
   

4. Article III of the amended articles of incorporation further provides in pertinent part that in carrying-out its purpose it would "conduct research and inquiry of the problems and issues that confront, with local variations and particular effects, the Chicano communities"; "promote meetings, conferences, seminars, discussions and other forms of group communication and analysis of the same among those engaged in organizational activity"; "provide technical assistance to affiliated barrio/community development organizations and to encourage, promote and facilitate mutual aid and assistance among them in order to strengthen each of them through the moral, technical and material resources of all"; "encourage and assist the development of the moral, technical and material resources of the barrios and colonias"; and "organize, exist and function as a charitable, non-profit, non-political 501(c)(3) tax-exempt organization."

   
   

5. Also, Article III of the amended articles of incorporation provides in pertinent part that its priorities are to "serve as the national advocate and mobilizer of resources and support for barrio/community development programs"; and "deliver program support and technical assistance services to barrio/community development programs in [named] priority areas."

   
   

6. Consistent with the purposes in Petitioner's amended articles of incorporation, Petitioner provides in its publicly disseminated literature that it provides its services through four major types of initiatives: (a)

   "capacity-building assistance to support and strengthen Hispanic community-based organizations"; (b) "applied research, public policy analysis, and advocacy on behalf of the entire Hispanic community, designed to influence public policies and programs"; (c) "public information efforts to provide accurate information

   and positive images of Hispanics in the mainstream and Hispanic media"; and (d) "special catalytic efforts which use the [Petitioner] structure and reputation to create other entities or projects important to the Hispanic community".

   
   

7. On or about May 1, 1968, Petitioner received a federal income tax exemption from the Internal Revenue Service as an organization described in Section 501(c)(3) of the Internal Revenue Code. Petitioner's organizational classifications under Section 501(c)(3) were charitable, educational and scientific.

   
   

8. Petitioner's Section 501(c)(3) federal income tax exemption was effective at the time of its application with Respondent for a consumer certificate of exemption.

   
   

9. Petitioner has been granted sales tax exemption by Washington, D.C., Michigan, Texas, and the city of Los Angeles, California.

   
   

10. Petitioner's organizational structure consists of a Board of Directors, Office of the President, Office of Finance, Office of Administration, Office of Research Advocacy and Legislation, Office of Technical Assistance and Constituency Support, Office of Institutional Development, and Office of Development and Special Events.

    
    

11. As to the Office of Research Advocacy and Legislation (ORAL), it is responsible for conducting research and analysis of issues which have been identified by Petitioner's Board of Directors and affiliates as having a primary importance to the Hispanic community. ORAL, through its Policy Analysis Center, conducts studies and research on immigration, education, housing, poverty, welfare, census, and national farm workers issues. Also, ORAL engages in a limited amount of lobbying on behalf of the Hispanic community.

    
    

12. ORAL's services are mainly educational. The services include providing information and pamphlets on immigration and civil rights and producing a national radio program on immigration issues. The services are delivered primarily through brochures and pamphlets which are distributed without charge to Petitioner's affiliates and certain groups and organizations. Other groups and organizations are charged a fee depending upon what the group or organization is. ORAL's services are provided to a disadvantaged Hispanic population.

    
    

13. As to the Office of Technical Assistance and Constituency Support (TACS), it is responsible for interfacing with both Petitioner's affiliates and its branch offices to directly provide services to the disadvantaged Hispanic community. Most of TACS' assistance focuses on resource development, program operations, and management or governance needs, in addition to addressing critical community needs through national emphasis programs operated in cooperation with Petitioner's affiliates. Also, TACS provides capacity-building assistance to the staff and board members of Hispanic community-based organizations through staff and board training and on-site assistance.

    
    

14. As to the Office of Institutional Development (OID), it is responsible for conducting research on issues new to Petitioner and directing Petitioner's services to the Hispanic community. OID coordinates, on the national level, Petitioner's new programs (program models) in education, health education, the elderly and leadership development, as well as projects involving Europe. OID implements the new programs through Petitioner's affiliates.

15. For example, in the 1980's AIDS became a new concern for the Hispanic community and was assigned to OID. A national toll-free AIDS hot line was established by OID and maintained in its office. The hot line is advertised through various media communications, Petitioner's affiliates, and community- based organizations.

    
    

16. Additionally, funding has been provided through OID to two (2) Florida affiliates, Centro Campesino Farmworkers Center, Inc., and the Hispanic Alliance. The funding was provided through OID's leadership initiatives to a coordinating council for the purpose of distributing post-hurricane relief to farmworkers in Florida.

    
    

17. The offices of ORAL, TACS, and OID have under their responsibility mission activities and core activities.

    
    

18. Core activities involve issues which are identified by Petitioner's board and its affiliate organizations as being at the core of Petitioner's existence, such as civil rights enforcement and immigration issues. These activities are not necessarily funded by a particular government contract or grant from a private foundation or corporation.

    
    

19. Mission activities consist of activities which are important in supporting the mission of Petitioner, but are not currently funded by a particular government contract or grant from a private foundation or corporation. These activities relate to administrative functions engaged in by ORAL, TACS, and OID to support Petitioner's operations and are funded with internal funds.

    
    

20. The offices of ORAL, TACS and OID work interdependently. A problem is identified in the Hispanic community by Petitioner and/or its affiliates and assigned to ORAL or OID; ORAL or OID conducts research and develops programs to address the problem; and TACS delivers the program services to the disadvantaged Hispanic community, working with affiliates and community-based organizations to implement the programs.

    
    

21. A program called Project EXCEL (Excellence in Community Educational Leadership) is an educational program developed by Petitioner. The problem of illiteracy and low graduation rates was identified. Research was conducted on the problem and the program, Project EXCEL, was developed. Petitioner implemented the program through its on-site staff who had oversight responsibility and who evaluated the program and actually worked with the clients to assist in the program's evaluation; whereas, the actual direct educational services were delivered to the clients by persons working for the organizations. Project EXCEL was implemented at public schools, day care centers, and churches. Petitioner secured and provided the funding for the community-based organizations to run demonstration sites for Project EXCEL.

    
    

22. Two Florida organizations received assistance from Petitioner regarding Project EXCEL. Centro Campesino Farmworkers Center, Inc., which holds a sales tax exemption from Respondent, utilized the Project EXCEL curriculum developed by Petitioner in providing after-school services to children of migrant farmworkers. Also, the Coalition of Florida Farmworkers Organizations, Inc., which holds a sales tax exemption from Respondent, received a grant to implement Project EXCEL and Petitioner provided a curriculum and some of its staff to assist the Coalition of Florida Farmworkers in working with the children.

23. Both the Centro Campesino Farmworkers and the Coalition of Florida Farmworkers pay annual dues to Petitioner as affiliates. They have received from Petitioner pass-through funds as subgrants. Petitioner does not engage in direct fund raising to support the organizations.

    
    

24. Pass-through funding is funding distributed through Petitioner to its affiliates or other outside organizations through subgrants. The funds are received by Petitioner from grants for which Petitioner applies.

    
    

25. For both the Centro Campesino Farmworkers and the Coalition of Florida Farmworkers, Petitioner has not provided volunteers to run any of the organizations' programs or provide the organizations' services at the local level. Furthermore, Petitioner does not control, govern, or administer any of the Centro Compesino Farmworkers' or the Coalition of Florida Farmworkers' services or activities at the local level.

    
    

26. In another instance, Petitioner identified housing problems for the Hispanic community regarding ownership, quality and availability. Research showed that, for Hispanics, there existed a low rate of home ownership, substandard housing, and discrimination. Petitioner secured funding to build low income housing and commercial developments in low income neighborhoods; at times, providing pre-development costs or professional services such as engineers and architects.

    
    

27. As with Centro Campensino Farmworkers and the Coalition of Florida Farmworkers, Petitioner does not provide volunteers to work for its affiliate organizations at the local level (Petitioner's staff are paid employees), Petitioner does not engage in direct fund raising to support its affiliate organizations, and Petitioner does not control, govern, or administer any of the services at the local level.

    
    

28. Also, ORAL, TACS, and OID have worked interdependently in developing programs in the health field. AIDS public service announcements have been produced by Petitioner. An AIDS national toll-free hot line is operated by Petitioner, with professional staff manning the phones to provide information to AIDS patients and others and with the costs being borne by Petitioner.

    
    

29. As to the Office of Development and Special Effects (ODSE), it is responsible for fund raising, proposal writing, receipt of grants, Petitioner's future endowment or capital campaign. ODSE's primary responsibility is the operation of Petitioner's annual conference and Congressional awards dinner. The annual conference is held in different locations and the awards dinner is held in Washington, D.C.

    
    

30. The annual conference is attended by thousands of participants from across the United States to discuss topics and issues relevant to the Hispanic community. Affiliates which attend pay a registration fee. Usually offered at the conference are workshops, seminars, an art show, job fair, silent auction, and an exhibit hall where corporations and governmental agencies can promote themselves. Except for the meal events, all the other activities are open to the public at no charge.

    
    

31. As part of the conference, Petitioner sponsors a Youth Leadership Program in which the expenses are paid for 25 to 30 youths (tenth to twelfth graders), who are disadvantaged and at-risk and from various parts of the country, to attend the conference. A similar program is sponsored by Petitioner

    for college students. Additionally, Petitioner sponsors a one day event for area disadvantaged district school students.

    
    

32. Petitioner's 1994 annual conference was held at Miami Beach, Florida on July 17 - 20, 1994. Petitioner provided or sponsored all of its usual activities or programs, except for a job fair. In addition, Petitioner sponsored a senior citizens day for the disadvantaged elderly. The registration fee for affiliates was $150.

    
    

33. Petitioner's Office of Finance is responsible for the fiscal management of all internal matters and the financial practices of Petitioner.

    
    

34. Petitioner reflects its fiscal financial picture on two documents. As a Section 501(c)(3) organization, Petitioner files federal tax returns, known as Forms 990, on a yearly basis. Additionally, Petitioner has audited financial statements prepared annually. Among other things, Form 990 reflects Petitioner's expenses found on its audited financial statements, but in greater detail.

    
    

35. Petitioner's fiscal year is from October 1st to September 30th of each year.

    
    

36. Expenditures associated with Petitioner's Board of Directors, Office of the President, Office of Finance, and Office of Administration are general administrative expenses. These expenditures fall within the category of supporting activities on Petitioner's audited financial statements.

    
    

37. For the fiscal year October 1, 1992 to September 30, 1993, Petitioner's total expenditures were $5,581,316. Of this total of expenditures,

    $4,407,194 represented expenses for program services, per the category on Form 990, of which $126,250 represented pass-through funds to subgrantees; of which over $2.6 million represented compensation of officers and directors, etc., other salaries and wages, pension plan contributions, other employee benefits, payroll taxes, and conferences, conventions and meetings 2/ ; and of which

    $57,421 represented legislative advocacy. Also, of the total expenditures,

    $1,174,122 represented expenses for supporting activities, of which $976,044 represented general administration; and of which $198,078 represented fund raising which is money expended in writing proposals to fund Petitioner's programs.

    
    

38. For the fiscal year October 1, 1991, through September 30, 1992, Petitioner's total expenditures were $5,150,084.00. Of this total of expenditures, $3,982,552 represented expenses for program services, including

    $172,620 for pass-through funds to subgrantees, over $2.3 million for compensation of officers and directors, other salaries and wages, pension plan contributions, other employee benefits, payroll taxes, and conferences, conventions and meetings, and $54,410 for legislative advocacy. Also, of the total expenditures, $1,167,532 represented expenses for supporting services, including $978,557 for general administration, and $188,975 for fund raising.

    
    

39. Even though Petitioner claims to have 182 affiliates, only 162 affiliates were identified. Petitioner actively works with 120 of the 162 identified affiliates. Nine of the affiliates hold certificates of exemption issued by Respondent. Because of the minimal descriptions provided by Petitioner of the affiliates, only a small minority could be determined to provide services for free or at a substantially reduced cost.

    CONCLUSIONS OF LAW

    
    

40. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes

    
    

41. Respondent is charged with the responsibility of administering and implementing the Florida Revenue Act of 1949, as amended.

    
    

42. Subsection 212.08(7), Florida Statutes (1993), provides in pertinent part:

    
    

    (o) Religious, charitable, scientific, educational, and veterans' institutions and organizations.

    1. There are exempt from the tax imposed by this part transactions involving:

       * * *

       b. Sales or leases to...nonprofit charitable...institutions when used in carrying on their customary...nonprofit charitable ... activities...

       * * *

    2. The provisions of this section authorizing exemptions from tax shall be strictly defined, limited, and applied in each category as follows:

    * * *

    b. "Charitable institutions" means only nonprofit corporations qualified as nonprofit pursuant to s. 501(c)(3), United States Internal Revenue Code, 1954, as amended, and other nonpro- fit entities, the sole or primary function of which is to provide, or to raise funds for organizations which provide, one or more of the following services if a reasonable percentage

    of such service is provided free of charge, or at a substantially reduced cost, to persons, animals, or organizations that are unable to pay for such service:

    1. Medical aid for the relief of disease, injury, or disability;

    2. Regular provision of physical neces- sities such as food, clothing, or shelter;

    3. Services for the prevention of or rehabilitation of persons from alcoholism or drug abuse; the prevention of suicide; or the alleviation of mental, physical, or sensory health problems;

    4. Social welfare services including adoption placement, child care, community

       care for the elderly, and other social welfare services which clearly and substantially bene- fit a client population which is disadvantaged or suffers a hardship;

    5. Medical research for the relief of disease, injury, or disability;

    6. Legal services; or

    7. Food, shelter, or medical care for animals or adoption services, cruelty invest-

    igations, or education programs concerning animals; and the term includes groups providing volunteer manpower to organizations designated as charitable institutions hereunder.

    
    

43. Subsection 212.08(7)(o) provides an exemption for charitable institutions from Florida's sales, storage and use tax and provides that the exemption shall be strictly defined, limited, and applied. The exemption is to be strictly construed against the taxpayer (Petitioner). State ex rel. Szabo Food Services, Inc. v. Dickinson, 286 So.2d 529 (Fla. 1973); Capital City County Club v. Tucker, 613 So.2d 448 (Fla. 1993); Asphalt Pavers, Inc. v. Department of Revenue, 584 So.2d 55 (Fla. 1st DCA 1991). Moreover, doubtful language in exemption statutes are construed against the taxpayer. United States Gypsum Co. v. Green, 110 So.2d 409 (Fla. 1959).

    
    

44. Petitioner must show its entitlement to the exemption. Strictly construing Subsection 212.08(7)(o)2b, the exemption is available to Petitioner if it can satisfy two requirements: (1) it is a designated Section 501(c)(3) nonprofit organization by the United States Internal Revenue Service, or other nonprofit organization; and (2) its sole or primary function is to provide, or raise funds for organizations which provide, at least one of the seven specifically designated services if a reasonable percentage of the service is provided free of charge, or at a substantially reduced cost to the recipients of the service that are unable to pay for the service.

    
    

45. Subsection 212.08(7)(o) provides no definition for "sole or primary function"; however by Rule, Respondent has provided a definition. Rule 12A- 1.001(3)(g)3d, Florida Administrative Code, provides:

    
    

    "Sole or primary function" means that a charitable organization, excluding hospitals, must establish and support its function as providing or raising funds for services as outlined in subparagraphs 1. and 2. above,

    by expending in excess of 50.0 percent of the charitable organization's expenditures towards referenced charitable concerns, within the charitable organization's most recent fiscal year.

    
    

    In order for Petitioner to fall within the definition of "sole or primary function", Petitioner must show that, within its most recent fiscal year, its expenditures toward providing at least one of the seven specifically designated services, or toward raising funds for its affiliates which provide at least one of the seven specifically designated services, exceeded 50 percent.

    
    

46. Petitioner satisfies the first requirement for a charitable organization in that it is not disputed that Petitioner holds a Section 501(c)(3) federal tax status.

    
    

47. However, Petitioner fails to satisfy the second requirement. Petitioner failed to show that over 50 percent of its expenditures in its most recent fiscal year were for providing, or for the raising of funds for organizations which provide, at least one of the seven designated services in Subsection 212.08(7)(o)2b. 3/

48. Alternatively, to be a charitable institution, pursuant to Subsection 212.08(7)(o)2b, Petitioner would have to provide volunteers to work directly for its affiliate organizations which are charitable organizations. Here to, the evidence falls short and does not support such a conclusion.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order DENYING the

National Council of La Raza a consumer certificate of exemption.

DONE AND ENTERED this 8th day of February, 1996, in Tallahassee, Leon County, Florida.

ERROL H. POWELL, 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 February, 1996.

ENDNOTES

1/ A certificate of exemption would allow Petitioner to not pay sales tax on purchases and lease transactions associated with its annual conference held at Miami Beach in 1994.

2/ These are expense categories specified on Form 990.

3/ Subsequent to the hearing in this matter, new language to the "charitable institution" exemption became effective on July 1, 1995. Whether Petitioner is a charitable institution under the new language is not addressed.

APPENDIX

The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact

1. Partially accepted in finding of fact 2.

2. Rejected as being unnecessary.

3. Partially accepted in findings of fact 3, 4, 5, and 6.

4. Partially accepted in finding of fact 2.

5. Partially accepted in findings of fact 7 and 8.

6. Partially accepted in findings of fact 4, 5, and 6.

7. Partially accepted in finding of fact 34.

8. Partially accepted in finding of fact 34.

9. Partially accepted in finding of fact 10.

10. Rejected as being unnecessary.

11. Rejected as being unnecessary.

12. Partially accepted in finding of fact 33.

13. Rejected as being unnecessary.

14. Partially accepted in finding of fact 36.

15. Partially accepted in finding of fact 37.

16. Rejected as being contrary to the evidence presented.

17. Partially accepted in finding of fact 11.

18. Partially accepted in finding of fact 11.

19. Partially accepted in finding of fact 13.

20. Partially accepted in findings of fact 14 and 15.

21. Partially accepted in finding of fact 15.

22. Rejected as being unnecessary.

23. Partially accepted in findings of fact 17 and 19.

24. Partially accepted in findings of fact 17 and 18.

25. Rejected as being unnecessary.

26. Partially accepted in finding of fact 20.

27. Rejected as being irrelevant. The specific expenditures within each, rather than the cumulative expenditures are the factors considered in this case.

28. Partially accepted in finding of fact 29.

29. Partially accepted in findings of fact 29 and 30.

30. Partially accepted in finding of fact 32.

31. Partially accepted in finding of fact 30.

32. Partially accepted in finding of fact 37.

33. Rejected as being irrelevant. The specific expenditures within each, rather than the cumulative expenditures are the factors considered in this case.

34. Partially accepted in finding of fact 20.

35. Partially accepted in finding of fact 20.

36. Partially accepted in finding of fact 21.

37. Partially accepted in finding of fact 21.

38. Partially accepted in finding of fact 22.

39. Partially accepted in finding of fact 22.

40. Partially accepted in finding of fact 21.

41. Partially accepted in finding of fact 26.

42. Partially accepted in finding of fact 26.

43. Partially accepted in finding of fact 26.

44. Partially accepted in finding of fact 28.

45. Partially accepted in finding of fact 28.

46. Partially accepted in finding of fact 28.

47. Rejected as being unnecessary.

48. Partially accepted in finding of fact 1.

49. See Preliminary Statement.

50. See Preliminary Statement.

51. Rejected as contrary to the evidence presented, or a conclusion of law.

Respondent's Proposed Findings of Fact

1. Partially accepted in finding of fact 2.

2. See Conclusion of Law 41.

3. Partially accepted in findings of fact 7 and 8.

4. See Endnote 1.

5. Partially accepted in findings of fact 4, 5, 6, and 24.

6. Partially accepted in finding of fact 6.

7. Partially accepted in finding of fact 33.

8. Partially accepted in findings of fact 10, 11, 13, 14, and 29.

9. Partially accepted in finding of fact 11.

10. Partially accepted in finding of fact 11.

11. Partially accepted in finding of fact 12.

12. Partially accepted in finding of fact 12.

13. Partially accepted in finding of fact 12.

14. Partially accepted in finding of fact 13.

15. Partially accepted in finding of fact 13.

16. Partially accepted in finding of fact 14.

17. Partially accepted in finding of fact 16.

18. Partially accepted in finding of fact 20.

19. Partially accepted in finding of fact 29.

20. Partially accepted in finding of fact 30.

21. Partially accepted in finding of fact 31.

22. Partially accepted in finding of fact 32.

23. Partially accepted in findings of fact 20 and 27.

24. Partially accepted in findings of fact 20 and 27.

25. Partially accepted in findings of fact 11 and 12.

26. Partially accepted in finding of fact 39.

27. Partially accepted in finding of fact 39.

28. Partially accepted in findings of fact 11, 12, 13, 14, 20, 24, and 29.

29. Partially accepted in finding of fact 24.

30. Partially accepted in finding of fact 24.

31. Rejected as being unnecessary.

32. Partially accepted in finding of fact 27.

33. Partially accepted in findings of fact 20, 24, and 27.

34. Partially accepted in findings of fact 20 and 21.

35. Partially accepted in finding of fact 21.

36. Partially accepted in finding of fact 26.

37. Partially accepted in finding of fact 28.

38. Partially accepted in finding of fact 28.

39. Partially accepted in findings of fact 17 and 19.

40. Partially accepted in finding of fact 37.

41. Rejected as being unnecessary.

42. Partially accepted in findings of fact 37 and 38.

43. Partially accepted in findings of fact 34, 37, and 38. Also, see Endnote 2.

44. Partially accepted in finding of fact 37.

45. Partially accepted in finding of fact 38.

46. Rejected as being unnecessary.

47. Partially accepted in findings of fact 21, 22, and 23.

48. Partially accepted in findings of fact 21, 22, and 23.

49. Partially accepted in findings of fact 23, 25, and 26.

50. Partially accepted in finding of fact 25.

51. Partially accepted in findings of fact 30, 31, and 32.

52. Partially accepted in finding of fact 25.

53. Partially accepted in findings of fact 21 and 22.

54. Partially accepted in findings of fact 21, 22, and 25.

55. Partially accepted in findings of fact 21, 22, and 23.

56. Partially accepted in finding of fact 23.

57. Partially accepted in findings of fact 21, 22, and 25.

58. Partially accepted in findings of fact 30 and 32.

59. Partially accepted in finding of fact 25.

60. Rejected as being unnecessary.

61. Rejected as being unnecessary.

62. Rejected as being unnecessary, argument, or a conclusion of law.

63. Rejected as being unnecessary, argument, or a conclusion of law.

64. Partially accepted in findings of fact 7 and 8.

65. Rejected as being unnecessary, argument, or a conclusion of law.

66. Rejected as being unnecessary.

67. Rejected as being unnecessary, argument, or a conclusion of law.

68. Rejected as being unnecessary.

69. Rejected as being unnecessary, argument, or a conclusion of law.

70. Rejected as being unnecessary, argument, or a conclusion of law.

71. See Preliminary Statement.

72. Rejected as being unnecessary, argument, or a conclusion of law.

73. Rejected as being unnecessary, argument, or a conclusion of law.

74. Rejected as being argument, or a conclusion of law.

75. Rejected as being argument, or a conclusion of law.

76. Rejected as being argument, or a conclusion of law.

NOTE: Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, cumulative, not supported by the greater weight of the evidence, argument, or a conclusion of law.

COPIES FURNISHED:

Jan S. Neiman, Esquire Carrie M. Garazi, Esquire Lamont & Neiman, P.A.

One Biscayne Tower, Suite 3550 Two South Biscayne Boulevard Miami, Florida 33131

Olivia P. Klein

Assistant Attorneys General Office of the Attorney General The Capitol - Tax Section

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 ten 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: 94-005472

Orders for Case No: 94-005472