STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAY P. WEISS, INC., )

)

Petitioner, )

)

vs. ) Case No. 95-3619

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on December 1, 1999, in Miami, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Andrew L. Siegel, Esquire

Executive Pavillon, Suite 412

300 Northwest 82nd Avenue Plantation, Florida 33324

For Respondent: James F. McAuley, Esquire

Office of Attorney General The Capitol, Tax Section

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES

Whether the Petitioner owes unpaid sales and use tax for the period extending from May 1, 1986, through April 30, 1991, and, if so, the amount owed.

PRELIMINARY STATEMENT

In a Notice of Reconsideration dated May 10, 1995, the Department of Revenue ("Department") notified Jay P. Weiss, Inc. ("Weiss"), that it owed a balance of $167,854.55 in unpaid sales and use taxes, penalties, and interest to date, with interest to accrue at the rate of $1.46 per day from February 28, 1995, until the "postmark date of payment." Weiss timely filed a Petition for Formal Proceeding, in which it requested an evidentiary hearing to contest the Department's assessment. The Department forwarded the matter to the Division of Administrative Hearings for assignment of an administrative law judge. The final hearing was originally scheduled for

February 6, 1996, but, at the request of the parties, the hearing was cancelled, rescheduled, and continued several times over the years to allow time for the presentation and evaluation of additional documentation and for settlement discussions. The final hearing was held on December 1, 1999.

Two pending motions were considered at the hearing. On November 22, 1999, the Department filed a Motion for Protective Order for Improper Service of Witness, Kathi Marsh; this motion was withdrawn at the hearing because the parties had amicably resolved the issues raised therein. On November 30, 1999, the Department filed Department's Motion in Limine to exclude the testimony of Martin Lee Mulderigg. The motion was withdrawn at

the hearing because Weiss decided not to call Mr. Mulderigg as a witness.

At the hearing, the Department presented the testimony of Curt LaRue Horton, an employee of the Department who testified in the Department's case-in-chief and in rebuttal, and of Jay P. Weiss, the President and shareholder of Jay P. Weiss, Inc.

Weiss presented the testimony of Mr. Horton and of Jay P. Weiss. Respondent's Exhibit 1 was offered and received into evidence, and Petitioner's Exhibits 1 through 10 were offered and received into evidence.

At the hearing, Respondent's Exhibit 2 was marked for identification and offered into evidence by the Department. Ruling was withheld on the exhibit on the basis of objections made to the exhibit, including an objection to the authenticity of the document. The document was presented as one under the seal of Internal Revenue Service, but the document marked for identification did not bear the original seal. The Department was given leave to file the original document under seal subsequent to the hearing, and Weiss was given an opportunity to submit any further objections to the document being received into evidence. The original document under seal was filed with the Division of Administrative Hearings on February 4, 2000, and, on April 4, 2000, the Department filed a Motion to Admit into Evidence Department of Revenue's Late Filed Exhibit No. 2,

in Conformance with Ruling at Trial. Weiss did not file an objection to the motion. Accordingly, the motion is GRANTED, and the original document marked for identification as Respondent's Exhibit 2 is received into evidence.

A one-volume transcript of the final hearing was filed with the Division of Administrative Hearings on December 27, 1999.

An extension of time within which to file proposed findings of fact and conclusions of law was granted, and the parties timely filed their proposals, which have been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. Jay P. Weiss is a Florida-licensed motor vehicle dealer, and he has been licensed in Florida for 27 years. Mr. Weiss does business as Jay P. Weiss, Inc. ("Weiss"), and

   Weiss is, and was during the times material to this proceeding, in the business of selling cars for resale. Weiss purchases motor vehicles at auction, from banks, from leasing companies, or from other dealers; reconditions the vehicles; and sells the majority of the vehicles to other dealers for resale. During the times material to this proceeding, Weiss purchased an average of 400 to 500 vehicles each year.

2. During the times material to this proceeding, the locations from which Weiss conducted business consisted of an office and an adjacent shop in which vehicles were reconditioned. The locations did not include a showroom or a retail car lot, and Weiss did not advertise that vehicles were offered for retail sale on the premises. Nonetheless, people often walked into the office and inquired if Weiss sold cars at retail. Occasionally, Weiss sold cars to customers at retail.

3. Motor vehicle purchases and sales were recorded on "title jackets," which contained information regarding each vehicle purchased and sold by Weiss, including the identification of the vehicle; the date of purchase, the purchase price and the identity of the person from whom the vehicle was purchased; the date of sale, the sales price, and the identity of the person to whom the vehicle was sold; and relevant title information. Duplicate information for each vehicle was included in "police books" maintained at Weiss's offices.

4. Mr. Weiss was in Weiss's office about nine hours per week, including weekends. Throughout the week, he traveled to various auctions throughout the state, although he routinely called his office several times each day. In addition to

   Mr. Weiss and the employees who worked in the shop, Weiss employed a bookkeeper that was responsible for managing the

   office and handling all of the accounts and records for the business, including preparation of the Florida Sales and Use Tax Return Form DR-15. The bookkeeper also provided information to Weiss's accountants from which Weiss's U.S. Income Tax Return for an S Corporation, Form 1120S, was prepared. During the times material to this proceeding, three successive bookkeepers were employed by Weiss, two of whom were employed approximately three years each.

5. Section 212.12(5)(a), Florida Statutes (1993), grants to the Department of Revenue the authority to audit the books and records of any dealer subject to Chapter 212, Florida Statutes, Tax on Sales, Use, and Other Transactions, to determine if the dealer overpaid or underpaid Florida sales and use taxes. Pursuant to this authority, the Department conducted an audit of the books and records of Weiss, for the period extending from May 1, 1986, through April 30, 1991.

6. The Department initially concluded that Weiss owed

   
   

   $115.442.57 additional tax due on sales for the audit period and

   
   

   $10,706.94 additional tax due on purchases for the audit period, plus delinquent penalties and interest through December 6, 1991. Weiss provided additional documentation, and these amounts were revised downward in a Notice of Intent to Make Sales & Use Tax Changes dated January 13, 1993, to reflect $79,065.07 additional tax due on sales for the audit period and $10,706.94 additional

   tax due on purchases for the audit period, plus delinquent penalties and interest through January 13, 1993. The schedules and work papers from which the revised assessments were derived were attached to the January 13, 1993, notice.

7. In conducting the audit of Weiss's books and records, the Department's auditor examined books and records made available to her at Weiss's business location and at the office of Weiss's accountant on August 1, 7, and 28, 1991; September 6, 1991; January 29 and 30, 1992; and February 5, 1992. Mr. Weiss never met the Department's auditor, although he did talk with her on the telephone. He has no personal knowledge of the records requested by the auditor or whether all of the requested records were provided.

8. According to the affidavit of the accountant who prepared Weiss's federal tax returns for 1988, 1989, and 1990, which was introduced into evidence by Weiss, the accountant became aware of inaccuracies in the bookkeeping by Weiss "because of the audit by the Florida DOR and due to the fact that all details of bookkeeping records were either lost or misplaced it was recommended to Jay P. Weiss that an outside bookkeeper be hired to recreate the books and records." Weiss followed its accountant's advice, and the Department's auditor examined, and accepted as accurate, documents entitled "Sales Reconciliation" for 1988, 1989, and 1990, which were prepared by

   the outside accountant hired by Weiss. These documents itemized for each month of these years the corrected income received by Weiss from taxable sales, rents, and exempt sales; corrected taxable amounts; corrected sales tax; the original amount of tax paid; and the sales tax owed or overpaid.

9. The Department's auditor concluded that additional sales tax was due in the amount of $4,281,57, attributable to unreported rental income collected by Weiss on commercial property it owned, as reflected in Schedule A-1 of the audit papers. The auditor calculated the additional taxable amount of rental income for the years 1988 and 1989 for which no tax had been paid based on the information provided by Weiss in the sales reconciliations and identified the actual rental income for 1990 based on Weiss's records. The auditor totaled the amount of additional rental income for these three years, divided the total by 36, the number of months in the sample period, and projected this average monthly amount of additional taxable rental income for each month of the 5-year audit period. The appropriate tax rate was applied to calculate the additional sales tax owed for each month, and these amounts were totaled for the 5-year audit period. 1/ The Department's auditor concluded that additional sales tax was due on retail sales of automobiles in the amount of $20,538.31, as reflected in Schedule A-3 of the audit papers. This amount was based on a

comparison of the information provided by Weiss in the Florida Sales and Use Tax Returns, Form DR-15's, that it filed with the Department for 1988 and 1989 with the corrected taxable sales included by Weiss's accountant in the sales reconciliations prepared for 1988 and 1989. The auditor first totaled the taxable sales reported on the Form DR-15's for 1988 and 1989, which was $81,736.00, and the revised taxable sales included in the sales reconciliations for 1988 and 1989, which was

$131,063.00, and then calculated a weighted error ratio of approximately 1.603492, meaning that Weiss's actual taxable sales were approximately 60 percent higher than reported in the Form DR-15's submitted by Weiss to the Department. The auditor then projected the total additional taxable sales by multiplying the taxable sales reported on the Form DR-15s by .603492 to arrive at the additional taxable sales for each month of the audit period. The appropriate tax rate was applied to calculate the additional sales tax attributable to additional taxable motor vehicle sales for each month, and these amounts were totaled for the 5-year audit period.

1. The Department's auditor concluded that additional sales tax was due on undocumented sales in the amount of

   $54,245.19, as reflected in Schedule A-2 of the audit papers. In reaching this conclusion, the auditor reviewed the U.S. Income Tax Returns for an S Corporation, Form 1120S's, filed by

   Weiss with the Internal Revenue Service for 1988, 1989, and 1990, and the Florida Sales and Use Tax Returns, Form DR-15's, filed with the Department for the same period of time. The Department routinely compares the gross sales reported on the federal income tax returns with the total sales reported to the Department on Form DR-15's to determine if there is a difference between the amounts reported. The Department considers the gross sales reported on federal income tax returns to be more reliable than the total sales reported to the Department because it is assumed that taxpayers will not over-report sales to the federal government. If the gross sales reported on the federal income tax returns are greater than the total sales reported to the Department on the Form DR-15's for the applicable period, the Department asks for documentation from the taxpayer to account for the difference. If the taxpayer is unable to provide such documentation, the Department presumes that the difference is attributable to taxable sales.

2. In concluding that Weiss owed additional tax on undocumented sales, the auditor compared the gross sales reported by Weiss in the U.S. Income Tax Returns for an S Corporation, Form 1120S's, filed with the Internal Revenue Service for 1988, 1989, and 1990 with the revised total sales reportable on the Florida Sales and Use Tax Returns, Form DR- 15's, filed with the Department for the same years. The auditor

   broke down Weiss's revised total sales into revised taxable sales based on Schedule A-3 of the audit papers, revised rental income based on Schedule A-1 of the audit papers, and revised exempt sales identified in the sales reconciliations for 1988, 1989, and 1990. 2/ The total gross sales Weiss reported on the Form 1120S's for 1988, 1989, and 1990 were higher than the revised total sales reported by Weiss on the Form DR-15's for the same years. The auditor calculated the monthly difference between the gross sales and the revised total sales for 1988, 1989, and 1990, 3 and, because no documentation was provided to establish that the difference was attributable to exempt sales, the difference was attributed to taxable sales. The average monthly difference was calculated, and this amount was projected for each month of the audit period. The appropriate tax rate was applied to calculate additional sales tax owed for each month, and these amounts were totaled to determine the additional sales tax due for the 5-year audit period.

3. Because inaccuracies in the gross sales included in the Form 1120S's filed with the Internal Revenue Service for 1988, 1989, and 1990 were discovered by Weiss's accountant as a result of the recreation of Weiss's books by the outside accountant, Weiss's accountants prepared amended Form 1120S's for those years. The amended forms were sent to Weiss for execution and filing. Mr. Weiss cannot recall whether the

   amended returns were filed, and the Internal Revenue Service has no record that these amended returns were filed. For this reason and because Weiss did not provide any documentation to support the revised gross sales included in the amended returns, the Department refused to consider the gross sales reported in the amended Form 1120S's.

4. The Department's auditor concluded that additional tax in the amount of $1,334.07 was due from Weiss with respect to purchases of consumable supplies, that is, supplies that did not become a component part of a motor vehicle. This conclusion was based on the auditor's review of invoices provided by Weiss for 1990 and the auditor's determinations that, of the $6,903.86 total derived from the invoices, $4,722.07 was taxable and that Weiss had paid no tax on the purchases. The average monthly taxable amount was calculated, the appropriate tax rate was applied to determine the additional tax owed for each month, and these amounts were totaled for the 5-year audit period.

5. The Department's auditor concluded that, based on records provided by Weiss, additional tax was owed on fixed assets in the amount of $86.34.

6. The Department's auditor concluded that additional tax was due in the amount of $9,286.53 on amounts paid by Weiss for commercial rentals and on amounts paid by Weiss in the form of mortgage payments on property it occupied that was owned by

   Jay P. Weiss, individually, who was also individually obligated under the note and mortgage on the property. This determination that additional tax was due was based on documentation Weiss provided to the auditor.

7. After the January 13, 1993, Notice of Intent to Make Sales & Use Tax Audit Changes was issued, Weiss provided additional documentation to the Department. As a result of the new information, the amount of additional tax due was revised downward in a Notice of Intent to Make Sales & Use Tax Audit Changes dated March 22, 1995, which identified $75,998.46 additional tax due on sales for the audit period and $8,382.94 additional tax due on purchases for the audit period, for a total amount due of $166,800.43, including delinquent penalties and interest accrued as of March 22, 1995. This total amount was the final sustained amount identified in the Notice of Reconsideration dated May 10, 1995, which is the subject matter of this proceeding, and the notice includes a discussion of the basis for the revisions made to the January 13, 1993, assessment.

8. After this case was referred to the Division of Administrative Hearings, a representative of the Department met with Weiss's accountant. The Department's representative requested that Weiss provide any additional documentation that would explain the difference between the gross sales reported on

   the Form 1120S's and the revised total sales reportable on the Form DR-15's or that would support any further change in the sales and use tax assessment. No further documentation was provided.

9. The evidence presented by the Department establishes that a sales and use tax audit assessment was made against Weiss, for the audit period extending from May 1, 1986, through April 30, 1991, and establishes the factual basis for that assessment. The methodology used by the Department's auditor to calculate the assessment was proper under the circumstances, and the Department's assessment for sales and use tax for the audit period, as revised in the May 10, 1995, Notice of Reconsideration, is reasonable. Weiss did not present any persuasive evidence to the contrary.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (1997).

11. Section 120.80(14)(b)2., Florida Statutes (1997), provides that in any administrative proceeding in which a taxpayer contests the assessment of a tax, penalty, or interest,

    the Department's "burden of proof . . . 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." Weiss, the taxpayer contesting the Department's assessment, has the burden of proving by a preponderance of the evidence that the factual or legal basis for the assessment is unreasonable or incorrect. Department of Revenue v. Nu-Life Health and Fitness Center, 623 So. 2d 747,

    751-52 (Fla. 1st DCA 1992).

    
    

12. At the time the subject audit was conducted, Section 213.34, Florida Statutes (1991), 4/ provided in pertinent part:

    1. The Department of Revenue shall have the authority to audit and examine the accounts, books, or records of all persons who are subject to a revenue law made applicable to this chapter 5/ . . . .

    2. The department, or its duly authorized agents, may inspect such books and records necessary to ascertain a taxpayer's compliance with the revenue laws of this state, provided that the department's power to make an assessment or grant a refund has not terminated under s. 95.091(3).

    3. The department may correct by credit or refund any overpayment of tax, penalty, or interest revealed by an audit and shall make assessment of any deficiency in tax, penalty, or interest determined to be due.

       
       

       In addition, the Department was authorized to

       determine and assess the amount of any tax, penalty, or interest due under any tax enumerated in s. 72.011 6/ ]:

       a. 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.

       
       

       Section 95.091(3)(a)1.a., Florida Statutes (1991).

       
       

13. Weiss does not dispute that it was a "dealer" as that term was defined in Section 212.06(2), Florida Statutes (1991), or that it was a person subject to the Florida sales and use tax imposed by Chapter 212, Florida Statutes, during the audit period. Rather, Weiss asserts that the Department improperly treated as taxable sales the undocumented difference between the gross sales reported on the Form 1120S's filed with the Internal Revenue Service for 1988, 1989, and 1990 and the revised total sales reportable to the Department on Form DR-15's filed by Weiss for the same years.

14. Weiss argues that the Department should have attributed this difference to the sale of motor vehicles for resale rather than to the retail sale of motor vehicles, even without documentation to establish that the sales were for resale, because of the nature of its business. Weiss asserts that the Department's decision to attribute the undocumented difference between the federal and state returns to retail sales was unreasonable under the circumstances because it was in the business of selling motor vehicles for resale and sold a motor

    vehicle at retail only occasionally. This argument is without merit.

15. Section 212.06(1)(a), Florida Statutes (1991), provided that the sales, storage, and use tax imposed by Chapter 212, Florida Statutes (1991), "shall be collectible from all dealers as herein defined on the sale at retail, the use, the consumption, the distribution, and the storage for use or consumption in this state of tangible personal property or services taxable under this part "

16. Section 212.02(15)(a), Florida Statutes (1991), provided in pertinent part that "'[r]etail sale' or a 'sale at retail' means a sale to a consumer or to any person for any purpose other than for resale in the form of tangible personal property or services taxable under this part . . . ." Motor vehicles are included in the definition of "tangible personal property" in Section 212.02(20), Florida Statutes (1991).

17. Section 212.07, Florida Statutes (1991), provided in pertinent part:

    (1)(a) The privilege tax herein levied measured by retail sales shall be collected by the dealers from the purchaser or consumer.

    (b) A resale must be in strict compliance with the rules and regulations, and any dealer who makes a sale for resale which is not in strict compliance with the rules and regulations shall himself be liable for and pay the tax. A dealer may, through the informal protest provided for in s. 213.21

    and the rules of the Department of Revenue, provide the department with evidence of the exempt status of a sale. The Department of Revenue shall adopt rules which provide that valid resale certificates and consumer certificates of exemption executed by those dealers or exempt entities which were registered with the department at the time of sale shall be accepted by the department when submitted during the protest period, but may not be accepted in any proceeding under chapter 120 or any circuit court action instituted under chapter 72.

    
    

    Rule 12A-1.093(2), Florida Administrative Code, which was last amended in 1992, requires that

    [e]ach dealer defined in Chapter 212, F.S., each licensed wholesaler, and any other person subject to the tax imposed by Chapter 212, F.S., shall keep and preserve a complete record of all transactions, together with invoices, bills of lading, gross receipts from sales, RESALE CERTIFICATES, CONSUMER EXEMPTION

    CERTIFICATES and other pertinent records and papers as may be required by the Department of Revenue for the reasonable administration of Chapter 212, F.S., and such books of account as may be necessary to determine the amount of tax due thereunder.

    
    

    (Emphasis in original.)

    
    

18. It is apparent from these statutory and rule provisions that documentation must be provided by the taxpayer seeking to establish that a sale of tangible personal property is exempt from the sales and use tax as a sale for resale. It is uncontroverted that, even though the majority of motor vehicles sold by Weiss were sold for resale, Weiss also sold

    motor vehicles at retail from time to time during the audit period. This being the case, it was Weiss's responsibility to establish that each sale of a motor vehicle was exempt from taxation under Chapter 212, Florida Statutes (1991). It failed to provide documentation to establish that the difference between the gross sales reported to the Internal Revenue Service and the revised total sales reportable to the Department was attributable to sales of motor vehicles for resale, and, therefore, the Department properly treated this difference as taxable sales.

19. Weiss also argues that, in determining whether the difference between the gross sales reported in the Form 1120S's and the revised total sales reportable to the Department on the Form DR-15's was attributable to taxable or exempt sales, the Department should have considered "all of the Taxpayer's circumstances" rather than relying on "empirical data" derived from a sampling based on the records Weiss provided to the auditor and other available information. The circumstances referred to by Weiss are that substantially all of Weiss's business is the sale of motor vehicles for resale, and Weiss asserts that the Department should have attributed the difference to "wholesale automobile sales which are not retail sales."

20. Section 213.35, Florida Statutes (1991), provided:

    Each person required by law to perform any act in the administration of any tax enumerated in s. 72.011 shall keep suitable books and record relating to that tax, such as invoices, bills of lading, and other pertinent records and papers, and shall preserve such books and records until expiration of the time within which the department may make an assessment with respect to that tax pursuant to s.

    95.091(3).

    
    

21. Section 212.12(6), Florida Statutes (1991), provided in pertinent part:

    1. The department is given the power to prescribe the records to be kept by all persons subject to taxes imposed by this chapter. It shall be the duty of every person required to make a report and pay any tax under this chapter, every person receiving rentals or license fees, and owners of places of admission, to keep and preserve suitable records of the sales, leases, rentals, license fees, admissions, or purchases, as the case may be, taxable under this chapter; such other books of account as may be necessary to determine the amount of the tax due hereunder; and other information as may be required by the department. It shall be the duty of every such person so charged with such duty, moreover, to keep and preserve as long as required by s. 213.35 all invoices and other records of goods, wares, and merchandise; records of admissions, leases, license fees and rentals; and records of all other subjects of taxation under this chapter.

       All such books, invoices, and other records shall be open to examination at all reasonable hours to the department or any of its duly authorized agents.

       
       

    2. For the purpose of this subsection, if a dealer does not have adequate records of his retail sales or purchases, the

    department may, upon the basis of a test or sampling of the dealer's available records or other information relating to the sales or purchases made by such dealer for a representative period, determine the proportion that taxable retail sales bear to total retail sales or the proportion that taxable purchases bear to total purchases.

    This subsection does not affect the duty of the dealer to collect, or the liability of any consumer to pay, any tax imposed by or pursuant to this part.

    
    

22. That records relating to its gross receipts and sales during the audit period were lost or misplaced was established by evidence presented by Weiss in Petitioner's Exhibit 4, the affidavit of Weiss's accountant. Accordingly, the Department's auditor properly followed the procedure set forth in

    Section 212.06(b), Florida Statutes (1991), in determining the additional sales and use tax owed by Weiss. As discussed above, the taxpayer must provide documentation to establish that sales are for resale and not retail sales. Even though Weiss was primarily engaged in the business of selling motor vehicles for resale, the evidence is uncontroverted that it occasionally sold motor vehicles at retail. Under these circumstances, the Department could not simply presume that the undocumented difference between gross sales reported in Weiss's federal tax returns and the revised total sales reportable to the Department was attributable to sales for resale.

23. The Department has met its burden of establishing the factual and legal basis for the sales and use tax audit assessment set forth in the Notice of Reconsideration dated

May 10, 1995. Weiss has failed to satisfy its burden of proving by a preponderance of the evidence that the assessment is unreasonable or incorrect.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order upholding its assessment against Jay P. Weiss, Inc., in full, including all taxes, penalties, and interest statutorily due until the date of payment of the sales and use

tax.

DONE AND ENTERED this 2nd day of June, 2000, in

Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 2000.

ENDNOTES

1/ The sales and use tax rate was five percent through January 1988 and six percent through April 1991.

2/ The auditor determined that exempt sales for 1988, 1989, and 1990 were higher than originally reported on the Form DR-15's.

3/ The auditor used a zero amount as the difference between the gross sales reported on the Form 1120S's and the total sales reported on the Form DR-15's for 1990.

4/ Because the audit period extended from May 1, 1986, through April 30, 1991, the statutes in effect in 1991 are applicable to the audit procedures and assessment at issue herein.

5/ Taxes levied pursuant to Chapter 212, Florida Statutes, are included in Section 213.05, Florida Statutes (1991).

6/ Taxes levied pursuant to Chapter 212, Florida Statutes, are included in Section 72.011, Florida Statutes (1991).

COPIES FURNISHED:

James F. McAuley, Esquire Department of Legal Affairs The Capitol, Tax Section

Tallahassee, Florida 32399-1050

Andrew L. Siegel, Esquire Executive Pavilion

300 Northwest 82nd Avenue, Suite 412 Plantation, Florida 33324

Linda Lettera, General Counsel Department of Revenue

204 Carlton Building Tallahassee, Florida 32399-0100

James Zingale, 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 within

15 days from the date of 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: 95-003619

Orders for Case No: 95-003619