STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREATER MIAMI JEWISH CEMETERY ) ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) Case No. 97-5607

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on June 30, 1998, in Miami, Florida.

APPEARANCES

For Petitioner: Max R. Silver, Esquire

Silver & Silver

150 Southeast Second Avenue, Suite 500 Miami, Florida 33131

For Respondent: William B. Nickell, Esquire

Department of Revenue

501 South Calhoun Street, Suite 304 Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner is entitled to a consumer certificate of exemption as a religious institution.

PRELIMINARY STATEMENT

Petitioner applied to the Department for a consumer certificate of exemption, and the Department denied that application by Notice of Intent to Deny dated October 24, 1997.

Petitioner timely requested an evidentiary hearing regarding that

denial. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

Petitioner presented the testimony of Rabbi David Oler and of Max Silver. Additionally, Petitioner's Exhibits numbered 1 and 2 were admitted in evidence. Respondent offered no witnesses or exhibits.

FINDINGS OF FACT

1. Petitioner, Greater Miami Jewish Cemetery Association, Inc., is a Florida not-for-profit corporation chartered on June 23, 1931, and is an exempt organization under Section

   501(c)(3) of the Internal Revenue Code of 1954. Petitioner is a non-stock membership corporation which has three constituent members, namely, Beth David Congregation of Miami, Florida; Beth El Congregation of Miami Beach, Florida; and Beth Jacob Congregation of Miami Beach, Florida, which synagogues are existing Florida not-for-profit corporations exempt from taxation under Section 501(c)(3) of the Internal Revenue Code.

2. Petitioner maintains and operates two cemeteries in Miami, Dade County, Florida, which are dedicated to burial of members of its constituent member synagogues and other persons of the Hebrew faith, including free burial plots for indigent persons of the Hebrew faith, and, as such, have been classified under the State of Florida Funeral and Cemeteries Act as "church cemeteries."

3. It is a religious obligation of the Hebrew faith to

   provide for and bury the dead. It is usual for synagogues to maintain cemeteries for their members.

4. No synagogue is located on the premises of Petitioner because some Jews are forbidden to be on the grounds near dead bodies. Accordingly, Jewish cemeteries do not have synagogues on the premises, and, conversely, synagogues do not have cemeteries on their premises, as some churches do.

5. Petitioner does have, however, a room or chapel area where religious services are conducted by Petitioner's constituent members, the three synagogues. Those religious services and activities conducted there include burial services, services on religious holy days, and memorial services.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Sections

   120.569 and 120.57(1), Florida Statutes.

   
   

7. The parties have stipulated that tax exemptions must be strictly construed against the taxpayer seeking an exemption and that Petitioner must show entitlement to the exemption from sales and use tax sought by Petitioner in this proceeding. Petitioner has met its burden of proof.

8. Petitioner claims it is exempt from sales and use tax as a religious institution pursuant to Section 212.08(7)(o)1.b, Florida Statutes, which provides that:

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

      * * *

      
      

      b. Sales or leases to nonprofit religious. . . institutions when used in carrying on their customary nonprofit religious. . .activities, including church cemeteries. . . .

      
      

9. The Department does not dispute the applicability of this Section to some of Petitioner's transactions. The Department argues that this Section, however, relates to exempt transactions, not to exempt entities, which are covered by Section 212.08(7)(o)2.a, Florida Statutes. The Department's argument is consistent with the statutory language, and, Petitioner, accordingly, is entitled to engage in the described transactions without being obligated for the payment of sales and use taxes.

10. Section 212.08(7)(o)2.a, Florida Statutes, provides, in part, as follows:

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

       
       

       1. 'Religious institutions' means churches, synagogues, and established physical places for worship at which nonprofit religious services and activities are regularly conducted and carried on. . . .

    
    

11. Petitioner has met its burden of proving that it is also entitled to an exemption from sales and use taxes as a religious institution, an exempt entity. The uncontroverted evidence is that Petitioner owns two cemeteries for persons of the Hebrew faith and has a chapel, i.e., an established physical

    place for worship, at which nonprofit religious services and activities are regularly conducted by Petitioner's constituent synagogues.

12. The Department relies on several final orders issued by it regarding applications for certificates of exemption as religious institutions by other taxpayers, for which final orders official recognition was granted. However, although those cases involved the interpretation of portions of Section 212.08(7)(o)2.a not involved in this proceeding, none of those cases involved a cemetery, let alone a religious cemetery. Those final orders, therefore, are not dispositive of this proceeding or even persuasive. The determination of entitlement depends upon the facts involved in each case, and the facts in this matter are uncontroverted. The Department's intended denial of Petitioner's application is contrary to the statutory language.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered granting Petitioner's application for a consumer certificate of exemption.

DONE AND ENTERED this 24th day of September, 1998, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

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

Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1998.

COPIES FURNISHED:

Max R. Silver, Esquire Silver & Silver

150 Southeast Second Avenue, Suite 500 Miami, Florida 33131

William B. Nickell, Esquire Department of Revenue

501 South Calhoun Street, Suite 304 Tallahassee, Florida 32301

Linda Lettera, General Counsel Department of Revenue

204 Carlton Building Tallahassee, Florida 32399

Larry Fuchs, Executive Director Department of Revenue

104 Carlton Building Tallahassee, Florida 32399

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: 97-005607

Orders for Case No: 97-005607