STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOMBSTONE, INC., )

)

Petitioner, )

)

vs. ) Case No. 98-1519

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing by videoconference in Tallahassee, Florida, on June 5, 1998. The court reporter and Respondent's witness participated by videoconference in Fort Myers, Florida. Respondent's counsel appeared in Tallahassee.

APPEARANCES

For Petitioner: No appearance For Respondent: John N. Upchurch

Nicholas Bykowsky

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

STATEMENT OF THE ISSUE

The issue is whether Petitioner is liable for sales and use taxes, penalties, and interest and, if so, how much.

PRELIMINARY STATEMENT

By letter filed February 17, 1998, Petitioner challenged the assessments and requested a formal hearing.

Petitioner did not appear at the hearing. Respondent called one witness and offered into evidence 12 exhibits, which were all admitted.

There is no transcript.

FINDINGS OF FACT

1. Petitioner operated a bar and grill in Punta Gorda that served beer, wine, liquor, and food at retail. In the course of business, Petitioner collected tax from the customers.

2. Petitioner reported to Respondent sales tax collections for May 1996, November 1996, March 1997, November 1997, and December 1997. In connection with these collections, Petitioner remitted to Respondent seven checks representing the net tax due Respondent. These checks totaled

   $6700.64. The bank on which the checks were drawn dishonored them.

3. The remittance of net sales tax proceeds by payment through checks that are later dishonored implies a fraudulent, willful intent to evade the payment of these sums.

4. Respondent has issued five warrants concerning the unremitted taxes, penalties, and interest. Warrant 953620064 shows that Petitioner owes $1171 in sales tax remittances for the five months from July through November 1995. With

   penalties and interest, the total due on this warrant, through June 5, 1998, is $1832.37. Interest accrues after June 5 at the daily rate of $0.35.

   
   

5. Warrant 467049 shows that Petitioner owes $2940.25 in sales tax remittances for the following months: April 1996, October 1996, December 1996, and January 1997. Petitioner purportedly paid each of these remittances with five (two in January) checks that were later dishonored. With penalties, including the 100 percent penalty for fraud, and interest, the total due on this warrant, through June 5, 1998, is $7480.12. Interest accrues after June 5 at the daily rate of $0.95.

6. Warrant 971680037 shows that Petitioner owes $1301.85 in sales tax remittances for the following months: December 1995, June 1996, July 1996, September 1996, November 1996, and February 1997. With penalties and interest, the total due on this warrant, through June 5, 1998, is $2669.69. Interest accrues after June 5 at the daily rate of $0.43.

7. Warrant 471481 shows that Petitioner owes $2912.48 in sales tax remittances for October and November 1997, for which Petitioner made remittances with two dishonored checks. With penalties, including the 100 percent penalty, and interest, the total due on this warrant, through June 5, 1998, is

   $6751.49. Interest accrues after June 5 at the daily rate of

   
   

   $0.95.

8. Warrant 989840034 shows that Petitioner owes $8077.76 in sales tax remittances for the following months: August 1997, September 1997, December 1997, January 1998, and February 1998. With interest, the total due on this warrant, through June 5, 1998, is $8285.21. Interest accrues after June 5 at the daily rate of $2.65.

9. Totaling the five warrants, Petitioner owes a total of $27,018.88 in taxes, penalties, and interest through

   June 5, 1998, and $5.33 per day for each ensuing day until the amount is paid.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

11. Section 120.80(14)(b)2 provides that Respondent shall present the factual and legal grounds supporting the assessments. Otherwise, Petitioner bears the burden of proof.

12. Section 212.12(2)(a) states in pertinent part:

    
    

    When any person, firm, or corporation required hereunder to make any return or to pay any tax or fee imposed by this chapter fails to timely file such return or fails to pay the tax or fee due within the time required hereunder, in addition to all other penalties provided herein and by the laws of this state in respect to such taxes or fees, a specific penalty shall be added to the tax or fee in the amount of 10 percent of any

    unpaid tax or fee if the failure is for not more than 30 days, with an additional 10 percent of any unpaid tax or fee for each additional 30 days, or fraction thereof, during the time which the failure continues, not to exceed a total penalty of 50 percent, in the aggregate, of any unpaid tax or fee. In no event may the penalty be less than $10 for failure to timely file a tax return required by Sec. 212.11. In the case of a false or fraudulent return or a willful intent to evade payment of any tax or fee imposed under this chapter, in addition to the other penalties provided by law, the person making such false or fraudulent return or willfully attempting to evade the payment of such a tax or fee shall be liable for a specific penalty of 100 percent of the tax bill or fee and for fine and punishment as provided by law for a conviction of a misdemeanor of the first degree.

13. Respondent has proved that Petitioner owes

$27,018.88 in taxes, penalties, and interest through June 5, 1998, and $5.33 per day for each ensuing day until the amount is paid.

RECOMMENDATION

It is

RECOMMENDED that the Department of Revenue enter a final order determining that Petitioner owes $27,018.88 in taxes, penalties, and interest through June 5, 1998, and $5.33 per day for each ensuing day until the amount is paid.

DONE AND ENTERED this 10th day of July, 1998, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 10th day of July, 1998.

COPIES FURNISHED:

John N. Upchurch Nicholas Bykowsky

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

Judith Crown, President Tombstone, Inc.

Suite P-50

1200 West Retta Esplanade Punta Gorda, Florida 33950

Linda Lettera, General Counsel Department of Revenue

Post Office Box 6668 Tallahassee, Florida 32314-6668

Larry Fuchs, Executive Director Department of Revenue

Post Office Box 6668 Tallahassee, Florida 32314-6668

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 98-001519

Orders for Case No: 98-001519