STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SPIRITUAL KINGDOM OF GOD ) THE CREATOR OF ALL UNIVERSES, )

)

Petitioner, )

)

vs. ) Case No. 99-3395

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on November 3, 1999, in Tallahassee, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No Appearance

For Respondent: George C. Hamm, Esquire

Department of Revenue Post Office Box 6668

Tallahassee, Florida 32314-6668 STATEMENT OF THE ISSUES

Whether the Petitioner, Spiritual Kingdom of God the Creator of All Universes, should receive a consumer's certificate of exemption.

PRELIMINARY STATEMENT

This case began on June 11, 1999, when the Department of Revenue (Department or agency) issued a Notice of Intent to Deny the Petitioner’s application for a consumer’s certificate of exemption. The denial alleged that the Petitioner does not have an established physical place of worship at which non-profit religious services and activities are regularly conducted. The denial further asserted that the organization is not a state, district, or other governing or administrative office the function of which is to assist or regulate the customary activities of religious organizations or members. Based upon the foregoing, the Department maintained that Petitioner did not qualify for an exemption from sales and use tax as contemplated by Section 212.08, Florida Statutes.

The Petitioner timely challenged the determinations of the Department and requested a formal administrative hearing.

Thereafter the matter was forwarded to the Division of Administrative Hearings for formal proceedings.

The Notice of Hearing was issued on September 8, 1999, and was provided to the Petitioner by regular mail at the address of record. It was not returned to the Division of Administrative Hearings as undelivered.

On August 24, 1999, the Petitioner filed a letter addressed to Judge Sharyn L. Smith that was provided to the Respondent and

notice of the ex parte communication was made a part of the record in this cause. The address of Petitioner as stated by that document was as maintained by the record in this cause.

At the hearing on November 3, 1999, Petitioner did not appear and presented no evidence. The statements of fact and argument presented by the Petitioner with the documents filed in this cause do not constitute evidence and have not been deemed persuasive to meet the Petitioner’s burden of proof.

The Respondent appeared at the hearing and presented the testimony of David Young, a Tax Specialist II employed by the Department. The Respondent’s exhibits marked for identification as Respondent’s Composite Exhibit 1 (consisting of 18 pages) and Respondent’s Composite Exhibit 2 (consisting of 3 pages) were received into evidence.

A transcript of the proceedings was not requested and has not been filed. Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. The Respondent is the state agency charged with the administration of Chapter 212, Florida Statutes.

2. On or about February 4, 1999, the Petitioner submitted an application for consumer’s certificate of exemption. Such application sought exemption as a religious organization.

3. On February 17, 1999, the Department issued a letter to the Petitioner acknowledging receipt of the application and requesting additional information about the Petitioner in order to complete the application review.

4. On March 15, 1999, the Department issued a second notice to the Petitioner that mirrored the prior request for additional information.

5. On April 26, 1999, the Department issued a third letter that advised Petitioner that it had failed to demonstrate that it meets the criteria as a religious institution as defined by Section 212.08(7), Florida Statutes. This letter outlined the criteria that would support the approval of the certification sought by the Petitioner.

6. On June 11, 1999, the Department issued a Notice of Intent to Deny the Petitioner’s application for a consumer’s certificate of exemption. Thereafter the Petitioner requested an administrative hearing to contest the agency’s decision.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

8. Section 212.08(7)(o), Florida Statutes, provides in pertinent part:

   1. Religious, charitable, scientific, educational, and veterans' institutions and organizations.-

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

         1. Sales or leases directly to churches or sales or leases of tangible personal property by churches;

         2. Sales or leases to nonprofit religious, nonprofit charitable, nonprofit scientific, or nonprofit educational institutions when used in carrying on their customary nonprofit religious, nonprofit charitable, nonprofit scientific, or nonprofit educational activities, including church cemeteries; and

            * * *

      2. 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. The term "religious institutions" includes nonprofit corporations the sole purpose of which is to provide free transportation services to church members, their families, and other church attendees. The term "religious institutions" also includes state, district, or other governing or administrative offices the function of which is to assist or regulate the customary activities of religious organizations or members. The term "religious institutions" also includes any nonprofit corporation which is qualified as nonprofit pursuant to

            s. 501(c)(3), Internal Revenue Code of 1986, as amended, which owns and operates a Florida television station, at least 90 percent of the programming of which station consists of programs of a religious nature, and the financial support for which, exclusive of receipts for broadcasting from other nonprofit organizations, is

            predominantly from contributions from the general public. The term "religious institutions" also includes any nonprofit corporation which is qualified as nonprofit pursuant to s. 501(c)(3), Internal Revenue Code of 1986, as amended, which provides regular religious services to Florida state prisoners and which from its own established physical place of worship, operates a ministry providing worship and services of a charitable nature to the community on a weekly basis. The term "religious institutions" also includes any nonprofit corporation which is qualified as nonprofit pursuant to s. 501(c)(3), Internal Revenue Code of 1986, as amended, the primary activity of which is making and distributing audio recordings of religious scriptures and teachings to blind or visually impaired persons at no charge. The term "religious institutions" also includes any nonprofit corporation that is qualified as nonprofit pursuant to s. 501(c)(3), Internal Revenue Code of 1986, as amended, the sole or primary function of which is to provide, upon invitation, nonprofit religious services, evangelistic services, religious education, administration assistance, or missionary assistance for a church, synagogue, or established physical place of worship at which nonprofit religious services and activities are regularly conducted.

            
            

9. In this case, Petitioner bears the burden of proof to establish that it meets at least one of the criteria for exemption approval. It has failed to meet that burden. The documentation supplied to the Department with the application was inadequate to support approval of the Petitioner’s request. Further, the failure to offer any evidence at hearing that would substantiate the assertions of the application cannot be

persuasive in this matter. Consequently, the application must

be denied.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order denying the Petitioner’s application for a consumer’s certificate of exemption.

DONE AND ENTERED this 8th day of December, 1999, in Tallahassee, Leon County, Florida.

J. D. PARRISH 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 8th day of December, 1999.

COPIES FURNISHED:

Wendell Phillips Spiritual Kingdom of

God the Creator

Post Office Box 331228

Coconut Grove, Florida 33233-1228

George C. Hamm, Esquire Department of Revenue Post Office Box 6668

Tallahassee, Florida 32314-6668

Joseph C. Mellichamp, III, Esquire Office of Attorney General Department of Legal Affairs

The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

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 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: 99-003395

Orders for Case No: 99-003395