The Issue The issue for determination is whether DOAH has jurisdiction to entertain an agency's motion for attorney's fees brought pursuant to section 185.05(5), Florida Statutes, where the motion was filed with DOAH approximately two and one-half years after the agency's entry of a final order in the administrative proceeding for which the agency seeks an award of attorney's fees and costs.
Findings Of Fact Having heard oral argument on the issues and considered the pleadings and the record transmitted to the respondent by the BTA, the following pertinent facts are found: For seven years prior to the tax year 1973, petitioners property had received an educational exemption from ad valorem taxation. By letter dated June 1, 1973, petitioner was advised by the tax assessor that its property had been denied tax exemption for the reason that no application for exemption had been received. Upon receipt of this letter, which wascorrectly addressed, petitioner immediately contacted the Exemption Department of the assessors office, advised them that he had not received an application form in the mail, and was informed that the application had been mailed to the wrong address, apparently the address of one of the former owners of petitioner. The reason for the application being sent to the wrong address was because, for the first time, the assessor's office was using new application forms prepared by data processing and the old address had not been changed in posting. Upon receipt of the application form, petitioner completed it and returned it to the assessors office on June 11, 1973. Had the application form, petitioner completed it and returned it to the assessors office on June 11, 1973. Upon appeal to the Broward County BTA, the BTA unanimously granted the tax exemption upon the recommendation of the tax assessor. The BTA notified the respondent's Executive Director of the change. It was the respondent's staff recommendation to invalidate the change for the reason that the BTA did not have before it information legally sufficient to warrant such change. Petitioner requested a hearing to review the staff recommendation, the respondent's Executive Director requested the Division of Administrative Hearings to conduct the hearing and the undersigned was assigned was assigned as the Hearing Officer.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the action of the Broward County Board of Tax Adjustment in granting petitioners property an educational exemption from ad valorem taxation be validated and affirmed. Respectfully submitted and entered this 23rd day of February, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, including the admissions made by Respondent in the Joint Response to Pre-Hearing Order, the following findings of fact are made: At all times material to the instant case, Respondent was a Florida-licensed real estate salesperson. Since June of 2002, Respondent has been a Florida- licensed real estate broker. Respondent is a convicted felon as a result of a single felony conviction. 3/ In 2000, Respondent was involved in a real estate transaction in which he was the buyer. The property that was the subject of the transaction was located at 119 Hammocks Drive in West Palm Beach, Florida. The transaction was closed through a title company, Cypress Title Company (Cypress). The closing took place on May 15, 2000. Cypress was represented at the May 15, 2000, closing by Susan Anderson, a marketing representative with Cypress who conducted closings (approximately five or six a month) as part of her job responsibilities. Ms. Anderson had two years experience conducting closings at the time of the May 15, 2000, closing. At each closing at which she represented Cypress, Ms. Anderson was responsible for, among other things, collecting the funds necessary to effectuate the closing and making the appropriate disbursements. It was Ms. Anderson's routine practice, before turning a closing file over to Cypress' "post closer" following a closing, to "make sure [that] everything [that needed to be in the file was] there." Prior to the May 15, 2000, closing, Respondent was contacted by "someone from Cypress" and instructed to bring to the closing a cashier's check in the amount of $3,684.64 made payable to himself. Respondent was advised that the $3,684.64 represented an "estimate" of the amount he needed to pay from his own funds to close the transaction. On May 15, 2000, prior to the time of the closing, Respondent went to Bank United, where he had an account, and purchased a cashier's check in the amount of $3,684.64 made payable to himself, as he had been instructed to do. Respondent brought the cashier's check to the closing. At the closing, Respondent endorsed the check with his signature, underneath which he wrote, in accordance with his routine practice when endorsing checks, the number of his account at Bank United. He then handed the cashier's check to Ms. Anderson. The actual amount due from Respondent was $3,670.04, $14.64 less than the amount of the cashier's check. Accordingly, Ms. Anderson gave Respondent a check for $14.64. Following the closing, Ms. Anderson examined the closing file (in accordance with her routine practice). In doing so, it did not "come to [her] attention that the [cashier's] check [that Respondent had brought to the closing] was not there." After conducting such an examination, she gave the closing file to the "post-closer." The cashier's check that Respondent had given to Ms. Anderson at the May 15, 2000, closing was cashed at Bank United on May 17, 2000, by someone other than Respondent or Ms. Anderson. Pursuant to Bank United policy, "[o]nly the payee can cash [a cashier's] check." Bank United tellers are supposed to ask for a "picture ID" when a cashier's check is presented for cashing. There have been tellers at the bank, however, who have not followed this policy and, as a result, have been counseled or disciplined. 4/ Approximately, two months after the May 15, 2000, closing, Cypress' owner approached Ms. Anderson and told her that there was no proceeds check from Respondent in the closing file. Ms. Anderson was asked to contact Respondent to inquire about the matter, which she did. Respondent was initially "very cooperative." He gave Ms. Anderson his "account number [at Bank United] and [the name of a person] to call at the bank." Using the information Respondent had provided, Ms. Anderson was able to obtain a copy of the cashier's check that Respondent had given to Ms. Anderson at the closing and that subsequently had been cashed at Bank United. Kevin Wilkinson, an attorney acting on behalf of Cypress, also contacted Respondent. Mr. Wilkinson's tone, in Respondent's view, was accusatory and threatening. Respondent's response to Mr. Wilkinson's "aggressive[ness]" was to stop cooperating with Cypress.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a final order dismissing the instant Administrative Complaint. DONE AND ENTERED this 28th day of January, 2003, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 28th day of January, 2003.
The Issue At issue herein is whether or not the Petitioner, a not-for- profit organization is entitled to a refund of taxes collected and paid to Respondent pursuant to the exemption provision of Subsection 212.04(2)(b)2., Florida Statutes.
Findings Of Fact Based on the testimony of the Petitioner's witness, the arguments of counsel and Respondent's brief submitted on June 5, 1979, the following relevant facts are found. The Petitioner, Miami Civic Music Association, is seeking a refund of taxes collected and paid prior to October 1, 1978, on the sale of membership fees. The Petitioner obtained a certificate qualifying it as a not-for-profit organization from the United States Internal Revenue Service since approximately 1945. This status has been submitted to Respondent. Prior to October 1, 1978, Petitioner submitted to Respondent approximately $1,602.33 based on the sale of membership dues received for musical performances which were to he held subsequent to October 1, 1978, i.e., October 25, 1978 through April, 1979. Petitioner bases its refund claim on the fact that the actual concert series which gave rise to the ticket sales occurred after October 1, 1978. Respondent's position is that the Petitioner is not entitled to a refund, first, on the ground that the tax collections for which the refund is being sought were collected prior to October 1, 1978, and therefore not properly refundable under the exemption provision of Subsection 212.04(2)(b)2., Florida Statutes. Secondly, Respondent contends that Petitioner is without standing to seek a refund since the sales tax applicable to admission charges purportedly collected must first be refunded to the respective subscribers which the Petitioner has not done in this case. Subsection 212.04(2)(b)2., Florida Statutes, provides: No tax shall be levied on dues, membership fees, and admission charges imposed by not- for-profit sponsoring organizations or community or recreational facilities. To receive this exemption, the sponsoring organization or facility must qualify as a not-for-profit entity under the provisions of s. 501(c)(3) of the United States Internal Revenue Cede of 1954, as amended. This exemption became effective October, 1978. The membership fees here in question were sold by Petitioner prior to October 1, 1978, and taxes were collected and remitted to the Department of Revenue. An examination of the legislative intent embodied in Chapter 212, Florida Statutes, reveals that each and every admission is taxed unless specifically exempted. (Subsection 212.21(3), Florida Statutes.) Inasmuch as there was no statutory exemption for Petitioner's organization prior to October 1, 1975, and based on the fundamental rule of statutory construction to the effect that a statute operates prospectively unless the intent is clearly expressed that it operates retrospectively. State, Department of Revenue v. Zuckerman-Vernon Corporation (Florida 1977) 354 So.2d 353. Subsection 212.04(2)(b)2., Florida Statutes, reveals no legislative intent that this amendment was to be applied retrospectively. Finally, since an admissions tax like sales taxes, are collected on behalf of the State by the operator, it is in effect a form of excise tax upon the customer for exercising his privilege of purchasing the admission, the Petitioner herein lacks standing inasmuch as it did not pay the taxes, but merely remitted to the Department of Revenue the tax which was paid by subscribers of the memberships from the organization. See, for example, Scripto, Inc. v. Carson, 101 So.2d 775 (Florida 1958) and State ex rel Szabo Food Services, Inc. of N.C. v. Dickinson, 250 So.2d 529 (Florida 1973). In this case, in the absence of the Petitioner showing that it was the party entitled to a refund of the taxes herein based on a claim of either an overpayment, a payment where no tax was due or a payment erroneously made, Petitioner failed to advance a basis upon which its claim can be granted. Section 215.26, Florida Statutes. For these reasons, I shall recommend that the Petitioner's claim for a refund herein be denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That the Petitioner's claim for a refund herein be DENIED. ENTERED this 29th day of June, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: James H. Wakefield, Esquire Hedges, Gossett, McDonald & wakefield 3325 Hollywood Boulevard, Suite 305 Hollywood, Florida 33021 Linda C. Procta, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301
Findings Of Fact The Respondent, Vivian Lide, is a licensed real estate broker holding license number 0157178, issued by the Petitioner. The Petitioner is an agency of the State of Florida having jurisdiction over licensure of real estate salesmen, broker-salesmen and brokers and regulation of their licensure status and professional practices and operations. In late 1975, or early 1976, Mrs. Eunice McCallum moved with her husband to the Miami area from Canada. When they arrived in Miami, Mrs. McCallum and her husband were referred to the Respondent by a business associate of Mrs. McCallum's husband to obtain her services in locating a home for them to purchase. They sought the Respondent's services and the Respondent located a house they liked and felt they could afford. They closed the purchase of the house in January, 1976. The McCallums were short of cash and therefore gave a second mortgage and note to the corporation of which the Respondent was a shareholder and officer for the balance of cash they needed to close the sale. After giving the second mortgage they were still $300 short of money needed to close and so Mrs. McCallum borrowed the $300 from the Respondent herself, giving back a note. That note was later satisfied. During the ensuing year, Mrs. McCallum and the Respondent became good friends. Mrs. Lide was the only friend that Mrs. McCallum had in Florida at that time and she often confided in her regarding her marital and financial problems. In later 1977, Mrs. McCallum's financial posture began to go awry and her severe marital problems culminated in her divorce. Mrs. Lide, through her friendship with Mrs. McCallum, was familiar with her financial and marital situation at this time and was a witness on her behalf in the dissolution proceeding. Because of her severe financial problems and as a result of the dissolution of her marriage, Mrs. McCallum felt that she had to sell her house in order to stabilize her financial situation. Accordingly, on December 14, 1977, she entered into an exclusive listing contract with the Respondent to sell the subject residence located at 10400 S.W. 155th Terrace, Miami, Florida. The listing contract enumerates a sale price of $38,000. The Respondent advised Mrs. McCallum to sell her residence because her first and second mortgage payments were both in delinquency and this was the only way she had to recoup her financial deficit. Thirty-eight thousand dollars was determined by Mrs. Lide and agreed by Mrs. McCallum to be the price which would allow her to pay off both mortgages and recoup a small amount of cash in her pocket. On approximately January 10, 1978, a realtor, Jack Rosha, came to Mrs. McCallum's home with Mrs. McCallum and the Respondent present and brought an offer to purchase the property. The evidence is unclear regarding the precise amount of the offer, it was either $39,000.00 or $39,500.00. Rosha represented to the Respondent and Mrs. McCallum that he had received a deposit or binder from his client, but refused to disclose to the Respondent, who represented Mrs. McCallum, whether he had actually placed a binder deposit in his escrow account and Mrs. Lide felt that it was not truly a bona fide offer. In any event, she advised Mrs. McCallum that since it proposed a purchase financed through a Veterans Administration loan, which would require the seller paying a substantial amount of money as "points" (a fee required to be paid by the seller in order for the Veterans Administration to finance the purchase), then the offer would not allow her enough money to retire the two mortgages and have any cash for herself. After this meeting and several phone conversations this offer and a later offer were rejected for this reason and no sales transaction was ever consummated with Jack Rosha's clients. Some weeks later, with Mrs. McCallum's financial difficulties unresolved as yet, Mrs. McCallum and the Respondent entered into an agreement whereby Mrs. Lide, on behalf of her corporation, would forebear requiring payments on the outstanding second mortgage, which was delinquent, and would allow Mrs. McCallum to retain possession of the property in return for which Mrs. McCallum would execute a quit claim deed to Mrs. Lide and would pay her first mortgage payments to Mrs. Lide in order for Mrs. Lide to ascertain that the property and the mortgages encumbering it were secure and that payments thereon were being kept current. As a Part of this agreement, Mrs. Lide assured Mrs. McCallum that she could redeem the property at any time when she paid off the delinquent amounts on the mortgages, thus redeeming the property without paying any additional purchase price fees or profit to Mrs. Lide. With this arrangement in mind, the parties met in late January, 1978, before a notary and executed the required transfer of title document to file with Stockton, Whatley and Davin (the first mortgagee), and Mrs. McCallum executed a quit claim deed in favor of Mrs. Lide. At this meeting, the notary duly notarized the documents and asked Mrs. McCallum if she understood the import of what she was signing and the contents thereof. Mrs. McCallum gave every indication that she understood the nature and purpose of the transaction at that time. Some months later, a dispute arose as to amounts of money which remained due on the first and second mortgages between Mrs. McCallum and Mrs. Lide and Mrs. McCallum demanded an accounting of the amounts paid Mrs. Lide and the amounts remaining due, at which point relations between the two parties became strained, with the ultimate result that Mrs. McCallum filed suit against Mrs. Lide in Circuit Court. The ultimate result of the Circuit Court action was that the quit claim deed was set aside and the judge awarded a judgment in favor of Mrs. Lide for in excess of $11,000.00, representing the amounts found by the judge due to the Respondent from Mrs. McCallum, representing the first and second mortgage payments due up to that point. It was in the course of these proceedings, after the parties had become hostile to each other, that Mrs. Lide instituted the corollary eviction action against Mrs. McCallum. Although Mrs. McCallum represented at the hearing that she signed the quit claim deed without knowing what she was signing and with the content of the deed concealed by another piece of paper so that she could only see the signature line, this testimony is belied by that of Mrs. Lide. Mrs. Lide disclosed the entire nature of the transaction to Mrs. McCallum and the purpose of it, which was to both protect her security interest in the property and to enable Mrs. McCallum to avoid foreclosure, to remain living in the premises and still have the opportunity to redeem the property upon bringing both mortgages current. The testimony and evidence adduced by the Respondent regarding her desire to protect her security interests and still help her former friend, to stabilize her financial situation and still have a place to live, coupled with the testimony which establishes that the notary asked Mrs. McCallum if she understood the content and import of the papers she was signing, obtaining Mrs. McCallum's assent, establishes Mrs. Lide's account of the circumstances surrounding this transaction to be more accurate and worthy of belief. The Hearing Officer finds the testimony of Mrs. McCallum to be too colored by the later hostility that arose between her and the Respondent concerning the accounting for monies owed the Respondent to constitute testimony sufficiently substantial and credible to refute the contrary testimony and evidence adduced by the Respondent.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED: That the Administrative Complaint filed against Vivian Lide be DISMISSED. DONE and ENTERED this 23rd day of March, 1983, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1983. COPIES FURNISHED: Theodore J. Silver, Esquire 9445 S.W. Bird Road, 2nd Floor Miami, Florida 33165 Harold Barkas, Esquire 600 Concord Building Miami, Florida 33130 William M. Furlow, Esquire Florida Real Estate Commission Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether petitioner taxpayer is liable for delinquent sales tax, penalties, and interest under Chapter 212, Florida Stat utes, as alleged by respondent Department in its notice of proposed assessment.
Findings Of Fact The Taxpayer Taxpayer is a family-operated Florida corporation which has engaged in retail sales at the Tampa Port Authority since 1975 or 1976; it is a licensed dealer registered with the Department. (Testimony of Roberts, Marylis.) Taxpayer's Sales During Audit Period From June 1, 1977, through July 31, 1980 (the audit period covered by the Department's proposed assessment), Taxpayer had gross sales in the approximate amount of $691,013.46. (Testimony of Roberts; Exhibit 2.) During that period, Taxpayer filed the required DR-15 monthly sales tax reports and paid taxes on all retail sales transactions which took place on the premises of its store located at 804 Robinson Street, (Tampa Port Authority) Tampa, Florida. (Testimony of Roberts.) During the same audit period -- in addition to sales on its store premises -- Taxpayer sold goods to merchant seamen on board foreign vessels temporarily docked at the Port of Tampa. These vessels operated in foreign commerce, entering the port from and returning to international waters outside the territorial limits of the United States. Taxpayer did not report these sales on its monthly sales tax reports; neither did it charge or collect sales tax from the on-board purchasers. (Testimony of Marylis.) Taxpayer failed to charge or collect sales tax in connection with its on-board sales because it relied on what it had been told by Department representatives. Prior to forming Taxpayer's corporation Thomas Marylis went to the local Department office to obtain a dealer's certificate. While there, he asked Manuel Alvarez, Jr., then the Department's regional audit supervisor, whether he was required to collect sales tax on ship-board sales. Alvarez replied that he didn't have to collect sales taxes on sales made to seamen when he delivered the goods to the ship. 1/ (Testimony of Marylis.) The on-board sales transactions took place in the following manner: Taxpayer (through its owner, Thomas Marylis) would board the foreign vessel and accept orders from the captain, chief mate, or chief steward. (Earlier, one of these persons would have taken orders from the rest of the crew.) If individual crewmen tried to place orders, Marylis would refer them to the captain, chief mate, or chief steward. After receiving orders from one of these three persons, Marylis would return to Taxpayer's store, fill the order, and transport the goods back to the vessel. Whoever placed the order would then examine the goods and give Marylis the money /2 collected from the crew. (Testimony of Roberts, Marylis.) The goods sold in this manner were ordinarily for the personal use of individual crew members; typical items were: shoes, underwear, working clothes, small radios, watches, suitcases, soap, paper towels, and other personal care products. (Testimony of Marylis.) Department Audit of Taxpayer In 1980, the Department audited Taxpayer's corporate books to determine if sales tax had been properly collected and paid. Taxpayer could produce no dock or warehouse receipts, bills of lading, resale certificates from other licensed dealers, or affidavits verifying that its on-board sales were made to out-of-state purchasers for transportation outside of Florida. (Testimony of Roberts, Marylis.) Due to Taxpayer's failure to supply documentation demonstrating that its ship-board sales from June 1, 1977, to July 31, 1980, were exempt from sales tax imposed by Chapter 212, Florida Statutes, the Department issued a proposed assessment on September 23, 1980. Through that assessment, the Department seeks to collect $21,201.01 in delinquent sales tax, $5,131.39 in penalties, and $3,892.18 in interest (in addition to interest at 12 percent per annum, or $6.97 per day, accruing until date of payment). (Exhibit 5.) Informal Conference with Department; Alvarez's Representations to Taxpayer In October 1980 -- after the audit -- Taxpayer (through Marylis) informally met with Manuel Alvarez, the Department's regional audit supervisor, to discuss the tax status of the shipboard sales. Specifically, they discussed the Department auditor's inability to confirm that Taxpayer delivered the items to the ships, as opposed to the buyers picking up the goods at the store. Alvarez told him: [I]f the buyers would come and just pick them up and take them. And I [Alvarez] think I told him that, if that was the case, it was taxable. But, if they just placed their orders there -- like we have had other ship supplies -- and they them- selves, or one of their employees, would take the items aboard ships, that would be an exempt sale. I did make that state ment. If we had any type of confirmation to that effect, when it comes to that. (Tr. 61.) 3/ (Testimony of Alvarez.) Alvarez then told Marylis to obtain documentation or verification that the sales were made on foreign vessels, i.e., proof that Taxpayer delivered the goods to the vessels. He assured Marylis that if he could bring such verification back, such sales "would come off the audit." (Tr. 62.)(Testimony of Alvarez.) Alvarez was an experienced Department employee: he retired in 1980, after 30 years of service. It was Alvarez's standard practice -- when dealing with sales tax exemption questions -- to reiterate the importance of documentation. He would always give the taxpayer an opportunity -- 30 days or more -- to obtain documentation that a sale was exempt from taxation. (Testimony of Alvarez.) Taxpayer's Verification In response to the opportunity provided by Alvarez, Taxpayer (through Marylis) obtained affidavits from numerous captains of foreign vessels and shipping agents. Those affidavits read, in pertinent part: I, [name inserted] , am the Captain aboard the vessel [name inserted] from [place of origin]. I am personally aware that Speros International Ship Supply Co., Inc. sells various commodities, supplies, clothing, and various sundry items to for eign ship personnel by delivering the said items to the ships docked at various termi- nals inside the Tampa Port Authority and other locations in Tampa, Florida from [date] to the present. (Testimony of Marylis; Exhibit 8.) Moreover, in an attempt to comply with the tax law and avoid similar problems in the future, Taxpayer printed receipt books to be used in all future on-board sales. The receipts reflect the type of goods sold, the date of delivery to the vessel, the foreign vessel's destination, and the total purchase price. Also included is a signature line for the individual who delivers and receives the goods. (Testimony of Marylis; Exhibit 7.)
Recommendation Based on the foregoing, it is RECOMMENDED: That Department's proposed assessment of Taxpayer for delinquent sales tax, penalties, and interest, be issued as final agency action. DONE AND RECOMMENDED this 17th day of February, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1982.
Findings Of Fact Florida Export Tobacco Co., Inc., Petitioner, operates, as a concessionaire, duty-free stores at Miami International Airport. The premises are owned by the Dade County Aviation Department and the stores are leased to Petitioner pursuant to the terms of a lease and concession agreement dated 19 July 1977, effective 1 August 1977 and continuing until 30 September 1987. (Exhibit 1 to Deposition) Pursuant to this agreement Petitioner occupies six stores and additional warehouse space at the Terminal Building and the International Satellite Facility. Article II in Exhibit 1 entitled Rental Charges and Payments provides for rental payments for each store and space occupied based upon a fixed fee of $X per square foot per year with the dollar per square foot cost varying with the space occupied. In addition to this minimal rental fee, Section 2.03 of this agreement provides: County Profit Participation: As additional consideration for the rights and privileges granted Concessionaire herein, Concessionaire shall pay the County a portion of its profits. As a convenience and in order to eliminate requirements for detailed auditing of expenditures, assets and liabilities and in order to provide an even flow of annual revenues for budgeting and bond financing purposes, said portion of the profits of the Concessionaire shall be calculated as the amount by which sixteen percent of the monthly gross revenues, as defined in Arti- cle 2.07, exceeds the sum of monthly rental payments required by Articles 2.01 and 2.04. Concessionaire shall pay such portion of its profits to County by the twentieth (20th) day of the month following the month in which the gross revenues were received or accrued. For the period October 1, 1982 through September 30, 1987, the percent of monthly gross revenues to be paid by Concessionaire as a portion of its profits shall be eighteen percent, payable and calculated in the same manner as above. The lessor provides air conditioning, garbage and sewage disposal facilities, security, and many other services to the lessee in addition to the space leased. From October 1976 through September 1977 Petitioner paid $40,499.66 in additional sales tax over the guaranteed minimum amount; for the year ending September 1978 this additional sales tax was $66,284.85; for the year year ending September 1979 this additional sales tax was $93,837.15; and for the year ending September 1980 this additional sales tax was $137,521.87. (Exhibit 2 to the Deposition) As the owner of the facility Dade County has the option of operating the various facilities and services available to the public or having these operated by a concessionaire. Dade County has opted for the manner it believed more profitable to the county and in the case of the duty free stores this has resulted in leasing the space to a concessionaire. The hotel at the airport is operated by the Aviation Department under a management contract. It is Petitioner's and Dade County's position that a sales tax should not be paid on the county profit participation charges because, if the Aviation Department operated the stores there would be no sales tax on any rental income and the County operates the facilities at the airport so as to maximize profits to the county. Therefore by requiring the concessionaire to pay sales tax, this reduces the profit available to share with the County.
The Issue Whether the Department of Revenue (Department or Petitioner) may revoke the certificate of registration issued to Respondent for failure to comply with the terms of a compliance agreement.
Findings Of Fact The Department is the state agency charged with administering and enforcing Florida's revenue laws, including the laws related to the imposition and collection of sales and use taxes pursuant to chapter 212, Florida Statutes (2013).1/ Respondent is a Florida limited liability company doing business at 309 South Howard Avenue, Tampa, Florida, and is a “dealer” as defined at section 212.06(2). Respondent holds a certificate of registration issued by the Department (Certificate No. 39-8015401140-8) and is statutorily required to file tax returns and remit taxes to the Department. The Department is authorized to cancel a dealer's certificate of registration for failure to comply with state tax laws. Prior to such cancellation, the Department is required by statute to convene a conference with the dealer. The Department initiated the process of revoking Respondent’s certificate of registration by sending Respondent a Notice of Conference on Revocation of Certificate of Registration (Notice of Conference) via regular mail and certified mail on May 24, 2013. The Department then hand-delivered a copy of the Notice of Conference to Respondent’s principal place of business on June 21, 2013. The Notice of Conference advised that the informal conference would be held on June 26, 2013. The Notice of Conference also informed Respondent that revocation was being considered because of Respondent’s failure to submit sales and use tax and reemployment tax. The notice further advised that at the informal conference Respondent would have the opportunity to make payment or present evidence to demonstrate why the Department should not revoke Respondent’s certificate of revocation. Verna Bartlett and Aubrey Grantham appeared on behalf of Respondent, at the informal conference. Christopher Scott, Respondent’s manager and registered agent, entered into a Compliance Agreement with the Department on July 10, 2013. The compliance agreement states that, due to Respondent’s failure to timely file returns and pay all taxes due, Respondent admits to a past due sales and use tax liability of $43,586.23, consisting of tax, penalty, interest and fees. The compliance agreement also states that Respondent admits to a past due reemployment tax liability of $19,215.75, consisting of tax, penalty, interest and fees. The compliance agreement required Respondent to make a down payment of $15,000 by July 10, 2013, to make, beginning on August 10, 2013, monthly payments in the amount of $4,000 for one year, and to make a final balloon payment on July 10, 2014. The compliance agreement also provides that: IN CONSIDERATION for the Department refraining from pursuing revocation proceedings at this time, the taxpayer agrees: To accurately complete all past due tax returns and reports and file them no later than 7/10/13. To remit all past due payments to the Department as stated in the attached payment agreement. To accurately complete and timely file all required tax returns and reports for the next 12 months, beginning with the first return/report due following the date of this agreement. To timely remit all taxes due for the next 12 months, following the date of this agreement.2/ On July 10, 2013, Respondent made the down payment of $15,000 as required by the compliance agreement. Per the compliance agreement, all payments were to be made in certified funds, money order or cash and received by the close of business on the due date at the Department’s Tampa Service Center. Per the compliance agreement, Respondent’s second monthly payment in the amount of $4,000 was due by the close of business on September 10, 2013. The Department, as part of the process associated with the execution and implementation of the compliance agreement, provided Respondent with “Stipulation Agreement Payment Coupons” (Stipulation Coupons) to facilitate the processing of Respondent’s monthly payments. Although the compliance agreement indicates that payments are to be received by the close of business on the 10th calendar day of each month, the Stipulation Coupon for September 2013 showed that payment should be received “on or before September 12, 2013,” at the “Tampa Service Center.” Both the compliance agreement and the Stipulation Coupon clearly indicate that payments are to be sent to the Tampa Service Center. Nevertheless, Respondent sent its payment, by check dated and mailed on September 12, 2013, to the Department’s Tallahassee office. Not only was the payment mailed to the incorrect address, but it was also untimely. Furthermore, because Respondent did not include a note on the memo portion of the check or enclose a Stipulation Coupon with the check, the Department applied the payment to a different account. As a consequence of Respondent’s failure to submit the September 2013 payment in a manner consistent with either the compliance agreement or the Stipulation Coupon, the Department wrote Respondent and informed the company that effective October 12, 2013, the compliance agreement was voided. The compliance agreement was never reinstated by the parties. Due to the compliance agreement having been voided, all monies owed for past due tax payments became due as of October 12, 2013. At some point after the filing of the Administrative Complaint, and prior to the final hearing, Petitioner satisfied all past due tax liabilities covered by the compliance agreement. The Administrative Complaint alleges that “Respondent failed to file a tax return for the months of December 2013 and January 2014” which resulted in “an estimated tax liability of $13,854.32.”3/ Additionally, the Department, in its Proposed Recommended Order, argues that for the period July 2013 through July 2014 Respondent failed to electronically file returns and submit payment of sales and use tax and reemployment tax. According to the Department, Respondent’s omissions violated the terms of the compliance agreement. Respondent annually reports more than $20,000 in sales and use tax. For the months July and August 2013 (September is not included because the tax return and related payment were not due until October 20, 2013, which is after the date of termination of the compliance agreement), the undisputed evidence is that Respondent did not electronically file its returns when due.4/ The evidence also established that Respondent did not seek, nor did the Department grant, a waiver authorizing Respondent to file its returns via non-electronic means. The evidence is inconclusive regarding whether Respondent has paid any amounts owed for these months. The compliance agreement required Respondent “[t]o accurately complete . . . all required tax returns and reports.” The compliance agreement does not define the word “accurately.” The root word “accurate” is generally accepted to mean “conforming exactly to truth or to a standard.” Accurate Definition, Merriam-Webster.com, http://merriam- webster.com/dictionary/accurate (last visited Oct. 31, 2014). There is nothing in the compliance agreement suggesting that the parties intended a different meaning for this term. Section 213.755(1) and Florida Administrative Code Rule 12-24.003 establish the standard by which Respondent was to conduct itself and these provisions provide that any taxpayer that has paid tax in the prior state fiscal year in an amount of $20,000 or more is required to file returns and remit payments by electronic means, unless first obtaining a waiver. By not filing its returns by electronic means, as required, Respondent did not “accurately complete” the returns for July and August 2013 because the returns were not filed in accordance with “the standard” established by section 213.755 and Florida Administrative Code Rule 12-24.003. Respondent’s failure in this regard was in violation of the then-in-effect compliance agreement. The Department has issued and recorded against Respondent delinquent tax warrants and notices of lien in the public records of Hillsborough County, Florida, to secure collection of delinquent sales and use tax and reemployment tax liability, plus penalties, filing fees and interest. On April 6, 2013, the Department recorded against Respondent a tax warrant in the amount of $10,323.40, and on May 15, 2013, another tax warrant in the amount of $32,912.04 was also recorded. The tax liability, and related penalties, fees and interest for these two tax warrants were covered by the compliance agreement and have since been satisfied.5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue issue a final order that declines to revoke Dealer’s Certificate of Registration No. 39-8015401140-8 held by PNC LLC, d/b/a Cheap. DONE AND ENTERED this 3rd day of November, 2014, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 2014.
