Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: By Order of the Circuit Court of Pasco County, Florida, dated September 14, 1987, it was determined that Petitioner owed $1,560.40 in back child support payments which had been assigned to the state of Florida by the mother of the child on February 1, 1983, for assistance received by her from the state of Florida. Additionally, Petitioner was ordered to pay: (a) child support in the amount of $178.00 per month; (b) %15.00 per month on the arrearage and; (c) $5.00 per month clerk's fee for a total of $198.00 per month. Subsequent to this circuit court order, Respondent moved to intercept Petitioner's 1987 federal income tax refund, and Petitioner protested. An informal administrative hearing was held and the Respondent entered a Final Order wherein it was agreed between the parties that Petitioner owed $1,020.40 in past-due child support payments as of March 22, 1988. Although this figure of $1,020.40 cannot be reconciled with the Clerk's records in Pasco County, it is the figure agreed upon by the parties as being due as of March 22, 1988, and was used to intercept the Petitioner's 1987 federal income tax refund. On October 7, 1988, Petitioner, by order of the Circuit Court of Pasco County, Florida, was granted custody of the child for which he had been paying child support, and was no longer required to pay child support for the child. There is evidence that Petitioner had custody of the child in September 1988, but the Order states that "custody is to be upon the signing of the order". This order did not address the issue of current child support or past-due child support. Subsequent to March 22, 1988, the Petitioner was obligated to pay child support for the months of April 1988, through September 1988, for a total of $1,068.00. ( Six months at $178.00 per month). An Income Deduction Order entered by the Circuit Court of Pasco County, Florida, required Petitioner's employer to deduct $198.00 per month from Petitioner's salary and remit same to the Clerk's office for the payment ordered by the court on September 14, 1987. Respondent's employer accomplished this by rendering payment in bi-weekly amounts of $91.75. During the period from March 22, 1988, through October 7, 1988, Petitioner should be given credit for monies deducted by his employer and remitted to the Clerk's office in the net amount of $1,301.25 (Fifteen payments of $91.25 minus $75.00 Clerk's fee). Two biweekly payments remitted by Petitioner's employer during this period were improperly entered into the Clerk's record but were corrected between October 24, 1988 and November 14, 1988. The 15 payments for which Petitioner has been given credit take into consideration the 2 payments improperly entered into the Clerk's record. Respondent should be given credit for $365.60, the amount Respondent received as a result of the 1987 federal income tax refund intercept. Respondent should also be given credit for the following: (a) HLA blood test refund of $210.00 and; (b) Clerk's refund of fees of $65.00. The total amount owed by Petitioner as of October 7, 1988 was $2,088.00 ($1,020.40 arrearage as agreed by the parties and set forth in Respondent's Final Order plus $1,068.00 child support payments Petitioner was obligated to pay between March 22, 1988 and October 7, 1988) minus a credit of $1,941.85 ($1,301.25 employer payments, plus $365.60 tax intercept credit, plus $210.00 HLA credit, plus $65.00 Clerk's credit) for a net amount owed of $146.55 ($2,088.40 total amount owed after March 22, 1988 minus a total credit of $1,941.85).
Recommendation Having considered the foregoing Findings of Fact and Conlusions of Law, the evidence of record and the candor and demeanor of the witness, it is, therefore, RECOMMENDED that Respondent enter a Final Order finding that Petitioner owes the state of Florida the sum of $146.55 in past-due child support payments, and providing for Respondent to intercept Petitioner's 1988 federal income tax refund for the amount of $146.55 unless Petitioner pays this amount to the Respondent prior to the Respondent filing a federal income tax refund intercept with the Internal Revenue Service, in which case no tax refund intercept would be necessary. RESPECTFULLY submitted and entered this 28th day of March, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 28th day of March, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-0277 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. No posthearing Proposed Findings of Fact were submitted by the Petitioner. Specific Rulings on Proposed Findings of Fact Submitted by Respondent 1.-2. Adopted in Finding of Fact 1. 3.-4. Adopted in Finding of Fact 3. Subordinate to facts actually found in the Recommended Order. Adopted in Finding of Fact 2. Subordinate to facts actually found in the Recommended Order. Immaterial since the was an agreement as to the amount of arrearage owed as of March 22, 1988. Adopted in Finding of Fact 6. Adopted in Findings of Fact 7 and 8. Adopted in Finding of Fact 6. 12.-13. Subordinate to facts actually found in the Recommended Order. COPIES FURNISHED: Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Powers, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Judith Greene, Esquire CANDICE A. MURPHY, P. A. P. O. Box 4815 Clearwater Florida 34618 Roy K. Kalbach 512 12th Avenue Leisure Hills Brooksville, Florida 34610
The Issue The issue in this proceeding is whether the Department of Revenue's denial of a refund of intangible tax should be upheld.
Findings Of Fact Petitioner, First Alachua Banking Corporation, is a Florida corporation engaged in the business of banking. On February 25, 2000, Petitioner filed a Florida intangible personal property tax return in which it reported intangible assets in Florida worth $42,829,500.64. Petitioner paid intangible tax in the amount of $61,617.47. Due to a change in the law, banks became exempt from intangible tax effective for taxes due on or after July 1, 1999.2/ On June 23, 2003, Petitioner filed an application for refund with the Department requesting a refund of intangible tax in the amount of $46,576.98. The reason given on the application for refund is "taxpayer exempt under Fla statute," citing Subsection 199.185(5), Florida Statutes. The application for refund was prepared by Mr. Bevis. Petitioner filed four applications for refund for the years 2000 through 2003. The Department issued refunds to Petitioner for 2001, 2002, and 2003. However, on July 7, 2003, the Department issued a Notice of Intent to Make Tax Refund Claim Changes showing a proposed refund due of $0 for 2000. The explanation given by Linda Lyles, Refund Auditor, is as follows: EXPLANATION: I am denying your refund request for the following reason: Your refund has exceeded the 3 year statute of limitations per s. 215.26(2) Florida Statutes. Tax paid on or after October 1, 1994, but before July 1, 1999 has a five year limit, for tax paid after July 1999, the limit is 3 years from the date paid. Additionally r 12C-2.012(b) F.A.C. states, 'Form DR-26, Application for Refund, must be filed with the Department for tax paid on or after July 1, 1999 within 3 years after the date the tax was paid.' Your 2000 tax was paid on February 25, 2000, therefore your refund application should have been submitted by February 25, 2003. It was postmarked June 19, 2003. On July 21, 2003, Mr. Stevens wrote to Ms. Lyles requesting an informal conference, citing Subsection 215.26(5), Florida Statutes, and giving the following reasons why the return was not prepared correctly: Our client intends to demonstrate reasonable cause for failure to prepare the return correctly, detect such error, and timely file the refund request within the three-year statutory period. The principal reasons for failure to comply with the time limitations and conditions for a timely refund request were that: The Company's assistant secretary has prepared the intangible return for a number of years using the instructions provided in the intangible return package. He was unaware of the changes in statutes eliminating a Florida intangible return on bank assets. Furthermore, the intangible return instructions for the year 2000 were silent with respect to this change in tax law. The Company has engaged a certified public accounting firm to prepare their income tax returns and relies on this firm to provide relevant and timely information on bank income and other tax issues. This firm failed to notify the Company of the change in intangible personal property tax laws. In 2002, a Florida Department of Revenue audit was conducted in which the auditor obtained and reviewed copies of the intangible personal property tax return for January 1, 2000. The auditor should have known that banking assets were not subject to intangible tax and failed to advise the Company. We have enclosed a copy of the DR-840 for your convenience. The intervening audit referenced in Petitioner's letter of June 21, 2003, was a corporate income tax audit. In the Notification of Intent to Audit Book and Records, the auditor requested that Petitioner make its intangible tax return and intangible personal property records available for audit to determine whether Petitioner properly took a credit on its corporate income tax return for intangible tax paid in 1999. However, in accordance with the general practice of the Department, the auditor who conducted the corporate income tax audit did not audit Petitioner's intangible tax return. The Notification of Intent to Audit Book and Records identified the tax to be audited as Corporate Income Tax pursuant to Chapter 220, Florida Statutes. If an auditor determines during an audit that an examination of another tax is necessary, it is the policy of the Department that the auditor inform the taxpayer, add that tax to the Notification of Intent to Audit Book and Records, initial that change, and request the taxpayer to initial the addition. There is no indication in the audit file that any other tax was audited other than corporate income tax. On July 25, 2003, the Department issued a Notice of Proposed Refund Denial regarding Petitioner's request for the 2000 intangible tax refund. On January 5, 2004, the Department issued a Notice of Decision of Refund Denial sustaining its earlier proposed decision to deny the refund request because the request was filed outside the three-year statute of limitations referenced in Subsection 215.26(2), Florida Statutes.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Revenue enter a final order denying Petitioner's request for a refund of intangible taxes. DONE AND ENTERED this 9th day of July, 2004, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 9th day of July, 2004.
The Issue Whether Petitioner's Federal Income Tax refund should be intercepted by Respondent?
Findings Of Fact On August 17, 1984, the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, entered an order finding Petitioner to be in arrears in child support payments in the amount of $6,400.49. As of July 21, 1988, Petitioner was in arrears in his child support payments in the amount of $6,954.52. Petitioner does not dispute that he is in arrears in his child support payments, but argues that Respondent should not take the entire refund, but should only take one-half.
Recommendation Therefore, based upon the foregoing, it is RECOMMENDED that Respondent issue a final order affirming the determination that Petitioner owes past-due support. DONE and ORDERED this 24th day of August, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1988. COPIES FURNISHED: Johnny E. Matthews 4435 Kenndle Road Jacksonville, Florida 32208 Warren J. Schulman, Esquire 331 East Union Street, Suite 1 Jacksonville, Florida 32202 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact During the discovery phase of this proceeding, the Department ascertained from Echo Artz that $4,070 (the "Uncontested Amount") of the assessed tax was not contested. That is, Echo Artz agreed that it owed at least that amount of the total tax assessment of $67,757.46 set forth in the Notice. Of the total amount set forth in the Notice, $54,626.25 was the tax portion and the remainder was interest. No penalties were imposed as of the date of the Notice of Proposed Assessment. The Uncontested Amount was approximately 7.5 percent of the tax portion and approximately 5.9 percent of the total assessment. At the final hearing, during discussion of the Department's Motion to Dismiss, Echo Artz stated that the Uncontested Amount was erroneous. Instead, it stated that $23,135 of the total tax assessment was actually uncontested. The total tax portion of the assessment should be, according to Echo Artz, $57,730. The revised uncontested amount was approximately 40 percent of the total tax portion. Echo Artz did not pay any of the Uncontested Amount or any of the revised uncontested amount pursuant to its own calculations. The Department asserts that inasmuch as Echo Artz failed to pay the Uncontested Amount prior to filing its request for formal hearing, the case must be dismissed as required by law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Revenue, enter a final order of dismissal. DONE AND ENTERED this 18th day of May, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 18th day of May, 2012.
Findings Of Fact In 1968, Petitioner's marriage to Judith Marie Youmans was dissolved by the Circuit Court in Duval County, Jacksonville, Florida. One child, D. R. Y. was born of the marriage. Custody of D. R. Y. was given to Petitioner's ex- wife. However, except for a few months, D. R. Y. was in the actual custody of her father until she reached the age of majority in 1982. Petitioner's ex-wife never paid any child support to Respondent for his custody of D. R. Y. Petitioner never had the final divorce decree modified to reflect D. R. Y.'s custody arrangement or to seek an award of child support for his custody of D. R. Y. The Department of Health and Rehabilitative Services is not seeking child support enforcement in reference to D. R. Y. From 1968 until about 1977, Petitioner maintained an on again-off again relationship with his ex-wife. They never remarried. However, by 1977, Petitioner had fathered two children with his ex-wife, who are the subject of this action. C. D. Y., Jr., was born July 29, 1971, and M. S. Y. was born August 15, 1973. In 1977, Petitioner's ex-wife filed a paternity action against Petitioner alleging that the two boys were his children. Petitioner made an appearance in the paternity action and reached an agreement with his ex-wife regarding the paternity of the two boys and how much child support he would pay until they reached the age of majority. A final judgment incorporating the agreement between the parties was entered by the Circuit Court in Duval County, Jacksonville, Florida, on January 28, 1977. Petitioner states that he was never served with the 1977 paternity suit papers or the final judgment entered in the action. Petitioner testified that he was not aware that a final judgment had been entered awarding his ex-wife $15.00 per week per child until a few months before HRS became involved in the tax intercept under consideration here. However, Petitioner made two of the agreed to child support payments in February, 1977, after his attorney had advised him to do so. After the first two payments, Petitioner ceased making the $15.00 per child per week payments and has not made any child support payments to his ex-wife or to the Clerk's Office since February 4, 1977. Petitioner has, therefore, accumulated an alleged arrearage of child support for C. D. Y. and M. S. Y. in the amount of $16,35.00 through July 1987. Prior to HRS's involvement in the case in 1986, Petitioner's ex-wife neither asked for nor received any child support from Petitioner, except for the few payments made in 1977. She did not try to enforce the paternity settlement agreement until September 12, 1986, when she asked for HRS's help. Apparently, the reason she went to HRS was to attempt to collect the child support. She has not received any "public assistance" such as AFDC money from HRS and apparently is not asking for such aid. HRS has not obtained a court order finding Petitioner to be delinquent and no such order has been previously entered. Petitioner has, therefore, never been afforded an opportunity to raise his defenses to any alleged arrearage or non payment of support before the circuit court. Petitioner felt very strongly that he should not have to pay child support since his ex-wife did not perform her part of the agreement regarding her visitation. He testified that he attempted to visit the two boys on several occasions, but was usually frustrated in his attempts. The last time he attempted to visit the two boys was several years ago when he was met at the door by his ex-father-in-law who was pointing a shot gun at Petitioner and told him to leave. After the shot gun incident, Petitioner did not feel it to be in his best interest to attempt to see the boys anymore. Petitioner also maintained that he should not have to pay child support because she would not raise the boys correctly throughout the time period involved in this case. In essence, he left her because she would not give up certain drugs and he did not want to be living in such an environment nor did he want his boys to be living in such an environment. However, his ex-wife felt otherwise and didn't mind her children being raised around drugs. Petitioner felt that his ex-wife's involvement of HRS to collect child support was simply a tactic on her part to harass him and otherwise be mean. Petitioner also felt that he should have been paid child support for his custody of D. R. Y. who had refused to live with her mother. Petitioner felt that he should at least receive recognition of the fact that he did not receive any such support and be credited with the amount he should have been paid, i.e. $15.00 per week.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter a Final Order in this case to the effect that the Department is not entitled to intercept Charles D. Youmans' federal tax refund unless and until Youmans is adjudicated delinquent by a circuit court in the periodic court ordered payment, and to the further effect that any federal tax refund which may already have been intercepted shall be returned to Youmans. DONE and ENTERED this 29th day of August, 1988, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2365 Petitioner's factual allegations contained in paragraph 1 of his letter are immaterial. Petitioner factual allegations contained in paragraph 2 are irrelevant. The factual allegation in the 1st sentence of paragraph 3 was not shown by the evidence. The rest of paragraph 3 is adopted. Paragraph 4, 5 and 7 are subordinate. Paragraph 6 is not shown by the evidence. Paragraph 8 discusses evidence not presented at the final hearing and is inadmissible. Paragraph 9 is irrelevant. COPIES FURNISHED: Charles D. Youmans, pro se Route 5, Box 44 Brunswick, Georgia 31520 Warren J. Schulman SCHULMAN, HOWARD & HEMPHILL, P.A. 331 East Union Street, Suite 1 Jacksonville, Florida 32202 Sam Power, HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Tom Batchelor Staff Attorney House HRS Committee The Capitol Tallahassee, Florida 32399-1300 =================================================================
The Issue The issue is whether Respondent properly scored Petitioner's application for an allocation of low-income housing federal income tax credits.
Findings Of Fact Respondent is a not-for-profit corporation organized under Section 420.504, Florida Statutes. Respondent's purpose is to facilitate the construction of affordable housing in Florida by assisting developers interested in providing such housing. Respondent administers several affordable housing programs. The program involved in this case is the competitive housing credit (HC) program, which allocates the low-income housing federal income tax credits allowed by Section 42, Internal Revenue Code (Tax Credits). Developers use or, more often, sell the Tax Credits to make their projects financially feasible by offsetting the reduced income characteristically generated by affordable housing. The HC program allocates Tax Credits to those projects that Respondent determines best serve the affordable housing needs of Florida residents. The allocation process is competitive because Section 42, Internal Revenue Code, allocates to each state a limited amount of Tax Credits. Each year, developers propose projects whose collective qualified basis would yield many more Tax Credits than Florida is allocated under Section 42; this year, for instance, Respondent could have allocated four times the amount of Tax Credits actually available. To allocate the available Tax Credits, Respondent has established a competitive process. In the first stage, Respondent assigns preliminary scores to each completed application and then ranks the applications by their scores. The application with the most points tentatively receives the first Tax Credits to be allocated, and this process is repeated with the remaining applications, in their order of ranking, until the available Tax Credits are exhausted. In the second stage, Respondent invites those applicants whose applications have tentatively received an allocation of Tax Credits to enter credit underwriting. Credit underwriting involves a more detailed examination of each application, during which time applicants may make certain revisions in their proposed projects. At the conclusion of credit underwriting, Respondent makes final allocations of Tax Credits to specific proposed projects. This case involves the preliminary scoring that precedes credit underwriting. This case raises the issue of the accuracy of Respondent's scoring of one or two items in Petitioner's application: the loan commitment letter and, if the next issue is resolved in Petitioner's favor, the equity commitment letter. However, the most important issue in this case requires a determination of the extent to which, during the preliminary scoring process, an applicant may revise or correct the set-aside election made in its application or, in the alternative, the necessity, if any, that Petitioner attempt to make such a revision or correction. A minor issue in this case is the propriety of certain penalties that Respondent imposed. During the hearing, the parties stipulated that the Administrative Law Judge was not to attempt a comprehensive rescoring of Petitioner's application, if he were to sustain any portion of Petitioner's challenge. As explained by Respondent's witness, scoring involves a myriad of contingencies and, if presented with any items requiring rescoring, Respondent's employees running the scoring spreadsheet would require as much as one hour to recalculate Petitioner's score. Thus, the parties agreed that Respondent would perform any recalculation within one business day following the issuance of the recommended order, although, of course, performing the recalculation would not waive Respondent's right to file any exceptions that it deems necessary or otherwise oppose any recommended changes to the scoring of Petitioner's application. The parties also agreed upon an expedited schedule for post-hearing filings. The parties agreed to file their proposed recommended orders by 9:00 a.m. on October 19, 2000, serving the Administrative Law Judge by e-mail the prior evening. The Administrative Law Judge agreed to issue the recommended order on or before October 20, 2000. The parties further agreed to file exceptions on or before October 23, 2000, and any responses to exceptions on or before October 25, 2000. The parties and Administrative Law Judge have agreed upon this expedited filing schedule because the last opportunity for Petitioner to receive Tax Credits for the cycle for which it applied would require final action by Respondent's board at its October 27, 2000, meeting. The application for the subject cycle of the HC program comprises 24 Forms requesting detailed information. Respondent imposes a deadline by which all applicants must submit their completed applications. Following this deadline, Respondent conducts the preliminary scoring. The HC program has a maximum of 632 points, divided as follows: Form 1--0 points; Form 2--2 points; Form 3--85 points; Form 4--150 points; Form 5--20 points; Form 6--5 points; Form 7--106 points; Form 8--44 points; Form 9--100 points; Form 10--10 points; Form 11--50 points; Form 12--35 points; Form 13--0 points; Form 14--45 points; Form 15--10 points; Form 16--25 points; Form 17--95 points; Form 18--15 points; Form 19--0 points; Form 20--50 points; Form 21--30 points; Form 22--30 points; Form 23--0 points; and Form 24--0 points. The application forms impose minor penalties for the failure of an application to provide "complete, accurate information in the format and location prescribed by the instructions . . .." Any such omissions or inaccuracies in any or all of Forms 1-4 result in a 2.5 point penalty. In other words, omissions or inaccuracies in one or all four of these Forms result in a single 2.5 point penalty. Any such omissions or inaccuracies in any or all of Forms 5-10 result in a 1.5 point penalty. Any such omissions or inaccuracies in any or all of Forms 11-13 result in a 1 point penalty. Any such omissions or inaccuracies in one or all of Forms 14-19 result in a 1 point penalty. Any such omissions or inaccuracies in one or all of Forms 20-24 result in a 1 point penalty. Petitioner does not contest the 1 point penalty that Respondent has imposed for the erroneous entry, described below, at Form 20, Item I. However, Petitioner contests Respondent's scoring of other Items and assessment of other penalties, based on the election made at Form 20, Item I. These scoring and penalty issues include, but may not be limited to, the 2.5 point penalty imposed on Forms 1-4 due to an inconsistency between the set-aside information provided in Forms 1 and 20; up to 144.67 points lost in Form 4 due to the failure to meet the condition in the equity commitment letter that the qualified basis attributable to all 230 units qualify for Tax Credits; seven of eight points lost in Form 10 for the deficiency in leveraging Tax Credits due to the loss of nearly half of the expected Tax Credits; and 30 points lost in Form 21 due to the determination that the equity commitment letter is not firm and unconditional. Petitioner claims that these lost points and penalty, together with any points lost on Form 4 for the determination that the loan commitment letter is not firm and unconditional and the 1.5 point penalty for an omission from the environmental safety certification in Form 7, Exhibit D, improperly prevented Petitioner's application from entering credit underwriting for an allocation of Tax Credits. Petitioner timely submitted its application for the HC program. Form 1, Item I.A, of Petitioner's application states that Petitioner is a limited partnership whose general partner, Affordable Housing Solutions for Florida, Inc., is a not-for-profit corporation. At present, Petitioner's general partner owns 100 percent of the partnership interests. Form 1, Item I.C, states that Heritage Affordable Development, Inc., is the "co-developer," but has no ownership interest in Petitioner. Form 1, Item II.A, describes the proposed project as a rehabilitation of an existing development in Daytona Beach. Form 1 identifies a total of 230 residential units in the project, which is to be known as Daytona Garden Apartments. Form 1, Item IV, is a certification that is signed by Petitioner. In relevant part, the certification states: The Applicant and all Financial Beneficiaries understand and agree that full points will be awarded only in the event that all information required by each form is provided in accordance with the application requirements. Failure to provide complete, accurate information in the format and location prescribed by the application will result in a REDUCTION OF POINTS OR REJECTION OF THE APPLICATION as indicated on each form. Subject to the limited exceptions contained within Rule 67-48.005, F.A.C., only information contained within this application will be considered for purposes of points awarded or appealed. . . . Most of the points at issue in this case arise from a mistake that Respondent claims to have made in completing Form 20, Item I. This item requires the applicant to make a crucial election for its proposed project. The two relevant choices are: 1) 20 percent of the units are set aside for persons earning no more than 50 percent of the area median income (20/50) or 2) 40 percent of the units are set aside for persons earning no more than 60 percent of the area median income (40/60). The application notes clearly that, pursuant to federal regulation, 20/50 elections restrict all set-aside units to no more than 50 percent of the area median income. The percentage of set-aside units determines the extent to which the qualified basis of a project may yield Tax Credits. The purpose of Section 42, Internal Revenue Code, and the HC program is to facilitate the development of affordable housing. The set-aside election assures that the developer will reserve a certain percentage of units in the project for reduced-income residents. The 40/60 election means that the developer is setting aside a minimum of 40 percent of the units for residents earning no more than 60 percent of the area median income. The developer may choose to set aside for such reduced-income residents a greater percentage of the units in order to qualify for more Tax Credits. The 20/50 election offers the developer the same type of option, but, due to the cited federal regulation, the developer may only claim additional Tax Credits for units set aside for residents earning no more than 50 percent--not 60 percent--of the area median income. In making its election on Form 20, Item I, Petitioner placed an x in the box for the 20/50 election. Petitioner claims to have intended to have placed an x in the box for the 40/60 election. As already noted, the 20/50 election precludes the allocation of any Tax Credits for units set aside for residents earning more than 50 percent of the area median income. However, Petitioner's application sets aside nearly half of its 230 units for residents earning 60 percent of the area median income, and the application anticipates receiving tax credits for these set-asides, as well as the set-asides for residents earning 50 percent or less of the area median income. Numerous elements in Petitioner's application reveal Petitioner's expectation to qualify the entire basis of its project for Tax Credits. For instance, Form 1, Item III.E, shows that 100 percent of the 230 units are set aside. However, a note at the top of this sub-item warns: "If the set-aside percentage and the Number of Residential Units shown in Items E, F, G and H are found to be inconsistent with other forms in the Application, the information contained in Form. . . 20 for [the HC program] WILL BE RELIED UPON." Form 10, which calculates the leveraging effect of allocated tax credits based on the number of set-aside units, similarly reveals the expectation that 230 units would be set aside for lower-income residents and, thus, eligible for generating Tax Credits. On Form 20, Item III, Petitioner provided additional evidence of its expectation to obtain tax credits for all 230 of its set-aside units. Item III shows Petitioner's commitment to set aside 15.65 percent of the units for residents earning not more than 33 percent of the area median income, 36.09 percent of the units for residents earning not more than 50 percent of the area median income, and 48.26 percent for residents earning not more than 60 percent of the area median income. Form 20, Item III, requires the applicant to represent that it will maintain these set-aside percentages--clear evidence that the applicant is anticipating Tax Credits for all of the set-asides scheduled in Form 20, Item III. As a whole, though, the application reveals only that Petitioner expected to obtain Tax Credits for all 230 units. If the application, construed as a whole, were to represent the 20/50 election, nothing in the application reveals whether Petitioner's expectation to obtain a larger amount of Tax Credits emerged from a scrivener's error in marking the 20/50 election, rather than the 40/60 election, as Petitioner contends, or a failure to understand the regulatory limitation imposed upon the 20/50 election. Nothing in the application actually mentions a 40/60 election, and Petitioner did not attempt to address the apparent 20/50 election until after the deadline for submitting applications. One of Petitioner's witnesses was a vice president of Heritage Affordable Development, Inc. She testified that her job imposed upon her numerous responsibilities in preparing Petitioner's application, including the task of placing the x in the box for the 40/60 election, and she mistakenly placed the x in the box for the 20/50 election. This is the only direct evidence in the record indicating whether the 20/50 election was due to a misunderstanding of the federal regulation limiting the use of the 20/50 election or a mistake in checking the right box on the form. Although her testimony is self-serving, Petitioner's witness testified in a forthright manner, as she described her hurried and fatigued efforts to complete the application by the deadline. The Administrative Law Judge credits her testimony that she intended to check the 40/60 election, but, in her haste, checked the 20/50 election, and time did not permit her to discover her error until after she had submitted Petitioner's application. However, even if Petitioner's election were treated as a scrivener's error, the question would remain whether the correction of such an error would materially affect Petitioner's application. An extensive review of recent case law reveals no better definition of what is "material" than that offered by Respondent's witness, who testified that something is material if it affects the outcome. In other words, something is material if it is consequential. Changing a 20/40 set-aside election to a 40/60 set-aside election would be undeniably material to Petitioner's application. If the application effectively makes the 20/50 election, absent changing its election, Petitioner would suffer the major consequence of the loss of eligibility for Tax Credits for nearly half of the 230 units to be developed. Thus, the only way that the proposed change may be deemed inconsequential or immaterial is if the application, fairly construed, as a whole, already makes the 40/60 election, and Petitioner seeks only to clarify this election in Form 20, Item 1. As already noted, Form 20 expressly supersedes any contrary set-aside information in Form 1. The express deference in Form 1, Item II.E, to the set-aside information contained in Form 20, as well as the reference to "other forms in the Application," sufficiently notifies the careful reader of the application that the set-aside information in Form 20 is the definitive expression of the actual set-aside election contained in each application. However, Form 20 itself is contradictory concerning the set-aside election. The clear and first expression of the set- aside commitment in Form 20 chooses the 20/50 set-aside, but the second, more detailed (and thus less amenable to misstatement) expression of the set-aside commitment reveals the choice of the 40/60 set-aside in the set-aside schedule. The resulting ambiguity in Form 20 requires, under the case law discussed in the Conclusions of Law, consideration of the two provisions in Form 20, in pari materia, in an effort to discern the true meaning of this document in terms of the set- aside election. Construed together, as well as with the many other Items reflecting a 40/60 election and the absence of any other Items reflecting a 20/50 election, the application, as a whole, evidences a 40/60 set-aside election. As already noted, the determination that Petitioner's application effectively makes the 40/60 set-aside election affects the scoring of other Items. Most directly, Petitioner challenges the assessment of a 2.5 point penalty for the discrepancy between the set-asides elected in Form 20, Item I, and the set-asides shown in Form 1, Item II.E. Respondent may not assess a penalty on Form 1 because the set-asides shown in Form 1, Item II.E, are not incorrect. Although they are inconsistent with the set-aside election shown in Form 20, Item I, the error is in the latter Item, and Respondent has already assessed a penalty for this mistake. However, Respondent relied on another basis for the assessment of the 2.5 point penalty for Forms 1-4. Although the record is largely undeveloped on this point, Petitioner has failed to show that its provision of a utility allowance is not flawed by an omission of the utility provider in Form 1, Exhibit H. Thus, Petitioner has failed to prove that the 2.5 point penalty for Forms 1-4 is incorrect. A more important scoring issue that arises from the determination of the actual set-aside election involves Form 4, Exhibit B, which is the equity commitment letter issued on February 29, 2000, by SunAmerica Affordable Housing Partners, Inc. This is a firm undertaking by SunAmerica Affordable Housing Partners, Inc., to cause its affiliate to purchase a 99.9 percent limited partnership interest in Petitioner for a specified sum. The equity commitment letter requires that Petitioner obtain a specified amount of Tax Credits based on a determination that the qualified basis attributable to all 230 units is eligible for Tax Credits because all 230 units are set aside for reduced-income residents. Respondent allowed no points for the equity commitment letter because it was conditioned on all 230 units being set aside for reduced-income residents. However, as determined above, the application, fairly construed as a whole, makes the 40/60 election and thus satisfies this condition in the equity commitment letter. At the hearing, Respondent's witness, acknowledging that the apparent 20/50 election was the major reason why Respondent gave Petitioner no points for the equity commitment letter, testified that additional reasons existed for at least deducting points from the letter, as a conditional, rather than firm, commitment to purchase an equity interest in Petitioner. Form 4, page 4 of 14, describes the requirements imposed upon an equity commitment letter: A firm commitment from a Housing Credit Syndicator . . . is an agreement which is executed and accepted by all parties, is dated, and includes all terms and conditions of the agreement. . . . In order for a syndication/equity commitment to be scored firm, it must state the syndication rate (amount of equity being provided divided by the anticipated amount of credits the syndicator expects to receive), capital contribution pay-in schedule (stating the amounts to be paid prior to or simultaneous with the closing of construction financing and stating the amounts to be paid prior to closing of permanent financing, or in the event of a construction/permanent first mortgage, the amount to be paid prior to or simultaneous with the closing of construction financing and state the amounts to be paid prior to conversion to permanent financing), the percentage of the anticipated amount of credit allocation being purchased, and the anticipated housing credit allocation. Respondent's witness testified that the equity commitment letter fails to include a syndication rate and possibly a capital contribution pay-in schedule. However, as Respondent's witness admitted, the syndication rate is evident from the information contained in the equity commitment letter. As noted in the cited provision from Form 4, the syndication rate is the equity provided divided by the anticipated Tax Credits allocated to the syndicator. Using the information contained in the equity commitment letter, SunAmerica Affordable Housing Partners, Inc., is purchasing a partnership interest that will entitle it to 99.9 percent of the $7,380,700 in Tax Credits, or $7,373,319 in Tax Credits. Dividing SunAmerica's equity contribution of $5,906,032 by its share of Tax Credits yields the syndication rate of 80.1 percent. Likewise, the equity commitment letter adequately describes the capital contribution pay-in schedule. The equity commitment letter calls for SunAmerica to pay $3,248,317 upon the closing of the amended partnership agreement; $2,362,413 upon the commencement of construction (matched dollar-for-dollar with construction financing) and upon the satisfaction of the standard conditions set forth in SunAmerica's standard form partnership agreements; and $295,302 upon the commencement of amortization of the permanent loan, receipt of an audited cost certification of eligible basis, receipt of certain forms for the entire development; and satisfaction of the standard conditions set forth in SunAmerica's standard form partnership agreement. The adjuster clause, which reduces SunAmerica's capital contributions, dollar-for-dollar, for any reductions in actual Tax Credits is a standard provision in equity commitment letters and does not mean that the letter is firm and unconditional. Petitioner has thus proved that it is entitled to all available points for its equity commitment letter. Lastly, Petitioner has proved that it is entitled to additional points on Form 10 for leveraging Tax Credits. Respondent allowed only 2.55 points out of 10 points for Form 10 due to its treatment of the application as making the 20/50 election and thus the loss of nearly half of the set-aside units. Treating the application as making the 40/60 election results in Petitioner earning 9 points on Form 10. Form 4, Exhibit C, is the loan commitment letter issued on February 22, 2000, by SunAmerica, Inc. This is a firm undertaking by SunAmerica, Inc., to lend funds to Petitioner, subject only to the kinds of conditions that Respondent typically and reasonably determines are customary and not so substantive as to preclude a determination that the letter is firm and unconditional. Respondent allowed no points for the loan commitment letter because the letter requires that, prior to the loan closing, Petitioner and its guarantor (its sole owner and general partner, Affordable Housing Solutions for Florida, Inc.) "submit evidence satisfactory to [SunAmerica, Inc.] that [Petitioner] has invested at least $50,000 in the Property in the form of equity or unsecured debt." Petitioner relied in its application on the deferral of a developer's fee of $559,503.07 for a period of up to ten years to satisfy this requirement of the loan commitment letter. In this case, the co-developer, Heritage Affordable Development, Inc., has agreed to defer its developer's fee. Neither the lender nor Respondent has raised a question concerning the source of the funds derived from the deferral of the developer's fee. In essence, the lender is requiring the addition of $50,000 in funds without the dilution of ownership interests or creation of secured debt; thus, it is irrelevant that the source of the funds is a co-developer, rather than Petitioner itself or Petitioner's general partner. Because Petitioner is obligated eventually to pay the deferred developer's fee, Respondent correctly determined that the deferred developer's fee does not qualify as equity. Inexplicably, though, Respondent seems not to have seriously considered whether the deferred developer's fee qualifies as unsecured debt. As already noted, the loan commitment letter requires $50,000 of either equity or unsecured debt. A deferred developer's fee is unsecured debt. Deferring a developer's fee executes in a single step the two- step transaction in which Petitioner pays the developer the subject portion of the developer's fee, and the developer immediately lends it back to Petitioner, taking an unsecured note in return. When informed of the issue, the lender itself acknowledged the obvious, by letter dated October 9, 2000, that the deferred developer's fee is unsecured debt. Petitioner has thus proved that it is entitled to all available points for its loan commitment letter. Form 7, Exhibit D, is the Verification of Environmental Safety. This is a certificate by an environmental consultant that the site of the proposed development is free of potential problems, such as asbestos or lead-based paint in existing structures. The form initially generated by Respondent contains three lines at the top for the identification of the proposed developer and development, but inadvertently omits underlining in the main body of the certificate where the name of the environmental consultant is to be placed. The original form contains a parenthetical explanation in smaller type that states: "(Name of Firm which prepared the Phase I Environmental Report)." As already noted, the application imposes penalties for the "failure to provide complete, accurate information in the format and location prescribed by the instructions " Relatively minor in amount and sparingly assessed, as in a single penalty regardless of the number of errors in a series of Forms, penalties rightly punish deviations from strict, technical, and formal compliance with the demands imposed by the Forms. Petitioner's challenge of the assessment of a 1.5 point penalty for the obvious omission in Form 7, Exhibit D, unjustifiably attempts to substitute the substantive considerations that govern scoring for the formal considerations that govern assessing penalties. In any event, the omission from Form 7, Exhibit D, is substantial. Following the space for the name of the environmental consultant, Form 7 then provides the substance of the certification: "[X, Inc.] hereby certifies that a Phase I Environmental Assessment of the above proposed Development Site . . . was performed by this firm and a detailed report . . . was prepared." The omission of the name of the environmental consultant, coupled with a signature that poorly communicates the idea that the signatory is signing in a representative capacity on behalf of the environmental consultant, amply supports Respondent's assessment of a 1.5 point penalty. In summary, Petitioner has proved that Respondent has mis-scored Petitioner's application by deducting points on Form 4 for an equity commitment letter and loan commitment letter that are actually firm; deducting points on Form 10 for inadequate Tax Credit leveraging; and deducting points on Form 21 for an equity commitment letter that is actually firm. Respondent should rescore Petitioner's application to correct these items and any other items for which Petitioner lost points due to Respondent's treatment of the application as making a 20/50 set-aside election.
Recommendation It is RECOMMENDED that the Florida Housing Finance Corporation rescore Petitioner's application to reflect the findings and conclusions contained in this recommended order and, if the resulting score is sufficiently high, invite Petitioner to credit underwriting. DONE AND ENTERED this 19th day of October, 2000, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 2000. COPIES FURNISHED: Pamela Duncan, Acting Executive Director Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301 Jon C. Moyle, Jr. Cathy M. sellers Moyle, Flanigan, Katz, Kollins, Raymond & Sheehan, P.A. The Perkins House 118 North Gadsden Street Tallahassee, Florida 32301 Elizabeth G. Arthur General Counsel Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301
The Issue The issue is whether Petitioner owes money to Respondent due to an overpayment of compensation.
Findings Of Fact At all relevant times, Respondent has employed Petitioner. By Stipulation, the parties agree that Respondent overpaid Petitioner the sum of $6282.41 by check dated February 14, 2005. The dispute is whether Respondent is entitled to repayment of an additional $2332 in withheld federal income taxes associated with the agreed-upon overpayment. On the date of the overpayment in February 2005, Respondent credited Petitioner with the gross sum of $9328. The net payment to Petitioner was $6282.41. The difference between the gross and the net was $2332 in withheld federal income taxes and $713.59 in employee-paid FICA and Medicaid. Respondent is not seeking repayment of the employee-paid FICA and Medicaid. Respondent discovered the error on December 31, 2005, so it was unable to process the paperwork necessary correct the situation with the tax withholding in the same tax year of 2005. By failing to discover the error in time to process the paperwork in the same tax year, Respondent was unable to effectively reverse the withholding transaction with the Internal Revenue Service. Thus, when Petitioner filed his 2005 federal income tax return, his gross income included this overpayment, and the amount of tax already paid included the $2332 that was erroneously withheld in Respondent's overpayment in February 2005. It is thus clear that Respondent overpaid Petitioner $6282.41 in net pay plus $2332 in income taxes that it withheld from Petitioner and submitted, to Petitioner's credit, to the Internal Revenue Service. The total overpayment is therefore $8614.41.
Recommendation It is RECOMMENDED that the Department of Juvenile Justice enter a final order determining that, due to an overpayment in 2005, Petitioner shall repay $8614.41, upon such terms, if any, as the department shall determine. DONE AND ENTERED this 24th day of October, 2006, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2006. COPIES FURNISHED: Anthony J. Schembri, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Jennifer Parker, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-1300 Michael B. Golen Assistant General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399 Theodore E. Morakis 11904 Southwest 9th Manor Davie, Florida 33325
The Issue What relief, if any, should be provided by Petitioner to Respondent as the result of an accidental overpayment, and the subsequent recoupment of the overpayment?
Findings Of Fact Ms. Mills has been employed by DOC for approximately four years, and was employed by DOC as of the date of hearing. Due to human error in implementing a new payroll system (KRONOS), on March 17, 2017, Ms. Mills was overpaid in the amount of $494.01. The error affected over 5,000 employees of DOC. To address the overpayment, DOC corrected the error by deducting $247.01 from Ms. Mills’ regular paycheck of April 27, 2017, and $247.00 from Ms. Mills’ regular paycheck of May 12, 2017, for a total adjustment of $494.01. Due to the erroneous overpayment, an excess amount of federal income tax withholding ($155.65) was withheld from Ms. Mills’ paycheck of March 17, 2017. Dave Vermette, DOC’s senior personnel manager, attempted to determine whether it was possible to correct the excess federal income tax withheld by reducing future federal tax withholding during the remainder of 2017. Unfortunately, it was determined that such an adjustment could not be made. To address Ms. Mills’ concerns that the erroneous overpayment might affect her eligibility for means-tested public assistance, on June 1, 2017, DOC provided Ms. Mills with a letter explaining the overpayment so that Ms. Mills could show it to any of the agencies from which she receives benefits based on her income. The letter made clear that Ms. Mills was in no way responsible for the overpayment and offered to respond to any questions that other agencies might have about the incident. The June 1, 2017, DOC letter confirmed that, as of that date, Ms. Mills’ year-to-date earnings statement was correct. At hearing, Ms. Mills testified that she was concerned that the overpayment might jeopardize her eligibility for assistance from the Florida Department of Children and Families (DCF). However, at hearing she presented no evidence that her eligibility would, in fact, be affected. If in the future Ms. Mills’ eligibility for assistance from DCF is adversely affected by DOC’s overpayment error, she will have an opportunity at that time to contest DCF’s determination pursuant to the provisions of the Administrative Procedure Act, chapter 120, Florida Statutes. DOC did not purposely overpay Ms. Mills, and the amount of the overpayment was quickly recouped by DOC. DOC has taken all reasonable steps to mitigate any potential effects of the overpayment error. The excess federal income tax withholding will be recovered by Ms. Mills when she files her 2017 federal income tax return. Other than the speculative effect on Ms. Mills’ eligibility for DCF assistance, Ms. Mills did not establish that she had suffered injury in fact as a result of the overpayment error. At hearing, and in her PRO, Ms. Mills was non-specific about the relief that she was requesting. In her PRO, Ms. Mills stated that she “respects this court’s ability and duty to determine an appropriate final order based on all information related to this case.” She went on to state that if there is a monetary award, it should in no way be considered to be additional income accruing to her. Ms. Mills failed to prove that she had suffered any injury as the result of the DOC error. Thus, even if the undersigned was inclined to recommend monetary relief, there is no basis in this record upon which to determine an appropriate monetary award.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition filed by Nancy E. Mills be dismissed. DONE AND ENTERED this 18th day of January, 2018, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 18th day of January, 2018. COPIES FURNISHED: Nancy Mills 191 Nursery Road Monticello, Florida 32344 (eServed) Maria Shameem Dinkins, Esquire Department of Corrections 501 South Calhoun Street Tallahassee, Florida 32399 (eServed) Julie L. Jones, Secretary Department of Corrections 501 South Calhoun Street Tallahassee, Florida 32399-2500 (eServed) Kenneth S. Steely, General Counsel Department of Corrections 501 South Calhoun Street Tallahassee, Florida 32399-2500 (eServed)
Findings Of Fact The marriage of Ronald Yelvington and Marsha Yelvington was dissolved some time prior to this proceeding. The couple had four children. On December 3, 1982, Ronald Yelvington executed a stipulation to repay arrearages of court-ordered child support due to the State of Florida in the amount of $4,542.00. Repayment was to be made at the rate of $5.00 per week. The stipulation acknowledged the four children and acknowledged that they had received public assistance from November 1, 1978 until October 31, 1981. The Department joined in the stipulation. (Petitioner's Exhibit #2) On February 18, 1983, Circuit Judge E. L. Eastmore entered an order to repay debt and arrears, adopting the terms of the parties' stipulation. Payments were to be made to the Clerk of the Circuit Court and disbursed by the Clerk to the Department, as reimbursement for public assistance paid for the benefit of Yelvington's minor children. (Petitioner's Exhibit #2) Ronald Yelvington has paid regularly, by payroll deduction. As of May 18, 1988, his balance due on the arrearages account was $3,286.70, including an additional arrearage of $119.70. (Petitioner's Exhibit #1) Until this proceeding, Mr. Yelvington was unaware that he was accruing an additional arrearage. He attributes the arrearage to the fact that his company changed to a bimonthly pay period. His current spouse, Carol Yelvington, called HRS and Lew Merryday's office to let them know that the pay period was different. They told her they would let the Yelvingtons know if there was a problem. The next contact was the notice of IRS intercept. HRS has a policy of pursuing IRS intercept even when the party is paying regularly under a stipulation regarding an arrearage, if the funds are available in a tax refund. Linda Bailey, the child Support Enforcement Supervisor, does not know how much is available in Mr. Yelvington's tax refund. She concedes that the policy causes confusion and resentment in a party who is making regular payments. Ronald Yelvington agrees that he owes the arrearage, although he does not understand the basis for the additional $119.70, or why no one informed him that he was getting behind for insufficient payroll deductions. He believes that intercept might be a speedy resolution, but he distrusts the figures stated by HRS. His former and current spouses vehemently object to the intercept, as they feel that the money would otherwise go to them and their children. Neither argues that the refund is partly theirs by virtue of having filed a joint tax return as a wage earner. HRS does not maintain an accounting of payments made under the child support enforcement program. It relies instead on the accounting provided by the Clerk of the Circuit Court, as it is the Clerk's office that is responsible for receiving and disbursing the funds.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That a Final Order be entered finding that the Department should notify the Secretary of Treasury as provided in Title 42, U.S. Code, Section 644(a)(1), that Ronald Yelvington owes past-due support in an amount to be established at the time the notice is provided. That is, the sum of $3,286.70, owed as of May 18, 1988, should be reduced by those amounts paid by Mr. Yelvington since that date. It is further recommended that Ronald Yelvington be provided a copy of the Clerk of Circuit Court accounting of his payments on the arrearage established by Judge Eastmore's February 18, 1983 Order. DONE and RECOMMENDED this 13th day of June, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1988. COPIES FURNISHED: Lew Merryday, Jr., Esquire 425 North Palm Avenue Palatka, Florida 32077 Ronald M. Yelvington 5417 Coyote Trail Orlando, Florida 32308 Sam Power, HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Ms. Marsha Yelvington Martin 5834 Windermere Drive Jacksonville, Florida 32211 Marsha Yelvington Post Office Box 608 Pierson, Florida 32080
Findings Of Fact Petitioner, Omni International of Miami, Limited (Omni), is the owner of a large complex located at 1601 Biscayne Boulevard, Miami, Florida. The complex is commonly known as the Omni complex, and contains a shopping mall, hotel and parking garage. On July 30, 1981, Petitioner filed two applications for refund with Respondent, Department of Banking and Finance, seeking a refund of $57,866.20 and $4,466.48 for sales tax previously paid to the Department of Revenue on sales of electricity and gas consumed by its commercial tenants from April, 1978 through March, 1981. On November 22, 1982, Respondent denied the applications. The denial prompted the instant proceeding. The shopping mall portion of the Omni complex houses more than one hundred fifty commercial tenants, each of whom has entered into a lease arrangement with Omni. The utility companies do not provide individual electric and gas meters to each commercial tenant but instead furnish the utilities through a single master meter. Because of this, it is necessary that electricity and gas charges be reallocated to each tenant on a monthly basis. Therefore, Omni receives a single monthly electric and gas bill reflecting total consumption for the entire complex, and charges each tenant its estimated monthly consumption plus a sales tax on that amount. The utility charge is separately itemized on the tenant's bill and includes a provision for sales tax. Petitioner has paid all required sales taxes on such consumption. The estimated consumption is derived after reviewing the number of electric outlets, hours of operations, square footage, and number and type of appliances and lights that are used within the rented space. This consumption is then applied to billing schedules prepared by the utility companies which give the monthly charge. The estimates are revised every six months based upon further inspections of the tenant's premises, and any changes such as the adding or decreasing of appliances and lights, or different hours of operations. The lease agreement executed by Omni and its tenants provides that if Omni opts to furnish utilities through a master meter arrangement, as it has done in the past, the tenant agrees to "pay additional rent therefor when bills are rendered." This term was included in the lease to give Omni the right to invoke the rent default provision of the lease in the event a tenant failed to make payment. It is not construed as additional rent or consideration for the privilege of occupying the premises. Omni makes no profit on the sale of electricity and gas. Rather, it is simply being reimbursed by the tenants for their actual utility consumption. If the applications are denied, Petitioner will have paid a sales tax on the utility consumption twice -- once when the monthly utility bills were paid, and a second time for "additional rent" for occupancy of the premises.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's applications for refund, with interest, be approved. DONE and RECOMMENDED this 15th day of April, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER 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 15th day of April, 1983.
