Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner, Christian Television Corporation, is a not for profit Florida corporation formed in April of 1977. It is exempt from federal income taxation under Section 501(c)(3) of the Internal Revenue Code (1954). Its first application for a Florida Consumer's Certificate of Exemption was initially denied by the Department of Revenue in December of 1977. After petitioner was successful in a rule-challenge proceeding to a portion of the Department's rules defining a "church", the Department reversed its initial decision and issued the petitioner a Consumer's Certificate of Exemption. Based on that issuance, petitioner dismissed its request for a formal administrative hearing regarding the initial denial of exempt status. In 1983, the Legislature enacted Section 212.084, Florida Statutes, which required the Department of Revenue to review every sales tax exemption certificate issued before July 1, 1983, to ensure that the possessor of the certificate was actively engaged in an exempt endeavor. The Department was given the authority to revoke the certificates of those entities found to be no longer qualified for an exemption. Section 212.084(3), Florida Statutes. Pursuant to this statute, the respondent notified the petitioner that an application for renewal of its previously issued Certificate would be required. Petitioner submitted such an application and the respondent gave notice of its intent to revoke petitioner's Certificate effective January 29, 1986. According to its Articles of Incorporation, the petitioner was organized "to produce and broadcast to the general public religious television and radio programs and thereby educate and instruct the general public in religious matters, and make available guidance to promote the general public welfare..." In furtherance of this purpose, the petitioner operates a facility in Largo, Florida, in a 43,000 square foot building. The building contains two television broadcasting studios, control rooms, storage rooms, administrative offices, a counseling area and a chapel. The petitioner views its purpose as one of assisting churches of all denominations in presenting the gospel to the community. It produces many programs in its Largo studios and considers these programs to be ministries in themselves. Live audiences are often present in the studios, which can accommodate from 30 to 100 people, depending upon the program. For example, during the production of "Joy Junction", children from various Christian schools in the area attend the taping. Senior adults come to the Largo studios to attend the "Action Sixties" program, and single adults attend the taping of "Solo Act". In addition, the petitioner sells air time to local churches and ministries. The petitioner also conducts benevolence activities in cooperation with area churches and local agencies. These include fund-raisers for other ministries and raising money or collecting clothing and food for the needy. Petitioner provides on-air announcement services for area churches and ministerial associations and allows other ministries to utilize its broadcasting facilities. Petitioner's staff also attempts to work with "non-Christian people" within the community and "pass them through our ministry into other churches". The petitioner provides a telephone counseling service from its Largo facility. For this purpose, it utilizes 45 regular, and 100 substitute, volunteer counselors. These counselors are trained by petitioner's staff, and callers receive Biblical answers to their questions and problems. Many who call in want prayer for some particular need. Callers perceived to have a more severe problem are referred to a Christian counselor in the area. Approximately 32,000 calls per year are received on petitioner's "prayer lines". The petitioner's staff includes two ministers. One serves as the director of the benevolence ministry and the counseling department, and the other serves as director of community ministries and does the liaison work with other churches. Both were previously Pastors of their own churches, and feel that Christian Television is as much or more of a "church" as the more traditional churches they formerly pastored. They described the use of video technology as an advantage and an asset, rather than as a substitute for more traditional forms of religious training. Worship services are conducted in the petitioner's chapel by both the staff ministers and other volunteer or paid ministers. The chapel, containing 1200 square feet and having a seating capacity of about 150, has high ceilings and contains an organ, an altar, a pulpit and chairs. The estimated value of the assets within the chapel is ten or twenty thousand dollars. The chapel is actively utilized during the week for staff devotionals and communion services, and is open to the public for special services and advertised programs conducted by those using a Biblical approach. Other approved ministries are permitted to utilize the chapel without charge for Bible studies or special prayer times. The chapel is not used as a production or broadcasting studio. As of December 31, 1983, the value of petitioner's assets, including plant, property and equipment, was $2,185,564.00. During 1983, petitioner received contributions totalling $1,137,000.00, and realized slightly more than one million dollars in revenue by providing broadcast and production time to various religious organizations.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's Consumer Certificate of Exemption be reissued for a period of five (5) years. Respectfully submitted and entered this 6th day of October, 1986. DIANE D. TREMOR 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 6th day of October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0456 The proposed findings of fact submitted by the petitioner and the respondent have been carefully considered and are accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner: 3 - 5. Recitations of testimony accepted as correct, but not included as factualfindings. 7. Partially rejected as argument as opposed to factual findings. COPIES FURNISHED: Jon H. Anderson, Esquire NCNB Bank Building 5001 South Florida Avenue Lakeland, Florida 33803 Edwin A. Bayo, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Randy Miller Executive Director Department of Revenue 102 Carlton Building Tallahassee, Florida 32301 William D. Townsend General Counsel 104 Carlton Building Tallahassee, Florida 32301
The Issue The issue is whether Respondent's Certificate of Registration may lawfully be revoked.
Findings Of Fact The Department is an agency of the State of Florida pursuant to Section 20.21. The Department has the responsibility of administering the revenue laws of the state, including the laws relating to the imposition and collection of the state's sales and use tax, pursuant to Chapter 212. Spin and Marty is a Florida corporation doing business as Crabbit's Pub whose principal address is 10513 Spring Hill Drive, Spring Hill, Florida. Spin and Marty is a "dealer" as that term is defined in Chapter 212. It holds a certificate of registration issued by the Department that is numbered 37-8012056472-7. Spin and Marty initially registered with the Department on January 30, 1992. The sales and use tax collected by a registrant, such as Spin and Marty, become the property of the state at the moment they are collected. A registrant is an agent of the state when collecting the sales and use tax. Spin and Marty was required to remit the sales and use tax collected to the state on or before the 20th of each month. From November 1999 until December 2003, Spin and Marty filed no returns and paid no sales and use taxes to the Department. Also, Spin and Marty, in November 2005, did not file a return or pay sales and use taxes. In a letter dated November 20, 2001, Spin and Marty was notified that the Department was going to audit its records. The Department received no response. In a letter dated April 3, 2002, Spin and Marty was again asked to contact the Department's auditor so a mutually agreed date could be set to conduct the audit. The Department received no response to this letter. The Department thereafter conducted an audit. The result of the audit was a notice of proposed assessment which stated that Spin and Marty owed $146,044.74 in back taxes, penalties, and interest through September 4, 2002. Neither Spin and Marty, nor its principal, Mr. McNiff, contested the audit findings. A letter from the Department addressed to "Dear Taxpayer," dated August 5, 2002, was received by Spin and Marty. This letter stated that the Department wished to arrange a meeting in its office for the purpose of reviewing the Notice of Intent to Make Audit Changes dated June 18, 2002. Spin and Marty did not avail itself of this opportunity. Six tax warrants were filed with the Clerk of Court in Hernando County against Spin and Marty. These warrants indicate that as of the day of the hearing Spin and Marty owed $175,299.93 to the Department. This amount includes the actual tax due, or in the case of warrant 1000000029678, the estimated tax due, penalties, interest, and filing fees. Interest continues to accrue. Pursuant to notice from the Department, on July 31, 2006, Theodore Faugno, who works for Mr. McNiff's CPA, and Mr. McNiff met with Debra B. Smith, a Revenue Specialist III with the Department. Neither Mr. McNiff nor Mr. Faugno contacted Ms. Smith following the meeting. This resulted in the Administrative Complaint seeking to revoke Respondent's Certificate of Registration. Mr. McNiff related that during the period he failed to submit returns and remit the taxes then due, he experienced adverse health issues and the unplanned birth of a baby. However, he was able to operate Spin and Marty and make a profit. It is indubitably concluded that he could have also reported and remitted the tax due, had he been so inclined.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue revoke Certificate of Registration No. 37-8012056472-7, held by Spin and Marty, Inc., d/b/a Crabbit's Pub. DONE AND ENTERED this 7th day of February, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 7th day of February, 2007. COPIES FURNISHED: Warren J. Bird, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Jarrell L. Murchison, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 J. Bruce Hoffmann, General Counsel Department of Revenue 204 Carlton Building Post Office Box 6668 Tallahassee, Florida 32314-6668 James McNiff Spin and Marty, Inc., d/b/a Crabbit's Pub 10050 Sleepy Willow Court Spring Hill, Florida 34608 James McNiff Crabbit's Pub 10513 Spring Hill Drive Spring Hill, Florida 34608-5047 James Zingale, Executive Director Department of Revenue The Carlton Building, Room 104 Tallahassee, Florida 32399-0100
The Issue The issue in this case is whether the Petitioner should be issued a sales tax exemption certificate either as a "church" or as a "religious organization."
Findings Of Fact The Petitioner, In His Service, is a not-for-profit organization formed to give structure to a Bible study and prayer group Shirley B. Cole leads. Cole is the Petitioner's "pastor," but she is not ordained, does not officiate at weddings or funerals, and has no formal religious training other than participation in similar study groups in the past. The Petitioner is affiliated with an organization called the Federation of Independent Churches, which has an office on East Bird Street in Tampa, Florida. (In a post-hearing submission, Cole asserted that the Petitioner's "outreach is from Greater Ministries International, basically functioning as a satellite church, but there was no evidence regarding Greater Ministries International.) Portions of the Petitioner's by-laws were admitted in evidence at the final hearing. The by-laws make reference to three officers--president, vice-president, and secretary-treasurer--but Cole testified that she was the secretary and that someone else was the treasurer, and she did not seem to know anything about a president or vice-president. In addition, while the by-laws refer to a board of directors and meetings of the board of directors, Cole does not know anything about either. The Petitioner is small (not more than 15 members). It consists primarily of Cole and her friends and neighbors and some others who hear about the meetings. The group has met in various locations, including Cole's home at 5155 20th Avenue North, St. Petersburg, Florida, and the homes of other members of the group. In addition to Bible study and prayer, the group discusses health issues and other topics of interest and shares reading materials and tapes on topics of interest. From time to time, the group collects items of donated personal property for the use of members of the group and others in need who could use the items. In late June 1998, the Petitioner applied for a sales tax exemption certificate as a church. In response to a question from a representative of the Respondent DOR Cole stated that the Petitioner held services in her home every Thursday from 7:30 to 9:30 or 10 p.m. A DOR representative attempted to confirm Cole's representation by attending a meeting in Cole's home on Thursday, October 8, 1998, but no services were being held there, and no one was home. If there was a meeting on that day, it was held somewhere else. On or about December 28, 1998, DOR issued a Notice of Intent to Deny the Petitioner's application because the Petitioner did not have "an established physical place of worship at which nonprofit religious services and activities are regularly conducted and carried on." In January 1999, Cole requested an administrative proceeding on the Petitioner's application, representing that she was holding the Petitioner's meetings at her home every Monday from 7:30 p.m. On Monday, April 5, 1999, a DOR representative visited Cole's home at 7:30 or 7:35 p.m., but no one was home. At final hearing, Cole testified that she went to pick someone up to attend the meeting and was late returning. Cole had an April 1999 newsletter admitted in evidence. It indicates that she holds weekly Bible study meetings on Mondays at her home. It also indicates: "The week of April 19th will be our maintenance [health] meeting." It also indicates that the Monday, April 26, 1999, meeting would be a "covered dish dinner with prayer and praise fellowship afterward." Cole also had a book/tape loan check-out list admitted in evidence. The list indicates that two items were checked out on January 21, one on February 8, two on February 14, one on February 15, one on March 8, one on March 21, two on March 22, one on April 4, one on April 5, and four on April 12, 1999. (Two entries dated April 13 precede two on April 12, so it is assumed that all were on April 12, 1999). Cole owns her home, pays the taxes, and pays the utility bills. Cole also claims a homestead exemption. There are no signs, no physical attributes, or anything else that would identify Cole's house as a church. No part of the home is set aside for the Petitioner's exclusive use. The Petitioner pays no rent to Cole and does not reimburse Cole for any of her expenses (such as taxes and utility bills) of home ownership. Under local City of St. Petersburg zoning ordinances, Cole would have to obtain a special exception from the Environmental Development Commission to use her home as a church. Cole has not attempted to do so. Had she tried, the special exception would be denied because her home does not meet the ordinance's minimum lot and yard size criteria for such a special exception. (It is not clear whether Cole's home would meet the ordinance's parking, maximum floor area ratio, and maximum surface ratio criteria for a special exception for a church.) In light of past discrepancies between the Petitioner's representations and the facts, it was not clear from the evidence presented in this case that meetings have taken place, are taking place, or will take place in Cole's home on a regular basis.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the DOR enter a final order denying the Petitioner's application for a tax exemption certificate. DONE AND ENTERED this 18th day of May, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 18th day of May, 1999. COPIES FURNISHED: Shirley Cole, Pastor In His Service 5155 20th Avenue, North St. Petersburg, Florida 33710 Kevin ODonnell, Assistant General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact FMCC is a corporation organized and existing under Delaware law. FMCC maintains its principal place of business in Dearborn, Michigan. FMCC is a wholly owned subsidiary of Ford Motor Company. FMCC qualified and is authorized to do business in the State of Florida pursuant to the foreign corporation provisions of Chapter 607, Florida Statutes, and has continuously maintained a registered office and agent in this state during the audit years at issue. During the tax years 1980-1982, inclusive, FMCC and Ford filed corporate tax returns in Florida and paid the taxes due thereon under the Florida Income Tax Code; FMCC maintained 7 to 8 branch offices and employed approximately 200 people in Florida; and Ford had contractual relationships with approximately 130 to 150 authorized Ford dealers in Florida. A copy of a representative agreement between Ford and the dealers is Exhibit 3 to this Stipulation. FMCC's principal business is financing the wholesale and retail sales of vehicles manufactured by Ford Motor Company. During the audit period FMCC provided financing for the purchase of vehicles as authorized by Ford dealers from Ford Motor Company. FMCC also: provided financing for the purchase of automobiles by the public from the dealers; and engaged in commercial, industrial and real estate financing, consumer loan financing, and leasing company financing in the State of Florida as well as other states. Attached as Composite Exhibit 4 are sample documents utilized by FMCC in the above financing. The majority of the intangibles in question are accounts receivables held by FMCC and owned by Florida debtors in connection with the purchase of tangible personal property shipped to or located in the State of Florida. FMCC is the holder of security agreements executed by thousands of Florida debtors. These security agreements gave FMCC a lien on tangible personal property located in the State of Florida. The Florida Secretary of State's Office was utilized by FMCC during the assessment period to perfect and protect its liens created under these security agreements with Florida debtors by the filing of U.C.C. financing statements. None of the original notes are stored in Florida. During the assessment period, FMCC utilized or could have utilized the Florida Courts to recover sums due by Florida debtors on delinquent accounts receivable. In addition, FMCC utilizes the Florida Department of Highway Safety and Motor Vehicles to perfect its liens on motor vehicles pursuant to Chapter 319, Florida Statutes. In 1983, the Department conducted an audit of the FMCC intangible tax returns for tax years 1980 through 1982, inclusive. On June 3, 1983, the Department proposed an assessment of tax, penalty and interest in the total amount of $2,560,379.00. See Exhibit 5. FMCC filed a timely protest. On October 8, 1984, the Department issued a Notice of Decision. See Exhibit 2. On December 12, 1984, the Department acknowledged receipt of FMCC's timely November 8, 1984 Petition for Reconsideration. On February 18, 1985, the Department issued a Notice of Reconsideration. See Exhibit 6. FMCC elected to file a Petition for Formal Proceedings, which was received on April 8, 1985. On the basis of the revised audit report, the Department of Revenue imposed the intangible tax on FMCC for the tax years 1980 through 1982, inclusive, in the following categories, and in the taxable amounts listed as follows: 1/1/80 1/1/81 1/1/82 Commercial Finance Receivables-- $342,892,615 $403,061,571 $486,412,164 Retail Commercial Finance Receivables-- 218,591,180 241,993,462 228,303,569 Wholesale Simple Interest Lease Receivables-- 66,345,902 75,978,095 71,315,777 Retail Lease Finance Receivables N/A N/A N/A Capital Loan Receivables 3,112,877 2,064,698 2,419,770 Consumer Loan Receivables 10,144,531 14,122,666 18,578,699 Service Equipment Financing--Dealer I.D. 481,869 368,186 422,108 Receivables Ford Rent-A-Car Receivables 27,825,283 26,179,377 20,362,896 Ford Parts & Service Receivables -0- 10,499,401 10,800,313 (10) Accounts Receivables--Customers & Others 3,452,194 4,581,629 4,952,234 (11) Accounts Receivables--Affiliate 1,617,880 2,914,094 4,438,849 (12) C.I.R. Receivables 23,243,257 27,387,938 24,222,621 TOTAL FLORIDA RECEIVABLES------ 697,707,588 809,151,117 872,229,000 TAX AT 1 MILL---- 697,708 809,151 872,229 LESS ORIGINAL TAX PAYMENT------ 312,703 351,976 339,142 LESS PETITION PAYMENT ON AGREED CATEGORIES------ 51,069 53,567 44,586 TOTAL REMAINING TAX ASSESSED------ $333,936 $403,608 $488,501 TOTAL TAX FOR ALL YEARS----- $1,226,045 REVISED ASSESSMENT FIGURES DOES NOT INCLUDE $1,386.18 OF THE PETITION PAYMENT At the time it filed its petition for a formal hearing, FMCC agreed to and paid the 1 mill tax, but no interest or penalty, on the following amounts. The taxability of these items is no longer in dispute, only penalty and interest. 1980 1981 1982 (8) Ford Rent-A-Car 27,825,283 26,179,377 20,362,896 Receivables (12) CIR 23,243,257 27,387,938 24,222,621 Receivables Capital Loan Receivables (item 5 of paragraph 11) reflect amounts of money owed by Ford dealers to FMCC. The obligation arises from loans made to Ford dealers located in Florida to expand showroom or other facilities and for working capital. The items located as (10) Accounts Receivable - Customers and Others and (11) Accounts Receivables - Affiliates in paragraph 11 reflect only the amount of accrued interest to which FMCC is entitled on notes from non-affiliates and affiliates, respectively, from the last settlement date prior to year end until the end of each respective year. The principal amounts owed on these notes, which are not secured by realty, are included in other categories. The Department does not assess a tax for similar interest when the amount owed is secured by realty. Wholesale and retail intangibles were created and handled in 1980, 1981 and 1982 by FMCC in the manner set forth in Exhibit 7. The Department of Revenue has imposed penalties in the amount of $543,968 composed of $330,051 as the 25% delinquent penalty imposed pursuant to Fla. Stat. Section 199.052(9)(a) (1983), and $15,886 as the 15% undervalued Property penalty imposed pursuant to Section 199.052(9)(d)(1983), Florida Statutes. The Department offered abatement of the 15% omission penalty ($198,031) imposed pursuant to Fla. Stat. Section 199.052(9)(c) (1983). The closing agreement required pursuant to Fla. Stat. Section 213.21 reflecting this reduction of penalty was not signed by petitioner. FMCC's intangible tax returns have been audited on prior occasions. The manner of reporting was identical to the manner in which FMCC reported its intangibles for tax years 1980 through 1982. The 1973-1975 and the 1976-1978 audits were "no change" audits. FMCC's method of reporting receivables generated from Florida sales was challenged by the Department of Revenue. The challenge was dropped because the Department of Revenue did not have the statutory authority to assess sales of tangible personal property with an f.o.b. point other than Florida. Chapter 77-43, Laws of Florida amended Section 199.112, Fla. Stat. to allow tangible personal property (sic) [to be taxed] regardless of the f.o.b. point of sale. This amendment applied to the January 1, 1978 taxable year. There was a 1978-1980 "no change" audit. Ford Motor Company has filed refund claims for certain categories for the tax year 1981 and 1982. Ford Motor Company claims that it inadvertently paid intangible tax on accounts receivable owned by FMCC. As presented in the Notice of Decision, no refund will be made as it will be handled as a credit against taxes due by Ford Motor Company. While not an announced policy, the Department of Revenue drafted and utilized proposed rules relating to compromising penalties. These rules are not final. Attached as Exhibit 8 are the proposed rules. A copy of these rules was provided to Petitioner by letter dated July 28, 1986. In addition, while not an announced policy the Department of Revenue utilized guidelines established by the Internal Revenue Service and federal court for compromising penalties.
The Issue Whether Respondent is entitled to a Consumer Certificate of Exemption under Section 212.08, Florida Statutes.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Respondent is a nonprofit Florida corporation that was formed in 1996 to serve the religious needs of persons living in Miami-Dade County's Overtown community, including, in particular, the homeless and young people in the area. Article II of Petitioner's Articles of Incorporation, which were filed with the Florida Department of State on May 10, 1996, sets forth the "purpose of the corporation" as follows: The Corporation is organized exclusively for charitable, religious, educational, and scientific purposes, including, for such purposes, the making of distributions to organizations that qualify as exempt organizations under section 501(c)(3) of the Internal Revenue Code, or the corresponding section of any future federal tax code. Petitioner's by-laws reflect that it is a "full-gospel ministry" comprised of "Christian believers." Its "civil officers" include a President, who also serves as the Pastor of the Gibson Park Church, which Petitioner operates. Gibson Park, after which the Gibson Park Church is named, is a park located in Overtown. It has, among other things, an open-air amphitheater, with a stage. Morris Mays is presently the President of Petitioner and Pastor of the Gibson Park Church. He resides in an apartment (apartment number 18) that he leases in his own name from the Church of God in Christ at 1767 Northwest Third Avenue in Miami-Dade County (Pastor Mays' Apartment). Pastor Mays' apartment presently serves as Petitioner's headquarters, as a sign in the window of the apartment reflects. Petitioner hopes to purchase, and move its headquarters to, a building across the street from Gibson Park. (The owner of the building has expressed, in writing, an interest in selling the building to Petitioner.) Pastor Mays donates the use of his apartment, and also volunteers his time, to Petitioner. There are other individuals, besides Pastor Mays, who help carry out the purposes of Petitioner. Like Pastor Mays, they also volunteer their time and are not compensated. Petitioner regularly conducts nonprofit worship and prayer services and other religious activities at Pastor Mays' apartment on Wednesday evenings and at the amphitheater in Gibson Park on Sundays. 1 Petitioner has been conducting Sunday morning services at the Gibson Park amphitheater since it received written permission from the City of Miami to do so in the late summer of 1997. These Sunday morning services (at which Pastor Mays preaches) are open to the general public and are advertised in a newsletter that Petitioner publishes and distributes in the Overtown community. The services are attended, on the average, by approximately 50 people, many of whom are homeless. Every other Sunday, following regular morning services, Petitioner, with the help of guest "DJs," conducts special youth services. Wednesday evening services at Pastor Mays' apartment are less formal and shorter than Sunday morning services. They are not publicized in Petitioner's newsletter. Attendance averages only about seven to ten people.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding that Petitioner is entitled to the Consumer Certificate of Exemption it is seeking pursuant to Section 212.08(7)(o), Florida Statutes. DONE AND ENTERED this 5th day of May, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1998.
The Issue The issue for determination is whether Petitioner is entitled to a consumer's certificate of exemption as an organization providing special educational, cultural, recreational, and social benefits to minors pursuant to Subsection 212.08(7)(n), Florida Statutes.
Findings Of Fact Dormouse Productions, Inc. (Petitioner) is a non-profit Florida corporation. Petitioner has one employee who is salaried and is its president. Petitioner currently holds, and at all times material hereto held, an exemption from federal corporate income tax pursuant to Section 501(c)(3) of the U.S. Internal Revenue Code. Petitioner does not hold a certificate of tax exemption issued by the Florida Department of Revenue (Respondent). Petitioner filed its Articles of Incorporation (Articles) with the State of Florida on August 19, 1994. Article III of Petitioner's Articles provides its specific purposes: To promote the educational and cultural development of minors through materials and activities designed to target their communities. To create and produce materials encompassing the language, history, art, architecture, geography, and cultural diversity of communities. To develop civic awareness and pride in hometown communities. To incorporate multi-disciplinary approaches in a variety of learning activities. Petitioner provides copies of a soft-cover book, free of charge, to third grade classes in public, parochial, and private schools in Dade County. Accompanying the books is a teacher's guide for each class, which is also free of charge. Petitioner's sole employee produces the content of the book and teacher's guide. At the time of hearing, one soft-cover book had been printed and one was going to the printer. Petitioner's books (soft-cover book and teacher's guide) are intended to provide information about a child's own local community in Dade County. Presently, to teach children about the concept of "community", teachers use a non-specific textbook and resources which are located by the individual teacher. Petitioner intends to produce books devoted to each local community in Dade County. Teachers and school administrators have been receptive to Petitioner's books. Petitioner's books are provided to the Dade County Public Schools system for distribution to the schools' libraries. The books have been provided to every branch of the Dade County Public School library system and have been distributed to every public elementary school library. Petitioner's sole employee personally takes the books to the elementary schools in the community for which the books are written. Volunteers distribute the books to libraries outside of the public library system and to private and parochial school libraries. Petitioner's sole employee does not go into the classrooms and teach children from or with the books. She holds meetings with teachers to discuss the books and to obtain input as to what the teachers suggest be included in the books. No activities are provided to minors by Petitioner. The teacher's guide describes activities which teachers can provide to minors, if they so choose. Petitioner's chief expenditure of funds involves printing costs and salaries.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order denying a consumer's certificate of exemption to Dormouse Productions, Inc. DONE AND ENTERED this 8th day of April, 1997, in Tallahassee, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1997. COPIES FURNISHED: Kevin J. ODonnell, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Joseph H. Huppert, Treasurer Dormouse Productions, Inc. 1601 Biscayne Boulevard #1191 Miami, Florida 33132 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact The Sarasota Retina Institute Research Foundation, Inc., (Petitioner) is a non-profit corporation exempt from federal income tax under Section 501(c)3 of the Internal Revenue Code. The Sarasota Retina Institute (SRI) is a private medical practice consisting of three practicing ophthalmologists. The three SRI ophthalmologists are on the seven-member board of directors of the Petitioner. Documents provided by the Petitioner indicate that SRI has been involved in medical clinical studies. Although the Petitioner asserts that it provides financial support for the studies, the evidence fails to support the assertion. The Petitioner's Articles of Incorporation state that it is organized for religious, charitable and educational purposes sufficient to qualify for federal tax exemption. The articles do not establish that the Petitioner was originally organized or is currently organized for scientific research. According to the Articles, the Petitioner's property is held for religious, charitable and educational purposes. The Petitioner's application for IRS exemption states that the activities of the Petitioner are to offer a "source of revenue for educational purposes and research purposes" in the field of human eye disease. The evidence offered at hearing is insufficient to establish that the funds of the Petitioner are being used for research purposes. The evidence indicates that majority of expenditures by the Petitioner are being made not for scientific purposes but, to cover travel and seminar expenses of the SRI ophthalmologists. The Petitioner's expenditures are insufficient to establish that the Foundation is a scientific organization.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Revenue enter a Final Order denying the Petitioner's application for a Consumer's Certificate of Exemption. RECOMMENDED this 20th day of December, 1996, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1996. COPIES FURNISHED: Linda Lettera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 David P. Johnson, Esquire 2201 Ringling Boulevard, Suite 104 Sarasota, Florida 34237 Ruth Ann Smith Assistant General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668
Findings Of Fact Having considered the pleadings and the record as reconstructed by the parties, as well as oral argument on the issues, the following pertinent facts are found: For the years previous to 1973 and for the years subsequent to 1973, petitioner has been granted a partial charitable exemption from ad valorem taxation, pursuant to F.S. 196.012(6). Petitioner's secretary, who was the only full-time salaried employee and officer of petitioner's organization, had the responsibility of reviewing and answering all correspondence addressed to petitioner. Due to the secretary's illness and subsequent demise, an application for ad valorem tax exemption for 1973 was not timely filed, and the property appraiser thus denied the exemption. For the tax year 1973, a charitable exemption would have been granted petitioner had it timely filed its application and return by April 1, 1973. Upon appeal by petitioner to the Broward County BTA on the stated grounds of "change of officers," the BTA granted the exemption upon the recommendation of the tax assessor. The BTA notified the respondent of the change in the assessor's action. The staff recommendation of the respondent was to invalidate said change on the ground that petitioner failed to demonstrate that it came within an exception to the waiver rule of Section 196.011 and therefore the change by the BTA lacked legal sufficiency and/or the evidence presented was insufficient to overcome the assessor's presumption of correctness. Petitioner requested a hearing to review the staff recommendation, the Executive Director of the respondent requested the Division of Administrative Hearings to conduct the hearing, and the undersigned 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 granting the exemption be invalidated. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 12th day of February, 1976. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Carlton Building, Room 530 2009 Apalachee Parkway Tallahassee, Florida 32304 (904) 488-9675 NOTE: Text within the *-* is unreadable on the document on file with the Division. Therefore, the complete text is not available in this ACCESS document. COPIES FURNISHED: Mr. J. Ed Straughn Executive Director Department of Revenue The Capitol Tallahassee, FL 32304 Mr. Thomas M. Coker, Jr. 328 Bayview Building 1040 Bayview Drive Ft. Lauderdale, FL 33304 Mr. Stephen E. Mitchell Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, FL 32304 Mr. Gaylord A. Wood 603 Courthouse Square Building 200 SE 6th Street Ft. Lauderdale, FL 33301
The Issue Whether Respondent’s consumer tax exemption certificate should be revoked.
Findings Of Fact Respondent, The Seminole Tribe of Florida (Tribe), is a federally chartered Indian tribe pursuant to Section 16 of "The Indian Reorganization Act of 1934," 48 Stat. 987 (1934), (current version at 25 U.S.C.A. Sections 476-477 (1996)). Petitioner, the Department of Revenue (Department) is the agency of the State of Florida which is authorized to administer the collection of taxes and the issuance of consumer certificates of exemption, pursuant to Chapter 212, Florida Statutes. The consumer certificate of exemption at issue in this proceeding, certificate number 16-199584-51C, was issued to the Tribe by the Department on May 13, 1987. This certificate reflects an expiration date of July 13, 1992, and indicates that the Tribe is exempt as "Federal." The Department has continuously treated the Tribe as an exempt organization since at least May of 1987 and possibly as early as 1960. The Tribe timely sought renewal of certificate number 16-199584-51C by filing a DR-5R, "Renewal Application for Consumer Certificate of Exemption." Prior to the time for renewal of the Tribe’s consumer certificate of exemption, its file was "flagged" for special review. Flagging is the standard procedure used by the Department when the Department becomes aware or receives information that a consumer certificate of exemption may have been issued in error. Although the Tribe’s consumer certificate of exemption expired in 1992, the Tribe has been allowed to continue to use the exemption from the expiration date up to the present time. It is the policy of the Department to honor any expired consumer certificate of exemption until the Department either grants an application for renewal or enters a final order denying the renewal. From May 7, 1992, to June 20, 1994, the Department sent five substantially identical form letters to the Tribe evidencing this policy of maintaining the status quo until a final determination is made. The letters contain the following statement: Please be advised the department does realize that the aforementioned organization is recognized as a political subdivision by the federal government. However, this office will require additional time to review pertinent documentation and assess the department’s technical opinion before responding to the organization’s request for renewal of its Consumer Certificate of Exemption. The Seminole Tribe of Florida is still authorized to make sales tax exempt purchases in the state of Florida. The organization’s Consumer Certificate of Exemption is still valid and shall remain in effect until the department has completed the review process. On August 24, 1993, Rick McClure, an Assistant General Counsel of the Department, advised Bonnie Garris, an accounting administrator for the Tribe, that the Department took the position that the Tribe was not entitled to an exemption certificate, but that the Tribe would be immune from taxation on certain transactions. Mr. McClure further advised Ms. Garris that the Department was in the process of drafting a rule and a certificate dealing with immunity. The Department has not promulgated a rule dealing with the subject of Indian tribes' immunity from sales and use taxation, and the Department has not developed immunity certificates. Certificate number 16-199584-51C was not renewed by the Department; instead, on June 28, 1996, the Department issued an administrative complaint seeking to revoke the certificate on the basis that the Tribe does not meet the statutory requirements for exemption contained in Section 212.08(6), Florida Statutes. The Tribe has its own government with a tribal constitution and by laws. All laws enacted by the tribal government must be approved by the federal government. The reservation lands of the Tribe are owned by the federal government. The Tribe has numerous contracts, grants, and cooperative agreements with the federal government. In particular, the Tribe enters into a large number of contracts in accordance with Public Law 93-638, codified in 25 U.S.C. Section 450 et seq., known as the Indian Self Determination and Education Assistance Act (ISDEAA) of 1975, as amended in 1988 and thereafter. These contracts are hereinafter referred to as "ISDEAA contracts" or "self-determination contracts." Through the self-determination contracts, the Tribe provides law enforcement, education, medical, dental, and other health related services which would otherwise be provided directly by the federal government. The Tribe submits budgets to the federal government for approval for the use of the federal funds for the self- determination contracts. These budgets do not account for state sales taxes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered revoking the Seminole Tribe of Florida's consumer certificate of exemption. DONE AND ENTERED this 7th day of July, 1997, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1997. COPIES FURNISHED: Tracy Allen, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Donald A. Orlovsky, Esquire Servico Centre South 1601 Belvedere Road, Suite 402 West Palm Beach, Florida 33406 John Mellichamp, III, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399
