IN THE SUPREME COURT OF FLORIDA. Case No. SC On Petition for Discretionary Review Of a Decision of The First District Court of Appeal

Transcription

1 IN THE SUPREME COURT OF FLORIDA Case No. SC On Petition for Discretionary Review Of a Decision of The First District Court of Appeal RISCORP INSURANCE COMPANY, RISCORP PROPERTY & CASUALTY INSURANCE COMPANY, and FLORIDA HOSPITALITY MUTUAL INSURANCE COMPANY, Petitioners, v. FLORIDA DEPARTMENT OF FINANCIAL SERVICES, ET AL., Respondents. PETITIONERS BRIEF ON JURISDICTION Timothy W. Volpe and Michael M. Bajalia, Volpe, Bajalia, Wickes, Rogerson & Galloway, 1301 Riverplace Boulevard, Suite 1700, Jacksonville, Florida 32207, for Petitioners.

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES...iii, iv INTRODUCTION...1 STATEMENT OF THE CASE AND FACTS...2 SUMMARY OF THE ARGUMENT...6 ARGUMENT...6 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF RULE COMPLIANCE

3 TABLE OF AUTHORITIES Cases Page(s) C.D. Utility Corp. v. Maxwell, 189 So. 2d 643, 646 (Fla. 4th DCA 1966)...6 Dept. of Revenue v. Young American Builders, 358 So. 2d 1096, 1099 (Fla. 1st DCA 1978) 6 Florida Department of Financial Services, et al. v. Riscorp InsuranceCompany, et al., 29 Fla. L. Weekly D664 (Fla. 1st DCA March 16, 2004) 1 Ford Motor Company v. Kikis, 401 So. 2d 1341, 1342 (Fla. 1981) 1, 8, 9 Gandy v. State, 846 So. 2d 1141, 1144 (Fla. 2003) 9 Maas Brothers v. Dickinson, 182 So. 2d 633 (Fla. 1st DCA 1966) 9 Maas Brothers, Inc. v. Dickerson, 195 So. 2d 193, 198 (Fla. 1967) 1, 6, 8, 10 Mikos v. Ringling Bros. Barnum & Bailey, 497 So. 2d 630, 632 (Fla. 1986) 6, 8 Persaud v. State, 838 So. 2d 529, 533 (Fla. 2003) 9 State Housing Authority of Plant City v. Kirk, 231 So. 2d 522, 524 (Fla. 1970) 8 The Florida Star v. B.J.F., 530 So. 2d 286, 288 (Fla. 1988) 9 Walgreen Drug Stores Co. v. Lee, 28 So. 2d 535, 536 (Fla. 1950)...8 3

4 Florida Statutes Section Section , 2 Section Section Other Authorities American Heritage Dictionary 375, 570 (4th ed. 2001)... 5, 7 Barron s Dictionary of Insurance Terms 315 (3d ed. 1995)...3 Dictionary of Insurance (7th ed. 1990)...3 Gerald R. Health, Insurance Words & Their Meanings (1970)... 3, 4 Rupp s Insurance and Risk Management Glossary (2002)...4 Florida Constitution Article V, Section 3(b)(3) of the Florida Constitution... 2, 6, 9 Laws of Florida Chapter , Laws of Florida...4 4

5 INTRODUCTION Petitioners seek to invoke this Court s discretionary jurisdiction to review the First District Court of Appeal s decision in Florida Department of Financial Services, et al. v. Riscorp Insurance Company, et al., 29 Fla. L. Weekly D664 (Fla. 1st DCA March 16, 2004) [App. 1], wherein the First District interpreted taxing statutes in a manner that directly conflicts with this Court s longstanding precedent that taxing statutes must be construed in a manner most favorable to the taxpayer. The First District reversed the trial court s determination that Petitioners were entitled to a tax refund for overpaid assessments because ceded reinsurance premiums were not to be included in the assessment base provided for in Sections and , Florida Statutes (the Assessment Statutes ). In reversing the trial court, the First District took no notice and made no mention of the most significant issue, i.e. that this Court has consistently held that tax laws are to be construed strongly in favor of the taxpayer and against the government, and that all ambiguities or doubts are to be resolved in favor of the taxpayer. Maas Brothers, Inc. v. Dickerson, 195 So. 2d 193, 198 (Fla. 1967). Despite the First District s remarkable failure to cite this Court s decisions regarding the same question of law, conflict in fact exists and this Court s jurisdiction should be exercised. See Ford Motor Company v. Kikis, 401 So. 2d 1341, 1342 (Fla. 1981) (holding [i]t is not necessary that a district court explicitly identify conflicting district court or supreme court decisions in its opinion in order to create an express conflict under [Article V, Section 3(b)(3) of the Florida Constitution]. ). STATEMENT OF THE CASE AND FACTS The Assessment Statutes establish the basis for which insurance companies

6 writing worker s compensation insurance in Florida and self-insurers are to calculate the amount to be assessed and paid into the Special Disability Trust Fund ( SDTF ) and the Workers Compensation Administration Trust Fund ( WCATF ) established by Chapter 440, Florida Statutes. [App. 1, pp. 3-4] In 1975, the Florida Legislature amended the Assessment Statutes to prescribe that assessments were to be based upon the net premiums collected, rather than the former gross premiums collected. [App. 1, p. 4] In 1993, the Legislature amended only Section to read net premiums written, instead of net premiums collected. [App. 1, p. 4] These terms, while defined in other statutes, have never been defined in Chapter 440. Petitioners filed suit in the Circuit Court, Leon County, against the Florida Department of Labor and Employment Security ( DLES ) 1 alleging that Petitioners miscalculated their assessments between 1995 and 1998 by including ceded reinsurance premiums in their assessment bases resulting in an overpayment of assessments under the Assessment Statutes. [App. 1, p. 5] Specifically, Petitioners sought a declaratory judgment that the terms net premiums collected and net premiums written, used in the Assessment Statutes, did not include ceded reinsurance premiums and that Petitioners were entitled to a refund of their overpayments pursuant to Section , Florida Statutes. The trial court interpreted the term net within the Assessment Statutes to not include ceded reinsurance premiums and determined that Petitioners were entitled to a refund for their overpaid assessments. In coming to its conclusion, the trial court considered the following facts established in the record: a. The Legislature has not defined net premiums within the Assessment Statutes, and Respondent conceded that the Assessment Statutes are 1 DLES was the predecessor to the Department of Insurance, which is now the Department of Financial Services. 2

7 ambiguous. b. The Legislature has defined net premiums in other insurance taxing statutes to mean gross premiums net of ceded reinsurance premiums. See, e.g. Section , Florida Statutes (defining net premiums as gross premiums less all return premiums and premiums for reinsurance ). c. Multiple dictionary and established insurance industry authoritative sources have long and uniformly defined net premiums written as direct [gross] premiums, plus the reinsurance assumed premiums, less the reinsurance ceded premiums. National Association of Insurance Commissioners ( NAIC ) Accounting Practices and Procedures Manual for Property/Casualty Insurance Companies, Chapter 14. See also Barron s Dictionary of Insurance Terms 315 (3d ed. 1995) (defining net premiums written as total premiums written by a ceding company minus premiums ceded to its reinsurer ); Dictionary of Insurance (7th ed. 1990) (defining net premiums written as direct premiums written, plus reinsurance premiums accepted, less premiums ceded ); Gerald R. Health, Insurance Words & Their Meanings (1970) (defining net premium as gross premiums less return premiums and less premiums paid for reinsurance ); Rupp s Insurance and Risk Management Glossary (2002) (defining net premiums written as retained premium income direct or through reinsurance minus payments made for reinsurance ceded ). d. In 1997, Respondent s General Counsel, with the approval of the Department of Labor and Employment Security, interpreted the Assessment Statutes to adopt the NAIC s definition of net premiums written as a reasonable and appropriate definition and that carriers who did not exclude ceded reinsurance premiums from the tax base should receive a credit against their assessments for the amount of reinsurance it has purchased. e. Respondent advised other carriers to use the NAIC definition and instructed those carriers that ceded premiums are not to be included in the assessment base. f. Respondent paid refunds or permitted offsets to Petitioners competitors amounting to millions of dollars based on Respondent s own conclusion that the Assessment Statutes net premium language excluded 3

8 ceded reinsurance premiums from the tax base. g. Respondents then denied Petitioners their requested refund because it was too large. h. In 2000, nearly a year after Petitioners brought their action and upon the insistence of the Governor, the Legislature enacted Chapter , Laws of Florida (the 2000 Bill Language ) in an attempt to give the state additional legal grounds in this action and as an attempt by the state to retroactively shield itself from large refund payments. In light of the foregoing evidence, the trial court interpreted the Assessment Statutes consistent with the teaching of this Court s overwhelming precedent that taxing statutes must be construed strongly in favor of the taxpayer and that all ambiguities must be resolved in favor of the taxpayer and thus concluded that the Petitioners were entitled to exclude ceded reinsurance premiums from their assessment bases under the Assessment Statutes for the periods 1995 through 1998, and were entitled to a refund for their overpaid assessments. The DLES appealed to the First District. The First District filed its decision on March 16, [App. 1] The First District acknowledged that the term net has never been statutorily defined within Chapter 440 [App. 1, p. 4] and that the Legislature clearly intended that certain costs and expenses should be excluded from a carrier s assessment base [App. 1, pp. 8-9]. In fact, the First District held that, based upon its review of the plain and ordinary meaning of the terms net and gross, It is clear that the Legislature intended that certain costs or expenses should be excluded from a carrier s assessment base. Such a conclusion is evident based upon the Legislature s 1975 amendment of the statutes wherein it substituted the term net for the term gross. The term gross is defined as [e]xclusive of deductions; total, while the term net is defined as [r]emaining after all deductions and adjustments have been made. 4

9 [App. 1, pp. 8-9 (citing to The American Heritage Dictionary 375, 570 (4th ed. 2001) (emphasis added)]. However, the First District disregarded the clear intent of the Legislature and its own conclusion that Petitioners should only be required to pay their assessments after all deductions and expenses, and construed the Assessment Statutes in favor of the state and against the taxpayers by concluding that Petitioners had to pay their assessments gross of ceded reinsurance expenses even though that is not provided for within the Assessment Statutes. [App. 1, p. 9] Petitioners timely filed motions for rehearing, rehearing en banc, and certification with the First District. On May 4, 2004, the First District denied all of these motions. SUMMARY OF THE ARGUMENT The First District s opinion directly conflicts with longstanding precedent of this Court and other district courts on the same question of law, i.e., the proper construction and interpretation of taxing statutes. The First District construed the Assessment Statutes in favor of the state, rather than in accord with Florida precedent that taxing statutes are to be construed strongly in favor of the taxpayer. See, e.g., Maas Brothers, Inc. v. Dickinson, 195 So. 2d 193, 198 (Fla. 1967); Mikos v. Ringling Bros. Barnum & Bailey, 497 So. 2d 630, 632 (Fla. 1986); Dept. of Revenue v. Young American Builders, 358 So. 2d 1096, 1099 (Fla. 1st DCA 1978); C.D. Utility Corp. v. Maxwell, 189 So. 2d 643, 646 (Fla. 4th DCA 1966). The resulting conflict creates jurisdiction. Art. V, 3(b)(3), Fla. Constit. ARGUMENT This Court has jurisdiction to review Riscorp because of its direct conflict with other decisions of this Court and other district courts. In reversing the trial court, the First District interpreted taxing statutes that are at best ambiguous, in a manner most favorable to the state and detrimental to the taxpayers. 5

10 In its opinion, the First District confoundingly expressed that it relied upon the plain and ordinary meaning of net and gross holding that: It is clear that the Legislature intended that certain costs or expenses should be excluded from a carrier s assessment base. Such a conclusion is evident based upon the Legislature s 1975 amendment of the statutes wherein it substituted the term net for the term gross. The term gross is defined as [e]xclusive of deductions; total, while the term net is defined as [r]emaining after all deductions and adjustments have been made. [App. 1, pp. 8-9 (citing to The American Heritage Dictionary, 375, 570 (4 th ed. 2001) (emphasis added) )]. Having acknowledged that the term net, as used in the Assessment Statutes, has never been defined by the Legislature and that the term net is commonly defined to mean net of all deductions and adjustments, the First District then inexplicably held that it would be contrary to the intent of the Legislature to allow an insurance carrier to exclude ceded reinsurance expenses when calculating its net premiums. [App. 1, p. 2] Effectively, the First District used the word net, but defined it, contrary to this Court s holdings and in a manner favorable to the taxing authority, to mean gross by requiring the inclusion rather than exclusion of ceded reinsurance expenses. This Court s longstanding precedent is that it is a fundamental rule of construction that tax laws are to be construed strongly in favor of the taxpayer and against the government, and that all ambiguities or doubts are to be resolved in favor of the taxpayer. Maas Brothers, Inc., 195 So. 2d 193, 198 (Fla. 1967) (emphasis added). See also, Mikos v. Ringling Bros. Barnum & Bailey, 497 So. 2d 630, 632 (Fla. 1986)(holding a taxing statute should always be construed in the light most 6

11 favorable to the taxpayer ) (emphasis added); State Housing Authority of Plant City v. Kirk, 231 So. 2d 522, 524 (Fla. 1970)( all doubts relative to the interpretation of taxing statutes should be resolved against the state when legislative intent is as is certainly the case here doubtful ) (emphasis added). This Court has further held that: In construing a taxing statute, if the text of the Act does not reveal with certainty the intent of the Legislature and it is susceptible of two meanings, that meaning most favorable to the taxpayer should be adopted. This is all the more true if one meaning results in imposing the tax and the other relieves it. Walgreen Drug Stores Co. v. Lee, 28 So. 2d 535, 536 (Fla. 1950). Although argued vehemently by the parties, the First District chose not to mention this primary argument and the many citations to this Court s decisions and, without explanation or analysis, construed the Assessment Statutes against the taxpayers. The First District s decision conflicts with the fundamental legal principles governing the statutory construction of taxing statutes set forth by this Court and other district courts, and therefore supplies a sufficient basis to invoke the jurisdiction of this Court. See Ford Motor Company v. Kikis, 401 So. 2d 1341, 1342 (Fla. 1981) (holding [i]t is not necessary that a district court explicitly identify conflicting district court or supreme court decisions in its opinion in order to create an express conflict under [Article V, section 3(b)(3) of the Florida Constitution]. ); The Florida Star v. B.J.F., 530 So. 2d 286, 288 (Fla. 1988) ( it is not necessary that conflict actually exist for this Court to possess subject matter jurisdiction, only that there be some statement or citation in the opinion that hypothetically could create conflict.... ); Gandy v. State, 846 So. 2d 1141, 1144 (Fla. 2003); Persaud v. State, 838 So. 2d 529, 533 (Fla. 2003) (citing Ford Motor Co., 401 So. 2d 1341, 1342 (Fla. 1981)). 7

12 Indeed, this Court has made it clear that even if the approach Petitioners assert here were a tax avoidance scheme, it must be permitted nonetheless if the Assessment Statutes could be interpreted to permit such an approach; like here, in Maas Brothers v. Dickinson, 182 So. 2d 633 (Fla. 1st DCA 1966), the First District rejected a taxpayer s argument which the Court characterized as a gimmick to circumvent the tax in question. However, this Court reversed the First District s decision, stating: We might terminate here; however, to avoid any misapprehension as to the duty of the Court s function, a brief comment is in order on language contained in the opinion of the District Court wherein it described Petitioner s arrangement as having every earmark of a device or gimmick by which to circumvent the tax in question, and thereafter alluded to what is considered a duty to: Support the public revenues in no less degree than the duty not to impose a tax by judicial fiat. While we are confident it was not so intended, this language might be misconstrued to mean that the taxing authority stands in a favored position before the Court. This is not true. It is a fundamental rule of construction that tax laws are to be construed strongly in favor of the taxpayer and against the government, and that all ambiguities or doubts are to be resolved in favor of the taxpayer. This salutary principle is found in the reason that the duty to pay taxes, while necessary to the business of the sovereign, is still a duty of pure statutory creation and taxes may be collected only within the clear definite boundaries recited by statute. Maas Bros., 195 So. 2d at (citations omitted) (emphasis added). 8

13 CONCLUSION This Court has jurisdiction to review Riscorp because it directly conflicts with the well-established legal principles of this Court and other district courts and this Court should exercise its jurisdiction to resolve the conflict, which if permitted to stand, will change the manner in which taxing statutes have always been interpreted in the State of Florida. 9

14 RESPECTFULLY SUBMITTED, VOLPE, BAJALIA, WICKES, ROGERSON & GALLOWAY By: Timothy W. Volpe Florida Bar No Michael M. Bajalia Florida Bar No Riverplace Blvd., Suite 1700 Jacksonville, Florida (904) (904) (fax) Attorneys for Petitioners CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U. S. Mail to LOUIS HUBENER, ESQUIRE, Office of the Attorney General, The Capitol PL 01, Tallahassee, Florida , this day of June, Attorney CERTIFICATE OF RULE COMPLIANCE I HEREBY CERTIFY that Times New Roman 14-point type is used in the foregoing in accordance with Fla.R.App.P (a)(2). Attorney 10