ORIGINAL FOURTH'DISTRICT COURT OF APPEAL STATE OF FLORIDA. Case No. 4DI STATE OF FLORIDA, Appella.t, " ' % =-,_, _,-.(:_. v.

Transcription

1 ORIGINAL FOURTH'DISTRICT COURT OF APPEAL STATE OF FLORIDA Case No. 4DI STATE OF FLORIDA, "v'e'r = Appella.t, " ' % =-,_, _,-.(:_. v. _ -_ _ SEMINOLE TRIBE OF Appellee. \\ _' _ ANSWER BRIEF Appeal Seventeenth of a Final Order from the'circuit Court of the Judicial Circuit in and for Broward County, Florida Case No.: CACE John H. Pelzer, Esq..Glen A. Stankee, Esq. 200 East Broward Boulevard, 15_ floor P.O. Box 1900 Fort Lauderdale, Florida (954) , RM: ".3

2 TABLE OF CONTENTS PaEe TABLE OF CONTENTS... ii TABLE OF AUTHORITIES..:... iii PREFACE... vi STATEMENT OF THE FACTS AND THE CASE... 1 SUMMARY OF ARGUMENT... _..3 STANDARD OF REVIEW... 4 ARGUMENT... 5 I. THE STATE OF FLORIDA'S ATTEMPT TO TAX THE TRIBE'S ON-RESERVATION USE OF FUEL VIOLATES THE INDIAN COMMERCE CLAUSE... 5 H. THE RAKER AFFIDAVIT FILED IN SUPPORT OF THE TRIBE'S MOTION FOR SUMMARY JUDGMENT PROVIDES ADEQUATE SUPPORT FOR THE JUDGMENT CONCLUSION... ;. 20 CERTIFICATE OF SERVICE SIZE AND STYLE OF TYPE RM: :3 ii

3 TABLE OF AUTHORITIES Paee California1,. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct (1987)... 5 Carter v. Cessna Finance Corporation, 498 So. 2d 1319 (Fla. 4th DCA 1986) selllemga=s=sl=lg=luullulo==ml====ossalososemleeeboelwgl==lllsm==sm= 17 Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163: 192, 109 S.Ct. 1698, 1715 (1989) County of Yakima v. Confederated Tribes and Bands of Yakima Nia_on, 502 U.S. 251, 112 S.Ct. 683 (1992)... 5, 6 Coxv. CSX International, Inc., 732 So. 2d 1092 (Fla. 1st DCA 1999)... 4 Fla. Dept. of Fin. Servs. v. Associated Industries Ins. Co., 868 So. 2d 600 (Fla. 1st DCA 2004) Jackson v. State, 877 So. 2d 816 (Fla. 4th DCA 2004) Leverage Canters, Inc., v. E.D. Green Corp., 291 So. 2d 193 (Fla. 1974) M.S. 1,. Department of Children and Families, 6 So. 3d 102 (Fla. 4th DCA 2009) RM:'/381206:3..= 111

4 McClanahan v. Tax Commission of Arizona, 411 U.S. 164, 93 S.Ct (197.3)... 5, 6 Mendez v. Palms West Condominium Association, 736 SO. 2d 58 (Fla. 1st DCA 1999)... 4 Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct (1973)... 5, 6, 15 Mo@ v. Confederated $alish and Eootenai Tribes of Flathead Reservation, 425 U.S. 463, 96 S.C't (1976)... 8 Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 105 S.Ct (1985)... 5, 6 Oklahoma Tax Commission v. Chickasaw Nation, 515 U.S. 450, 155 S.Ct (1995)... 5, 6, 7, 11 Oklahoma Tax Commission v. Jefferson Lines, Inc., 514 U.S. 175 (1995)... 9 Park v. City of West Melbourne, 927 So. 2d 5 (Fla. 5th DCA 2006) DsosSOleloelleuoIDememOteleellelloJsOiseeleeiDIoostasseeeleeeoteeoem*Oleeele 4 Seminole Tribe of Florida v. Florida, 517 U.S. 44, 62, 116 S.Ct , 1126 (1996) Specialty Linings, Inc. v. B.F. Goodrich Co., 532 So. 2d 1121 (Fla. 2d DCA 1988) IU_1: ".3 iv

5 United Bonding Insurance Co. v. Dura-$tress, Inc., 243 So. 2d 244 (Fla. 2d DCA 1971)....o...e*...*o..*. *o **.e**o 16 Folusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000)... 4 Wagnon v. Prairie Band of Potawatomi Nation, 546 U.S. 95 (2005)... 14, 15 Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 100 S.Ct (1980)... 6, 7, 8, 13, 18 I_ite Mountain Apache Tribe I,. Bracker, 448 U.S. 136, 100 S.Ct (1980) , 12, 13, 15 Other Authorities (5), Fla. Stat (24), Fla. Star... 2, 8, 9, 10, 11, (3), Fla. Star..., (4)(a), Fla. Stat... 7, 11, (4)(cX1), Fla. Star... _ (1), Fla. Stat... _ Arizona Revenue Statute A Arizona Revenue Statute _ U.S. Const. Art. I... 6 t RM: ".3 V

6 PREFACE This is an appeal from a final summary judgment holding that the Department must refund gasoline excise taxes collected on fuel placed into vehicles owned by the Tribe and used at least in part by the Tribe on reservation or trust lands. The Appellant, STATE OF FLORIDA, DEPARTMENT OF REVENUE, will be referred to herein as the "Department." The Appellee, SEMINOLE TRIBE OF FLORIDA, will be referred to herein as the "Tribe." The Record will be referred to herein as "R.Vol., p_." RM: :3 vi

7 statement OF THE FACTS AND THE CASE The Florida Department of Revenue (the "Department") has appealed the final summary judgment and declaratory judgment that was entered by the Seventeenth Judicial Circuit Court, in and for Broward County, Florida, Judge David Krathen, on January 5, The trial court determined that the Florida fuel tax scheme was invalid as to the Seminole Tribe of Florida (the "Tribe") because it purported to impose an excise tax on fuel that the Tribe used or consumed on its reservation in violation of the Indian Commerce Clause of the United States Constitution, and ordered the Department to refund all fuel taxes collected in respect to such fuel. The material facts in this case are established by the testimony of James Raker (the Chief Financial Officer of the Tribe) and the business records of the Tribe. R.VoI.I, p (Raker Affidavit 8; R.Vol.H, p (internal pages ); Raker Exhibit 12. All of the material facts are undisputed. All of the fuel involved in this case was purchased at off-reservation fuel stations and was used or consumed in the Tribe's police cars, fire trucks, ambulances, garbage trucks, buses, utility trucks and other vehicles in the performance of its governmental functions. Id. While a portion of the fuel was consumed offreservation (i.e., to move the vehicles between the fuel stations and the reservations RM.' ",3 1

8 and to transport cargo and passengers among the Tribe's several noncontiguous reservations), some of the fuel was undeniably consumed on the reservation. The Tribe timely filed applications with the Department for a refund of those fuel taxes. The Depafanent denied the applications on the grounds that (24), Fla. Stat., deems "use" of the fuel to have occurred the moment it is placed in the fuel tank, which occurred off-reservation. RM: :3

9 SUMMARY OF ARGUMENT The State of Florida is without power, right or authority to tax the activities of the Tribe or its members that occur on reservation or trust lands. The excise tax on fuel in this case, when applied to fuel used in vehicles owned by the Tribe and used on reservation and trust lands, violates this proscription. Pursuant to Supreme Court authority, because no effort is made to distinguish between fuel used on or off the reservation, the entire fuel tax is invalid as it relates to the Tribe and all fuel tax previously collected must be refunded. As demonstrated in Mr. Raker's deposition, the information that he related in his deposition and in his affidavit was compiled from business records by persons under his supervision in his role as Chief Financial Officer for the Tribe. Accordingly, he had the requisite personal knowledge to make the factual statements contained in the deposition and affidavit. The trial court properly relied on these materials when granting summary judgment. P.M: :._ RUDEN M CLOSKY P.A. 3

10 STANDARD OF REVIEW An order granting summary judgment is reviewed de novo. Park v. City of West Melbourne, 927 So. 2d 5, 8 (Fla. 5th DCA 2006). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Folusia County v. Aberdeen at Onnond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) citing Mendez v. Palms West Condominium Association, 736 So. 2d 58 (Fla. 1st DCA 1999). Summary Judgment is also appropriate "where the determination of the issues of a lawsuit depends upon the construction of a written instrument and the legal effect to be drawn therefrom, [because] the question at issue is essentially one of law only." Cox v. CSXInternational, Inc., 732 So. 2d 1092, 1096 (Fla. 1st DCA 1999). RM: :3 RUDEN McCLOSKY P.Jk. 4

11 ARGUMENT L THE STATE OF I_ORIDA'S ATTEMPT TO TAX THE TRIBE'S ON-RESERVATION USE OF FUEL VIOLATES THE INDIAN COMMERCE CLAUSE. The use or consumption of property by Indians or Indian tribes on the reservation is not subject to state taxation except by virtue of express authority conferred upon the state by an act of Congress. McClanahan v. Tax Commission of Arizona, 411 U.S. 164, 93 S.Ct (1973). A state is without power to tax Indian tribes or their members inside Indian counu'y, absent clear Congressional authorization to do so. Oklahoma Tax Commission 1,. Chickasaw Nation, 515 U.S. 450, 155 S.Ct (1995). "[Ayosent cession of jurisdiction or other federal statute permitting it,.., a State is without power to tax reservation lands and reservation Indians," County of Yakima v. Confederated _'ibes and Bands of Yaklma Nation, 502 U.S. 251, 258, 112 S.Ct. 683, 688 (1992) (internal citations omitted), or "activities carried on within the boundaries of the reservation." Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S.Ct. 1267, 1270 (1973). See also California 1,. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct (1987). An Indian tribe's exemption fi'om state taxation is lifted "only when Congress has made its intention to do so unmistakably clear." Montana v. Blackfeet Tribe of lndians,. 471 U.S. 759,765, 105 S.Ct. 2399, 2403 (1985). "The Constitution vests the Federal Government with exclusive authority over relations RM: :3 RUDElq MoCLOSKY P.A. 5

12 with Indian tribes..., and in recognition of the sovereignty retained by Indian tribes even after formation of the United States, Indian tribes and individuals generally are exempt from state taxation within their own territory." Blackfeet Tribe of Indians, 471 U.S. at S.Ct. at Because the Tribe is a federally-recognized Indian tribe, these principles apply to the State of Florida's attempt to impose an excise tax on fuel used by the tribe on its reservations. The limitation on the states' authority to tax Indian tribes is rooted in the Indian Commerce Clause of the United States Constitution, U.S. Const. Art. I, 8, cl. 3, which vests in Congress the exclusive right to deal with Indian tribes in all matters of contmerce; and on the Indian sovereignty doctrine. Because of the Indian C_e Clause, a state is without right, power or authority to tax any onreservation use or consumption of property by Indian tribes absent express authority conferred upon the state by an act of Congress. McClanahan, supra; Oklahoma Tax Commission 1;. Chickasaw Nation, supra; Confederated Tribes, supra; Mescalero, supra; and Blackfeet, supra. Congress has not authorized any state to tax fuel used or consumed by an Indian tribe on its reservation. The Department concedes, as it must, that the State of Florida is without right, power or authority to tax fuel that is used or consumed by an Indian or tribe on its reservation. See, Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 100 S.Ct (1980); White Mountain Apache Tribe P.M.-738!206",.3 6 RL,_)I_I McCL@SKY P.A.

13 v. Bracket', 448 U.S. 136, 100 S.Ct (1980). R.Vol.II, p.206. The "initial and fi'equenfly dispositive question" is whether the "legal incidence" of the state tax is borne by an Indian tribe for activities conducted or property used on the reservation. Chickasaw Nation, 515 U.S. at 458, 115 S.Ct. at If the legal incidence of the tax is borne by an Indian tribe for the use or consumption of property on the reservation, the tax, as applied to the tribe, is invalid. Chickasaw Nation, 515 U.S. at , 115 S.Ct. at Fla. Star (4)(a)provides that "[t]he legal incidence of the [Florida fuel] tax shall be on the ultimate consumer." In this case, the ultimate consumer of the fuel is clearly the Tribe, and the Department does not contend otherwise. In Colville, supra, the Com't said that an excise tax, such as that involved here, is a tax on the privilege of using or constm_g property in the state. While a sales tax is concerned with where the sales transaction occurs, the excise tax is concerned with where the property is used. In this case it is undisputed that the Florida fuel tax is properly characterized as an excise tax on the use or consumption of fuel and not a sales tax. The Department concedes that the Florida fuel tax is an excise tax on the use or consumption of fuel in the State and is not a sales tax. R.Vol.I, p (Responses to Request for Admissions #11). The imposition of the Florida fuel tax depends on how the fuel is used. Section (4)(c)(1), Fla. Stat., for example, allows a refund of tax on motor fuel that RM: ".3 7

14 has actually been used for agricultural or aqua cultural purposes. If the Florida fuel t tax was a sales tax, it would be imposed on the sales transaction and the manner in which it was subsequently used would be irrelevant. In ColviUe, the court said that a state is prohibited fi'om imposing excise tax on property (in that case, motor vehicles) that is used by Indian tribes or tribal members on the reservation, regardless of where the property was purchased, because the taxable event is the use of the property. 447 U.S. at Because the vehicles were used, at least in part, on the reservation, the entire tax scheme was held to be invalid as applied to the Indian tribes. The mere possibility that excise tax could be imposed on an Indian tribe for some use of the _ on the reservation was sufficient to invalidate the entire tax scheme as it applied to the tribe. Similarly, in Moe v. Confederated Salish and Kootenai Tribes of Flathead Reservation, 425 U.S. 463, 96 S.Ct (1976), the Court held that the state had no power to impose personal property tax on property used by. Indians residing on the reservation. The Department stakes its entire case on the argument that the Indian Commerce Clause does not apply to limit its right to tax the use of fuel involved in this case because (24), Fla. Stat., defines "use" of fuel as having occurred the moment it is deposited into the fuel tank. Section (24) provides: "'Use' means the placing of motor or diesel fuel into any receptacle on a motor vehicle P.M: :3 8 RUDEN McCLOSKY P'.A.

15 fi'om which fuel is supplied for the propulsion thereof." Since the fuel was deposited into the fuel tanks of the Tribe's vehicles at off-reservation fuel stations, the Depal"tment contends that the Tribe's "use" of the fuel all occurred offreservation. However, the application of the Indian Commerce Clause depends on where the fuel was actually used, not where it is deemed to be used by a state statute. Section (24), Fla. Stat., defines "use" as it does in order to address limitations placed on the states' taxing authority by the Interstate Commerce Clause. It does not address the limitations on their taxing authority that are imposed by the Indian Commerce Clause. The test of validity under the Interstate commerce Clause is whether the tax scheme, if applied identically in every state, would subject those engaged in interstate commerce to multiple taxes. See, Oklahoma Tax Commission v. Jefferson Lines, Inc., 514 U.S. 175 (1995). Many, if not all, states have adopted this same fuel tax scheme. Treating "use" of the fuel as occurring at the moment of the sale provides an efficient and administrable means by which each state collects its fair share of tax on the fuel that is consumed in interstate commerce without having to monitor the actual fuel consumption of each of the millions of vehicles that are operated in the state each day. The Interstate Commerce Clause allows the state to statutorily equate the "use" of fuel with the "sale" of fuel and to tax the entire amount of fuel that is purchased in the state, RM:_81_06_ 9

16 regardless of where the fuel is actually used or consumed, provided that the state does not also attempt to tax fuel that is sold in another state based on. its actual use in the state. Section (3), Fla. Stat., satisfies that requirement by expressly exempting from Florida fuel tax any fuel that is transported into the State in a tank that supplies the fuel to the vehicle in which it is transported. The lirm'tatious on a state's taxing authority that are imposed by the Interstate Commerce Clause are entirely separate and unrelated to the fimitations that are imposed on the state's authority to tax Indian tribes under the Indian Commerce Clause. While (24) and (3), Fla. Stat., are an expedient means of addressing the limitat/ons imposed by the Interstate Commerce Clause, they have no application whatsoever to the limitations that are imposed by the Indian Commerce Clause. As the Court noted in Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192, 109 S.Ct. 1698, 1715 (1989), "the Interstate Commerce and Indian Commerce Clauses have very different applications." As the Court said in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 62, 116 S.Ct , 1126 (1996), "the Indian Commerce Clause accomplishes a greater transfer of power from the States to the Federal Government than does the Interstate Commerce Clause. This is clear enough from the fact that the States still exercise some authority over interstate trade but have been divested of virtually all authority over Indian commerce and Indian tribes." RM: ".3 10

17 The Court applies the Indian Commerce Clause based on where the fuel is actually used or consumed, and not on some legal fiction that is created by a state statute. If the rule were otherwise, a state could, with a stroke of a pen, arbitrarily and unilaterally render the Indian Commerce Clause impotent and ineffectual. The Department offers no support for its argument that the limitations imposed on the states' taxing power by the United States Constitution must yield to a facile definition in state law. The Department cites only Chickasaw Nation, supra, in which the Court said that it would look to state law in determining which party bore the legal incidence of the state tax. This is self-defeating, since the state law mefirnmtively states that the incidence of the tax falls on the Tribe as the ultimate consumer (4)(a), Fla. Stat. Nothing in Chickasaw Nation can be construed as allowing the State to define "use" of fuel as being the equivalent of the "sale" of fuel for the purpose of evading the prohibition of the Indian Commerce Clause. The Department concedes that the Florida fuel tax is an excise tax on the use or consumption of fuel in the State and is not a sales tax. R.Vol.I, p (Responses to Request for Admissions #11). The Department attempts to use (24), Fla. Stat., to recharacterize what is undisputedly an excise tax on the use of fuel as a sales tax on the sale of fuel. In the case of a sales tax, the taxable event is the sales transaction itself. See, e.g., (I), Fla. Stat. The state's RM:738 i 206".3 11

18 ability to impose a sales tax depends on where the sale transaction occurs. A state is allowed to impose sales tax on an off-reservation sale of property to an Indian tribe, but it is not allowed to impose sales tax on an on-reservation sale of property to an Indian tribe. In the case of an excise tax on the use of property, the taxable event is the use of the property, not the sales transaction. A state is allowed to impose tax on the off-reservation use of property by an Indian tribe, but it is not allowed to impose tax on the on-reservation use of property by an Indian tribe. Since the Florida fuel tax is an excise tax on the use of fuel, and is not a sales tax, the location of the sale is irrelevant. All that matters is where the fuel is actually used. This is emphasized by Florida's statute, which squarely id_ntifies the pre-collection of the excise tax as a mere "administrative convenience." (4)(a), Fla. Stat. Bracket, supra, in which a tax on fuel actually used on the reservation was held to be invalid under the Indian Commerce Clause, involved an Arizona fuel tax scheme that addresses the Interstate Commerce Clause limitations in exactly the same manner as Florida's tax scheme. Like (24), Fla. Stat., Arizona Revenue Statute A. provides that "fuel received into any receptacle on a motor vehicle fi'om which fuel is supplied to propel the vehicle; is presumed to be consumed in propelling the vehicle on the highways of this state." Like Section (3), Fla. Stat., Arizona Revenue Statute prohibits the RM: :3 12

19 imposition of fuel tax on "fuel acquired in another state and consumed on the highways of this state." Although the Court did not address these statutes when it applied the Indian Commerce Clause in Bracker, the Court ignored the legal fiction created by these statutes that fuel deposited into a fuel tank in the state was deemed to be consumed on the highways of the state (as opposed to on the highways of the reservation) and held that Arizona did not have the authority to tax the fuel that was actual_ consumed on the reservation. The result urged by the Department in this case cannot be reconciled with Bracker. What matters for Indian Commerce Clause purposes is where the fuel is actuai_ used. In Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 100 S.Ct (1980) the state attempted to impose an excise tax on Indian owned motor vehicles that were used both on and off the reservation. While the fuel in this case is a consumable form of personal property, and the vehicles in Colville were durable goods, in each instance the tax was predicated on the use of the personal property. In Colville, the State of Washington made no attempt to differentiate the Indians' use of a vehicle on or off reservation. 447 U.S. 163, 164, 100 S.Ct. at Because the state attempted to impose a tax on the Indians use of their property, regardless of where it was used, the Court held that the entire use tax was invalid as applied to Indian tribes or their members, ld. RM: _ 13

20 The same rationale applies here. The State of Florida is attempting to impose a tax on the use of fuel by the Tribe, including use on the reservation. Florida makes no attempt to differentiate use on or off the reservation. Therefore, its entire tax scheme is invalid as applied to the Tribe. The Department relies extensively on Wagnon v. Prairie Band of Potawatomi Nation, 546 U.S. 95 (2005). However, because the Florida.fuel tax is an excise tax on the use of fuel, and the tax in Wagnon was a sales tax, Wagnon has no application. Wagnon involved a Kansas tax scheme that expressly imposed a fuel sales tax on an off-reservation sale to a non-indian fuel distributor. The tax did not depend on how, when, where or by whom the fuel was ultimately used. As a sales tax, the taxable event was the off-reservation sale to the non-lndian distributor. This case, on the other hand, involves a Florida excise tax on the use or consumption of the fuel. As such, the tax depends on where and by whom the fuel is used. The legal incidence of the tax is expressly imposed on the ultimate consumer of the fuel, which, in this case, is the Tribe. Wagnon holds that the Indian Commerce Clause does not apply to limit the state from imposing sales tax on an off-reservation sale of fuel between a non-indian supplier and a non-indian distributor. Those, of course, are not the circumstances involved here. Rb1: :3 14 RUDEN McCLOSKY P:A.

21 In Wagnon, an Indian fuel retailer, who purchased the fuel from the non- Indian distributor, argued that the imposition of fuel tax on the distributor adversely affected the Indian retailer in that it increased the distributor's cost of the fuel which it passed on to the Indian retailer. The Indian retailer argued that, under Bracket, supra, the exemption from fuel tax that it enjoys as an Indian tribe should extend to the non-indian distributor from whom the Indian retailer purchases its fuel. In Bracket, the Supreme Court held that the Indian tribe's excise tax exemption extended to fuel that was used on the reservation by the Indian tribe's non-indian contractors. While the Indian tribe's exemption fi'om fuel excise tax on fuel that the Indian tribe used on the resen'vation was absolute, the Supreme Court said that the exemption for fuel used by a non-indian contractor depended on whether the state's general interest in raising tax revenues was outweighed by the federal government's policy of encouraging Indian tribes to revitalize their selfgovernment and to assume control over their business and economic affairs, citing Mescalero _pache Tribe I, Jones, 411 US, at 151. In Wagnon, the Supreme Court said that the Bracket balancing test does not apply where the state asserts its taxing authority over an off-reservation sales transaction between non-indians. There is nothing in Wagnon that supports the Department's claim that the state may tax fuel thatisused by an Indiantribeon itsreservation. RM:' ".3 15

22 H. THE RAKER AFFIDAVIT FILED IN SUPPORT OF THE TRIBE'S MOTION FOR SUMMARY JUDGMENT PROVIDES ADEQUATE SUPPORT FOR THE JUDGMENT. As a secondary argument, the Department attempts to undermine the Affidavit of James Raker, the Chief Finanoial Officer for the Tribe. The Department argues that Mr. Raker's Affidavit should be disregarded because, in his deposition, he testified that he relied upon business records and the assistance of subordinates in obtaining the personal knowledge that became the basis for his affidavit. Initial Brief, p.16. As Chief Financial Officer for the Tribe, Mr. Raker is presumed to have personal knowledge of the business matters within his area of responsibility. Leverage Canters, Inc., v. E.D. Green Corp., 291 So. 2d 193, 194 (Fla. 1974); United Bonding Insurance Co. v. Dura-Stress, Inc., 243 So. 2d 244, 246 (Fla. 2d DCA 1971). Corporate officers are presumed to have personal knowledge of matters within their area of respousibility, precisely because they can rely upon business records and the assistance of others to collect and organize this information. When such information is prepared under the supervision of the corporate officer as business records, they form the basis for that corporate officer's personal knowledge. Cf., Specialty Linings, Inc. v. KF. Goodrich Co., 532 So. 2d 1121, 1122 (Fla. 2d DCA 1988). See also, Jackson v. State, 877 So. 2d 816, 818 RM :3 16

23 (Fla. 4th DCA 2004) (Information kept in the ordinary course of business constitutes admissible business record, even if assembled and prinl_! solely for the purpose of trial.); (5), Fla. Stat. (business records exception to the hearsay rule). In this respect, Mr. Raker's affidavit is analogous to the example that this Court provided in Carter v. Cessna Finance Corporation, 498 So. 2d 1319, 1921 (Fla. 4th DCA 1986) of a bank vice I_esident who submits an affidavit regarding a loan transaction. In the Initial Brief, the Department attempts to create an implication that the trial court found Mr. Raker's AffidaVit to be insufficient. Initial Brief, p.5. This quoted material is taken out of context. In the very next line after the quoted portion of the transcript, counsel for the Tribe advises the court that the Tribe filed the Raker Affidavit, and for several pages the Affidavit is discussed. R.Vol.IH, p.415. Ultimately, in conversation with counsel for the Department, the court stated: "They have sworn affidavits [sic] that occurred on the reservation." R.VoI.IH, p.424. The Department misapprehends Mr. Raker's deposition and its Exhibit 12 in the Department's incorrect statement that the Tribe only proved where the purchases of motor fuel were made. Initial Brief, p.16. As the Raker Affidavit and Exhibit 12 to the Raker deposition both state, the applications for refund are being made on fuel deposited in the vehicles owned by the Tribe, such as police cars, fire RM: :3 17

24 trucks, ambulances, garbage trucks, buses and other governmental vehicles (such as work trucks used in connection with utility services on the reservation). R.Vol.I, p , (Raker Affidavit, 8), R.Vol.II, p (internal pages 104- l l3), Raker Exhibit 12. While these vehicles may leave the reservation, (for example, to purchase fuel) they are used by the Tribe on reservation land to perform the respective services to which they are suited. To be clear, whether or not the use is governmental is irrelevant. Rather, the fact that the use is for on reservation governmental purposes establishes that the vehicles are used, at least in part, on the reservation. In the absence of any mechanism provided by the Department to differentiate use on and off the reservation, none of the use is " taxable and the entire excise tax is subject to refund. ColviUe, supra. The Department's argument that the Raker Affidavit states mere conclusions regarding the issues of law and facts is as wrong as it is irrelevant. A simple review of the Raker Affidavit reveals that it is a clear and positive statement of ultimate facts, not a statement of any conclusions of law. Moreover, it is simply irrelevant. The Department deposed Mr. Raker for a full day, after the Raker Affidavit was filed, and that deposition is in the record. The Depm"anent took that opportunity to discuss with Mr. Raker the source of his information and the basis for his factual statements. His testimony reveals that Mr. Raker's testimony is based upon his own knowledge, and information provided to him by persons under RM: ".3 18 RUDEN MoCLOSKY P.A.

25 his supervision, and business records. While the Department apparently would prefer that the information be repeated by additional persons, this does not make the Raker Affidavit or Mr. Raker's deposition inadmissible. Because Mr. Raker's testimony is not predicated upon inadmissible hearsay, M.S.v. Department of Children and Families, 6 So. 3d 102 (Fla. 4th DCA 2009) and Fla. Dept. of Fin. Servs. v. Associated Industries Ins. Co., 868 So. 2d 600 (Fla. 1st DCA 2004) are inapposite. The trial court was entitled to rely upon the Raker Affidavit and Mr. Rsker's deposition and its exhibits to conclude that there is no disputed issue that the fuel purchased went into vehicles owned by the Tribe and used on the reservation. RM: ".3 19

26 CONCLUSION For the foregoing reasons, it is respectfully submitted that the judgrncnt should be affirmed. Respectfully submitted, 200 East Broward Boulevard, 15$ floor (33301) Post Office Box 1900 Fc_'t_uderdale, Horida ( By. Florida Bar Numbe_ GI_A.St,nk_ / glcn.stankee _'u_.oom Htnida '_'_ B_ber RM:738120G:3 20

27 0.a i q- CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished to counsel of record as noted below, by U. S. Mail, on June 28, CERTIFICATE OF COMPLIANCE this brief. Undersigned counsel certifies that TIMES NEW ROMAN, 14 pt., is used in East Broward Boulevard, 15thfloor (33301) Post Office Box 1900 Fo_uderdale, Horida (954_ y4) By: "_ JohnH_L_r\ Counsel of Record / Marilyn Beutt_ier, Clerk Charles B. Upton H, Esq. [ Fourth _'stn'ct C_urt of Appeal o o PL-01, The Capitol Tallahassee, Florida / Joseph C. Mellichamp, HI, Esq. _ 1525 P Boul.c_. Counsel Department for Slate of Horida, of Revenue John H. Pelzer, Esq./Gle_ A. Stankee, Esq. Matthew Nenes, Esq. Ruden, McClosky P.O. Box 1900 Fort Lauderdale, Florida Counsel for the Tribe RM: :3 21