STATE OF FLORIDA, DEPARTMENT OF REVENUE TALLAHASSEE, FLORIDA FINAL ORDER. This case is being considered based upon a

Transcription

1 STATE OF FLORIDA, DEPARTMENT OF REVENUE TALLAHASSEE, FLORIDA FRANKLIN CODE HOUSE Petitioner, vs. CASE NO. DOR 94-8-FOF FLORIDA DEPARTMENT OF REVENUE, Respondent. FINAL ORDER This case is being considered based upon a Recommended Order, issued by a Hearing Officer assigned by the Division of Administrative Hearings. A copy of that Order is attached to this Final Order and is specifically incorporated by reference as if fully set forth herein. Accordingly, it is ORDERED: That the Findings of Fact and Conclusions of Law set forth in the Hearing Officer's Recommended Order are adopted and that the assessment of Sales and Use against Petitioner in the amount of $66,789 plus accrued interest of $12.89 per day from 3/3/92, be sustained. Any party to this Order has the right to seek judicial review of the Order pursuant to section , F.S., by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Department in the Office of the General Counsel, Post Office Box 6668, o Tallahassee, Florida , and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with

2 , ' ( the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the Clerk of the Department. DONE AND ENTERED in 'Tallahassee, Leon County, Florida this ~day ofk., CERTIFICATE OF FILING o I HEREBY CERTIFY that the foregoing Final Order has been filed in the official records of the Department of Revenue, this Z~h day of ~",",f::ll::c.::..l'i_,.-, I. JI..r-J ~~~ =Y CLERK Attachment: Hearing Officer's Recommended Order Copies furnished to: Errol H. Powell, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL Franklin Code House 3500 Tibet Drive Gulfbreeze, Florida Lisa M. Raleigh Assistant Attorney General Department of Legal Affairs,~ The Capitol - Tax section \~ Tallahassee,FL

3 ( Rick H. McClure Assistant General Counsel Department of Revenue P.O. Box 6668 Tallahassee, FL

4 \ ' ( n / STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS FRANKLIN'CODE HOUSE, Petitioner, 'IS. ~~SE NO DEPARTMENT OF REVENUE, Respondent RECOMMENDED ORDER Pursuant to written notice, a formal hearing was held in this case before Errol H. Powell, a duly des ignated Hearing Officer of,the Division of Administrative Hearings, on October 24, 1994, in Tallahassee, Florida. APPEARANCES For Petitioner: No' Appearance For Respondent: Lisa M. Raleigh Assistant Attorney General Office of the Attorney General The Capitol - Tax Section Tallahassee, Florida STATEMENT OF THE ISSUE The issue for determination at formal hearing was whether the assessment for Sales and Use tax for the period 9/1/85-12/31/89 against Franklin Code House d/b/a Delray Beach Municipal Golf Course is valid. PRELIMINARY STATEMENT By Notice of Proposed Assessment dated June 1, 1992, the Department of Revenue (Respondent notified Franklin Code House d/b/a Delray Beach Golf Course (Petitioner of its intent to

5 assess Sales and Use tax against him for the period 9/1/85 12/31/89 in the amount of $66, By letter dated July 23, 1992, Petitioner protested the proposed assessment. By Notice of. Decision dated March 30, 1994, Respondent notified Petitioner of its decision to assess the Sales and Use tax against him as indicated in its Notice of Proposed Assessment. By petition dated May 24, '1994, Petitioner requested a formal hearing. On June 1, 1994, the matter was referred to the Division of Administrative Hearings. A hearing was scheduled on October 24, 1994, pursuant to Notice of Hearing. Prior to hearing, Petitioner's counsel of record req4ested and was 'granted leave to withdraw; Petitioner desired to proceed with his protest without representation of counsel. At the hearing, Respondent called no witnesses and entered two exhibits into evidence. Petitioner failed to appear, either personally or through counsel, at the hearing. No transcript of the hearing was ordered. Respondent filed proposed findings of fact which have been addressed in the appendix to this recommended order. FINDINGS OF FACT 1. The Department of Revenue (Respondent is the state agency charged with the administration of the State of Florida's revenue laws, pursuant to Chapter 213, Florida Statutes. Pursuant to Section , Florida Statutes, Respondent is authorized to administer, collect and enforce sales and use taxes. 2. Based on an audit, performed by Respondent, of the tax records of Franklin Code House d/b/a Delray Beach Municipal Golf 2

6 n Course (Petitioner for the period 9/1/85-12/31/89, Responqent proposed to access Sales and Use tax against Petitioner in the amount of $66, By Notice of Proposed Assessment dated June I, 1992, Respondent notified Petitioner of its intended 1 assessment. By letter dated July 23,.~992, Petitioner protested Respondent's intended action By Notice of Decision (Notice dated March 30, 1994, Respondent notified Petitioner of its decision to uphold the. Sales and Use tax assessment in toto against him. The Notice set forth the issue of assessment and Respondent's factual and legal grounds for making the assessment. 4. In its Notice, Respondent contended that the issue was "whether a fee for the use of a city golf course facility represents consideration pursuant to a taxable license to use real property." 5. The facts, as contended by Respondent in its Notice, are: Payments made by Mr. House, after July 1, 1986, pursuant to a license agreement between the City of Delray Beach (City and Mr. House, for the operation and maintenance of the Municipal Golf Course owned by the City, were assessed. A copy of this agreement was reviewed by the Department. The agreement indicated that Mr. House would not be charged sales tax on the payments even though Mr. House stands alone, separate from City, as an independent concessionaire. There is no evidence that tax was paid by Mr. House on the license fee. 6. The legal grounds for upholding the assessment, as contended by Respondent in its Notice, are: Section , F.S., was amended effective July I, 1986, to include consideration for licenses to use real property as taxable. 3

7 Section (9, F.S. (1987, provides that any person who was entitled to use any real property and cannot prove that tax levied by Section 212 has been paid to his vendor, lessor or other person is directly liable to the state for any tax, interest, or penalty due on any such taxable transaction. 7. Respondent concluded in its Notice: Based on the facts and statutes, it is the Department's decision to sustain the assessment in full. The subject agreement evidences a license to use real property. This has been a taxable transaction since July I, Since evidence has not been provided indicated that tax was paid, the assessment must be upheld. 8. By petition dated May 24, 1994, Petitioner protested Respondent's decision. 9. Petitioner failed to appear at the hearing and, therefore, failed to present any evidence. CONCLUSIONS OF LAW 10. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto, pursuant to Sections and , Florida Statutes. 11. This matter is a taxpayer contest proceeding. Section , Florida Statutes. Respondent's burden of proof is limited to showing that an assessment was made against Petitioner and to showing the factual and legal grounds upon which Respondent made the assessment. Subsection (2, Florida Statutes. Respondent has met its burden of proof. 12. Petitioner, as challenger, has the burden of proof in showing that the assessment is improper, whether in whole or in 4

8 p o n part. Homer v. Dadeland Shopping Center, Inc., 229 So.2d 834, 837(Fla A tax assessment has a presumption of correctness and in his proof, Petitioner must exclude every reasonable hypothesis of a valid assessment, i.e., he must show the assessment to be so unreasonable as" to be arbitrary and capricious. Homer, supra; and District School Board of Lee County v. Askew, 278 So.2d272, 277 (Fla Because of Petitioner's nonappearance, no evidence on his behalf was presented. Hence, Petitioner has failed to meet his burden. 14. Respondent's assessment of Sales and Use tax against Petitioner is valid. RECOMMENDATION Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order affirming the assessment of Sales and Use tax against Franklin Code House d/b/a Delray Beach Municipal Golf Course for the period from 9/1/85-12/31/89 in the amount of $66, and dismissing the petition challenging the assessment. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of November ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida (

9 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November ENDNOTES 1 The Notice of Proposed Assessment was evidence. 2 The Notice of Decision was APPENDIX entered into entered into evidence. Respondent's proposed findings of fact have been accepted, although not verbatim, except for proposed findings numbered 1 and 2 which are rejected as being irrelevant, immaterial, argument, or a conclusion of law. COPIES FURNISHED: Lisa M. Raleigh Assistant Attorney General Office of the Attorney General The Capitol - Tax Section Tallahassee, Florida Franklin Code House 35GO Tibet Drive Gulfbreeze, Florida Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida Linda Lettera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida NOTICE OF RIGHT TO SUBMIT EXCEPTIONS All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.. 6

10 o (', LISA M RALEIGH ASSISTANT ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL THE CAPITOL - TAX SECTION TALLAHASSEE FL 323S