STATE OF FLORIDA DEPARTMENT OF REVENUE, ) ) ) ) ) ) ) ) ) FINAL ORDER

Transcription

1 STATE OF FLORIDA DEPARTMENT OF REVENUE BEVERLY HILLS BOWL, vs. Petitiner, DEPARTMENT OF REVENUE, INC. Respndent CASE NO DOR 95-lq -FOF FINAL ORDER This cause came n befre me fr the purpse f issuing a Final Order. The Hearing Officer assigned by the Divisin f Administrative Hearings in the abve styled case submitted a Recmmended Order t the Department f Revenue. There were n exceptins filed by either party. A cpy f the Recmmended Order is attached t this rder. (J Pursuant t Chapter 120, Flrida statutes, the Department has jurisdictin f this cause. FINDINGS OF FACT The Department hereby adpts and incrprates in this Final Order the Findings f Fact set frth in the Recmmended Order. CONCLUSIONS OF LAW The Department hereby adpts and incrprates by reference in this Final Order the Cnclusins f Law set frth in the Recmmended Order. CONCLUSION Therefre, based n the Findings f Fact and the Cnclusins f Law as set frth in the Recmmended Order, it is hereby ORDERED that: (1 Petitiner has paid the uncntested tax prtin f the assessment in the amunt f $8, in tax, and (2 the prtin f the assessment stipulated by the parties t be in dispute in this case is dismissed. The $36, ttal amunt in dispute is cmpsed f $23, in tax, $7, in penalty, and interest f $5,

2 Any party t this Final Order has the right t seek judicial review f this Final Order as prvided in sectin , Flrida statutes, by the filing f a Ntice f Appeal as prvided in Rule 9.110, Flrida Rules f Appellate Prcedure, with the Clerk f the Department in the Office f General Cunsel, Pst Office Bx 6668, Tallahassee, Flrida and by filing a cpy f the Ntice f Appeal, accmpanied by the applicable filing fees, with the apprpriate District Curt f Appeal. The Ntice f Appeal must be filed within 30 days frm the date this Final Order is filed with the Clerk f the Department. DONE AND ENTERED in Tallahassee, Len Cunty, Flrida this day f --NJTlilmbeJr, (:>e.c e,,...h>z,,... FLO IDA F R :VENUE I HEREBY CERTIFY that the freging Final Order has been,f;il,ed in the ~t~c}1..l~ecrds f the Department f Revenue this gt?" l.i3.y f~ Cpies furnished t: L.H. Fuchs Executive Directr Department f Revenue 104 Carltn Building Tallahassee, Flrida Peter C. Jhnstn, CPA, P.A. 6 Beverly Hills Bulevard Beverly Hills, Flrida Mark Aliff Assistant Attrney General Department f Legal Affairs Tax Sectin, The Capitl Tallahassee, Flrida

3 ( Linda Lettera General Cunsel Department f Revenue 204 Carltn Building Tallahassee, Flrida attachment: Hearing Officer's Recmmended Order (

4 .". STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS 0 BEVERLY HILLS BOWL, INC., Petitiner, vs. CASE NO DEPARTMENT OF REVENUE, Respndent. RECOMMENDED ORDER The final bearing in this case was held befre Larry J. Sartin, Hearing Officer, n July 26, 1995, in Crystal River, Flrida. APPEARANCES Fr Petitiner: Fr Respndent: Peter C. Jhnstn Peter C. Jhnstn, CPA, P.A. 6 Beverly Hills Bulevard Beverly Hills, Flrida Mark T. Aliff Assistant Attrney General Office f the Attrney General The Capitl - Tax Sectin Tallahassee, Flrida STATEMENT OF THE ISSUE The issue in this case is whether Petitiner wes additinal 's~les and use tax, plus penalties and interest, n the purchase f bwling equipment during the audit perid August 1, 1987 t July 31, PRELIMINARY STATEMENT On r abut April 27, 1994, Respndent, the Department f Revenue, entered a Ntice f Decisin infrming Petitiner, Beverly Hills Bwl, Inc., that additinal sales and use tax, plus penalties and interest, was payable fr the audit perid August 1, 1987 thrugh July 31, 1992.

5 \ I Petitiner requested a frmal administrative hearing t ~ cntest Respndent's determinatin. That request fr hearing was filed with the Divisin f Administrative Hearings n July' 1, The matter was designated case number and was assigned t the undersigned. After giving the parties an pprtunity t settle their dispute, the final hearing was scheduled fr July 26, 1995, by Ntice f Hearing entered March i3, At the final hearing, Petitiner presented the testimny f Charles Gill and Evelyn Gill. Petitiner ffered ne exhibit. The exhibit was accepted int evidence. Respndent presented the testimny f Kenneth Rirdan:._.:and ffered tw exhibits. Respndent's exhibits were accepted int evidence. A transcript f the final hearing was filed August 22, Prpsed recmmended rders were required t be filed n r befre August 31, Bth parties timely filed prpsed rders. A ruling n each prpsed finding f fact cntained in the prpsed rders has been made either directly r indirectly in this Recmmended Order r the prpsed finding f fact has been accepted r rejected in the Appendix which is attached heret. FINDINGS OF FACT A. The Parties. 1. Petitiner, Beverly Hills Bwl, Inc., is a Flrida C crpratin. Petitiner was frmed by Charles and Evelyn Gill, the sharehlders f Petitiner. Petitiner was frmed t wn and perate a bwling alley. 2

6 " 2. Respndent is an agency f the State f Flrida charged (~ with, amng ther things, respnsibility fr assessing and "--~ / cllecting sales and use taxes in Flrida pursuant t Chapter 2i2, Flrida Statutes. B. The Respndent's Audit. 3. Between July 23, 1992 and Octber 8, 1992, Respndent perfrmeda~sale and use tax audit f Petitiner fr the perid August 1, 1987 thrugh July 31, Respndent cncluded that Petitiner's bks and recrds were reasnable except fr dcumentatin t supprt the payment f sales and use tax n a purchase by Petitiner f bwling equipment. 5. Respndent issued a Ntice f Prpsed Assessment n Octber 29, Respndent prpsed the assessment f $31, in sales and use tax.. Petitiner paid $8, f the additinal tax. The parties stipulated that the additinal tax liability at issue in this prceeding amunts t $23, Respnden~als assessed a penalty f $7, and interest f $5, c. Disputed Purchase. - I 7. Petitiner purchased bwling lane equipment frm 11IIII 8. Petitiner paid $391, t fr bwling lanes and equipment described n Petitiner's exhibit 1. ( 9. Befre cnsummating an agreement t sale bwling lanes t Petitiner, gave Petitiner a 11 Prpsal 11 ffering t 3

7 sell bwling lanes t Petitiner fr $391, See ~ Petitiner's exhibit 1. The Prpsal states, amng ther things, the fllwing: * WE OFFER THE ABOVE EQUIPMENT FOR $16, PER LANE INCLUDING INSTALLATION, FREIGHT, AND FLORIDA SALES TAX. [Emphasis added]. 10. Petitiner accepted the Prpsal and purchased the bwling lanes fr $391, Oral cmmunicatins between Petitiner and were als cnsistent wit~ the Prpsal cncerning the inclusin f sales tax in the purchase price. N written dcumentatin f the agreement between and Petitiner was entered int. 11. Petitiner received th~ bwling lanes and paid $391, N written dcumentatin r invices were prvided ~ Petitiner by upn cnsummatin f the sale. The additinal assessment at issue in this case is attributable t this sale f bwling equipment by t Petitiner. D. Respndent's Treatment f the Purchase. 12. Respndent cncluded that, since the amunt f sales tax was nt separately stated n the Prpsal, additinal dcumentatin f the payment f the sales tax by Petitiner t was required. Respndent requested additinal dcumentatin but Petitiner was unable t prvide it t Respndent's satisfactin. 13. Respndent cncluded that Petitiner was respnsible fr the payment f use tax n the equipment because it culd nt be prved t Respndent's satisfactin that sales tax had been ~ paid t 4

8 14. Respndent is als attempting t cllect sales tax n the purchase frm the primary dealer respnsible fr the cllectin and remittance f sales tax. CONCLUSIONS OF LAW 15. The Divisin f Administrative Hearings has jurisdictin f the parties t and the subject matter f this.". prceeding. Sectin , Flrida Statutes (1993r. 16. Sales and use tax n the sale f tangible persnal prperty in Flrida is impsed pursuant t Sectin , Flrida Statutes: It is hereby declared t be the legislative intent that every persn is exercising a taxable privilege wh engages in the business f selling tangible persnal prperty at retail in this state The manner in which sales tax is t be cllected is prvided fr in Sectin , Flrida Statutes: (1 (a The privilege tax herein leviedmeasured by retail sales shall be cllected by the dealers frm the purchaser r cnsumer. (2 A dealer shall, as far as practicable, add the amunt f the tax impsed under this chapter t the sale price, and the amunt f the tax shall be separately stated as Flrida tax n any charge ticket, sales, slip, invice, r ther tangible evidence f sale. Such tax shall cnstitute a part f such price, charge, r prf f sale which shall be a debt frm the purchaser r cnsumer t the dealer, until paid, and shall be recverable at law in the same manner as ther debts. (3 Any dealer wh fails, neglects, r refuses t cllect the tax herein prvided, either by himself r thrugh his agents r emplyees, is. guilty f a misdemeanr f the first degree. 5

9 18. Pursuant t Sectin , Flrida Statutes, the primary respnsibility fr assessing and cllecting sales tax n the sale at retail f tangible persnal prperty is placed n the dealer r seller f the prperty. See.als, Sectin , Flrida Statutes. In this case the dealer was. Therefre, has the primary respnsibility fr cllecting and paying the sales tax due the State f Flrida n Petitiner's purchase f the bwling equipment. 19. Althugh the primary respnsibility fr the cllectin and payment f sales tax is placed n, sectin (9, Flrida Statutes, ges n t prvide the fllwing with regard t sales and use tax: (9 Any persn wh has purchased at retail, used, cnsumed, distributed, r stred fr use r cnsumptin in this state tangible persnal prperty.. and cannt prve that the tax levied by this chapter has been paid t his vendr. is directly liable t the state fr any tax, interest, r penalty due n any such taxable transactins. 20. Althugh Respndent has taken the psitin that Petitiner wes use tax n the purchase f the equipment, the additinal tax at issue in this case is payable, if at all, pursuant t Sectin (9, Flrida Statutes. Whether the tax is characterized as II sales II r liuse II tax is f little cnsequence. 21. There is n dispute that Petitiner purchased tangible persnal prperty at retail fr use in this state. There is als ( n dispute that the IIdealer ll I as that term is used under Chapter 6

10 '., 212, Flrida Statutes, was and that had the primary (.~,~.. '\ respnsibility t cllect sales tax n the transactin. Finally, there is n dispute that Sectin (9, Flrida Statutes, als impses liability fr the tax n Petitiner if Petitiner IIcannt prve that the tax levied by this chapter has been paid t his vendr II 22. The nly issue wh±ch must be reslved in this case is whether Petitiner has prved that tax was paid 'by it t Respndent has taken the :psitin that Petitiner has failed t prvide such prf because Petitiner has nt prduced any receipt r ther written dcument which separately states the amunt f sales tax paid. Respndent has nt cited any statute r rule which requires such separate itemizatin under the circumstances f this case. The nly specific requirement that prf be prvided is, therefre, the language f Sectin (9, Flrida Statutes. 23. In supprt f its psitin that sales tax was in fact paid, Petitiner presented unrefuted evidence that an liffer ll was made by t sell the subject prperty fr a sales price f $16, per lane II including.. Flrida state sales tax. 11 The unrefuted evidence als prved that Petitiner II accepted II ffer and paid the agreed price liincluding.. Flrida state sales tax. II 24. Having established by unrefuted evidence that Petitiner paid an amunt fr the bwling equipment that included ( Flrida sales tax, simply mathematics can be applied t determine 7

11 the amunt f sales tax that was included in the ttal purchase (-j price. The ttal amunt paid need nly be divided by the sales '-,,-,/ tax rate plus 100~. The resulting amunt may then be subtracted frm the ttal sales price t determine the amunt f sales tax. 25. Petitiner has, therefre, met its burden f prving that "the tax levied by this chapter has been paid t [its] vendr. " as required by Sectin : (9, Flrida Statutes. Respndent did nt ffer sufficient prf t re1ute Petitiner's e~idence and has nt cited any authrity requiring prf greater than that prvided by Petitiner, RECOMMENDATION Based upn the freging Findings f Fact and Cnclusins f Law, it is RECOMMENDED that a final rder be entered dismissing the assessment dated Octber 29, 1992 against Beverly Hills Bwl, Inc. DONE AND ENTERED this czg~ day f September, 1995, in Tallahassee Flrida. Filed with the Clerk f the Divisin f Administrative Hearings this day f September,

12 ... ',0. ", \ C APPENDIX Case Number The parties have submitted prpsed findings f fact. It has been nted belw which prpsed findings f fact have been generally accepted and the paragraph number(s in the Recmmended Order where they have been accepted, if any. Thse prpsed findings f fact which have been rejected and the reasn fr their rejectin have als been nted. Petitiner's Prpsed Findings f Fact Accepted in Accepted in Accepted in See See , 5-6 and , 10 and 12. What Mr. Aliff may have said during hearing may nt frm the basis f a finding f fact. Mr. Aliff was nt swrn and did nt testify. the Respndent's Prpsed Findings f Fact Accepted in 1. Accepted in 3. Accepted in 4. The last sentence is a law. Hereby accepted. Accepted in 9-10 and 12. Hereby accepted. See Accepted in 5. Nt relevant. cnclusin f What the Citrus Cunty Prperty Appraiser may have reprted is hearsay. COPIES FURNISHED: Peter C. Jhnstn, CPA, P.A. 6 Beverly Hills Bulevard Beverly Hills, Flrida Mark T. Aliff Assistant Attrney General Tax Sectin, Capitl Building Department f Legal Affairs Tallahassee, Flrida Larry Fuchs, Executive Directr Department f Revenue 104 Carltn Building Tallahassee, Flrida (j '-- " Linda Lettera, Esquire Department f Revenue Legal Office 204 Carltn Building Tallahassee, FL

13 C"'\ I,."- NOTICE OF RIGHT TO SUBMIT EXCEPTIONS: All parties have the right t submit written exceptins t this Recmmended Order. All agencies allw each party at least 10 days in which t submit written exceptins. Sme agencies allw a larger perid within which t submit written exceptins. Yu shuld cntact the agency that will issue the final rder in this case cncerning agency rules n the deadline fr filing exceptins t this Recmmended Order. Any exceptins t this Recmmended O~der shuld be filed with the agency that will issue the final rder in this case. 10