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1 STATE OF FLORIDA DEPARTMENT OF REVENUE C GARY PORTER, vs. DEPT. INC., Petitiner, OF REVENUE, Respndent. ~=---::=: GARY, INC., vs. Petitiner, DEPARTMENT OF REVENUE, Respndent FINAL ORDER CASE NO DOR N. q~4 '1- F ~ CASE NO This cause is being cnsidered based upn a Recmmended Order issued by the Hearing Officer assigned by the Divisin f Administrative Hearings. A cpy f the Recmmended Order is attached t this Final Order and is specifically incrprated by reference as if fully set frth herein. The Department hereby adpts the Findings f Fact and Cnclusins f Law set frth in the Recmmended Order. (~. \-

2 ~---- ~ CONCLUSION Accrdingly, it is, ORDERED: That the Department's assessment f tax, interest and penalty against the Petitiners is upheld and that Gary Prter, Inc. is credited fr a payment f $ tward the ttal assessment due. Any party t this Order has the right t seek judicial review f the Order pursuant t sectin , F.S., by the filing f a Ntice f Appeal pursuant t Rule 9.110, Flrida Rules f Appellate Prcedure, with the Clerk f the Department in the Office f the 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 Order is filed with the Clerk f the Department. u DONE AND ENTERED in TallahasSee, Len Cunty, Flrida this 2JS-+' day f Nvember, I HEREBY CERTIFY that the freging FINAL ORDER has been filed in the fficial recrds f the Department f Revenue this 21s+ day f Nvember, 19 4.

3 COPIES FURNISHED TO: Gary Prter 219 Benning Drive Destin FL Mark T. Aliff Assistant Attrney General Department f Legal Affairs Tax Sectin, The capitl Tallahassee FL Linda Lettera General Cunsel Department f Revenue 204 Carltn Building Tallahassee FL L. H. Fuchs Executive Directr Department f Revenue 104 Carltn. Building Tallahassee FL

4 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS GARY PORTER, INC., Petitiner, vs. DEPARTMENT OF REVENUE, Respndent. GARY, INC., Petitiner, vs. DEPARTMENT OF REVENUE, Respndent. RECOMMENDED CASE NO '. CASE NO ORDER These tw causes came n fr hearing by telephne n June 21, 1994, befre David M. Malney, Hearing Officer f the Divisin f Administrative Hearings. In additin t the parties being n the telephne line, als n the line was the ffice f Snaith & Rackard ReprtingService r 22 Racetrack Rad r N.W. r Frt Waltn Beach r Flrida. Respndent file a prpsed recmmended rder n July 22'> Petitiner' filed a prpsed recmmended, rder n August 12 r The attached appendix addresses prpsed findings f fact by number.

5 ----_ _ _---~-_ ~-~-_ -- ~ -I ~._._----~.- Fr Petitiner: Fr Respndent: At hearing, Mr. APPE&RANCES Gary prter 219 Benning Drive Destin, Flrida Mark T. Aliff Assistant Attrney General Department f Legal Affairs Tax Sectin, The Capitl Tallahassee, FL freliminary STATEMENT Prter, as sle stckhlder and wner f the tw crprate entities, Gary Prter, Inc. and Gary, Inc., the petitiners in these tw cnslidated cases, testified in behalf f bth petitiners. Mr. Prter jined with Respndent in the intrductin fa jint exhibit. Accepted int evidence, Jint Exhibit N. I, is a cmpsite f stipulated findings f fact tgether with an attachment f six exhibits, A thrugh F. Neither party ffered any ther exhibits. FINDINGS OF FACT 1. Gary Prter, an individual, is the sle stckhlder, wner, and decisin-maker fr the tw crprate entities, Gary Prter, Inc., and Gary, Inc., that are petitiners in these cnslidated cases. 2. In early 1990, Mr. Prter reached an ral agreement with Jerry Thmpsn, a Flrida resident, t purchase tw bats frm Miss Angie, Inc., a Flrida crpratin wned and perated by Mr. Thmpsn. The tw bats were the nly bats wned by Mr. Thmpsn and his crpratin. The purchase price fr the tw ( vessels, the "1'11ss Angie" and the "Christy Lynn", plus related 2

6 fishing equipment and gear, was $285, (tw hundred (~ eighty-five thusand dllars. 3. Separate sales agreements were drawn up fr the sale f the tw bats and a clsing was scheduled in the ffice f an attrney in Destin, Flrida, Dana C. Matthews, Esquire. Apprximately ne week befre the clsing, the $285, was paid t Mr. Thmpsn. 4. On March 19, 1990, the clsing tk place. The tw sales agreements 'and tw bills f sale were executed by Mr. Thmpsn persnally and in his capacity as President f Miss Angie, Inc. In the case f the Miss Angie sales agreement, Gary Prter, in the capacity f president f the crpratin, signed the agreement n behalf f Gary, Inc. In the case f the Christy Lynn sales agreement, Gary Prter, as president, signed the agreement n behalf f Gary Prter, Inc. Title t the Miss Angie passed frm Miss Angie, Inc., t Gary, Inc. Title t. the Chr,cls-ty ~ynn passed frm Miss Angie, Inc. t Gary Prter, Inc. N reference t payment f taxes is made in the Sales Agreements r the Bills f Sale. 5. At the clsing, Mr. Thmpsn represented t bth Mr. Prter and Mr. Matthews that he wuld see that all taxes arising frm the transactins were paid. 6. Cntrary t his representatins t Mr. Prter and Mr. Matthews, n sales r use taxes were paid by Mr. Thmpsn, Miss Angie, Inc., r anyne else. 7. The Christy Lynn has been cntinually berthed in (~.' ~ Destin, Flrida, bth befre and after its sale frm Mr. Thmpsn 3

7 ----_..--_~._._ ~~ t Gary Prter, Inc. The Miss Angie was als berthed in Destin bth befre and after the sale by Mr. Thmpsn. But, the Miss Angie disappeared frm its berth abut ne and ne-half years after the purchase by Gary, Inc. 8. Mr.Prt~r represented t the Department that, at the time f the sales, the value f the Miss Angie was $275, and f the Christy Lynn, $10, The Department revised its assessments t cnfrm t Mr. Prter's representatins. The revi~ed assessments were received by the Petitiners and are mathematically crrect. 9. Upn the $10, value f the Christy Lynn, Mr. Prter paid t the Department the sum f $ as sales tax, (6% f $10, But n ther taxes, interest r penalties, have been paid n the sales f the Christy Lynn r the Miss Angie. 10. As f June 14, 1994, th~ ttal amunt due, accrding t the assessment amended that date, n the sale f the Miss Angie t Gary, Inc., was $24,452.77, the sum f $16, in ttal tax due, $4, as a late filing penalty and $3, in interest. As f June 14, 1994, the ttal amunt due, accrding t the assessment amended that date, n the sale f the Christy Lynn t Gary Prter, Inc., was $925.00, the SUJIl f $625 in ttal tax due, $ in a late filing penalty and $ in interest. Of the $ due n the sale f the Christy Lynn, $600.00, as mentined abve, has beert~paid by Mr. Prter. (~ _~ 11. Mr. Prter has steadfastly maintained that neither he nr his crpratins are liable fr sales tax, interest and 4

8 penalties beynd that which he has already paid because Mr. (,~ Thmpsn had represented that the taxes wuld be paid. CONCLUSIONS OF LAW 12. The Divisin f Administrative Hearings has jurisdictin ver the parties and the subject matter f this prceeding. Sectin (1, Flrida Statutes. 13. Sectin (1(a1.b., Flrida Statutes, states that "[e]ach ccasinal r islated sale f.. [a bat. shall be subject t tax at the rate prvided in this paragraph." Paragraph (a f Sectin (1 in subparagraph 1.a., sets the rate at "6 percent f the sales price'f each item " 14. Rule 12A-1.007(1(a, Flrida Administrative Cde, is applicable t this prceeding and reads, in pertinent part, as fllws: 12A Aircraft, Bats, Mbile Hmes and Mtr Vehicles. (l(a The sale, including ccasinal r islated sales, cnsumptin, r strage fr use in this state f any.. 'bat.. is taxable n the full sales price withut any deductins. The rule applies t the sales in this case because bth were ccasinal r islated sales. 15. Sectin (9, Flrida Statutes, makes purchasers f tangible persnal prperty, such as bats, liable fr the taxes levied by Chapter 212, Flrida Statutes, as well as penalties and interest whenever they "cannt prve that the tax. has been paid t his vendr.. r th~r persn 5

9 With the exceptin f the $ in sales tax paid n the Christy Lynn, Petitiners nt nly did nt prve that sales tax, interest and penalties were paid by the vendr in this case, Miss Angie, Inc., r ther persns, but the parties stipulated that the sales tax, interest and penalties were nt paid. Petitiners' argument that Mr. Thmpsn had bligated himself t pay any taxes due n the sales f the tw bats is nt a defense t the Department's authrity t assess the Petitiners fr the taxes, penalties and interest due. RECOMMENDATION It is, accrdingly, RECOMMENDED: that a final rder be entered by the Department f Revenue uphlding its assessments f tax, interest, and penalties against the Petitiners and that Gary Prter, Inc. be credited fr a payment f $ tward,t'he ttal asses"sment due frm Gary Prter, Inc. DONE AND ENTERED this 26th day f September, 1994, in Tallahassee, Len Cunty, Flrida. DAVID M. MALONEY v Hearing Officer Divisin f Administrative Hearings The DeSt Building 1230 Apalachee Parkway Tallahassee, FL ( (J Filed with the Clerk f the Divisin f Administrative Hearings _--_.._._--_..._ ~ '----

10 , I II? t ( APPENDIX 1. Petitiner's prpsed recmmended rder des nt cntain any prpsed findings f fact. 2. Respndent's prpsed findings f fact are adpted in substance, insfar as material. COPIES FURNISHED: Gary Prter 219 Benning Drive Destin, Flrida Mark T. Aliff Assistant Attrney General Department f Legal Affairs Tax Sectin, The Capitl Tallahassee, FL Linda Lettera General Cunsel Department f Revenue 204 Carltn Builaing Tallahassee, FL Larry Fuchs Executive Directr Department f Revenue 104 CarltOD', Building Tallahassee, FL NOTICE OF RIGHT TO SUB~IT 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 y,tithin which t submit y,tritten exceptins. Yu shuld cntact the agency that will issue the final rder in this cas~ cncerning agency rules n the deadline fr filing exceptins t this Recmmended Order. Any exceptins t this Recmmended Order shuld be filed with the agency that will issue the final rder in this case. Case Ns and 93~2437 7