11-004607 Department Of Revenue vs. Extreme Performance And Auto Center, Inc.
 Status: Closed
Recommended Order on Tuesday, January 31, 2012.


View Dockets  
Summary: Respondent's certificate of registration shoud be revoked for non-payment of sales and use taxes, unemployment compensation taxes, and corporate income taxes.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF REVENUE, )

12)

13Petitioner, )

15)

16vs. )

18) Case No. 1 1 - 4607

25EXTREME PERFORMANCE & AUTO )

30CENTER , INC., )

33)

34Respondent. )

36RECOMMENDED ORDER

38Pursuant to notice, a formal hearing was held in this case

49on January 10 , 201 2 , by video teleconference between West Palm

60Beach and Tallahassee, Florida, before Administrative Law Judge

68Claude B. Arrington of the Division of Administrative Hearings

77(DOAH ).

79APPEARANCES

80For Petitioner: Carrol Y. Cherry, Esquire

86Office of the Attorney General

91Revenue Litigation Bureau

94The Capitol, Plaza Level 01

99Tallahassee, Florida 32399

102For Respondent: Michael L. Cohen, Esquire

108Michael L. Cohen Law Offices

1131803 South Australian Avenue

117West Palm Beach, Florida 33490

122STATEMENT OF THE ISSUES

126Whether Respondent committed the violations alleged in the

"134Administrative Complaint for Revocation of Certificate of

141Registration" (Administrative Complaint) filed with DOAH on

148September 13, 2011 , and, if so, the action that should be taken.

160PRELIMINARY STATEMENT

162The Department of Revenu e (Petitioner) seeks to revoke the

172certificate of registration held by Extreme Performance and Auto

181Center, Inc. (Respondent) for failure to pay unemployment

189compensation taxes, sales and use taxes , and corporate income

198taxes in the amounts and for the per iods set forth in the

211Findings of Fact section of this Recommended Order. In

220addition, Petitioner alleges that Respondent attempted to pay

228certain taxes with checks that were dishonored due to

237insufficient funds.

239At the formal hearing, Petitioner offered six sequentially -

248lettered exhibits, each of which was admitted into evidence.

257Petitioner presented no testimony. Respondent offered no

264witnesses and no exhibits.

268No transcript has been filed. Petitioner timely filed its

277Proposed Recommended Order, which has been duly considered by

286the undersigned in the preparation of this Recommended Order.

295Respondent did not file a proposed recommended order.

303Unless otherwise noted, all statutory referenc es are to

312Florida Statutes (2011 ). There has been no change to the

323statutes cited in this Recommended Order at any time relevant to

334this proceeding.

336FINDINGS OF FACT

3391. Petitioner is the agency of the State of Florida

349responsible for administering the revenue laws of the State of

359Florida, including the imposition and collection of the state's

368sales and use taxes pursuant to chapter 212, Florida Statutes ,

378and the state's corporate income taxes pursuant to chapter 220.

388Petitioner provides unemployment compensation tax collection

394services under contract with the Agen cy for Workforce Innovation

404through an interagency agreement pursuant to section 443.1316.

4122. Respondent is an active for - profit corporation with its

423principal address at 4401 Annette Street, West Palm Beach,

432Florida 33409.

4343. Respondent is a "dealer" as that term is defined by

445section 212.06(2), and holds certificate of registration number

45360 - 8014787127 - 3 .

4594 . Respondent failed to timely file sale tax returns for

470the months of February and June 2011. Petitioner assessed

479Respondent an estimated tax liability of $2,000 for the months

490of February 2011 and June 2011.

4965. Respondent filed returns but failed to timely remit

505payment for the sale and use tax in the amount of $24,529.84 due

519and owing for the months of June, September, and December 2008;

530Marc h, June, September, and December 2009; January through

539December 2010; and January, April, and May 2011.

5476. Due to its failure to timely file and/or remit taxes

558due, Respondent is liable for interest in the sum of $2,505.56 ,

570penalty in the sum of $2,526.36 , and fees in the sum of

583$2,687.47, as of July 1, 2011.

5907. Respondent is an employing unit as defined in

599subsection 443.036(2), and is subject to the unemployment

607compensation tax provisions of chapter 443, as provided in

616section 443.1215.

6188. Respondent failed to timely file unemployment

625compensation tax reports for the calendar quarters ending

633June 30, September 30, and December 31 , 2009; March 31, June 30,

645September 30, and December 31, 20 10 ; and March 31 and June 30,

6582011. As a result, Petitioner asse ssed Respondent an estimated

668unemployment compensation tax liability of $4,500.00 as of

677July 1, 2011.

6809. Due to its failure to timely file the unemployment

690compensation tax reports, Respondent is liable for interest

698thereon in the sum of $490.06, penalty in the sum of $450.00,

710and fees in the sum of $443.31, as of July 1, 2011.

72210. Respondent issued Petitioner worthless checks for the

730unemployment taxes due for the calendar quarters ending June 30,

7402006; December 31, 2008; and March 31, 2009. As a result ,

751Respondent still owes Petitioner unemployment compensation taxes

758in the sum of $425.34, interest in the sum of $119.09, and fees

771in the sum of $111.70.

77611. Respondent is required to file with Petitioner

784corporate income tax returns each year pursuant to the

793provisions of chapter 220 . Respondent failed to timely file

803corporate income tax returns and/or pay the tax due to

813Petitioner for the t ax years 2008, 2009, and 2010.

82312. Due to its failure to timely file corporate income tax

834returns and/or pay the t ax due, Respondent is liable for

845penalties in the sum of $450.00 and fees in the sum $25.00, as

858of July 1, 2011.

86213. Petitioner has issued and filed against Respondent

870delinquent tax warrants, notices of liens, or judgment lien

879certificates in the public records for the collection of

888delinquent sales and use tax, delinquent unemployment

895compensation tax, and delinquent corporate income tax.

90214. Petitioner served upon Respondent a Notice of

910Conference on Revocation of Registration via mail on May 23,

9202011, advising Respondent of a conference to be held June 22,

9312011. No one appeared on behalf of Respondent at the conference

942scheduled on June 22.

946CONCLUSIONS OF LAW

94915 . DOAH has jurisdiction over the subject matter of and

960the parties to this proceeding pursuant to sections 120.569,

969120.57(1), and 212.18, Florida Statutes.

97416 . Petitioner has the burden of proving by clear and

985convincing evidence the allegations against Respondent. See

992Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); Evans Packing

1003Co. v . Dep't of Agric. & Consumer Servs. , 550 So. 2d 112 (Fla.

10171st DCA 1989); and Inquiry Concerning a Judge , 645 So. 2d 398

1029(Fla. 1994). The following statement has been repeatedly cited

1038in discussions of the clear and convincing evidence standard:

1047Clear and convincing evidence requires that

1053the evidence must be found to be credible;

1061the facts to which the witnesses testify

1068must be distinctly remembered; the evidence

1074must be precise and explicit and the

1081witnesses must be lacking in confusion as to

1089the facts in issue. The evidence must be of

1098such weight that it produces in the mind of

1107the trier of fact the firm belief of (sic)

1116conviction, without hesitancy, as to the

1122truth of the allegations sought to be

1129established. Slomowitz v. Walker , 429 So.

11352d 797, 800 (F la. 4th DCA 1983).

114317 . Section 212.06(2) defines the term "dealer."

1151Respondent is a dealer within the meaning of that definition.

116118 . Section 212.15(1) requires that dealers collect and

1170remit taxes imposed by chapter 212 on a monthly basis.

118019 . In accordance with section 212.15, the taxes imposed

1190pursuant to chapter 212 become state funds at the moment of

1201collection, and the intentional failure to remit those taxes

1210constitutes a theft of state funds.

121620 . Pursuant to section 212.18(3)(b), exce pt for

1225circumstances inapplicable to this proceeding, "no person shall

1233engage in business as a dealer . . . without first having

1245obtained such a certificate or after such certificate has been

1255cancelled . . . ."

126021 . Section 212.18(3)(d) provides as follows :

1268(d) The department may revoke any

1274dealer's certificate of registration when

1279the dealer fails to comply with this

1286chapter. Prior to revocation of a dealer's

1293certificate of registration, the department

1298must schedule an informal conference at

1304which the dealer may present evidence

1310regarding the department's intended

1314revocation or enter into a compliance

1320agreement with the department. The

1325department must notify the dealer of its

1332intended action and the time, place, and

1339date of the scheduled informal confe rence by

1347written notification sent by United States

1353mail to the dealer's last known address of

1361record furnished by the dealer on a form

1369prescribed by the department. The dealer is

1376required to attend the informal conference

1382and present evidence refuting th e

1388department's intended revocation or enter

1393into a compliance agreement with the

1399department which resolves the dealer's

1404failure to comply with this chapter. The

1411department shall issue an administrative

1416complaint under s. 120.60 if the dealer

1423fails to atte nd the department's informal

1430conference, fails to enter into a compliance

1437agreement with the department resolving the

1443dealerÓs noncompliance with this chapter, or

1449fails to comply with the executed compliance

1456agreement.

145722 . Petitioner has complied with the foregoing procedures.

146623 . Petitioner established by clear and convincing

1474evidence that Respondent has repeatedly failed to comply with

1483the provisions of chapter 212.

148824. Unemployment compensation tax contributions accrue and

1495are payable by each employer for each calendar quarter the

1505employer is subject to the provisions of chapter 443.

151425 . Pursuant to Florida Administrative Code Rule 60BB -

15242.025, employers are required to file quarterly unemployment

1532compensation tax reports that are due on or before the last day

1544of the month following the calendar quarter to which the report

1555applies. Such reports are required for each quarter, even if no

1566contributions are payable.

156926 . Petitioner established by clear and convincing

1577evidence that Respondent repeatedly failed to comply with the

1586provisions of chapter 443.

159027 . Petitioner established by clear and convincing

1598evidence that Respondent repeatedly failed to comply with the

1607provisions of chapter 220 relating to the filing and payment of

1618corporate income taxes.

16212 8 . In addition to the authority given to Petitioner to

1633revoke Respondent's certificate of registration pursuant to

1640s ection 212.18(3)(d) , the provisions of section 213.692 (1)(a)

1649authorize Petitioner to revoke Respondent's certificate of

1656registration and provide, in relevant part, as follows:

1664(1) If the department files a warrant,

1671notice of lien, or judgment lien certificate

1678against the property of a taxpayer, the

1685department may also revoke all certificates

1691of registration, permits, or licenses issued

1697by the department to that taxpayer.

1703(a) Before the department my revoke the

1710certificates of registration, permits, or

1715licenses, the department must schedule an

1721informal conference that the taxpayer is

1727required to attend. At the conference the

1734taxpayer may present evidence regarding the

1740department's intended action or enter into a

1747compliance agreement. The department must

1752provide written notice to the taxpayer of

1759the department's intended action and the

1765time, date, and place of the conference.

1772The departm ent shall issue an administrative

1779complaint to revoke the certificates of

1785registration, permits, or licenses if the

1791taxpayer does not attend the conference,

1797enter into a compliance agreement, or comply

1804with the compliance agreement.

180829 . Petitioner compli ed with the notice requirements

1817contained in section 213.692(1)(a).

1821RECOMMENDATION

1822Based on the foregoing Findings of Fact and Conclusions of

1832Law, it is RECOMMENDED that the Department of Revenue enter a

1843final order that revokes Respondent's certificate of

1850registration.

1851DONE AND ENTERED this 31st day of January , 201 2 , in

1862Tallahassee, Leon County, Florida.

1866S

1867CLAUDE B. ARRINGTON

1870Administrative Law Judge

1873Division of Administrative Hearings

1877The DeSoto Building

18801230 Apalachee Parkway

1883Tallahassee, Florida 32399 - 3060

1888(850) 488 - 9675

1892Fax Filing (850) 921 - 6847

1898www.doah.state.fl.us

1899Filed with the Clerk of the

1905Division of Administrative Hearings

1909this 31st day of January , 2012 .

1916COPIES FURNISHED :

1919Nanc y Terrel, Acting General Couns e l

1927Department of Revenue

1930The Carlton Building, Room 204

1935501 South Calhoun Street

1939Post Office Box 6668

1943Tallahassee, Florida 32314 - 6668

1948Lisa Vickers, Executive Director

1952Department of Revenue

1955The Carlton Building, Room 104

1960501 South Calhoun Str eet

1965Tallahassee, Florida 32399 - 0100

1970Joseph Mellichamp, Esquire

1973Office of the Attorney General

1978The Capitol, P laza Level 0 1

1985Tallahassee, Florida 32399

1988Michael Lawrence Cohen, Esquire

1992Michael L. Cohen Law Offices

19971803 South Australian Avenue

2001West Palm Bea ch, Florida 33409

2007Carrol Y. Cherry, Esquire

2011Office of the Attorney General

2016Revenue Litagation Bureau

2019The Capitol, P laza Level 01

2025Tallahassee, Florida 32399

2028NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2034All parties have the right to submit written exceptions within 15

2045days from the date of this Recommended Order. Any exceptions to

2056this Recommended Order should be filed with the agency that will

2067issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 07/22/2013
Proceedings: Appellant's Motion for Rehearing and Motion for a Written Opinion filed.
PDF:
Date: 04/11/2013
Proceedings: Initial Brief on Behalf of Appellant filed.
PDF:
Date: 04/05/2013
Proceedings: Appellant's Motion for Five(5) Day Extension to File Initial Brief filed.
PDF:
Date: 08/10/2012
Proceedings: Appellant's Response to Court's Order to Show Cause Why Appellant's Case Should Not be Dismissed for Failure to Timely File Docketing Statement and Motion to Allow Appellant to File Said Docketing Statement filed.
PDF:
Date: 06/11/2012
Proceedings: Appellant's Response to May 30, 2012 Order Why Appeal Should Not be Dismissed filed.
PDF:
Date: 06/11/2012
Proceedings: Amended Notice of Administrative Appeal filed.
PDF:
Date: 06/08/2012
Proceedings: Letter to Carol Cherry from Michael Cohen rgarding new offer of settlement filed.
PDF:
Date: 06/05/2012
Proceedings: Appellant's Response to Appellee's Objection to Motion to Stay and Mediation filed.
PDF:
Date: 04/26/2012
Proceedings: Respondent/Appellant Extreme Performance & Auto Center, Inc.'s Motion to Stay and Motion for Mediation filed.
PDF:
Date: 04/25/2012
Proceedings: Notice of Administrative Appeal filed.
PDF:
Date: 03/27/2012
Proceedings: Agency Final Order
PDF:
Date: 03/27/2012
Proceedings: (Agency) Final Order filed.
PDF:
Date: 02/10/2012
Proceedings: Letter to Ms. Cherry from Michael Cohen regarding Offer of Settlement to Florida Department of Revenue filed.
PDF:
Date: 01/31/2012
Proceedings: Recommended Order
PDF:
Date: 01/31/2012
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 01/31/2012
Proceedings: Recommended Order (hearing held January 10, 2012). CASE CLOSED.
PDF:
Date: 01/20/2012
Proceedings: Petitioner's Proposed Recommended Order filed.
Date: 01/10/2012
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 01/09/2012
Proceedings: Respondent's Notice of Filing its Exhibits and Renewed Motion to Continue the January 10, 2012, Hearing and Motion for Leave to File Amended Response/Answer and Affirmative Defense (exhibits not available for viewing)
PDF:
Date: 01/06/2012
Proceedings: Notice of Filing (exhibits not available for hearing).
PDF:
Date: 01/04/2012
Proceedings: Order Denying Continuance of Final Hearing.
PDF:
Date: 01/04/2012
Proceedings: Response and Objection to Respondent's Motion for Continuance filed.
PDF:
Date: 12/30/2011
Proceedings: Respondent's Motion to Continue the January 10, 2012, Hearing and Motion for Leave to File Amended Response/Answer and Affirmative Defenses filed.
PDF:
Date: 12/30/2011
Proceedings: Respondent's Motion to Continue the January 10, 2012 Hearing and Motion for Leave to File Amended Response/Answer and Affirmative Defenses filed.
PDF:
Date: 12/09/2011
Proceedings: Notice of Transfer.
PDF:
Date: 11/08/2011
Proceedings: Order Re-scheduling Hearing by Video Teleconference (hearing set for January 10, 2012; 9:00 a.m.; West Palm Beach and Tallahassee, FL).
PDF:
Date: 11/07/2011
Proceedings: Joint Response to Order Granting Continuance filed.
PDF:
Date: 11/01/2011
Proceedings: Order Granting Continuance (parties to advise status by November 7, 2011).
PDF:
Date: 11/01/2011
Proceedings: Petitioner's Pre-hearing Statement filed.
PDF:
Date: 10/28/2011
Proceedings: Respondent's Motion to Continue November 7, 2011 Hearing filed.
PDF:
Date: 09/26/2011
Proceedings: Petitioner's First Request for Production of Documents filed.
PDF:
Date: 09/26/2011
Proceedings: Notice of Serving Petitioner's First Set of Written Interrogatories filed.
PDF:
Date: 09/26/2011
Proceedings: Petitioner's First Requests for Admission filed.
PDF:
Date: 09/22/2011
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 09/22/2011
Proceedings: Notice of Hearing by Video Teleconference (hearing set for November 7, 2011; 9:00 a.m.; West Palm Beach and Tallahassee, FL).
PDF:
Date: 09/21/2011
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 09/21/2011
Proceedings: Unilateral Response to Initial Order filed.
PDF:
Date: 09/15/2011
Proceedings: Notice of Appearance (Carrol Cherry) filed.
PDF:
Date: 09/14/2011
Proceedings: Initial Order.
PDF:
Date: 09/13/2011
Proceedings: Agency referral filed.
PDF:
Date: 09/13/2011
Proceedings: Request for Administrative Hearing filed.
PDF:
Date: 09/13/2011
Proceedings: Administrative Complaint for Revocation of Certificate Registration filed.

Case Information

Judge:
CLAUDE B. ARRINGTON
Date Filed:
09/13/2011
Date Assignment:
12/09/2011
Last Docket Entry:
07/22/2013
Location:
West Palm Beach, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (29):

Related Florida Rule(s) (1):