94-005180RX Central Dade Malpractice Trust Fund vs. Department Of Revenue Status: Closed DOAH Final Order on Friday, May 19, 1995.

Summary: Medical malpractice self-insurance fund can credit against premium tax its payments made for corporate income and intangible taxes; rule held invalid.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CENTRAL DADE MALPRACTICE )

TRUST FUND, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5180RX

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

_____________________________)

FINAL ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned

Hearing Officer of the Division of Administrative Hearings, on March 13, 1995,

in Miami, Florida.

APPEARANCES

For Petitioner: Curtis H. Sitterson, Esquire

Stearns, Weaver, Miller, et al.

Museum Tower

150 West Flagler Street

Miami, Florida 33130

For Respondent: Lisa M. Raleigh

Assistant Attorney General

Office of the Attorney General

Tax Section, Capitol Building

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue presented is whether the Department's Rule 12B-8.001(5), Florida

Administrative Code, is an invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

The Department issued its Notice of Reconsideration sustaining its

assessment against Petitioner for additional insurance premium tax, and

Petitioner timely filed two Petitions: one challenging the validity of Rule 12B-

8.001(5), Florida Administrative Code, which is the subject of this proceeding,

and one protesting the Department's assessment, which is the subject of DOAH

Case number 94-5133. Those causes were consolidated for final hearing but are

hereby severed since the former results in a final order issued by the Division

of Administrative Hearings, and the latter results in a recommended order.

The Department presented the testimony of Joy B. Eldred. Additionally,

Petitioner's Exhibit numbered 1 and Joint Exhibits numbered 1-4 were admitted in

evidence.

Both parties submitted post-hearing proposed findings of fact. A specific

ruling on each proposed finding of fact can be found in the Appendix to this

Final Order.

AGREED FACTS

1. At all times material hereto, Petitioner Central Dade Malpractice Trust

Fund has been a medical malpractice self-insurance fund as defined in Section

627.357, Florida Statutes. Petitioner has been in existence and operation since

1979. Its sole purpose is to provide medical malpractice insurance to its

members, approximately 100 doctors in Dade County.

2. Petitioner has no capital and is not operated for profit. It cannot,

without permission from the Department of Insurance, pay dividends to its

members. Rather, Petitioner is required by law to hold 100 percent of its

premium and investment income to fund medical malpractice claims and pay its

operating expenses, including taxes. Petitioner's members are individually

liable or assessable for any shortfall in its trust funds.

3. The Department conducted an audit of Petitioner for insurance premium

tax for the audit period of 12/31/89 through 12/31/90. After the conclusion of

the audit and after administrative protest by Petitioner of the proposed

assessment, the Department issued its assessment on July 20, 1994. Petitioner

subsequently paid the entire assessment and is seeking a refund in the related

proceeding.

4. Although Petitioner is a trust and not a corporation, as an insurer

Petitioner is subject to corporate income tax and intangible tax. Beginning

July 1, 1989, medical malpractice self-insurance funds also became subject to

the insurance premium tax provided for in Section 624.509, Florida Statutes.

That section further establishes a system of credits for taxes such as corporate

income, intangible, and other specified taxes against the insurance premium tax

assessed thereunder.

5. In computing the amount of tax due to the Department, Petitioner

applied credit for a portion of the corporate income tax and intangible tax paid

by it against its liability for the insurance premium tax for 1989 and 1990.

6. Petitioner has standing to initiate and maintain this action.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has jurisdiction over the

parties hereto and the subject matter hereof. Section 120.56, Florida Statutes.

8. Section 627.357, Florida Statutes, regulates the establishment of

medical malpractice self-insurance funds, regulates the terms of their

existence, and provides as follows:

(9) Premiums, contributions, and assessments

received by a fund are subject to s. 624.509(1)

and (2) and s. 624.5092, except that the tax

rate shall be 1.6 percent of the gross amount

of such premiums, contributions, or assessments;

provided, however, for the period July 1, 1989,

through December 31, 1989, the tax rate shall

be 0.8 percent and for calendar year 1990, the

tax rate shall be 1.3 percent.

By that subsection, originating in Chapter 88-206, Laws of Florida, medical

malpractice self-insurance funds such as Petitioner became subject to the

insurance premium tax effective July 1, 1989.

9. The premium tax had been previously established and given definition in

Section 624.509, Florida Statutes. Portions of that statute pertinent to this

proceeding are as follows:

(1) In addition to the license taxes provided

for in this chapter, each insurer shall also

annually, and on or before March 1 in each year,

. . . pay to the Department of Revenue a tax on

insurance premiums, risk premiums for title

insurance, or assessments, including membership

fees and policy fees and gross deposits received

from subscribers to reciprocal or interinsurance

agreements, and on annuity premiums or considera-

tions, received during the preceding calendar

year, the amounts thereof to be determined as set

forth in this section, to wit:

(a) An amount equal to 1.75 percent of the

gross amount of such receipts on account of life

and health insurance policies covering persons

resident in this state and on account of all

other types of policies and contracts (except

annuity policies or contracts taxable under

paragraph (b)) covering property, subjects, or

risks located, resident, or to be performed in

this state . . .

(b) An amount equal to 1 percent of the gross

receipts on annuity policies or contracts paid

by holders thereof in this state.

(2) Payment by the insurer of the license taxes

and premium receipts taxes provided for in this

part of this chapter is a condition precedent to

doing business within this state.

(3) Notwithstanding other provisions of law,

the distribution of the premium tax and any

penalties or interest collected thereunder shall

be made to the General Revenue Fund in accordance

with rules adopted by the Department of Revenue

and approved by the Administration Commission.

(4) The intangible tax imposed under chapter

199, the income tax imposed under chapter 220,

and the emergency excise tax imposed under chapter

221 which are paid by any insurer shall be

credited against, and to the extent thereof

shall discharge, the liability for tax imposed

by this section for the annual period in which

such tax payments are made.

* * *

(9) As used in this section "insurer"

includes any entity subject to the tax imposed

by this section.

10. Effective March 25, 1990, the Department amended its Rule 12B-8.001,

Florida Administrative Code, which substantially tracks Section 624.509, Florida

Statutes, requiring the payment of a premium tax, and reciting the rate of

taxation and the methodology for computing the amount of tax owed. One of the

amendments to the Department's rule was the addition of Subsection 5, which

provides as follows:

(5) Any insurer paying assessments made

under s. 440.51, F.S., shall be allowed as a

deduction against the amount of any other tax

levied by the state upon the premiums, assess-

ments, or deposits for workers' compensation

insurance on contracts or policies of said

insurance carrier, self-insurer, or commercial

self-insurance fund. Self-insurance funds are

not eligible for the aforementioned credits

described in Rule 12B-8.001(3), F.A.C., with

the exception of assessments made under s.

440.51, F.S. Wet Marine and Transportation

Insurers under s. 624.510, F.S., are eligible

for a credit for the total income tax paid under

Chapter 220, F.S., and the community contribution

credit, if applicable.

11. Petitioner agrees that the Department has followed all applicable

rulemaking procedures in promulgating Subsection (5) of Rule 12B-8.001.

Petitioner has challenged the validity, however, of that subsection,

particularly the first complete sentence, which reads as follows: "Self-

insurance funds are not eligible for the aforementioned credits described in

Rule 12B-8.001(3), F.A.C., with the exception of assessments made under s.

440.51, F.S." Petitioner argues that Subsection (5) is an invalid exercise of

delegated legislative authority because the subsection is contrary to Section

624.509(4) and (9) and/or because it is arbitrary or capricious. Section

120.52(8)(c) and (e), Florida Statutes. Petitioner has met its burden in this

proceeding. Agrico Chemical Co. v. Dept. of Environmental Reg., 365 So.2d 759

(Fla. 1st Dist. 1979).

12. Section 627.357(9), Florida Statutes, unambiguous-ly requires medical

malpractice self-insurance funds to pay the insurance premium tax as a condition

precedent to doing business in Florida, as required in Section 624.509 (1) and

(2), Florida Statutes. The Legislature has clearly stated in Section 624.509(4)

and (9) that any insurer subjected to payment of the insurance premium tax

imposed in Subsection (1) shall be entitled to credit against that tax a portion

of the payments made by it for intangible tax and corporate income tax. The

Department, on the other hand, has recited in Subsection (3) of Rule 12B-8.001

the availability of credit against the insurance premium tax for corporate

income tax and intangible tax payments, as provided in Section 624.509(4),

Florida Statutes, and has then provided in Subsection (5) of that rule that

medical malpractice self-insurance funds are not entitled to those credits. In

so doing, the Department has promulgated a rule which contravenes the statute it

purports to implement, and Subsection (5) is an invalid exercise of delegated

legislative authority.

13. The Department argues that Petitioner is not entitled to credit

against its premium tax liability other taxes paid, as other insurers are

entitled to do, because when medical malpractice self-insurance funds became

liable for payment of the premium tax in Section 627.357(9), the Legislature

stated that only Subsections (1) and (2) of Section 624.509 applied to medical

malpractice self-insurance funds. The Department reasons, therefore, that the

other subsections of Section 624.509 which grant to insurers credit against the

premium tax do not apply to medical malpractice self-insurance funds. The error

in the first part of the Department's argument is that Section 627.357(9) does

not include the word "only"; it is the Department's interpretation which offers

that word. The error in the second part of the Department's position is that

Section 627.357(9) need not provide that medical malpractice self-insurance

funds are entitled to take credit for other taxes against their liability for

premium tax since Section 624.509 states that already. Section 624.509(4)

specifically provides that the intangible tax and the corporate income tax paid

by any insurer shall be credited against that insurer's liability for the

premium tax imposed by Section 624.509, and Subsection (9) defines insurer as

meaning any entity subject to the premium tax imposed by 624.509.

14. Similarly, Rule 12B-8.001(5), Florida Administra-tive Code, is

arbitrary and capricious. The first sentence contained therein is not a

complete sentence and has no real meaning. The second sentence in Subsection

(5), the first complete sentence, provides that self-insurance funds are not

eligible for the credits described in Subsection (3) of the rule. However, the

source of the credit is not Department rule but rather the statute, Section

624.509(4), Florida Statutes. Forbidding to Petitioner a credit granted

Petitioner by the Legislature is despotic and, therefore, arbitrary. Further,

promulgating a rule which contains a sentence which is incomplete and without

meaning is capricious. See, Agrico, at 763.

15. The Department argues that it is simply clarifying the legislative

intent in Section 627.357 since the statute does not speak, one way or the

other, as to Petitioner's entitlement to credit. The Department refers,

therefore, to the legislative intent it finds in Chapter 88-206, Laws of

Florida, in which the Legislature imposed liability for paying the premium tax

on entities not previously liable. The Department argues that as to some of

those entities, the Legislature specified that Section 624.509, Florida

Statutes, was henceforth applicable; however, as to other entities, the

Legislature specified that Subsections (1), (2), and (3) of Section 624.509,

Florida Statutes, were applicable. The Department reasons, therefore, that

because the Legislature used different language, it intended to give the credit

claimed by Petitioner to some forms of insurers but not to others.

16. Unfortunately for the Department, the Legislature did not say that.

The apparent difference between those entities being made subject to the premium

tax for the first time by a reference to the entire Section 624.509 as opposed

to those entities upon whom the premium tax was being imposed for the first time

with the reference to Section 624.509(1) and (2) is that the former group was

being subjected to a premium tax equal to whatever percentage was specified in

Section 624.509 from time to time but the latter group was being subjected to a

premium tax at a different rate than that set forth in Section 624.509(1). In

other words, the difference in the choice of language by the Legislature appears

related to the tax rate being set for each type of legal entity, and the

difference bears no relationship to whether credit would be given to that legal

entity since the availability of credit is not mentioned in Chapter 88-206. The

Department is not in a position to clarify legislative intent where no ambiguity

exists in the statute enacted. Had the Legislature intended to not grant credit

to medical malpractice self-insurance funds, it could have so provided and

thereby overcome the general grant in Section 624.509 (4) and (9).

17. Lastly, the Department argues that Subsection (5) of its rule is a

permissible interpretation of the statutes implemented. Dept. of Professional

Reg., Bd. of Medical Examiners v. Durrani, 455 So.2d 515 (Fla. 1st Dist. 1984).

That argument is not persuasive since the statutes are clear, requiring no

interpretation, and since the Department's interpretation is contrary to the

statutory language.

18. Since the Legislature has given Petitioner credit against its premium

tax liability but the Department has taken that credit away by rule, then

Petitioner has met its burden of proving that Subsection (5) of Rule 12B-8.001

is in contravention of the statute it purports to implement and is arbitrary and

capricious. It is, therefore,

ORDERED that Rule 12B-8.001(5), Florida Administrative Code, is an invalid

exercise of delegated legislative authority.

DONE and ORDERED this 18th day of May, 1995, at Tallahassee, Florida.

___________________________________

LINDA M. RIGOT, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of May, 1995.

APPENDIX TO FINAL ORDER

1. Petitioner's proposed findings of fact numbered 2, 4, and 5 have been

adopted either verbatim or in substance in this Final Order.

2. Petitioner's proposed findings of fact numbered 1, 3, 6, and 8 have

been rejected as not constituting findings of fact.

3. Petitioner's proposed findings of fact numbered 7, and 9-11 have been

rejected as being subordinate to the issues involved herein.

4. Respondent's proposed findings of fact numbered 1, 2, 4, and 5 have

been adopted either verbatim or in substance in this Final Order.

5. Respondent's proposed findings of fact numbered 3, 6-10, and 13-20 have

been rejected as not constituting findings of fact.

6. Respondent's proposed findings of fact numbered 11 and 12 have been

rejected as being subordinate to the issues herein.

7. Respondent's proposed findings of fact numbered 21 and 22 have been

rejected as being irrelevant to the issues in this cause.

COPIES FURNISHED:

Curtis H. Sitterson, Esquire

Stearns, Weaver, Miller, et al.

Museum Tower

150 West Flagler Street

Miami, Florida 33130

Linda Lettera, General Counsel

Department of Revenue

Post Office Box 6668

Tallahassee, Florida 32314-6668

Lisa M. Raleigh, Esquire

Office of the Attorney General

Tax Section, The Capitol

Tallahassee, Florida 32399-1050

Carroll Webb, Executive Director

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399-1300

Larry Fuchs, Executive Director

Department of Revenue

104 Carlton Building

Tallahassee, Florida 32399-0100

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled to judicial

review pursuant to Section 120.68. Florida Statutes. Review proceedings are

governed by the Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing one copy of a notice of appeal with the Agency Clerk of the

Division of Administrative Hearings and a second copy, accompanied by filing

fees prescribed by law, with the District Court of Appeal, First District, or

with the District Court of Appeal in the appellate District where the party

resides. The notice of appeal must be filed within 30 days of rendition of the

order to be reviewed.

=================================================================

DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

STATE OF FLORIDA, NOT FINAL UNTIL TIME EXPIRES TO

DEPARTMENT OF REVENUE, FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

Appellant,

V. CASE NO. 95-2159/3142

DOAH CASE NO. 94-5133, 94-5180RX

CENTRAL DADE MALPRACTICE

TRUST FUND,

Appellee.

___________________________/

Opinion filed May 7, 1996.

An appeal from an order of the Division of Administrative Hearings. Cross

Appeal from an order of the Department of Revenue.

Robert A. Butterworth, Attorney General; Jeffrey M. Dikman and C. Lynne Overton,

Assistant Attorneys General, Tallahassee, for Appellant.

Bradford Swing and Curtis H. Sitterson of Stearns, Weaver, Miller, Weissler,

Miami, for Appellee.

DAVIS, J.

In the first of these consolidated cases, the State of Florida appeals the

final order of the Hearing Officer, invalidating Rule 12B-8.001(5), Florida

Administrative Code, as an invalid exercise of delegated legislative authority.

In the second, Central Dade Malpractice Trust Fund appeals 1/ the final order

of the Department of Revenue, upholding an audit assessing additional insurance

premium tax, a penalty and interest, and rejecting a separate recommended order

by the same hearing officer. The Hearing Officer's recommended order concluded

that Central Dade Malpractice Trust Fund was entitled to a tax refund because

the Department of Revenue had erroneously computed its tax obligation without

applying certain credits permitted by section 624.509 Florida Statutes (Supp.

1990). The sole issue in both cases is whether Central Dade is entitled to the

credits enumerated in section 624.509 against its liability for insurance

premium tax. We conclude that under a plain reading of the unambiguous language

of this statute, read in conjunction with section 627.357(9), Florida Statutes

(Supp. 1990), the statute allows such credits; therefore, we affirm the final

order of the Hearing Officer in case no. 95- 2159, and reverse the final order

of the Department of Revenue in case no. 95-3142.

In computing its premium tax liability for 1989 and 1990, Central Dade

applied against its liability a credit for a portion of the corporate income tax

and intangible tax it had paid. The Department of Revenue conducted an audit,

disallowed any credits, and issued an assessment against Central Dade

Malpractice Trust Fund for additional insurance premium tax, a penalty and

interest. Central Dade paid the assessment, and then filed two petitions with

the Division of Administrative Hearings. In one petition, Central Dade

protested the Department of Revenue's assessment and sought a refund. In the

other, Central Dade challenged the validity of Rule 12B-8.001(5), Florida

Administrative Code, and in particular the first complete sentence thereof,

which states: "Self-insurance funds are not eligible for the aforementioned

credits described in Rule 12B-8.0()i(3), F.A.C., with the exception of

assessments made under s. 440.51, F.S." Central Dade contended that subsection

(5) was an invalid exercise of delegated legislative authority because it was

contrary to subsections 624.509(4) through (9) 2/

Chapter 88-206, Laws of Florida, made medical malpractice self-insurance

funds such as Central Dade, as well as other enumerated insurers, / 3 subject

to the premium tax. In promulgating except that the tax rate shall be 1.6

percent of the gross amount Rule 12B-8.001(5), Florida Administrative Code, the

Department of Revenue erroneously interpreted section 627.357(9) to disallow any

credits to Central Dade otherwise permitted by section 624.509, because of the

belief that the specific enumeration of subsections (1) and y(2) in section

627.357(9) precluded the application of other subsections of the premium tax

statute. We-reject that construction based upon the plain language of the

statutes. "While legislative intent controls construction of statutes in

Florida, that intent is determined primarily from the language of the statute.

The plain meaning of the statutory language is the first consideration." St.

Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071, 1073 (Fla. 1982)(citations

omitted)

Section 627.357(9), Florida Statutes (Supp. 1990), provides that:

"Premiums, contributions, and assessments received by a fund are subject to s.

624.509(1) and (2) and s. 624.5092, except that the tax rate shall be 1.6

percent of the gross amount of such premiums, contributions or assessments;

provided, however, for the period July 1, 1989, through December 31, 1989, the

tax rate shall be 0.8 percent and for calendar year 1990, the tax rate shall be

1.3 percent." Subsections (1) and (2) of section 624.509 set the amount of the

tax. It is obvious from a plain reading of section 627.357(9), that the

Legislature specifically cross-referenced those particular subsections because

those subsections alone are being modified by the lower rate contained in the

dependent clause "except that the tax rate shall be 1.6 percent..."

More importantly, the enumeration in section 627.357(9) of subsections (1)

and (2) of section 624.509 does not preclude the applicability of the credits

governed by subsections (4) through (8) because subsection (1) of section

624.509 itself expressly incorporates the disputed credits into the final

computation of the premium tax. Subsection (1) provides that the amount of the

tax is "to be determined as set forth in this section..." The words "this

section" plainly refer to section 624.509 in its entirety, including the

subsections which permit the credits which the Department disallowed in this

case.

There can be no doubt that the Legislature, by using the term "this

section," meant the whole of section 624.509. The Preface contained in The

Florida Statutes, which explains the usage of the terms chapter, section and

subsection, states that chapters are arranged by subject matter, and identified

by a whole number; sections within a chapter are identified by a "whole decimal

number consisting of the chapter number followed by digits appearing to the

right of the decimal point;" and subsections are identified "by whole Arabic

numbers enclosed by parentheses." Reference to "this section" within subsection

624.509(1) mandates the Department of Revenue to permit medical malpractice

self-insurance funds the credits for corporate and intangible taxes in

subsection 624.509(4), when calculating the premium taxes due and owing under

section 624.509.

Our conclusion is supported by the fact that legislative intent may be

discerned from the Legislature's election to use different words to convey

different meanings within a statute. [Dep't of Professional Regulation. Bd. of

Medical Examiners v. Durrani], 455 So.2d 515, 518 (Fla. 1st DCA 1984).

Throughout section 624.509 the Legislature referred to the entire premium tax

statute, including credits, by using the word "section," and made specific

reference to particular subsections within section 624.509 by using the word

"subsection." [See, e.g.], subsection 624.509(4), Florida Statutes (Supp. 1990)

("As to any insurer issuing policies insuring against loss or damage from the

risks of fire, tornado, and certain casualty lines, the tax imposed by this

section, as intended and contemplated by this [subsection], shall be construed

to mean the net amount of such tax remaining after there has been, credited

thereon such gross premium receipts tax as may be payable by such insurer in

pursuance of the imposition of such tax by any incorporated cities or towns...")

[Emphasis added]; subsection 624.509(5)("There shall be allowed a credit against

the net tax imposed by' this section equal to 15 percent of the amount paid by

the insurer in salaries to employees located or based within this state and who

are covered by the provisions of chapter 443. For purposes of this

subsection:... (c) The term "net tax" means the tax imposed by this [section]

after applying the calculations and credits set forth in subsection (4).")

[Emphasis added]; subsection 624.509(6)("The Total of the credit granted for the

taxes paid by the insurer under chapters 220 and 221 and the credit granted by

subsection (5) shall not exceed 65 percent of the tax due under subsection (1)

after deducting therefrom the taxes paid by the insurer...") [Emphasis added];

subsection 624.509(7) ("Credits and deductions against the tax imposed by this

section shall be taken in the following order:...") [Emphasis added].

Reading subsection 624.509(1) with reference to the entirety of section

624.509, in conjunction with section 627.357, based upon the plain meaning of

the words contained within those sections, we conclude that the Legislature

intended medical malpractice self insurers to pay the tax imposed in section

624.509, using the lower rate specified in section 627.357, and then applying

the credits, as provided in subsections (4) through (8) of section 624.509.

Accordingly, we AFFIRM the Hearing Officer's final order in case no. 95-

2159 invalidating Fla. Admin. Code Rule 12B-8.001(5), as an invalid exercise of

delegated legislative authority, because the rule improperly denied the

applicability of the credits granted by the Legislature. We REVERSE the final

order of the Department of Revenue in case no. 95-3142 which upheld the

assessment of additional tax, a penalty and interest, and denied Central Dade

Malpractice Trust Fund's application for a tax refund, because the additional

tax was erroneously imposed by denying the credits to which Central Dade

Malpractice Trust Fund was entitled.

ZEHMER, C.J., and BARFIELD, J., CONCUR.

ENDNOTES

1/ These appeals were consolidated and case no. 95-3142 became a cross-appeal.

2/ Subsections 624.509(4) through (8) govern credits against the insurance

premium tax; subsection (9) provides that, "as used in this section insurer

includes any entity subject to the tax imposed by this section."

3/ The Legislature did not use uniform language throughout the act, however.

With respect to reciprocal insurers, for example, section 7 of chapter 88-206,

Laws of Florida, provided for the creation of section 629.5011, Florida

Statutes, stating that "[p]remiums and assessments received by reciprocal

insurers are subject to any premium tax provided for in s. 624.509." See also

12, 13, chapter 88-206, Laws of Florida, (premiums, contributions, and

assessments received by dental service plans, and entrance fees received by a

provider in payment for a continuing care contract, are "subject to the tax

imposed by s. 624.509"). In contrast, 6, chapter 88-206, Laws of Florida,

amended section 627.357, Florida, Statutes, by adding subsection (9), providing:

"[p]remiums, contributions, and assessments received by a fund are subject to s.

624.509(1), (2), and (3), of such premiums, contributions and assessments." See

also 3, 4, 5, 17, Chapter 88-206, Laws of Florida (using similar language to

impose lower premium tax rate on premiums, contributions and assessments

received by an arrangement under section 624.4425, as well as those received by

commercial self-insurance funds regulated by section 624.475, and those received

by professional liability self-insurance funds under section 627.356, and the

premiums, contributions and assessments received by worker's compensation group

self-insurer's funds under section 440.57).

MANDATE

From

DISTRICT COURT OF APPEAL OF FLORIDA

FIRST DISTRICT

To the Honorable Linda M. Rifot, Hearing Officer

Division of Administrative Hearings

WHEREAS, in that certain cause filed in this Court styled:

CENTRAL DATE MALPRACTICE

TRUST FUND

v. Case No. 95-2159

Your Case No. 94-5180RX

DEPARTMENT OF REVENUE

The attached opinion was rendered on May 7, 1996.

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said

opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable Richard W. Ervin, III, Acting

Chief Judge of the District Court of Appeal of Florida, First District and

the Seal of said court at Tallahassee, the Capitol, on this 23rd day of May,

1996.

__________________________________________________

(Seal) Karen Robert

Deputy Clerk, District Court of Appeal of Florida,

First District