96-003159 John R. Plotnicky vs. Department Of Revenue Status: Closed Recommended Order on Friday, January 17, 1997.

Summary: Tax payer who pays sales tax on monthly boat slip rental and uses the boat as his principal residence is not entitled to a refund.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN R. PLOTNICKY, )

)

Petitioner, )

)

vs. ) CASE NO. 96 -3159

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding on

November 15, 1996, in Cocoa Beach, Florida, before Daniel Manry,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: John R. Plotnicky, pro se

Post Office Box 321284

Cocoa Beach, Florida 32932-1284

For Respondent: Olivia P. Klein

Assistant Attorney General

Office of the Attorney General

The Capitol, Tax Section

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent should

refund sales taxes collected from February, 1988, through June 1,

1995, on monthly rental payments for a boat slip.

PRELIMINARY STATEMENT

On June 1, 1995, Petitioner filed a claim for refund of

sales tax in the amount of $1,586.81. Respondent denied the

claim for refund. Petitioner timely requested a formal hearing.

At the formal hearing, Petitioner testified in his own

behalf and submitted five exhibits for admission in evidence.

Respondent called no witnesses and submitted six exhibits for

admission in evidence.

The identity of the exhibits, and the rulings regarding

each, are set forth in the transcript of the formal hearing filed

with the undersigned on December 2, 1996. Petitioner timely

filed his proposed recommended order ("PRO") on December 4, 1996.

Respondent timely filed its PRO on December 12, 1996.

FINDINGS OF FACT

1. Respondent is the governmental agency responsible for

approving or rejecting claims for refunds of sales tax in

accordance with Section 215.26, Florida Statutes. 1 Petitioner is

a resident of the state and is subject to the sales tax imposed

in Chapter 212.

2. Petitioner owns a houseb oat moored at Orange Cove

Marina, Cocoa Beach, Florida (the "Marina"). Petitioner

purchased the houseboat on March 20, 1980, and has lived on the

houseboat as his primary place of residence since 1980. The

houseboat contains a galley, a head, and sleeping accommodations

for up to six people.

3. The houseboat can be moved. In the past, Petitioner

took the boat out of the Marina for cruises between three and

four times a year. For the past five years, Petitioner has not

taken the houseboat out of the Marina.

4. Petitioner pays a boat slip fee to the Marina each

month. Petitioner has paid the monthly fee since 1980.

5. The monthly boat slip fee includes a charge for rental,

a live-aboard fee, and a variable fee for electricity. The

Marina collects a six percent sales tax on the total monthly boat

slip fee. Petitioner does not contest the sales tax collected on

the variable fee the Marina charges for electricity.

6. Petitioner and the Marina do not have a written lease

agreement for longer than six months. Petitioner and the Marina

do have a written agreement in which Petitioner agrees to abide

by the rules of the Marina. Petitioner has resided in Florida

continuously since October, 1979.

7. Petitioner does not own any real property at the Marina,

including the boat slip. Petitioner does not pay any property

taxes on real estate at the Marina, including his houseboat.

8. On June 1, 1995, Petitioner filed a claim for refund of

sales tax collected on his monthly boat slip rental fee from

February, 1988, through June 1, 1995. Respondent denied the

claim for refund on August 21, 1995.

9. Petitioner filed a written protest on October 18, 1995.

Respondent issued a Notice of Decision ("NOD") on January 5,

1996.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties. The

parties were duly noticed for the formal hearing.

11. The burden of proof is on Petitioner. Petitioner must

show by a preponderance of the evidence that he is entitled to a

refund of the contested sales tax. Florida Department of

Transportation v. J.W.C. Company, Inc. , 396 So.2d 778 (Fla. 1st

DCA 1981); Balino v. Department of Health and Rehabilitative

Services , 348 So.2d 349 (Fla. 1st DCA 1977).

12. Section 212.03(6) states in relevant part:

It is the legislative intent that every person is

engaging in a taxable privilege . . . who leases or

rents docking or storage spaces for boats in boat

docks or marinas. . . . For the exercise of this

privilege, a tax is hereby levied at the rate of 6

percent on the total rental charged.

13. Florida Administrative Code Rule 12A-1.073 2 reflects

legislative intent expressed in Section 212.03(6). In relevant

part, the rule states:

(1)(b) The lease or rental of docking or storage

spaces for boats in boat docks or marinas is

taxable.

(2) Tax applies to the rental charge for parking,

storing, tie-down or docking paid to the operator

of the facility by the one who parks, stores, ties-

down or docks. The prime lease of the parking,

storing, tie-down or docking facility to the

operator is not taxable.

14. Section 212.03 imposes a sales tax on living quarters.

In relevant part, Section 212.03(1) states:

. . . It is hereby declared to be the legislative

intent that every person is exercising a taxable

privilege who engages in the business of renting .

. . living quarters . . . in connection with any

hotel, apartment house, roominghouse, or tourist or

trailer camp.

15. Section 212.03(4) creates the following exemption from

the tax imposed on living quarters:

The tax levied by this section shall not apply to, be

imposed upon, or collected from any person who. . .

shall reside continuously longer than 6 months at any

one hotel, apartment house, roominghouse, tourist or

trailer camp, or condominium. (emphasis supplied)

Petitioner claims under the foregoing exemption that he is exempt

from the sales tax imposed in Section 212.03 because he alleges

that the Marina is a tourist or trailer camp within the meaning

of Section 212.02(10)(f).

16. The Marina is not a tourist or trailer camp within the

meaning of Section 212.02(10)(f). The Marina is not:

. . . a place where space is offered . . . to the

public for the parking and accommodation of two or

more automobile trailers, mobile homes, or

recreational vehicles which are used for lodging

. . . .

17. Tax exemptions are matters of legislative grace. They

must be strictly construed against the taxpayer and in favor of

the state. State Department of Revenue v. Anderson , 403 So.2d

397, 399 (Fla. 1981); Green v. Pederson , 99 So.2d 292, 296 (Fla.

1957); Asphalt Pavers, Inc. v. Department of Revenue , 584 So.2d

55, 57 (Fla. 1st DCA 1991).

18. A definition of "tourist or trailer camp" that includes

"marinas" and "boat slips" would liberally construe the exemption

in Section 212.03(4) in favor of the taxpayer. Terms such as

"tourist or trailer camp" in tax exemptions must be strictly

construed against the taxpayer and in favor of the state.

Anderson , 403 So.2d at 399; Pederson , 99 So.2d at 296; Asphalt

Pavers, Inc. , 584 So.2d at 57.

19. A definition of "tourist or trailer camp" that includes

"marinas" and "boat slips" would render purposeless and

meaningless separate terms in separate taxing provisions. The

legislature does not intend to enact purposeless and meaningless

legislation. Dickinson v. Davis , 224 So.2d 262 (Fla. 1969).

20. Petitioner is not exempt from the tax imposed in

Section 212.03. Petitioner does not satisfy the requirements of

the exemption in Section 212.03(4).

21. Even if Petitioner were entitled to a refund of sales

tax, the refund is limited to taxes paid on or after June 1,

1992. Petitioner's claim for refund of taxes prior to June 1,

1992, is untimely.

22. Section 215.26(2) provides that Petitioner is not

entitled to a refund of tax paid more than three years after the

date the tax accrued. A tax accrues on the date it is paid.

State ex rel Victor Chemical Works v. Gay , 74 So.2d 560, 562

(Fla. 1954). Petitioner is not entitled to a refund of taxes

paid prior to June 1, 1992. Taxes paid prior to June 1, 1992,

accrued more than three years before June 1, 1995, when

Petitioner filed his claim for refund.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent enter a Final Order and therein

DENY Petitioner's request for a refund of sales tax.

RECOMMENDED this 17th day of January, 1997, in Tallahassee,

Florida.

___________________________________

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 -1550

(904) 488 -9675 SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of January, 1997.

ENDNOTES

1 All chapter and section references are to Florida Statutes

(1995) unless otherwise stated.

1 All references to rules are to rules promulgated in the

Florida Administrative Code as of the date of this Recommended

Order.

COPIES FURNISHED:

Larry Fuchs, Executive Director

Department of Revenue

104 Carlton Building

Tallahassee, Florida 32399-0100

Linda Lettera, General Counsel

Department of Revenue

204 Carlton Building

Tallahassee, Florida 32399-0100

John R. Plotnicky, pro se

Post Office Box 321284

Cocoa Beach, Florida 32932-1284

Olivia P. Klein

Assistant Attorney General

Office of the Attorney General

The Capitol, Tax Section

Tallahassee, Florida 32399-1050

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.

1 All chapter and section references are to Florida Statutes

(1995) unless otherwise stated.

2 All references to rules are to rules promulgated in the

Florida Administrative Code as of the date of this Recommended

Order.