96-004751 Alphonso And Betty Thurman vs. Department Of Revenue
 Status: Closed
Recommended Order on Tuesday, August 5, 1997.

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Summary: Assessment for use tax supported by bills of lading which were not disputed. Petitioners' loss from hurricane cannot excuse tax.






16Petitioners, )


19vs. ) Case No. 96-4751




30Respondent. )



35Pursuant to notice, a formal hearing was held by telephone

45conference call in this case on June 10, 1997, before J. D.

57Parrish, a designated Administrative Law Judge of the Division of

67Administrative Hearings.


70For Petitioner: Alphonso Thurman, pro se

76Betty Thurman, pro se

8013603 Southwest 102 Court

84Miami, Florida 33176

87For Respondent: Elizabeth T. Bradshaw

92Assistant Attorney General

95Office of the Attorney General

100The Capitol, Tax Section

104Tallahassee, Florida 32399-1050


111Whether the Petitioners are responsible for a use tax on the

122purchase of tangible personal property as assessed by the

131Respondent and, if so, in what amount.


140This case began on July 25, 1996, when the Department of

151Revenue (Department) entered a notice of final assessment for

160tax, penalty, and interest due against the Petitioners, Alphonso

169and Betty Thurman. The assessment notified Petitioners that the

178following amounts were claimed to be due: $1,020.84 for the tax

190due; $485.96 for the late filing penalty; $137.87 for interest;

200and $24.46 as an additional specific penalty. The total amount

210claimed by the Department was $1,669.13.

217The Petitioners requested an administrative hearing and

224alleged that the assessment was unjust due to their

233circumstances. Petitioners timely protested the assessment and

240requested that it be dismissed.

245The case was forwarded to the Division of Administrative

254Hearings for formal proceedings on October 9, 1996. Subsequent

263to the granting of a joint motion to continue, the case was

275rescheduled for June 10, 1997.

280At the hearing, the Department presented the testimony of

289the following witnesses: William Generette, a senior tax

297specialist employed by the Department; and Lourdes Ortiz-

305Alarkcon, a tax auditor also employed with the Department. Its

315exhibits numbered 1 and 2 have been admitted into evidence.

325The Petitioners testified in their own behalf. Their

333composite exhibit which was filed after the hearing has been

343admitted into evidence.

346A transcript of the proceeding was filed on July 2, 1997.

357The parties were granted leave to file proposed recommended

366orders within 10 (ten) days of the filing of the transcript. The

378Petitioners have not filed a proposed order. The Respondent's

387order was timely filed and considered in the preparation of this



4021. The Department of Revenue is the state agency charged

412with the responsibility of collecting use tax in accordance with

422Florida law.

4242. At all times material to the allegations of this case,

435Petitioners were residents of Miami, Florida.

4413. In August, 1992, Hurricane Andrew struck the Miami area

451and destroyed most, if not all, of Petitioners' household

460furnishings. The Petitioners were devastated by their personal


4694. Financially the Petitioners did not recover enough from

478the losses to replace all that had been damaged or destroyed by

490the storm.

4925. When it came time to refurnish their home, Petitioners

502traveled to North Carolina and selected new household furnishings

511which were paid for by them and imported into the State of

523Florida at their direction.

5276. These household furnishings are considered tangible

534personal property under the applicable Florida laws.

5417. The trucking companies which transported Petitioners'

548new furnishings were required to stop at Department of

557Agriculture and Consumer Services weigh stations, and copies of

566the bills of lading for Petitioners' personal property were

575produced and copied.

5788. The Department of Revenue utilized such bills of lading

588to calculate the use tax owed and due on the Petitioners'

599personal property.

6019. The Department of Revenue does not instruct the

610employees of the Department of Agriculture to stop particular

619kinds of trucks for inspection, but rather trains the Agriculutre

629employees to look for certain kinds of commodities, in order to

640identify all commodities that may be subject to sales and use


65210. The Department of Agriculture employees are instructed

660by the Department of Revenue to forward to the Department of

671Revenue the bills of lading from those shipments containing

680consumer commodities that are for use or consumption and are

690subject to tax, and they are instructed not to forward bills of

702lading for items which are exempt from tax or which are intended

714for resale.

71611. The purpose of this program is to assist the Department

727of Revenue in its enforcement of the sales and use tax.

73812. A purchaser of goods from out-of-state is required to

748voluntarily comply with the statutes imposing the use tax.

75713. The Department of Revenue calculated the amounts due

766from Petitioners for the use tax associated with their personal

776property imported into Florida and reduced such amounts to a

786final assessment. This assessment was issued by the Department

795on or about July 25, 1996.

80114. Petitioners have not disputed the accuracy of the

810assessment nor the fact that they imported the personal property

820described in the bills of lading used to calculate the


83115. Petitioners maintain that they should not be required

840to remit the tax set forth in the assessment as they were the

853victims of Hurricane Andrew and, but for their losses from that

864storm, would not have incurred the expense of new furnishings.

87416. The final assessment identified the following sums owed

883by Petitioners: tax in the amount of $1,020.84; penalty in the

895amount of $510.42; and interest through July 25, 1996, in the

906amount of $137.87.

90917. Petitioners did not establish that they had paid sales

919tax in North Carolina for the personal property shipped to


93018. Petitioners did not establish that they paid the use

940tax in Florida for the personal property described in the bills

951of lading used to calculate the tax assessed.

95919. Petitioners did not purchase the personal property

967through a charitable organization such as the Red Cross which was

978afforded tax exemption after Hurricane Andrew to purchase

986furnishings for the storm's victims.

99120. Petitioners did not establish that they are financially

1000unable to pay the assessment.


100821. The Division of Administrative Hearings has

1015jurisdiction over the parties to, and the subject matter of,

1025these proceedings.

102722. Section 212.05, Florida Statutes, provides, i n part:

1036It is hereby declared to be the legislative

1044intent that every person is exercising a

1051taxable privilege who engages in the business

1058of selling tangible personal property at

1064retail in this state, including the business

1071of making mail order sales, or who rents or

1080furnishes any of the things or services

1087taxable under this chapter, or who stores for

1095use or consumption in this state any item or

1104article of tangible personal property as

1110defined herein and who leases or rents such

1118property within the state.

1122(1) For the exercise of such privilege, a

1130tax is levied on each taxable transaction or

1138incident, which tax is due and payable as


1147* * *

1150(b) At the rate of 6 percent of the cost

1160price of each item or article of tangible

1168personal property when the same is not sold

1176but is used, consumed, distributed, or stored

1183for use or consumption in this state.

119023. Section 212.02, Florida Statutes, defines tangible

1197property such that personal home furnishings are included. It

1206must be presumed, and Petitioners admit, that the home

1215furnishings brought into this state from North Carolina were

1224intended for use and are used in this state.

123324. Rule 12A-1.091, Florida Administrative Code, provides:

124012A-1.091 Use Tax.

1243(1) The Florida Sales and Use Tax Act

1251imposes a tax on the use, consumption,

1258distribution, and storage for use or

1264consumption in this state of tangible

1270personal property purchased in such manner

1276that the sales tax would not be applicable at

1285the time of purchase.

1289(2)(a) The use tax applies to the use in

1298this state of tangible personal property

1304purchased outside Florida which would have

1310been subject to the sales tax if purchased

1318from a Florida dealer; provided, however,

1324that it shall be presumed that tangible

1331personal property used in other states,

1337territories of the United States, or the

1344District of Columbia for six (6) months or

1352longer under conditions which would lawfully

1358give rise to the taxing jurisdiction of

1365another state, territory of the United

1371States, or District of Columbia before being

1378imported into this state was not purchased

1385for use in this state. For purposes of the

1394presumption set forth herein, it shall be

1401necessary only that the tangible personal

1407property was used under conditions which

1413would allow such other state, territory of

1420the United States, or District of Columbia to

1428impose a sales or use tax on the sale or use

1439of that property regardless of whether any

1446such tax was actually imposed or paid.

1453(b) The rental or lease of tangible

1460personal property which is used or stored in

1468this state shall be taxable without regard to

1476its prior use or tax paid on purchase outside

1485this state.

1487(3) The provisions of the Florida Sales and

1495Use Tax shall not apply to the use or

1504consumption, or distribution or storage of

1510tangible personal property for use or

1516consumption in this state upon which a like

1524tax equal to or greater than the amount due

1533this state has been lawfully imposed and paid

1541in another state, territory of the United

1548States, or the District of Columbia before

1555use tax payable to this state would otherwise

1563have become due. If the amount of tax so

1572lawfully imposed and paid in another state,

1579territory of the United States, or the

1586District of Columbia is not equal to or

1594greater than the amount of tax imposed by

1602Chapter 212, F.S., then the person from whom

1610the use tax is due shall pay to the

1619Department of Revenue an amount sufficient to

1626make the tax paid in the other state,

1634territory of the United States, or the

1641District of Columbia and in this state equal

1649to the amount imposed by that Chapter.

1656(4) The use tax does not apply to any

1665property of which the retail sale is

1672specifically exempt from payment of the

1678Florida sales tax. The two taxes, sales and

1686use, stand as complements to each other, and

1694taken together provide a uniform tax upon

1701either the sale at retail or the use of all

1711tangible personal property irrespective of

1716where it may have been purchased.

1722(5) Every dealer who solicits business,

1728either by direct representatives, indirect

1733representatives or manufacturers' agents and

1738by reason thereof receives orders for

1744tangible personal property from consumers for

1750use, consumption, distribution or storage for

1756use or consumption in the state, shall

1763collect the tax from the purchaser, and no

1771action either in law or in equity on a sale

1781or transaction as provided by terms of

1788Chapter 212, F.S., may be had in this state

1797by any such dealer unless it is affirmatively

1805shown that the provisions of the law have

1813been fully complied with.

1817(6) For self-accrual authorization, see

1822Rule 12A-1.0911, F.A.C.

1825(7) Under Section 212.06(1), F.S., use tax

1832is imposed upon the cost of tangible personal

1840property imported into this state for use,

1847consumption, distribution, or storage for use

1853or consumption in this state, after it has

1861come to rest and has become a part of the

1871general mass of property in this state,

1878subject to the provisions contained in Rule


1886(8) If tangible personal property is sent

1893out of the state to be repaired and returned,

1902the transaction is taxable. When tangible

1908personal property is shipped into this state,

1915repaired and shipped back to its owner in

1923another state by common carrier or mail, the

1931amount charged for the repair is exempt.

1938(9) If items are purchased from a sales

1946office in Florida and shipped direct to a

1954Florida customer by a factory in another

1961state, the transaction is taxable, whether

1967the invoicing is handled by the factory or

1975the Florida office.

1978(10) If a Florida manufacturer sells

1984taxable merchandise to an unregistered out-

1990of-state dealer, but delivers it to the out-

1998of-state dealer's customer in Florida, he

2004shall collect tax from the out-of-state

2010dealer, who, being unregistered, is unable to

2017furnish a resale certificate.

2021(11) Law and medical books, accounting

2027manuals, tax service books with currently

2033issued inserts and similar publications are

2039taxable when purchased from out-of-state

2044suppliers for delivery in Florida.

2049(12)(a) Any person who manufactures

2054factory-built buildings out-of-state for his

2059own use in the performance of a contract for

2068the construction or improvement of real

2074property in Florida shall pay tax at the time

2083such building is imported into Florida. The

2090tax shall only be computed on the cost price

2099of the items used in the manufacture of the


2109(b) For the purpose of this subsection,

"2116factory-built building" means a structure

2121manufactured in a manufacturing facility for

2127installation or erection as a finished

2133building; "factory-built building" includes,

2137but is not limited to, residential,

2143commercial, institutional, storage, and

2147industrial structures.

2149(13) Any person who has purchased at

2156retail, used, consumed, distributed or stored

2162for use or consumption in this state tangible

2170personal property, admissions, communication

2174services, or leased tangible personal

2179property, or who has leased any real

2186property, space or spaces in parking lots or

2194garages for motor vehicles, hangar storage or

2201tie down for aircraft, or docking or storage

2209space or spaces for boats in boat docks or

2218marinas, and cannot prove that the tax levied

2226by Chapter 212, F.S., has been paid to his

2235vendor or lessor shall be directly liable to

2243the state for any tax, interest, or penalty

2251due on any such taxable transactions.

2257(14)(a) Any person, whether registered or

2263unregistered, who has purchased or leased

2269tangible personal property either in this

2275state or from out-of-state for use,

2281consumption, or distribution, or for storage

2287to be used or consumed in this state without

2296having paid sales tax on such property if

2304subject to tax, is required to remit use tax

2313on the cost price and on the lease of such

2323property. If such person is registered, use

2330tax is to be remitted with the dealer's sales

2339and use tax return. If such person is

2347unregistered, use tax is to be remitted on

2355Form DR-15MO, Mail Order/Use Tax Return

2361(incorporated by reference in Rule 12A-1.097,

2367F.A.C.), on or before the 20th day of the

2376first month after the end of the calendar

2384quarter during which any such property first

2391came to rest and became a part of the general

2401mass of property in this state. In those

2409cases where the 20th day falls on Saturday,

2417Sunday, or a federal or state legal holiday,

2425returns shall be accepted as timely if

2432postmarked or delivered to the Department of

2439Revenue on the next succeeding day which is

2447not a Saturday, Sunday, or legal holiday.

2454(b) Any person required to file and remit

2462use tax on Form DR-15MO is not considered, by

2471virtue of that fact alone, as "engaged in or

2480conducting business in this state as a

2487dealer," within the meaning of section

2493212.18(3), F.S., and is not required to file

2501an application for a certificate of


2508(c) Any person required to file and remit

2516use tax on Form DR-15MO is not entitled to a

2526collection allowance on account of keeping

2532required records and accounting and remitting

2538of taxes as required.

2542(d) Any person required to file and remit

2550use tax on Form DR-15MO is not required to

2559remit local option surtaxes on property

2565purchased in a mail order sale.

2571(15) The use tax applies to promotional

2578materials, as defined in s. 212.06(11)(b),

2584F.S., including mail order sales as defined

2591in s. 212.0596, F.S. After July 1, 1992, an

2600exemption is provided on promotional

2605materials which are subsequently exported

2610outside this state through a refund of

2617previously paid taxes or by the dealer self-

2625accruing taxes as provided in Rule 12A-

26321.0911, F.A.C. While a dealer purchasing and

2639distributing the promotional materials and

2644the seller of the promoted subscriptions to

2651publications are not required to be the same

2659person, the exemption only applies when the

2666seller of promoted subscriptions to

2671publications sold in this state is a

2678registered dealer and is remitting sales tax

2685to the Department on publications sold in

2692this state. See Rule 12A-1.034, F.A.C., to

2699obtain a refund of tax previously paid on

2707promotional materials.

2709(16) For use tax on services taxable under

2717Part I, Chapter 212, F.S., see Rule 12A-

27251.0161, F.A.C.

272725. In this case the Department has established its

2736entitlement to the amounts claimed under the challenged

2744assessment. Petitioners have not paid the assessment nor

2752presented any legal justification for why the assessment should

2761not stand. Regrettably, Hurricane Andrew caused Petitioners to

2769suffer a tremendous loss. That they were required to replace

2779their home furnishings after the devastation has not been

2788disputed by the Department. It is undoubted that they incurred a

2799significant financial burden as a result of the storm. Such

2809personal loss and tragedy does not, however, eliminate the

2818obligations set forth in Chapter 212, Florida Statutes, regarding

2827the imposition of a use tax.


2834Based on the foregoing Findings of Fact and Conclusions of

2844Law, it is RECOMMENDED that the Department of Revenue enter a

2855final order affirming the assessment in this cause.

2863DONE AND ENTERED this 5th day of August, 1997, in

2873Tallahassee, Leon County, Florida.



2881Administrative Law Judge

2884Division of Administrative Hearings

2888The DeSoto Building

28911230 Apalachee Parkway

2894Tallahassee, Florida 32399-3060

2897(904) 488-9675 SUNCOM 278-9675

2901Fax Filing (904) 921-6847

2905Filed with the Clerk of the

2911Division of Administrative Hearings

2915this 5th day of August, 1997.


2923Larry Fuchs, Executive Director

2927Department of Revenue

2930104 Carlton Building

2933Tallahassee, Florida 32399-0100

2936Linda Lettera, General Counsel

2940Department of Revenue

2943204 Carlton Building

2946Tallahassee, Florida 32399-0100

2949Elizabeth T. Bradshaw

2952Assistant Attorney General

2955Office of the Attorney General

2960The Capitol, Tax Section

2964Tallahassee, Florida 32399-1050

2967Alphonso Thurman

2969Betty Thurman

297113603 Southwest 102 Court

2975Miami, Florida 33176


2984All parties have the right to submit written exceptions within 15

2995days from the date of this Recommended Order. Any exceptions to

3006this Recommended Order should be filed with the agency that will

3017issue the Final Order in this case.

Select the PDF icon to view the document.
Date: 09/08/1997
Proceedings: Final Order filed.
Date: 09/05/1997
Proceedings: Agency Final Order
Date: 09/05/1997
Proceedings: Recommended Order
Date: 08/05/1997
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 06/10/97.
Date: 07/21/1997
Proceedings: Department of Revenue`s Proposed Recommended Order filed.
Date: 07/16/1997
Proceedings: (Respondent) Notice of Filing Corrected Copy of Exhibit; Exhibit filed.
Date: 07/02/1997
Proceedings: Transcript filed.
Date: 06/25/1997
Proceedings: Photographs filed.
Date: 06/11/1997
Proceedings: CASE STATUS: Hearing Held.
Date: 03/25/1997
Proceedings: Notice of Serving First Set of Interrogatories to Petitioner filed.
Date: 03/21/1997
Proceedings: Department of Revenue`s First Request for Production of Documents; Department of Revenue`s Second Request for Admission; Department of Revenue`s First Set of Interrogatories filed.
Date: 03/10/1997
Proceedings: Order Granting Continuance sent out. (hearing rescheduled for 06/10/97; 10:30am; Miami)
Date: 03/07/1997
Proceedings: Joint Motion to Continue Final Hearing filed.
Date: 02/28/1997
Proceedings: Notice of Taking Deposition Duces Tecum filed.
Date: 12/02/1996
Proceedings: (Respondent) Notice of Serving First Set of Interrogatories to Petitioner filed.
Date: 11/05/1996
Proceedings: Notice of Hearing sent out. (hearing set for 3/11/97; 10:30am; Miami)
Date: 10/18/1996
Proceedings: Joint Response to Initial Order; Answer filed.
Date: 10/11/1996
Proceedings: Initial Order issued.
Date: 10/09/1996
Proceedings: Agency referral letter; Petition for An Administrative Hearing; Notice of Final Assessment for Tax Penalty and Interest Due filed.

Case Information

Date Filed:
Date Assignment:
Last Docket Entry:
Miami, Florida

Related DOAH Cases(s) (1):

Related Florida Statute(s) (5):

Related Florida Rule(s) (5):