99-003064 Ron Ross Meardy, D/B/A Auto Liquidation Center vs. Department Of Revenue Status: Closed Recommended Order on Friday, May 4, 2001.

Summary: Failure of proof by Petitioner that he was entitled to a credit against prior taxes paid and that he was entitled to any further reduction of tax assessment for failure to file and pay.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RON ROSS MEARDY, d/b/a AUTO )

LIQUIDATION CENTER, )

)

Petitioner, )

)

vs. ) Case No. 99-3064

)

DEPARTMENT OF REVENUE , )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings

by its designated Administrative Law Judge, Ella Jane P. Davis,

held a disputed-fact hearing in the above-styled case on

January 31, 2001, in St. Augustine, Florida.

APPEARANCES

For Petitioner : Ron Ross Meardy, pro se

Post Office Box 1853

St. Augustine, Florida 32085

For Respondent : Charles Catanzaro, Esquire

Office of the Attorney General

The Capitol, Tax Section

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

What, if any, is Petitioner's tax liability to the State of

Florida, after any legitimate tax credits are applied, for June

1998 through December 1998?

PRELIMINARY STATEMENT

This cause was referred to the Divi sion of Administrative

Hearings on or about July 20, 1999. The abeyance, continuance,

and discovery history is documented in the case file and need

not be reiterated here.

At the disputed-fact hearing held on January 31, 2001, the

Department of Revenue (DOR) presented the oral testimony of

Thelmesia Whitfield and had DOR Exhibits 1 through 7 admitted in

evidence. Petitioner testified on his own behalf and had

Petitioner's Exhibits 1 through 3 admitted in evidence. (The

admission of Exhibit P-2 at TR- 152, is not reflected in the

table of contents for the Transcript.)

A Transcript was filed on February 22, 2001. The parties

had agreed to file their Proposed Recommended Orders on or

before thirty days following the date on which the Transcript

was filed with the Division, which with an intervening weekend

would have been March 26, 2001. Petitioner's proposal was filed

March 29, 2001. Respondent's proposal was filed March 27, 2001.

Both proposals having been late-filed, and no motion to strike

either proposal having been made, both proposals have been

considered in their entirety.

FINDINGS OF FACT

1. During the period of June 1998 through September 1998,

Petitioner Ron Ross Meardy operated a used car lot from a

location in Duval County, Florida, to wit: 1400 Mayport Road,

Atlantic Beach, Florida, 32233-3440.

2. Mr. Meardy conducted business through a sole

proprietorship named Auto Liquidation Center (ALC).

3. Mr. Meardy's business included both retail sales and

wholesale sales of motor vehicles.

4. Between June 1998 and December 1998, Mr. Meardy was a

registered dealer with DOR. Mr. Meardy's sales tax registration

number was 26-02-151942-23/4, which registration number pertains

to the Mayport location in Duval County, Florida.

5. Mr. Meardy filed State of Florida Sales and Use Tax

returns, standard form DR-15, for each month between December

1997 through May 1998. In so doing, he relied entirely on his

employees.

6. Mr. Meardy also filed State of Florida Solid Waste

returns , standard form DR-15SW, for each month between December

1997 through May 1998. In so doing, he relied entirely on his

employees.

7. In September 1998, Mr. Meardy opened a car lot in

St. Augustine, St. John's County, Florida and closed the Duval

County car lot.

8. Mr. Meardy filed no DR-15 (sales tax) forms for the

period of June 1998 through December 1998.

9. Mr. Meardy filed no DR-15SW (waste tax) forms for the

period of June 1998 through December 1998.

10. Mr. Meardy asserted that he did not know that his

employees had made a lot of bad loans or failed to file tax

returns for June 1998 through September 1998.

11. Mr. Meardy admitted that from September to December

1998, he deliberately filed no tax returns. First, he claimed

he did not file returns because there were no taxable sales made

in that period. Then, he asserted that he did not file because,

in an unrelated matter, the Florida Attorney General's Office,

investigating several businesses "run" by him, held necessary

business documents from October 27, 1998 until December 11, 1998

( 45 days).

12. Mr. Meardy's credible testimony that he did not have

his business records from October 27, 1998 to December 1998 was

unrefuted.

13. As a result of Mr. Meardy's not having filed any DR-15

and DR-15SW forms for the period of June 1998 through December

1998, DOR filed a sales and solid waste tax warrant against him

dated March 30, 1999, for $11,937.86. As permitted by law, this

audit/warrant merely estimated Mr. Meardy's liability.

14. Mr. Meardy did not then file formal tax returns, file

a formal request for an alleged credit (DR-95 form), or provide

DOR access to his business records so that DOR could make an

accurate assessment/audit/warrant for any tax, penalty,

interest, and/or credit. Instead, he timely-filed a Petition

for Administrative Hearing on May 28, 1999.

15. The Petition for Administrative Hearing, dated May 21

and filed May 28, 1999, was the first written expression by

which Petitioner alerted DOR that he was seeking a tax credit

due to repossessions he claimed to have made on defaulted loans.

The Petition only stated that DOR "owes ALC money due to

repossession credits." The Petition does not contain all of the

information required by rule or by the standard credit claim

form DR-95B.

16. Petitioner had, in the past, applied for credit for

tax paid on repossessed items by attaching the DR-95B form to

his monthly tax returns (P-3). He maintained he had relied on

his employees for this function.

17. Petitioner's credible testimony that the Attorney

General again held some of his documents from the end of May

1999, until September 30, 1999 (five months), due to an

unrelated matter, was unrefuted.

18. However, at no time did Petitioner ever file a formal

request for credit (form DR-95B) or any tax returns for the

period at issue in this proceeding .

19. Only during the course of discovery in the instant

proceeding, which discovery Petitioner resisted by every legal

means, did it become clear that Petitioner was claiming a tax

credit from his May 1998 sales tax return, and that the credit

he sought was in excess of the tax he had paid by way of his

May 1998 tax return. Only during the discovery process herein

did Petitioner provide DOR with any information concerning

repossession and default amounts that he was claiming. He did

this by producing a "database" (DOR-4). It is unclear from the

evidence at hearing when this information was provided, but the

date Petitioner claims in his Proposed Findings of Fact to have

first produced DOR-4 is February 10, 2000.

20. Petitioner also claims to have given someone at DOR a

computer disc with his supporting information, but no DOR

witness confirmed this. Petitioner produced no such disc at

hearing.

21. Exhibit DOR-4 did not provide the vehicle registration

number as part of the property description, the date the sales

and use tax was paid, the purchase price less trade-in, the

purchase price less cash down, or the actual date of

repossession. A copy of each invoice supporting each

repossession was not attached. Petitioner did not submit any

tax return with DOR-4.

22. Petitioner admits that DOR-4 does not contain all of

the information required by the tax credit claim form, DR-95B.

23. DOR revised its assessment once, based on the

information Petitioner was required to produce in this

proceeding. DOR revised its assessment a second time as a

result of the information Mr. Meardy provided in the course of

his deposition taken January 19, 2001, approximately a week-and-

a-half before final hearing.

24. As agreed-to within the Joint Pre-hearing Stipulation,

the revised assessment figure in this case is now limited to

$2626.31 sales tax, $1313.40 penalty, and $75.35 interest, for a

total of $4735.56, as of January 31, 2001.

25. If the foregoing base amounts are, in fact, owed,

penalties and interest continue to accrue, pursuant to statute.

26. In making the final audit/assessment/warrant, DOR's

Auditor IV, Thelmesia Whitfield, used original materials

supplied by Petitioner. From these, she took the actual amounts

Petitioner had listed on his dated invoices and other original

records as the tax he collected for June 1998 through December

1998. She then calculated the sales tax due, but not remitted,

for that period. In so doing, she determined that no additional

taxes were due for the months of August 1998 through December

1998. She also concluded that for Petitioner's sales in June

and July 1998, a penalty should be assessed at the legal rate of

10% per month on a cumulative basis up to 50% and interest

should be assessed at the legal rate of 12% per year or 1% per

month on the cumulative balance that is due.

27. Petitioner's solid waste fee liability was calculated

by Ms. Whitfield on the basis of the dated sales invoices

provided by Petitioner where he had charged fees for tire and

battery disposal. Ms. Whitfield's calculations did not include

transactions without invoices or other original records. She

noted that on several transactions Petitioner had collected more

solid waste tax than was required, and she concluded that once

collected, those amounts should be remitted to DOR unless they

had been refunded to the customer. She calculated local option

taxes at the applicable rate for Duval County.

28. Ms. Whitfield's re-calculations do not reflect credits

for the repossessions shown on DOR-4, because no state tax

returns were filed from June through December 1998, because all

the necessary information had not been provided, and because she

believed the information on DOR-4 had been provided beyond the

period available to claim repossession credits, which is 13

months after the repossession takes place.

29. Ms. Whitfield's re-calculations also do not include

credits for worthless accounts orally claimed by Petitioner in

the course of his January 19, 2001, deposition or which he urges

that she extrapolate from DOR-4, because Petitioner did not also

provide either federal tax returns or equivalent financial

statements as required by law.

30. Because Petitioner was asking for a refund of more

than he said he had paid, and because the sales he was

referencing took place before the period being audited,

Ms. Whitfield had no way to verify that the amount of sales tax

actually had been paid. Therefore , Ms. Whitfield only used

DOR-4 where there was a question as to whether a sale had taken

place at all. Although DOR-4 is merely a summary, because it

was produced by Petitioner and listed sales dates, she used it

only as his admission that certain questionable sales had, in

fact, taken place.

31. Accordingly, it is found that DOR has not relied on

estimations based on prior sales outside the time frame audited,

but has made its final assessment (DOR Composite Exhibit 3) upon

reasonable documentation provided by Petitioner, which

documentation he represented as being accurate to the best of

his ability. It is further found that DOR applied defineable

legal standards.

32. Petitioner essentially challenges DOR's last

assessment/audit/warrant because Ms. Whitfield did not use DOR-4

to assign him a credit or off-set. He seeks to have the

undersigned relate, according to his theory of

repossession/default credits, DOR's final assessment reflected

in DOR's audit report and work papers (DOR Composite Exhibit 3);

DOR-4, Petitioner's "database"; and Petitioner's Exhibits 1-3 so

as to determine Petitioner's sales tax and solid waste liability

for the June 1998 through December 1998 period, and to thereby

assign him a credit against his May 1998 tax return and payment

(P-3).

33. Petitioner's theory is based on his representation

that his database (DOR-4) uses the first time he received money

from each sale of a vehicle as the date of the sale/transaction,

even though his own invoices and other original supporting data

which he provided to DOR, showed different dates as the date of

each sale. Then, he asserts that where vehicles have been

repossessed, or where a sale has not "gone through," or where a

loan has been defaulted (presumably even without repossession,

of the car, although this is unclear), a credit should be

related back to his May 1998, tax return (P-3). His argument

and evidence are not persuasive for the following reasons.

34. At the outset, it is noted that Petitioner's credit

claim in excess of $12,000, is more than the tax Petitioner paid

in May 1998, as reflected on Exhibit P-3.

35. Likewise, although Petitioner's invoice used in

Ms. Whitfield's calculations recorded a sale on June 22, 1998,

to Lori Armstrong at $1500.00, Petitioner, without any

supporting evidence, asserted at hearing that this sale actually

was made on June 23, 1998, and that someone stole $500.00 of the

tendered price, so he should pay tax, if at all, on a sale of

only $1,000. He had a similar unsupported reason for attempting

to reduce, by $100.00, the sales price on another invoice amount

for Randy Davis, which invoice Ms. Whitfield had utilized.

36. Petitioner also claimed, at hearing, again with no

supporting evidence, that invoices he had previously produced

and which were relied upon by Ms. Whitfield for customers

Crumley, Mosley, and Lebourgeois "did not go through," and

therefore he should not be liable for sales tax on these

invoices. He asserted that since DOR could not find any title

at the Department of Highway Safety and Motor Vehicles (DHSMV)

for these customers, the inference must be drawn that those

sales never closed and therefore no sales tax on them is owed by

him.

37. Petitioner also claimed at hearing that the

Lebourgeois sale had resulted in a repossession.

38. At hearing, Petitioner admitted liability for a $1,000

sale to a customer Millwater, but claimed that a credit from May

1998 would cover it, without any clear explanation of how this

should occur.

39. Petitioner maintained at hearing, again only because

no title in that name had been located at the DHSMV, that an

invoice of September 14, 1998, to a customer Wilkerson for $200

meant that the sale to Wilkerson was an out-of-state sale, and

therefore no tax was owed.

40. In his Proposed Findings of Fact, Petitioner does not

address theft as an alleged reason he did not collect the full

amounts shown on his invoices (see Finding of Fact 35), but he

does seek a tax credit for all sales where no title was found at

DHSMV and discusses at least the Crumley, Mosley, and

Lebourgeois transactions as a source of these alleged "credits,"

sometimes for months in which he did not file any tax return.

He also addressed customers Varner, Bailey, Little, Wright,

Emanual, Lanier, Maynard, Porter, Williams, Arenas, Bays,

Beasley, Butt, Carvey, Catlin, Chapman, Clendenin, Cunningham,

Forbes, Catina Friend, Gonzalez, Knight, Lloyd, Owens,

Strickland, Daniels, Johnson, and McDade, whose names and

information (except for Bailey) appear on DOR-4, Petitioner's

database, as repossessions or defaulted loans. Bailey appears

on DOR-4 but in a different portion of DOR-4. (See Finding of

Fact 47).

41. The two biggest problems with Petitioner's theory are

that he submitted no evidence to affirmatively demonstrate that

any vehicle was repossessed, and Exhibit P-3 does not allow the

undersigned any way of determining which vehicle sales were

included in the May 1998 tax paid. Exhibit P-3 does provide

information as to the repossessions claimed in May 1998 for

previous months' sales, but it does not itemize or identify

May 1998 sales upon which the tax was being paid in that month.

42. Simply testifying that a repossession or default

occurred and that someone entered that information into

Petitioner's database (DOR-4) is not competent and credible

proof that repossession occurred. In light of Petitioner's

testimony that he relied on unreliable and dishonest employees

to handle both his sales and tax matters at the Duval County

office and without any explanation or documentation of how

repossessions or loan defaults were handled from either of his

business locations, the undersigned is left with the sense that

Petitioner had neither hands-on experience with the listed

repossessions nor with the subsequent entries of repossessions

and/or loan defaults into his database.

43. Although Petitioner has made a logical argument for

"starting at ground zero" with regard to his May 1998 tax

return, without more than is in evidence here, vehicles

allegedly sold prior to June 1998 cannot be related to vehicles

allegedly repossessed after June 1998 by way of the May 1998 tax

return (P-3). (See Findings of Fact 21 and 41.)

44. The absence of a title of registration in a given

individual's name, without more, is not sufficient to infer that

a sale was not consummated or that there had been an out-of-

state sale. If the buyer had the duty to transfer title,

failure of title proves nothing. If the dealer had the duty to

transfer title, Petitioner's failure to transfer title does not

automatically translate into a tax credit.

45. The minimal documentation underlying DOR-4 which

Petitioner offered (Exhibits P-1 and P-2), also is not

persuasive of Petitioner's theory of the case, including but not

limited to his suggestion that DOR is required to regard the

sale date as being a date when money allegedly was first

received, instead of the dates of sale on his invoices or other

underlying documentation.

46. It seems undisputed that "Ralston Varner" and "Varner

Dean" are the same customer, full name "Ralston Dean Varner."

Petitioner's Exhibit 1 is a receipt showing a payment by Ralston

Varner for an "'88 Chevy Caviler" [sic] and is dated May 1,

1998, which is the date Petitioner claims to be the completion

of sale date. By Petitioner's theory, sales tax on this

purchase should have been included in his May 1998 tax return,

entitling him to receive a tax credit upon repossession of this

or some other vehicle. This cannot be determined from the tax

return (P-3). Exhibit DOR-6 is a composite exhibit concerning a

sale to Ralson Varner. Those pages preceding the page titled

"Certification," dated July 19, 1998, were produced by

Mr. Meardy at his office. The materials following the

certification constitute a DHSMV "body jacket." The first page

of DOR-6 reveals "6-10-98," as the date of the used car order,

but pertains to a "1989 Ford T-Bird." The twelfth page, the

"Installment Sale Contract-Motor Vehicle," is dated June 10,

1998, and also relates to a 1989 Ford "T-Bird." DOR's final

audit refers to a 1989 Ford Thunderbird sold to "Varner Dean,"

not an '88 Chevy Cavalier, as urged by Petitioner.

47. Petitioner's Exhibit 2 shows two receipts from Dennis

Bailey, one on May 26, 1998 and one on June 2, 1998. Petitioner

maintained that the sale in question went through on May 26,

1998, the sales tax was remitted on his May 1998 tax return, and

the car was later repossessed. The May 1998 tax return (P-3)

does not help decipher this. A Dennis Bailey appears on DOR-4

as of May 26, 1998, in relation to a Ford Taurus, but it is not

one of the transactions Petitioner has singled out by the hand-

written notations on DOR-4 as being defaulted or repossessed.

Exhibit DOR-5 is a composite exhibit concerning the sale to

Dennis Bailey which Ms. Whitfield audited. Those pages

preceding the page titled "Certification," dated July 19, 1999,

were produced by Petitioner. The materials following the

certification constitute a DHSMV "body jacket." Exhibit DOR-5,

page one, shows "June 2, 1998," as the date of the used car

order. DOR-5, page 10, the fourth page following the

certification, reveals the date of sale as "6-2-98," as reported

to the DHSMV, both related to a 1988 Taurus. Under these

circumstances, Petitioner's view of this sale cannot prevail.

48. Also, Petitioner admitted that even by his theory and

calculations, his May 1998 tax return was "off" by $1,007, and

he had been unable to discover the reason (TR-103).

49. Moreover, the evidence does not clearly establish that

DOR-4 was presented to DOR within either 12 or 13 months of all

the repossessions in question. (See Findings of Fact 19 and 21-

22.)

50. Lastly, Petitioner did not present any evidence of

refunds to customers of solid waste tax overpayments.

CONCLUSIONS OF LAW

51. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding, pursuant to Sections 72.011(1)(a), 120.569, and

120.57(1), Florida Statutes.

52. Section 120.80(14)(b )2, Florida Statutes (2000) sets

forth the respective parties' burdens of proof: "In [a taxpayer

contest proceeding, DOR's] burden of proof, except as otherwise

specifically provided by general law, shall be limited to a

showing that an assessment has been made against the taxpayer

and the factual and legal grounds upon which [DOR] made the

assessment."

53. DOR has met its initial burden. Therefore, the burden

is upon Petitioner to demonstrate some entitlement to change the

assessment.

54. DOR contends that Petitioner owes Florida sales tax

for his sale of motor vehicles for the period of June 1998

through July 1998, because he failed to file a State of Florida

Sales and Use Tax Return, standard form DR-15, for each month

and failed to remit tax due on those retail sales; that

Petitioner's failure to pay sales tax for sales concluded from

June 1998 through July 1998 obligates him on continuing

penalties and interest which continue to accrue; and that

Petitioner owes solid waste fees for the tires and batteries

included with his retail sales of motor vehicles.

55. Petitioner contends that due to the mistakes and

misdeeds of his employees, repossessed items not being properly

recorded, and the repetitive requests for original documents by

the Attorney General on an unrelated matter and those documents

being returned in a "scrambled" condition, Petitioner was unable

to file the standard sales tax forms timely, the final audit

assessment did not consider repossessions appropriately, and

Petitioner's request for a credit off-set should be considered

to be timely.

56. Petitioner offered no legal precedent upon which he is

not responsible for the tax because of his employees' theft,

errors, or omissions.

57. Petitioner, as a sole proprietor and as the registered

tax payer-dealer, is responsible for the errors and omissions of

his employees for purposes of his tax debt. Section

212.06(2)(c), Florida Statutes (1997), defines "dealer" for

purposes of determining rights and responsibilities under

Chapter 212, as follows:

The term "dealer" . . . mean[s] every person

. . . who sells at retail or who offers for

sale at retail . . . tangible personal

property.

58. Petitioner offered no legal precedent by which the

time for filing a tax return, for seeking a tax credit, or for

claiming a default may be tolled due to possession of one's

business records for another case by another arm of government.

59. That Petitioner may have been the subject of an

independent investigation, moved his place of business, or

experienced employee turnover does not excuse his failure to

file sales and use tax or solid waste tax returns for the months

of June through December 1998.

60. Neither the Petition for Administrative Hearing, filed

March 28, 1999, nor DOR-4, produced in the course of discovery

for the instant proceeding on or about February 10, 2000,

contained all of the information required by law for claiming a

credit because they do not reveal the dates of repossession and

were unaccompanied by tax returns by which credit calculations

could be made. These items can only be considered incomplete

and untimely credit requests.

61. Florida sales tax on the full retail sales price is

due from dealers at the moment of sale. Section 212.06(1)(a),

Florida Statutes (1997). Florida sales tax on the full retail

sales price is due from dealers selling tangible personal

property "on a credit sale, installment sale, or sale made on

any kind of deferred payment plan . . . in the same manner as a

cash sale." Section 212.06(1)(a), Florida Statutes (1997). See

also Brunswick Corporation v. Kirk , 204 So. 2d 4, 8 (Fla. 1967).

62. Petitioner asserts that two of the transactions DOR

included in its assessment as taxable in the month of June 1998,

actually occurred in May 1998, and were paid with May's return,

to wit : Ralston Dean Varner, May 1, 1998, and Dennis Bailey,

May 26, 1998. He did not establish this premise.

63. The greater weight of the credible evidence is that

the moment of sale to Varner was June 10, 1998, and the moment

of sale to Dennis Bailey was June 2, 1998. Sales tax is to be

remitted to DOR no later than the twentieth day of the month

following the month in which the sale took place. Section

212.15(1), Florida Statutes (1997). Since Petitioner did not

file a return in July 1998, he cannot be presumed to have

remitted to DOR any sales tax for the transactions he executed

in June 1998.

64. Petitioner's sales tax return for May 1998, does not

identify or itemize the transactions included therein, so it is

impossible to apply Petitioner's theory of the case as to

Varner, Bailey, or any other customer.

65. Section 212.17(2), Florida Statutes (1997), provides:

A dealer who has paid the tax imposed by

this chapter on intangible personal property

sold under a retained title, conditional

sale, or similar contract, or under a

contract wherein the dealer retains a

security interest in the property pursuant

to Chapter 679, may take credit or obtain a

refund for the tax paid by the dealer on the

unpaid balance due him or her when he or she

repossesses (with or without judicial

process) the property within 12 months

following the month in which the property

was repossessed.

66. See also Rule 12A-1.012(2)(a), Florida Administrative

Code, "Refund or credit must be claimed within 12 months

following the month in which the property was repossessed."

67. Section 212.17(2), Florida Statutes (1997), and Rule

12A-1.012(2)(a), Florida Administrative Code, are the sole means

to apply for a credit for tax paid on the sale of property

subsequently repossessed .

68. The statute allows a dealer thirteen months to claim a

credit. The credit may be claimed either in the month an item

is repossessed or within the 12 months thereafter. For purposes

of the matter at bar, the statute identifies three specific

elements : the tax must have been paid; the credit must be

claimed within 12 months following the month of repossession;

and the property was actually repossessed.

69. Petitioner neither filed returns from June 1998

through December 1998, nor paid taxes from June 1998 through

September 1998, while taxable sales continued to be made. His

testimony and DOR-4 are insufficient to prove he repossessed any

of the automobiles sold.

70. Petitioner asserts that the Petition for

Administrative Hearing and/or DOR-4 are applications for a tax

credit and that the thirteen-month period relates to one or both

of these date(s), tolled by the period his documents were held

elsewhere or scrambled. For reasons stated in Conclusions of

Law 58-60 and 68-69, this concept is not viable.

71. Moreover, the requirements of Rule 12A-1.012(2)(c),

(d), and (e ), implement Section 212.17(2), Florida Statutes, and

address credits against tax for sales and repossessions of motor

vehicles. These requirements have never been met in whole by

Petitioner on either the Petition for Administrative Hearing or

DOR-4.

72. Any other statute providing alternative periods of

time to claim a credit for tax paid or providing for tolling of

a claim period asserted by Petitioner have not been shown to

apply to this proceeding or in this forum.

73. A credit is an exception to the general tax law; it is

strictly construed against the taxpayer and in favor of the

taxing authority. National Brands Tire Company v. Department of

Revenue , 383 So. 2d 257, 259 (Fla. 3rd DCA 1980), citing Szabo

Food Services, Inc. of North Carolina v. Dickinson , 286 So. 2d

529, 530-531 (Fla. 1973) and United States Gypsum Company v.

Green , 110 So. 2d 409, 413 (Fla. 1959).

74. Finally, tax collected is State money at the moment of

collection and is due to be remitted to the State on the first

day of the month following the month it was collected. Section

212.15(1), Florida Statutes (1997). All money collected as tax

must be remitted to DOR. Section 212.15(4), Florida Statutes

(1997). "Funds collected from a purchaser under the

representation that they are taxes provided for under the state

revenue laws are state funds from the moment of collection."

Section 213.756, Florida Statutes (1997).

75. The solid waste fee is composed of two items : the

waste tire fee (Section 403.718, Florida Statutes) and the lead-

acid battery fee (Section 403.7185, Florida Statutes). DOR

administers the respective fees, pursuant to the same procedures

used in the administration of the sales tax. Sections

403.718(3)(a) and 403.7185(3)(a), Florida Statutes.

76. Petitioner collected solid waste fees from his

customers but did not remit them to DOR. He presented no

evidence that he had refunded any such monies to customers.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED:

That the Department of Revenue enter a Final Order finding

Petitioner is liable for the amounts as set out in Finding of

Fact 24, without any credits or set-offs, and providing for

accruing interest and penalties, pursuant to law.

DONE AND ENTERED this 4th day of May, 2001, in Tallahassee,

Leon County, Florida.

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of May, 2001.

COPIES FURNISHED:

Ron Ross Meardy

Post Office Box 1853

St. Augustine, Florida 32085

Charles Catanzaro, Esquire

Office of the Attorney General

The Capitol, Tax Section

Tallahassee, Florida 32399-1050

Linda Lettera, General Counsel

Department of Revenue

204 Carlton Building

Tallahassee, Florida 32399-0100

James Zingale, Executive Director

Department of Revenue

104 Carlton Building

Tallahassee, Florida 32399-0100

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.