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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF REVENUE, )

)

Petitioner, )

)

vs. )

) Case No. 1 1 - 4607

EXTREME PERFORMANCE & AUTO )

CENTER , INC., )

)

Respondent. )

RECOMMENDED ORDER

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

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

Beach and Tallahassee, Florida, before Administrative Law Judge

Claude B. Arrington of the Division of Administrative Hearings

(DOAH ).

APPEARANCES

For Petitioner: Carrol Y. Cherry, Esquire

Office of the Attorney General

Revenue Litigation Bureau

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

For Respondent: Michael L. Cohen, Esquire

Michael L. Cohen Law Offices

1803 South Australian Avenue

West Palm Beach, Florida 33490

STATEMENT OF THE ISSUES

Whether Respondent committed the violations alleged in the

"Administrative Complaint for Revocation of Certificate of

Registration" (Administrative Complaint) filed with DOAH on

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

PRELIMINARY STATEMENT

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

certificate of registration held by Extreme Performance and Auto

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

compensation taxes, sales and use taxes , and corporate income

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

Findings of Fact section of this Recommended Order. In

addition, Petitioner alleges that Respondent attempted to pay

certain taxes with checks that were dishonored due to

insufficient funds.

At the formal hearing, Petitioner offered six sequentially -

lettered exhibits, each of which was admitted into evidence.

Petitioner presented no testimony. Respondent offered no

witnesses and no exhibits.

No transcript has been filed. Petitioner timely filed its

Proposed Recommended Order, which has been duly considered by

the undersigned in the preparation of this Recommended Order.

Respondent did not file a proposed recommended order.

Unless otherwise noted, all statutory referenc es are to

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

statutes cited in this Recommended Order at any time relevant to

this proceeding.

FINDINGS OF FACT

1. Petitioner is the agency of the State of Florida

responsible for administering the revenue laws of the State of

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

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

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

Petitioner provides unemployment compensation tax collection

services under contract with the Agen cy for Workforce Innovation

through an interagency agreement pursuant to section 443.1316.

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

principal address at 4401 Annette Street, West Palm Beach,

Florida 33409.

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

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

60 - 8014787127 - 3 .

4 . Respondent failed to timely file sale tax returns for

the months of February and June 2011. Petitioner assessed

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

of February 2011 and June 2011.

5. Respondent filed returns but failed to timely remit

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

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

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

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

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

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

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

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

7. Respondent is an employing unit as defined in

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

compensation tax provisions of chapter 443, as provided in

section 443.1215.

8. Respondent failed to timely file unemployment

compensation tax reports for the calendar quarters ending

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

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

2011. As a result, Petitioner asse ssed Respondent an estimated

unemployment compensation tax liability of $4,500.00 as of

July 1, 2011.

9. Due to its failure to timely file the unemployment

compensation tax reports, Respondent is liable for interest

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

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

10. Respondent issued Petitioner worthless checks for the

unemployment taxes due for the calendar quarters ending June 30,

2006; December 31, 2008; and March 31, 2009. As a result ,

Respondent still owes Petitioner unemployment compensation taxes

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

in the sum of $111.70.

11. Respondent is required to file with Petitioner

corporate income tax returns each year pursuant to the

provisions of chapter 220 . Respondent failed to timely file

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

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

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

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

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

of July 1, 2011.

13. Petitioner has issued and filed against Respondent

delinquent tax warrants, notices of liens, or judgment lien

certificates in the public records for the collection of

delinquent sales and use tax, delinquent unemployment

compensation tax, and delinquent corporate income tax.

14. Petitioner served upon Respondent a Notice of

Conference on Revocation of Registration via mail on May 23,

2011, advising Respondent of a conference to be held June 22,

2011. No one appeared on behalf of Respondent at the conference

scheduled on June 22.

CONCLUSIONS OF LAW

15 . DOAH has jurisdiction over the subject matter of and

the parties to this proceeding pursuant to sections 120.569,

120.57(1), and 212.18, Florida Statutes.

16 . Petitioner has the burden of proving by clear and

convincing evidence the allegations against Respondent. See

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

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

1st DCA 1989); and Inquiry Concerning a Judge , 645 So. 2d 398

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

in discussions of the clear and convincing evidence standard:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the evidence

must be precise and explicit and the

witnesses must be lacking in confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact the firm belief of (sic)

conviction, without hesitancy, as to the

truth of the allegations sought to be

established. Slomowitz v. Walker , 429 So.

2d 797, 800 (F la. 4th DCA 1983).

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

Respondent is a dealer within the meaning of that definition.

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

remit taxes imposed by chapter 212 on a monthly basis.

19 . In accordance with section 212.15, the taxes imposed

pursuant to chapter 212 become state funds at the moment of

collection, and the intentional failure to remit those taxes

constitutes a theft of state funds.

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

circumstances inapplicable to this proceeding, "no person shall

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

obtained such a certificate or after such certificate has been

cancelled . . . ."

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

(d) The department may revoke any

dealer's certificate of registration when

the dealer fails to comply with this

chapter. Prior to revocation of a dealer's

certificate of registration, the department

must schedule an informal conference at

which the dealer may present evidence

regarding the department's intended

revocation or enter into a compliance

agreement with the department. The

department must notify the dealer of its

intended action and the time, place, and

date of the scheduled informal confe rence by

written notification sent by United States

mail to the dealer's last known address of

record furnished by the dealer on a form

prescribed by the department. The dealer is

required to attend the informal conference

and present evidence refuting th e

department's intended revocation or enter

into a compliance agreement with the

department which resolves the dealer's

failure to comply with this chapter. The

department shall issue an administrative

complaint under s. 120.60 if the dealer

fails to atte nd the department's informal

conference, fails to enter into a compliance

agreement with the department resolving the

dealerÓs noncompliance with this chapter, or

fails to comply with the executed compliance

agreement.

22 . Petitioner has complied with the foregoing procedures.

23 . Petitioner established by clear and convincing

evidence that Respondent has repeatedly failed to comply with

the provisions of chapter 212.

24. Unemployment compensation tax contributions accrue and

are payable by each employer for each calendar quarter the

employer is subject to the provisions of chapter 443.

25 . Pursuant to Florida Administrative Code Rule 60BB -

2.025, employers are required to file quarterly unemployment

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

of the month following the calendar quarter to which the report

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

contributions are payable.

26 . Petitioner established by clear and convincing

evidence that Respondent repeatedly failed to comply with the

provisions of chapter 443.

27 . Petitioner established by clear and convincing

evidence that Respondent repeatedly failed to comply with the

provisions of chapter 220 relating to the filing and payment of

corporate income taxes.

2 8 . In addition to the authority given to Petitioner to

revoke Respondent's certificate of registration pursuant to

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

authorize Petitioner to revoke Respondent's certificate of

registration and provide, in relevant part, as follows:

(1) If the department files a warrant,

notice of lien, or judgment lien certificate

against the property of a taxpayer, the

department may also revoke all certificates

of registration, permits, or licenses issued

by the department to that taxpayer.

(a) Before the department my revoke the

certificates of registration, permits, or

licenses, the department must schedule an

informal conference that the taxpayer is

required to attend. At the conference the

taxpayer may present evidence regarding the

department's intended action or enter into a

compliance agreement. The department must

provide written notice to the taxpayer of

the department's intended action and the

time, date, and place of the conference.

The departm ent shall issue an administrative

complaint to revoke the certificates of

registration, permits, or licenses if the

taxpayer does not attend the conference,

enter into a compliance agreement, or comply

with the compliance agreement.

29 . Petitioner compli ed with the notice requirements

contained in section 213.692(1)(a).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

final order that revokes Respondent's certificate of

registration.

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

Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of January , 2012 .

COPIES FURNISHED :

Nanc y Terrel, Acting General Couns e l

Department of Revenue

The Carlton Building, Room 204

501 South Calhoun Street

Post Office Box 6668

Tallahassee, Florida 32314 - 6668

Lisa Vickers, Executive Director

Department of Revenue

The Carlton Building, Room 104

501 South Calhoun Str eet

Tallahassee, Florida 32399 - 0100

Joseph Mellichamp, Esquire

Office of the Attorney General

The Capitol, P laza Level 0 1

Tallahassee, Florida 32399

Michael Lawrence Cohen, Esquire

Michael L. Cohen Law Offices

1803 South Australian Avenue

West Palm Bea ch, Florida 33409

Carrol Y. Cherry, Esquire

Office of the Attorney General

Revenue Litagation Bureau

The Capitol, P laza Level 01

Tallahassee, Florida 32399

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.