12-000791 Echo Artz, Llc vs. Department Of Revenue Status: Closed Recommended Order on Friday, May 18, 2012.

Summary: Case is dismissed due to Petitioner's failure to satisfy condition precedent prior to filing Petition for Relief.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ECHO ARTZ, LLC , )

)

Petitioner , )

)

vs. ) Case No. 12 - 0791

)

DEPARTMENT OF REVENUE , )

)

Respondent . )

)

RECOMMENDED ORDER OF DISMISSAL

On Apri l 25, 2012, Respondent, Department of Revenue (the

"Department") filed a Motion to Dismiss for Lack of Jurisdiction

("Motion to Dismiss") . No response to the M otion to Dismiss was

filed by Petitioner, Echo Artz , LLC ("Echo Artz") . Pursuant to

notice, a f inal hearing was commenced on May 17, 2012, via video

teleconferencing with sites in Tallahassee and Orlando, Florida.

The Department's M otion to D ismiss was considered at the

commencement of the final hearing. After consideration of the

position of the parties and hearing argument of counsel, the

M otion to D ismiss was granted. This Recommended Order of

Dismissal sets forth the basis for the Administrative Law

Judge's decision.

FINDING S OF FACT

1. During the discovery phase of this proceeding, the

Depar tment ascertained from Echo Artz that $4,070 (the

"Uncontested Amount") of the assessed tax was not contested.

That is, Echo Artz agreed that it owed at least that amount of

the total tax assessment of $67,757.46 set forth in the Notice.

Of the total amo unt set forth in the Notice, $54,626.25 was the

tax portion and the remainder was interest. No penalties were

imposed as of the date of the Notice of Proposed Assessment .

The Uncontested Amount was approximately 7.5 percent of the tax

portion and approxi mately 5.9 percent of the total assessment.

2. At the final hearing, during discussion of the

Department's M otion to D ismiss, Echo Artz stated that the

Uncontested Amount was erroneous. Instead, it stated that

$23,135 of the total tax assessment was actu ally uncontested.

The total tax portion of the assessment should be, according to

Echo Artz, $57,730. The revised u ncontested a mount was

approximately 40 percent of the total tax portion.

3. Echo Artz did not pay any of the Uncontested Amount or

any of the revised u ncontested a mount pursuant to its own

calculations. The Department asserts that inasmuch as Echo Artz

failed to pay the Uncontested Amount prior to filing its request

for formal hearing, the case must be dismissed as required by law.

CONCLUSI ONS OF LAW

4. Section 120.80(14) (b) , Florida Statutes, provides in

pertinent part 1/ :

Taxpayer contest proceedings:

1. In any administrative proceeding

brought pursuant to this chapter as

authorized by s. 72.011(1), the taxpayer

shall be designated as th e "petitioner" and

the Department of Revenue shall be

designated as the "respondent" . . . .

* * *

3.a. Prior to filing a petition under this

chapter, the taxpayer shall pay to the

applicable department the amount of taxes,

penalties, and accrued in terest assessed by

that department which are not being

contested by the taxpayer. Failure to pay

the uncontested amount shall result in the

dismissal of the action and imposition of

an additional penalty of 25 percent of the

amount taxed.

b. The require ments of s. 72.011(2) and

(3)(a) are jurisdictional for any action

under this chapter to contest an

assessment . . . .

5. Section 128.80(14), Florida Statutes, which

cross - references section 72.011(3)(a), Florida Statutes, makes

the prerequisite of payin g the Uncontested Amount a

jurisdictional issue at the Division of Administrative Hearings

to the same extent it is jurisdictional in Circuit Court. This

jurisdictional requirement is in lieu of a bond being posted for

the entire amount assessed. See Dep 't of Rev . v. Nu - Life Health

& Fitness Ctr . , 623 So. 2d 747, 751 - 752 (Fla. 1st DCA 1992).

6. Section 72.011(3) states in pertinent part:

In any action filed in circuit court

contesting the legality of any tax,

interest, or penalty assessed under a

secti on or chapter specified in

Subsection (1), the plaintiff must:

(a) Pay to the applicable department or

county the amount of the tax, penalty, and

accrued interest assessed by the department,

or county which is not being contested by

the taxpayer . . . .

* * *

Failure to pay the uncontested amount as

required in paragraph (a) shall result in

the dismissal of the action and imposition

of an additional penalty in the amount of

25 percent of the tax assessed. Provided,

however, that if, at any point i n the

action, it is determined or discovered that

a plaintiff, due to a good faith de minimis

error, failed to comply with any of the

requirements of paragraph (a) or

paragraph (b), the plaintiff shall be

given a reasonable time within which to

comply befo re the action is dismissed. For

purposed of this subsection, there shall be

a rebuttable presumption that if the error

involves an amount equal to or less than

5 percent of the total assessment the error

is de minimis and that if the error is more

than 5 percent of the total assessment the

error is not de minimis.

7. Echo Artz did not pay the Uncontested Amount , which

constitutes in excess of five percent of the assessed tax

portion set forth in the Notice. If its own calculation of the

tax assessment and Uncontested Amount is correct, then Echo Artz

still failed to pay an Uncontested Amount that is greater than

five percent of the total assessment. It failed, therefore, to

satisfy a condition precedent to challenging the contested

portion of the asse ssed tax.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent, Department of Revenue,

enter a final order of dismissal .

DONE AND ENT ERED this 18th day of May , 2012 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

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.stat e.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of May , 2012 .

ENDNOTE

1/ Unless specifically stated otherwise herein, all references

to Florida Statutes are to the 2011 version.

COPIES FURNISHED :

Lisa Vickers, Executive Director

Department of Revenue

The Carlton Building, Room 104

501 South Calhoun Street

Tallahassee, Florida 32399 - 0100

Nancy Terrel, Acting General Counsel

Department of Revenue

The Carlton Building, Room 204

501 South Calhoun Street

Post Offic e Box 6668

Tallahassee, Florida 32314 - 6668

Jeffrey M. Dikman, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Marshall Stranburg, Esquire

Department of Revenue

The Carlton Building, Room 204

501 South Calhoun Street

Tallahassee, Florida 32314 - 6668

Charles Yex

Echo Artz, LLC

1600 Kelly Avenue

Kissimmee, Florida 34744 - 3496

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of th is Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.