20-003711 Mata Chorwadi, Inc., D/B/A Homing Inn vs. Palm Beach County Tax Collector Status: Closed Recommended Order on Friday, May 21, 2021.

Summary: Respondent proved Petitioner owed tourist development tax, penalty, and interest.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M ATA C HORWADI , I NC ., D / B / A

H OMING I NN ,

Petitioner ,

Case No. 20 - 371 1

vs.

P ALM B EACH C OUNTY T AX C OLLECTOR ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a hearing was conducted in this case by video

conference via Zoom on December 3, 2020, before Administrative Law Judge

Robert Meale of the Division of Administrative Hearings.

A PPEARANCES

For Petitioner: Manshi Shah, Esquire

6525 Jessy Court

Lake Worth, Florida 33467

For Respondent: Rex D. Ware, Esquire

Moffa, Sutton & Donnini, P.A.

3500 Financial Plaza, Suite 330

Tallahassee, Florida 32312

Jonathan W. Taylor, Esquire

Moffa, Sutton & Donnini, P.A.

Trade Center South, Suite 930

100 West Cypress Creek Road

Fort Lauderdale, Florida 33309

S TATEMENT OF T HE I SSUE

Whether Respondent properly assessed a tourist development tax,

penalty, and interest agains t Petitioner.

P RELIMINARY S TATEMENT

The Palm Beach County Tax Collector (ÑRespondentÒ or ÑTax CollectorÒ)

performed an audit of Mata Chorwadi, Inc., d/b/a Homing Inn (ÑPetitionerÒ or

ÑHoming InnÒ) , for the period of July 1, 2016, through June 30, 2019. Dur ing

the audit, the Tax Collector reviewed PetitionerÔs records to determine the

tourist development tax amount to be assessed.

On or about June 9, 2020, the Tax Collector issued a Notice of

Reconsideration - Final Assessment that advised Petitioner that the audit of

Homing Inn had been completed, and Petitioner owed $129,377.42.

On or about July 17, 2020, Petitioner timely filed a Petition for

Chapter 120 Hearing contesting the tax, penalty, and interest from the Tax

CollectorÔs assessment and requested a hearing.

On August 17, 2020, the matter was referred to the Division of

Administrative Hearings (ÑDOAHÒ). The matter was assigned to

Administrative Law Judge Robert Meale and set for hearing on October 23,

2020. On October 16, 2020, the matter was continu ed and ultimately

rescheduled to December 3, 2020.

The case was held as rescheduled on December 3, 2020. At the hearing,

Judge Meale addressed outstanding motions as preliminary matters. He

denied both PetitionerÔs Motion to Strike the Assessment in the Notice of

Reconsideration and PetitionerÔs Motion for Protective Order.

Judge Meale also took official recognition of Palm Beach County

Ordinance, Chapter 17, Article III , Sec tion 17 ; Florida Statutes ; Florida

Administrative Code Rules ; and case law.

D uring the hearing, Petitioner presented D i pika Shah. PetitionerÔs

Exhibits 1 through 8 were admitted into evidence without objection.

Respondent presented the testimony of Suzanne Englhardt. RespondentÔs

Exhibits 1 through 4 and 6 were admitted into eviden ce without objection.

At the close of the hearing, the parties stipulated that the proposed

recommended orders would be due 30 days after the filing of the transcript.

The o ne - volume Transcript of the final hearing was filed on January 6, 2021,

and anothe r copy of the same Transcript was filed on January 19, 2021.

On April 20, 2021, this matter was transferred to Administrative Law

Judge June C. McKinney. Both parties timely filed proposed recommended

orders, which have been considered in the preparation of this Recommended

Order.

Unless otherwise indicated, all statutory references are to the versions in

effect at the time of hearing.

F INDINGS OF F ACT

1. The Tax Collector is empowered to impose a tourist development tax

(ÑTDTÒ) on the privilege of rent ing, leasing, or letting Ñfor consideration of

any living or accommodations in any hotel, apartment hotel, motel, [or] resort

motel.Ò £ 125.0104(3)(a)1., Fla. Stat.

2. The Tax Collector is the entity operating pursuant to Palm Beach

County Ordinance, Chap ter 17, Article III, Section 17 - 111 through 116 , and

is authorized to impose TDT at a six percent rate on taxpayers. See also

§ 125.0104(4)(a), Fla. Stat. As part of its duties, Respondent audits taxpayers

and attempts to recover TDT owed.

3. At all times material to this case, Homing Inn was a 103 - room hotel

located in Boynton Beach, Florida.

4. As a taxpayer and operator of a hotel that rents rooms, Homing Inn was

subject to audit of its revenues by Respondent.

5. Respondent initiated an audit against P etitioner for the period of

July 1, 2016, through June 30, 2019 (Ñaudit periodÒ) , to determine if

Petitioner had properly remitted TDT, as reflected on PetitionerÔs TDT

returns.

6. In July 2019, Suzanne Englhardt (ÑEnglhardtÒ or ÑAuditorÒ), revenue

audito r, was assigned to conduct Homing InnÔs audit.

7. Englhardt started the audit of Homing Inn by conducting pre - audit

research, which included her looking up Petitioner on Sunbiz, the p roperty

a ppraisers Ô website, and preparing an audit notice.

8. On or abou t July 3, 2019, Englhardt sent Homing Inn a certified notice

informing Petitioner that their account had been selected for a Tourist

Development Audit (ÑauditÒ) of PetitionerÔs books and records.

9. In the notice, Respondent requested Homing Inn Ñmake ava ilable all

records, receipts, invoices, and related documentationÒ to review for the

audit.

10. Petitioner complied with RespondentÔs request for records and

provided bank statements for November 2017 through June 2019; federal

income tax returns for year s 2016, 2017, and 2018; and room revenue reports,

which were typed pages of purported revenue reported by Petitioner on its

TDT returns.

11. After Homing Inn provided the records, Englhardt reviewed the

submitted documentation and found that Homing Inn fa iled to maintain

records of sales at the hotel. As a result, Englhardt used the best information

supplied and available to conduct the audit, PetitionerÔs federal tax returns

and bank statements. She did not utilize PetitionerÔs revenue reports during

the audit because no source documents were provided to support or back up

any of the listed numbers typed on the revenue reports.

2018

12. Englhardt started the audit by reviewing PetitionerÔs 2018 gross

income reported on its supplied federal income tax ret urn in the amount of

$1,122 , 076.00. Englhardt compared the supplied 2018 bank deposits on the

bank statements that amounted to $1,122 , 048.73 to the federal income tax

return.

13. Englhardt also reviewed PetitionerÔs 2018 TDT returns, which

amounted to $65 3,202.13. Homing Inn did not provide Respondent any

documentation to account for the difference in reported income.

14. Next, Englhardt decided that since the gross revenues on the federal

income tax return and the bank deposit statements balanced, she pre sumed

TDT and sales tax were included. After she backed out the six percent TDT

and seven percent sales tax, the Auditor ultimately calculated and arrived at

the adjusted income of $992,963.48 that she utilized to calculate the

additional TDT.

15. Englhard t calculated the additional TDT by subtracting the income

reported by Petitioner on the TDT returns, $653,202.13, from the gross

adjusted amount she established, $992,963.48, and determined that the total

unreported income was $339,761.85. She then charged a six percent rate of

TDT, which lead to the additional TDT of $20,385.68 for 2018.

16. Englhardt calculated the remaining years of the audit with the same

methodology.

2016

17. When auditing 2016, Englhardt reviewed Homing InnÔs 2016 federal

income tax return provided and determined that PetitionerÔs gross income

was $1,042,188.00.

18. However, when the Auditor looked at the income reported on the

2016 TDT returns, the amount differed, and the reported income on the TDT

returns was $724,929.42.

19. Eng lhardt backed out the TDT and sales tax from the income reported

on the federal tax return and ultimately calculated and arrived at the

adjusted income of $922 , 290.27. Next, Englhardt subtracted the reported

income on the TDT return from the adjusted incom e and determined the total

2016 unreported income was $197,360.85.

20. To determine the additional TDT taxes Homing Inn owed, Englhardt

charged the six percent rate by $197,360.85 for an additional $11,841.53

owed.

2017

21. Englhardt reviewed Homing InnÔs 2017 federal income tax return and

determined the gross income reported was $1,032,331.00.

22. Englhardt also reviewed PetitionerÔs 201 7 TDT returns, which

amounted to $658,435.37.

23. Englhardt backed out TDT and sales tax from the income reported on

th e federal tax return and ultimately calculated and arrived at the adjusted

income of $913,567.26. Next, Englhardt subtracted the reported income on

the TDT return from the adjusted income to determine the total 2017

unreported income was $255,131.89.

24. T o determine the additional TDT taxes Homing Inn owed, Englhardt

charged the unreported income of $255,131.89 by the six percent rate for an

additional $15,307.91 owed.

2019

25. Englhardt reviewed Homing InnÔs bank statements from

January 2019 to June 2019 to determine the 2019 gross income. The total

deposits reported were $614,992.28.

26. Englhardt also reviewed PetitionerÔs 2019 TDT returns, which

amounted to $350,925.07.

27. Englhardt backed out TDT and sales tax from the income reported

from the deposi ts on the bank statements, and ultimately calculated and

arrived at the adjusted income of $544,240.96. Next, Englhardt subtracted

the reported income on the TDT return from the adjusted income and

determined the total 2019 unreported income was $193,315.8 9.

28. To determine the additional TDT taxes Homing Inn owed for 2019,

Englhardt charged the unreported income of $193,315.89 by the six percent

rate for an additional $11,598.95 owed.

29. After completing the audit, Englhardt added the unreported income

f or each year and the TDT amounts owed. She found that Homing Inn had a

total unreported income of $985,569.97 and owed an additional TDT of

$59,134.20 from the audit period.

30. On or about September 27, 2019, the Tax Collector issued a Notice of

Intent t o Make Audit Changes to Petitioner (ÑNotice of IntentÒ) and advised

Petitioner of the additional TDT in the amount of $59,134.20 owed.

31. The Notice of Intent also notified Homing Inn that Respondent also

sought a penalty and interest and provided, in per tinent part:

The $59,134.20 total tax due was carried over from

the Summary of Tax Due scheduled to the

Calculation of Tax Penalty and Interest

s preadsheet. The floating rate of interest on tax

due is based on the applicable rates established by

the Florid a Department of Revenue, which is

currently an annual rate of 9%. As also prescribed

by the State due to findings previously identified in

a prior audit, penalty is assessed at 100% of tax

due per Florida Statute 212.07(3)(b). As of

09/30/2019, Mata Chorwa di Inc., d/b/a: Homing

Inn, currently owes a total of $125,460.97 in tax,

penalty and interest.

3 2 . On or about December 16, 2019, Respondent issued a Notice of

Proposed Assessment (ÑNOPAÒ).

3 3 . Petitioner requested and was granted an extension until Apr il 14,

2020, to respond to the NOPA.

3 4 . On or about April 11, 2020, Petitioner timely protested RespondentÔs

audit findings. PetitionerÔs protest letter claimed that the unreported revenue

was made up of Homing InnÔs snack sales sold for $1.00 each; coin s collected

from a laundromat; proceeds from additional room cleaning services; and

proceeds from charges for lost room keys. Petitioner informed Respondent in

the protest letter that all the unreported revenue was deposited in the hotelÔs

bank account. Pe titioner requested that Respondent fully abate the penalties

and interest for reasonable cause and not willful neglect pursuant to section

213.21(3)(a), Florida Statutes.

3 5 . To support its position in the protest, Petitioner produced purchase

receipts fr om SamÔs Club, which included purchases for snacks and cleaning

supplies , and produced a laundry room collection log allegedly showing the

coins collected from the laundromat at Homing Inn. Homing Inn did not

produce any documents to show any revenue alleg edly earned for additional

cleaning services or lost room keys.

3 6 . On or about May 4, 2020, Respondent issued the Notice of Decision

denying Homing InnÔs protest letter and sustaining the assessment. The Tax

Collector considered Homing InnÔs argument and documents, but determined

that Petitioner did not provide any proof that the snacks, coins listed on the

collection log, or other expenses accounted for the unreported revenue since

the Tax Collector was not provided any documents from Homing Inn relating

to alleged revenue for additional cleaning services or lost room keys, sales

receipts , or bank deposit slips that correspond to verify the amounts listed on

the collection log.

3 7 . On June 3, 2020, Petitioner timely filed a Motion for Reconsideration

(ÑMo tionÒ). Homing Inn disputed the assessment and penalty and asked that

it be reevaluated. Homing Inn again asserted in its Motion that the

unreported revenue consisted of snack sales, revenue from the laundromat,

revenue from additional cleaning services, a nd revenue from lost room keys.

However, Petitioner did not provide any additional documents to support its

position.

3 8 . On June 9, 2020, Respondent issued a Notice of Reconsideration - Final

Assessment (ÑNotice of ReconsiderationÒ) denying the Motion and s ustaining

the assessment since no new information was provided by Petitioner.

39 . The Tax Collector also notified Petitioner in the Notice of

Reconsideration how to appeal the Tax CollectorÔs decision if Homing Inn was

not in agreement with the tax assess ment and stated , in pertinent part:

If the taxpayer is not in agreement with the

assessment, pursuant to Florida Statute 72.011,

Mata Chorwadi Inc. may contest the assessment by

Ñfiling an action in circuit court; or, alternatively,

the taxpayer may file a petition under the

applicable provisions of chapter 120.Ò

40 . As a settlement offer, Petitioner remitted a $28,000.00 check to

Respondent dated June 8, 2020, that had Ñpaid in fullÒ on the memo line.

Respondent returned the check to Homing Inn since the amount was not for

the assessment due.

41 . Afterwards, Petitioner remitted a second check in the amount of

$28,000.00. Respondent applied the $28,000.00 to the total outstanding

balance of Homing InnÔs tax.

4 2 . On July 17, 2020, Petitioner timely filed a Petition for Chapter 120

Hearing contesting tax, penalty, and interest from the Tax CollectorÔs

assessment in the Notice of Reconsideration and requested a hearing.

Audit History

4 3 . In 2007, Homing Inn had been audited by the Tax Collector. The first

audi t resulted in Petitioner owing additional TDT based on unreported

revenue.

4 4 . The current audit is the second audit of Homing Inn for TDT.

Hearing

4 5 . At hearing, Englhardt testified that at the beginning of the audit ,

Petitioner informed her that all re cords before November 2017 were

destroyed in a flood and could not be provided.

4 6 . Englhardt testified that snack sales, laundry coins, key card

replacement monies, and room cleaning proceeds were not revenues subject

to TDT. However, she explained durin g the hearing, that Homing Inn failed

to provide any documents to demonstrate sales or revenue for the items they

were asserting , so she was not able to make any of the revenue deductions

Petitioner requested.

4 7 . At hearing, Englhardt addressed in detail each item Petitioner was

contesting and all of the documentation Homing Inn provided the Tax

Collector requesting a reduction of the assessment amount determined from

the audit.

48 . Englhardt started with Homing InnÔs purchase receipts for the snacks

sup plied. On the point of snacks, Englhardt testified that she asked Homing

Inn for sales receipts during the conference they had so that she could adjust

for the snacks. However, Homing Inn never provided any sales receipts.

Englhardt explained that the rece ipts supplied by Homing Inn demonstrated

expenses , not revenue , so she could not use the documents supplied for the

audit.

49 . Englhardt also explained that she did not use the coin laundry log

because Homing Inn did not provide any deposit slips to back up those

alleged deposits. She needed additional source documentation to delineate

that particular revenue stream , and Petitioner failed to provide

documentation to substantiate any of the items on the log.

5 0 . Englhardt explained further that she was not able to use the alleged

extra cleaning charge proceeds for the audit because there was nothing to

quantify it. There was no audit trail, folios, sales receipts, or anything to

demonstrate any such payments.

5 1 . Englhardt also explained that the alleged cha rge of $5 per lost key was

considered. She testified that she saw the purchase receipt for the room keys

but could not use it because nothing showed revenue for lost keys. There were

no customer bills, folios, or credit card receipts.

5 2 . Englhardt testif ied she had to conduct the audit following

section 212.12(5)(b) , Florida Statutes, because if records were unavailable,

she was to make an assessment from an estimate based on the best

information available, which for Homing Inn were the federal income tax

returns , TDT reports, and bank statements that she used.

5 3 . Englhardt also testified that she considered Homing InnÔs request to

reduce the assessment amount , but denied it , because there was no

documentation to make any reductions or adjustments.

5 4 . At hearing, Englhardt also addressed the interest and penalty the Tax

Collector was imposing. She explained that the penalty is 100 percent ,

according to the statute , if there is a previous audit finding as there had been

with Homing Inn . She also testifie d that interest is Ñnever compromised.Ò

5 5 . Englhardt also testified that she applied the $28,000.00 remitted by

Homing Inn to the tax, which reduced their TDT of $59,134.20 to $31,134.20,

but the penalty amount was still the $59,134.20, and $7.66 per day interest.

5 6 . At hearing, Homing Inn produced purchase receipts for snacks and

cleaning supplies, Exhibit 3; a laundromat collection log, Exhibit 4; purchase

receipts for key cards, Exhibit 5; a list showing charges for room damages

and a list of additio nal cleaning services, Exhibit 7; and a copy of a check that

represented repayment for a loan, Exhibit 6.

5 7 . Homing Inn used its corporate representative, Dipika Shah (ÑShahÒ),

to testify at hearing.

58 . Shah explained that her husband owns Homing Inn, and she works at

the desk occasionally, but mainly runs errands and purchases items needed

for the hotel.

59 . Shah testified that all income collected from the snacks, key cards, and

other revenues are deposited in one bank, PNC Bank.

6 0 . Shah explained th at the computer system checks guests in and out.

There are four or five people that work at the desk.

6 1 . She testified there are weekly customers , and the weekly rental comes

with one cleaning. If a customer wants an additional cleaning, it is an

additio nal $20.00 per room cleaning.

6 2 . Shah also testified that there is an additional charge for any room

damage , but often times the damage amount is not paid.

6 3 . Shah described the Homing InnÔs coin - operated laundromat on the

hotel premises contained four washers and four dryers. She explained that

her husband pulls the coins out of the machines, logs the amount collected,

rolls up the coins, and makes laundromat deposits in the Homing Inn general

bank account. Shah admitted that she has no personal knowled ge of what her

husband has collected.

6 4 . Shah verified the purchase of 5,800 room key cards at hearing.

However, she admitted there was no receipts for sales of lost keys in the

amount of $5.00 each to customers.

6 5 . Shah also explained that Homing Inn ha s snacks for purchase. Shah

testified that Homing Inn does not keep records of snacks sales and most of

the snack purchases are cash.

6 6 . Shah testified that the ir accountant prepares the TDT returns

monthly. Shah testified that she is unsure if the busin ess maintains a

general ledger and has never seen a profit and loss statement for the

business.

Findings of Ultimate Fact

6 7 . In this case, the Tax Collector established that the audit giving rise to

this proceeding was properly conducted. After reviewing the records Homing

Inn submitted for the audit, the Auditor determined that the amounts on the

bank statements and federal tax returns matched, but the amounts listed in

Homing InnÔs TDT returns were underreported.

68 . Homing Inn failed to provide the Aud itor with any records to account

for the difference between the federal income tax and TDT returns.

69 . The Auditor correctly performed Homing InnÔs audit using an

acceptable methodology of assessing unreported revenue based on the federal

income tax retur ns , bank statements , and income reflected in the TDT

returns.

7 0 . During the audit, Petitioner failed to supply requested records to the

Tax Collector that accurately reflected sales at the hotel or source

documentation that explains any of the contested unreported revenue.

Therefore, the Auditor could not use PetitionerÔs supplied documentation as

part of the calculations for the audit to reduce the assessment amount.

7 1 . Additionally, the record is void of any evidence to support reducing the

assessment amount for any snack sales, laundromat revenue, cleaning

revenue, key sale monies, and room damage proceeds. ShahÔs limited

involvement and knowledge in the daily operations of Homing Inn did not

allow her to present relevant firsthand testimony or compete nt evidence to

support PetitionerÔs assertions.

7 2 . Therefore, the Auditor properly determined PetitionerÔs TDT liability

utilizing the method in section 212.12(5)(b), which allows the Auditor to rely

on an estimation for the assessment when the taxpayer fails to provide

records for the audit, and the Tax CollectorÔs assessment of $59,134.20 tax is

proper.

C ONCLUSIONS OF L AW

73 . DOAH has jurisdiction over the parties to and subject matter of this

proceeding pursuant to sections 72.011(1)(a), 120.569, and 120.57(1), Florida

Statutes (2020).

74. As the party asserting an assessment against Petitioner, the Tax

Collector bears the burden of proof to establish the Ñassessment [that] has

been made against the taxpayer and the factual and legal grounds upon

which the applicable department made the assessment.Ò £ 120.80(14)(b)2 . ,

Fla. Stat.

75. Once Respondent has met its burden, the burden shifts to Petitioner.

In order to prevail, Petitioner has to demonstrate by the preponderance of the

evidence that the tax ass essment is incorrect. IPC Sports, Inc. v. DepÔt of Rev .,

820 So . 2d 330, 332 (Fla. 3d DCA 2002).

76. In this proceeding, the Tax CollectorÔs audit was conducted according

to section 212.12(5)(b), which provides, in pertinent part:

(b) In the event any dea ler or other person

charged herein fails or refuses to make his or her

records available for inspection so that no audit or

examination has been made of the books and

records of such dealer or person, fails or refuses to

register as a dealer, fails to make a report and pay

the tax as provided by this chapter, makes a

grossly incorrect report or makes a report that is

false or fraudulent, then, in such event, it shall be

the duty of the department to make an assessment

from an estimate based upon the best in formation

then available to it for the taxable period of retail

sales of such dealer, the gross proceeds from

rentals, the total admissions received, amounts

received from leases of tangible personal property

by such dealer, or of the cost price of all art icles of

tangible personal property imported by the dealer

for use or consumption or distribution or storage to

be used or consumed in this state, or of the sales or

cost price of all services the sale or use of which is

taxable under this chapter, togethe r with interest,

plus penalty, if such have accrued, as the case may

be.

77. Section 212.12(6)(b) provides the Tax Collector an alternative method

to audit. It allows the Tax Collector discretionary authority to make an

assessment based on a sampling and states, in pertinent part:

[T] he department may, upon the basis of a test or

sampling of the dealerÔs available records or other

information relating to the sales or purchases made

by such dealer for a representative period.

78. Section 212.12(6)(a) prov ides guidance to taxpayers about the records

they are required to maintain and provides, in pertinent part:

It shall be the duty of every such person so charged

with such duty, moreover, to keep and preserve as

long as required by s. 213.35 all invoices an d other

records of goods, wares, and merchandise; records

of admissions, leases, license fees and rentals; and

records of all other subjects of taxation under this

chapter. All such books, invoices, and other records

shall be open to examination at all rea sonable

hours to the department or any of its duly

authorized agents.

79. Petitioner maintains that Respondent did not make a prima facie case

because section 212.12(5)(b) should not have been applied for the assessment

in this matter because Homing Inn d id not Ñfail or refuseÒ to provide records.

Petitioner contends that the Tax Collector used the wrong standard and

should have performed the audit according to section 212.12(6)(b), which

would have allowed the audit to be performed by a sampling of availa ble

records. The undersigned is not persuaded by PetitionerÔs argument. After

all, the Tax Collector is not mandated to audit using the sampling method.

Moreover, in this proceeding, Petitioner reported to the Auditor that the

records were lost in a flood , and adequate sales records were never provided

for Respondent to sample.

80. For the reasons set forth in the Findings of Fact above, the

undersigned concludes that the Tax Collector properly presented factual and

legal grounds for the assessment made ag ainst Homing Inn. The Tax

CollectorÔs assessment is factually supported by the methodology of assessing

unreported revenue based on the discrepancies between the income reflected

in the federal returns and bank statements and income reflected in the TDT

re turns. The assessment is also legally supported as the Tax Collector

followed the estimation mandate dictated by section 212.12(5)(b) to determine

the assessment. Hence, Respondent used the proper procedure to determine

the assessment based on an estimate because Homing Inn failed to maintain

the required records and did not make records available.

81. Since the prima facie case of the assessment is established, the burden

shifts to Petitioner to demonstrate the assessment was incorrect. This

standard requ ires evidence to refute the assessment. In this proceeding,

Petitioner failed to provide competent evidence to support any of the

contested unreported revenue alleged. For the reasons set forth in the

Findings of Fact, Petitioner failed to effectively rebu t, impeach, or otherwise

undermine the Tax CollectorÔs assessment. Hence, the record lacks any

evidence to demonstrate that the assessment is incorrect. Additionally,

Petitioner failed to prove the Tax Collector either departed from the

requirements of the law or that the assessment was not supported by any

reasonable hypothesis of legality. The record is clear that the Tax CollectorÔs

methodology relied on section 212.12(5)(b) to determine the assessment,

which is not a departure from the law. Therefore, P etitioner has failed to

meet its burden and overcome the presumption of correctness of the

assessment. Accordingly, the Tax Collector properly assessed Homing Inn the

tax of $31,134.20 after subtracting the $28,000.00 payment to date.

Penalty and Interest

82. Section 212.07(3)(b) defines how the assessment penalty is calculated

and provides, in pertinent part:

(b) A dealer who willfully fails to collect a tax or

fee after the department provides notice of the duty

to collect the tax or fee is liable for a specific

penalty of 100 percent of the uncollected tax or fee.

This penalty is in addition to any other penalty

that may be imposed by law.

83. In this cause, Homing Inn had previously been audited by the Tax

Collector in 2007, which provided Petitioner notice of its duty to maintain

records. Even though Petitioner owed TDT for unreported revenue during its

first audit, Homing Inn did not maintain the required sales records and failed

to report all taxable income for the audit period. Therefore, Homing InnÔs

penalty is 100 percent liability for the uncollected tax, $59,134.20, in this

proceeding.

84. In addition to the penalty, the Tax Collector properly imposed interest,

$7.66 per day, authorized pursuant section 213.235. See also Palm Beach Cty.

Ord . , Ch. 17, Art. III, § 17 - 114(g).

Appellate Rights

85. PetitionerÔs protest also included alleging the Tax Collector failed to

provide appellate rights. On this point, Respondent specifically provided

appellate rights in paragraph 39 as stated above, which makes the matter

moot. To this end, Petitioner also timely protested the Notice of

Reconsideration by filing the Pet ition for Chapter 120 Hearing on June 9,

2020.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that Respondent, Palm Beach County Tax Collector, enter a

final order directing Mata Chorwadi, Inc., d/b/a Homi ng Inn , to pay the Tax

CollectorÔs assessment for $31,134.20 of TDT; $59,134.20 of penalty; and

$12,444.95 of interest, accruing at $7.66 per day.

D ONE A ND E NTERED this 21st day of May , 2021 , in Tallahassee, Leon

County, Florida.

S

J UNE C. M CKINNEY

Admi nistrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of May , 2021 .

C OPIES F URNISHED :

Orfelia Mayor, General Counsel Manshi Shah, Esquire

Palm Beach County Tax Collector 6525 Jessy Court

301 North Olive Avenue Lake Worth, Florida 33467

Post Office Box 3715

West Palm Beach, Florida 3340 2 - 3715 Jonathan W. Taylor, Esquire

Moffa, Sutton & Donnini, P.A.

Rex D. Ware, Esquire Trade Center Sou th, Suite 930

Moffa, Sutton & Donnini, P.A. 100 West Cypress Creek Road

3500 Financial Plaza , Suite 330 Fort Lauderdale, Florida 33309

Tallahassee, Florida 32312

Hampton C. Peterson , General Counsel

Joseph C. Moffa, Esquire Palm Beach County Tax Collector

Moff a, Sutton & Donnini, P.A. 301 North Olive Avenue

Trade Center South, Suite 930 Post Office Box 3715

100 West Cypress Creek Road West Palm Beach, Florida 3340 2 - 3715

Fort Lauderdale, Florida 33309

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.