21-000845 Wkdr Ii, Inc. vs. Department Of Revenue
 Status: Closed
Recommended Order on Tuesday, November 30, 2021.


View Dockets  
Summary: Because WKDR failed to timely challenge the assessment pursuant to sections 72.011 and 120.80(14)(b)3.b., F.S., WKDR's challenge is jurisdictionally time-barred.

1S TATE OF F LORIDA

6D IVISION OF A DMINISTRATIVE H EARINGS

13W KDR II, I NC . ,

19Petitioner ,

20vs. Case Nos. 21 - 0844

2621 - 0845

29D EPARTMENT OF R EVENUE ,

34Respondent .

36/

37R ECOMMENDED O RDER

41The final hearing in this matter was conducted by Zoom Conference before

53Administrative Law Judge Jodi - Ann V. Livingstone of the Division of

65Administrative Hearings (DOAH), on August 18, 2021.

72A PPEARANCES

74For Petitioner: Michael J. Bowen, Esquire

80Akerman LLP

8250 North Laura Street, Suite 3100

88Jacksonville, Florida 32202

91For Respondent: J. Clifton Cox, Esquire

97John G. Savoca, Esquire

101Office of the Attorney General

106Revenue Litigation Bureau

109The Capitol , Plaza Level 01

114Tallahassee, Florida 32399

117S TATEMENT OF T HE I SSUE S

125Whether WKDR II, Inc. (WKDR) , is jurisdictionally time - barred from

136bringing the challenges in Case Nos. 21 - 0844 and 21 - 0845 to contest the

152Department of Revenue's (Department) tax assessment and subsequent

160freeze of WKDR's bank account to attempt to collect on the assessment.

172P RELIMINARY S TATEMENT

176On February 19, 2021, WKDR filed a Petition for Chapter 120 Hearing to

189contest the Department's Notice of Proposed Assessment (NOPA), dated

198January 13, 2020, which assessed sales and use tax, a penalty, and interest

211against WKDR follow ing an audit. A few days later, on February 23, 2021,

225WKDR filed a separate Petition for Chapter 120 Hearing to contest the

237Department's Notice of Intent to Levy (NIL), dated February 18, 2021, which

249gave notice that the Department was proceeding to freeze WKDR's bank

260account to collect the underlying audit assessment. The Department referred

270both petitions to DOAH on March 3, 2021, for the assignment of an

283administrative law judge to conduct chapter 120 hearing s .

293At DOAH, WKDR's challenge to the NOPA was designated Case No. 21 -

3060845 and the challenge to the NIL was designated Case No. 21 - 0844, and

321they were both assigned to the undersigned. Both cases are " substantial

332interests " proceedings brought under sections 120.569 and 120.57(1), Florida

341Statutes.

342On March 12, 2021, the Department filed a Motion to Consolidate Cases

354and to Bifurcate Issues. The undersigned granted the motion, in part, and

366consolidated the two above - styled cases for a hearing on the NOPA and the

381NIL.

382On May 5, 2021, WKDR filed a Petition to Determine the Invalidity of

395Existing Administrative Rule 12 - 6.003. The rule challenge, filed pursuant to

407section 120.56(3), was designated Case No. 21 - 1488RX, and assigned to the

420undersigned.

421On May 12, 2021, the Department filed the Departme nt of Revenue's

433Agreed Motion to Consolidate Cases, Agreed Motion for Continuance, and

443Unagreed Motion to Bifurcate Issues. The undersigned granted the motion.

453With this, WKDR's rule challenge was consolidated with the already

463consolidated c hallenges to th e NOPA and NIL , and the proceeding was

476bifurcated for a hearing on the threshold jurisdictional issues prior to a final

489hearing on the merits. For the challenges to the NOPA and NIL, the

502threshold jurisdictional issue raised by the Department was timelines s; for

513the rule challenge, the threshold jurisdictional issue raised by the

523Department was WKDR's standing.

527Prior to the hearing, the parties filed an Amended Joint Pre - Hearing

540Stipulation for August 18, 2021 Hearing on Jurisdictional Issues in which

551they stipulated to a number of facts. The agreed facts are incorporated in the

565findings below, to the extent relevant.

571The hearing on the threshold issues was held on August 18, 2021, with

584both parties present and appearing from different locations in Florida via

595Zoom Conference. WKDR presented the testimony of Mark Smith, CPA.

605Respondent presented the testimony of Lisa Weems (Ms. Weems), a Revenue

616Specialist III employed by the Department . The Department's Exhibits 1, 2,

6285, 7 through 14, 16 through 22, 25, 27 through 33, and 44 through 46 were

644admitted into evidence. In addition, portions of the depositions of Douglas

655Plattner and Jeffrey Barnard were admitted.

661At the close of the hearing, the parties requested an extended deadline of

67430 days following DOAH's receipt of the hearing transcript to file post -

687hearing submittals. 1 A two - volume Transcript of the final hearing was filed

701with DOAH; Volume I was filed on September 14, 2021, and V olume II was

7161 By agreeing to an extended deadline for post - hearing submissions beyond ten days after the

733filing of the transcript, the parties waived the 30 - day timeframe for issuance of the

749Recommended Order. See Fla. Admin. Code R. 28 - 106.216.

759filed on September 15, 2021. The parties timely filed post - he aring submittals.

773The submittals were duly considered in preparing this Recommended Order.

783The undersigned enters this Recommended Order in the above - styled

794su bstantial interest proceedings because the determination on the threshold

804issues is dispositive of these two cases . Pursuant to an Order Se vering Case s ,

820issued November 30 , 2021 , Case No. 21 - 1488RX has been severed from th ese

835consolidated case s , and a separate order will be entered on the issue of

849standing.

850All references to the Florida Statutes and the Florida Administrative Code

861are to the 2020 versions.

866F INDINGS OF F ACT

8711. The Department administers Florida 's sales tax statutes and performs

882audits to ensure compliance with sales tax laws.

8902. WKDR is a Ford franchise car dealership operating as LaBelle Ford.

902WKDR is organized as an " S " corporation and is wholly owned by Douglas

915Plattner (Mr. Plattner).

9183. WKDR's address is 851 South Main Street, LaBelle, Florida 33935

929(851 South Main Street ).

9344. Mark Smith (Mr. Smith) is a self - employed certified public accountant

947(CPA) at the firm of Smith and Waggoner CPAs. He is the CPA for

961Mr. Plattner and WKDR.

9655. Mr. Smith's business mailing address is 115 Tamiami Trail North,

976Suite 7, Nokomis, Florid a 34275 (115 Tamiami Trail).

9856. On or about March 21, 2019, the Department began a sales tax audit of

1000WKDR for the period of March 1, 2016, through February 28, 2019 (audit

1013period). WKDR was notified of the audit through a Notice of Intent to Audit

1027Books a nd Records, dated March 21, 2019.

10357. Jeff Barnard (Mr. Barnard) was a tax auditor for the Department.

1047Mr. Barnard was responsible for examining the books and records of various

1059taxpayers for compliance with Florida tax laws.

10668. Mr. Barnard retired from the Department in May 2021. He was

1078employed by the Department for 30 years. He spent the last 15 years with the

1093Department as a Tax Auditor IV Ð the most senior tax auditor position at the

1108Department.

11099. Mr. Barnard was responsible for the tax audit of WKDR for the audit

1123period.

112410. On or about July 30, 2019, Mr. Smith sent the Department a fully

1138executed Power of Attorney/Declaration of Representative form (POA form) to

1148appear as WKDR's representative in connection with the Department's audit .

115911. The POA form was completed and signed by WKDR's owner

1170(Mr. Plattner) and its CPA (Mr. Smith). The POA form gave Mr. Smith

1183authority to speak and act on WKDR's behalf for the Department's audit.

119512. The POA form correctly states the mailing address es of both WKDR

1208and its CPA/representative, Mr. Smith. It also correctly states the e - mail

1221address and fax number for Mr. Smith.

122813. Mr. Smith entered WKDR's address in section 1 of the POA form. The

1242POA form included spaces for a contact person's name, telephone number ,

1253and fax number at WKDR , but those spaces were left blank in the form

1267signed by Mr. Smith and Mr. Plattner .

127514. The POA form signed by both Mr. Smith and Mr. Plattner set forth the

1290name, address, telephone number, and fax number of Mr. SmithÔs CPA firm

1302in section 2 of the POA form .

131015. Section 6 of the POA form provides as follows:

1320Notices and Communication. Do not complete

1326Section 6 if completing Section 4.

1332Notices and other written communications will be

1339sent to the first representative listed in Part I,

1348Section 2, unless the taxpayer selects one of the

1357options below. Receipt by either the representative

1364or the taxpayer will be considered receipt by both.

1373a . If you want notices and communications sent to

1383both you and your representative, check this box.

1391b. If you want notices or communications sent to

1400you and not your representative, check this box.

140816. Mr. Smith completed section 6 by checking option " a , " indicating that

1420they wished to have notices and communication sent to both the taxpayer

1432(WKDR) and the representative (Mr. Smith).

143817. Mr. Smith's e - mail address was added on the POA form by the

1453Department's employee, Lisa Weems, after she called Mr. Smi th's telephone

1464number to obtain his e - mail address. All other information was added by

1478Mr. Smith after consultation with Mr. Plattner , before they both signed the

1490form.

149118. Throughout the audit, the Department 's auditor, Mr. Barnard,

1501primarily communicated with WKDR through its designated

1508representative Ð Mr. Smith Ð at his mailing address and e - mail address. This

1523included multiple requests for documents. At times, Mr. Barnard

1532communicated directly with Mr. Plattner while copying Mr. Smith on the

1543correspondence .

154519. Mr. Barnard sent a letter dated November 14, 2019, by regular mail,

1558to WKDR at 851 South Main Street, with a copy to Mr. Smith at

1572115 Tamiami Trail. Mr. Smith testified that he received and read this letter.

158520. The November 14 letter provided WKDR and Mr. Smith with notice

1597that, as things stood on that date, a NOPA was imminent. The letter stated,

1611in pertinent part:

1614On September 20th, we wrote you a letter

1622requesting the information needed to complete the

1629audit of WKDR II Inc. and the DR54 Formal No tice

1640of Demand to Produce Certain Records. The letter

1648stated that your failure to provide the information

1656be [sic] September 27, 2019 may result in an

1665assessment. That is, the implementation of

1671alternative audit procedures to estimate a liability

1678based on the best available information.

1684As of the date of this letter you have not complied

1695with our request. Therefore, enclosed is the Notice

1703of Intent to Make Audit Changes (DR1215) and the

1712audit work papers, which are an estimate based

1720upon the best informati on available as provided in

1729Section 212.12(5)(b), Florida Statutes. You have

173530 days to review the audit adjustments,

1742which expires on December 16, 2019.

1748* * *

1751If we do not hear from you by December 16, 2019 ,

1762the audit file will be sent to Tallahassee so that the

1773Notice of Proposed Assessment (NOPA) can be

1780issued to you. The NOPA is the formal notice of the

1791amount due. The NOPA will also provide the

1799procedures for filing informal and formal protests.

180621. Th e Notice of Intent to Make Audit Changes, which was included with

1820the November 14 letter, listed a " balance due through 11/14/2019 " of

1831$1,157,025.16. This sum included taxes of $801,967.01, a penalty of

1844$200,491.75, and interest of $154,566.40. The notice also explicitly laid out

1857WKDR's opportunities to informally protest this preliminary sum through a

1867conference with the auditor or t he auditor's supervisor. It provided that after

1880the 30 - day informal conference period expired, a NOPA would be issued.

189322. On December 20, 2019, Mr. Barnard sent an e - mail to Mr. Plattner

1908with a copy to Mr. Smith. Attached to the e - mail was a letter of th e same

1927date. The letter provided as follows:

1933On November 14, 2019, a Notice of Intent to Make

1943Tax Audit Changes (DR - 1215) was issued with

1952additional tax due of $801,967.00. The 30 day

1961informal protest period with the Service Center was

1969up December 13, 2019 . [ 2 ] Although your

1979representative, Mark Smith, did provide some sales

1986invoices after issuance of the DR - 1215 they did not

1997represent a full month of invoices as requested.

2005Please be advised all sales invoices for December

20132018 must be provided by January 3 , 2020 for any

2023changes in the assessment to be considered. These

2031invoices should consist of same for all new and used

2041vehicle sales, parts sales, service invoices/tickets,

2047and autobody invoices for December 2018.

205323. As indicated in the December 20 letter , one month before the NOPA

2066was issued, Mr. Barnard notified Mr. Smith and Mr. Plattner that the 30 - day

2081informal protest period expired on December 13, 2019.

208924. Mr. Smith's testimony on this matter was evasive. At first, h e

2102acknowledged that he received t he December 20 letter . However, after

2114objection from WKDR's counsel, Mr. Smith backtracked and denied receipt.

2124His attempted denial was not credible and is not credited.

213425. The undersigned finds that Mr. Smith received the December 20

2145letter.

214626. Mr. Ba rnard sent another letter, dated January 7, 2020, by regular

2159mail to Mr. Plattner, and by e - mail to both Mr. Plattner and Mr. Smith,

2175which stated as follows:

2179Please be advised the information necessary to

2186make an adjustment to the audit results issued on

2195N ovember 14, 2019 has not been provided.

2203As stated in our December 20, 2019 letter this

2212information was sales invoices for all new and used

2221vehicle sales, parts sales, service invoices/tickets,

2227and autobody invoices for the entire month of

2235December 2018.

22372 The Notice of Intent to Make Tax Audit Changes sent on November 14 provided a deadline

2254of December 13 for the 30 - day informal conference period, while the e - mail sent on December

227320 referenced a deadline of December 16. The discrepancy in the December 20 letter is

2288immaterial a s both deadlines (December 13 and 16) had passed by the date of the December

230520 letter.

2307T he audit will be closed and a Notice of Proposed

2318Assessment will be issued shortly.

232327. Once again, Mr. SmithÔs testimony was evasive. After seemingly

2333admitting he received and read the January 7 letter, Mr. Smith testified that

2346he did not receive the Jan uary 7 letter. The undersigned found Mr. Smith's

2360testimony on this point wholly untruthful.

236628. At the hearing, during cross - examination, the Department's counsel

2377asked Mr. Smith about his actions and impressions after receipt of the

2389January 7 letter in t he following exchange :

2398Q. Let's go to Exhibit 22, which is Bates Number

240800081. This is another e - mail sent to you on

2419January 7th, 2020 to Mr. Plattner showing a

2427carbon copy to Mr. Mark Smith CPA POA. The

2436third sentence states; " The audit will be closed and

2445a notice of proposed assessment will be issued

2453shortly. " Does that mean that the audit is still open

2463or the audit is closed?

2468A. That, like I said, I mean, I've -- I've dealt with

2480audits where they say they're going to do this and

2490do that and it's taken t hem two years to send

2501anything.

2502Q. This letter dated January 7th, 2020 does not

2511give a new deadline, does it?

2517A. It does not appear to but -- yeah, it does not

2529appear to.

2531Q. In fact, it says the audit is closed. That means

2542that it's done, right?

2546A. No. I don't -- I -- not necessarily.

2555Q. It also says that the notice of proposed

2564assessment will be issued shortly. So you knew at

2573this time, the NOPA was imminent, right?

2580A. Not necessarily.

2583Q. Is there any language in this letter indicating

2592that WKDR has any more time to provide

2600additional documents?

2602A. I've worked with the State before and they've

2611provided us additional time quite often.

2617Q. In fact, the auditor did provide you a deal -- a

2629great deal of additional time to have the audit,

2638didn't he?

2640A. Well, we provided him so many documents that

2649we thought he needed more time too.

265629. The whole tenor of Mr. Smith's testimony was to acknowledge that he

2669read and understood the January 7 letter to say the NOPA was imminent,

2682but that he knew from his exper ience the NOPA was " not necessarily "

2695imminent. Notably, when asked if he knew at that time that the NOPA was

2709imminent , Mr. Smith did not say that he did not know that because he did

2724not receive or read the January 7 letter when it was sent to him by e - mail .

274330. Mr. Smith provided answer s to these and several other questions

2755about what he did or did not do in response to the January 7 letter. It was not

2773until after an objection by WKDR's counsel that , as before, Mr. Smith

2785backtracked to say that he did not receive the letter.

27953 1 . In making the finding that Mr. Smith was untruthful when he

2809testified that he had not received the January 7 letter, the undersigned had

2822the distinct opportunity to observe the demeanor of Mr. Smith during

2833testimon y on this issue. He was not credible and his belated denial is not

2848credited .

285032. The undersigned finds that Mr. Smith received the January 7 letter,

2862reviewed it, and hoped that he could buy more time as he had thought he

2877might be able to.

2881Testimony of Lisa Weems

28853 3 . Ms. Weems is a Revenue Specialist III for the Department. She has

2900worked for the Department, in its Complian ce Standards Section, for over 15

2913years. In addition to other tasks, Ms. Weems is responsible for printing

2925NOPAs to send out to taxpa yers and their representatives. Ms. Weems

2937testified in great detail about the process she uses to send out NOPAs.

29503 4 . When a NOPA is issued, it is uploaded to the Department's system

2965overnight and cannot be printed until the following morning. Because of t his,

2978Ms. Weems sends out NOPAs only four days a week Ð Tuesday s , Wednesday s ,

2993Thursday s , and Friday s .

29993 5 . Ms. Weems prints and mails out approximately 400 NOPAs per week.

3013On the day of the final hearing, she had mailed out 88 NOPAs.

30263 6 . Ms. Weems has a syst em in place to keep track of the NOPAs she

3044sends out.

30463 7 . Ms. Weems clearly and credibly testified about the process she used to

3061send out NOPAs and when and by what means she used to send the NOPA to

3077WKDR and its representative in this case.

30843 8 . Each NOP A is mailed out in a packet that includes four documents:

3100the NOPA, NOPA Remittance Coupon, Tax Audit Satisfaction Survey, and a

3111document titled How to Pay Your Audit Assessment and Notice of Taxpayer

3123Rights. The packets are sent by USPS first - class mail.

31343 9 . WKDR's NOPA was issued on January 13, 2020. It had to load in the

3151Department's system overnight, so it was printed on January 14, 2020.

316240 . WKDR's NOPA assessed taxes of $801,967.01, a penalty of

3174$200,491.75, and interest of $166,431.12, for a total due by WKDR of

3188$1,168,889.88 following the audit. 3

31953 The amount of the taxes assessed and penalty remained the same as was listed in the

3212Notice of Intent to Make Audit Changes . The amount of the interest had increased. The

3228interest listed in the Notice of Intent to Make Audit Changes was for the period up to

3245November 14, 2019.

324841 . The NOPA specified that the deadline to request a formal hearing

3261before DOAH was May 12, 2020, or 60 days from the date the assessment

3275becomes a final assessment.

32794 2 . The Notice of Taxpayer R ights provided detailed instructions on how

3293to contest the assessment and provid ed further details on the timelines and

3306deadlines to do so.

33104 3 . Ms. Weems sent WKDR and Mr. Smith copies of the NOPA b y USPS

3327first - class mail on January 14, 2020.

33354 4 . On January 14, 2020 (the day after the NOPA was uploaded),

3349Ms. Weems printed an original and copy of WKDR's NOPA. She placed the

3362original NOPA and the other three documents in a window envelope ,

3373addressed t o WKDR at 851 South Main Street.

338245. A copy of the NOPA , along with the three other documents , were

3395placed in another envelope, addressed to Mark Smith , CPA, at his business

3407mailing address, 115 Tamiami Trail.

341246. Ms. Weems testified that she create d a m ail log sheet, wrap ped the log

3429sheet around the envelopes, and place d both of these NOPA envelopes in the

3443outgoing mail basket .

344747. After placing the items in the outgoing mail basket, a Department

3459employee from Building L picks up the outgoing mail and mails it out .

3473Ms. Weems testified that she has mailed NOPAs this wa y for over 10 years.

348848. Ms. Weems testified that it was her practice, and what she was taught

3502by the Department, to send NOPAs that had assessments for over

3513$100,000.00 by fax and e - mail, in addition to regular mail. 4 WKDR's

3528assessment was for an amount greater than $100,000.00.

353749. On January 16, 2020, Ms. Weems sent a copy of the NOPA to

3551Mr. Smith by fax transmission.

35564 It must be noted that the Department's internal policy to send NOPAs with assessments

3571over $100,000.00 by e - mail and fax is an unadopted rule; h owever, it is not necessary to rely

3592on it as the basis for the determination in this matter. See § 120.57(1)(e)1., Fla. Stat.

360850. Ms. Weems sent the fax to Mr. Smith's fax number, which wa s

3622provided on the POA form. Ms. Weems used a fax coversheet when sending

3635the fax. The coversheet recorded several important pieces of information. It

3646provided the case number and the taxpayer's name (WKDR). Two boxes on

3658the fax coversheet were checked Ð a bo x indicating there was a " POA " (Power

3673of Attorney) in the file and a box indicating the NOPA was to be sent to the

" 3690POA . "

369251. Ms. Weems also made some notes on the fax coversheet. She wrote:

" 3705original notice mailed 1/14/20, " " email: mark@swagcpa.com, " and " (8) pages. "

3714Ms. Weems testified that the reference to eight pages represented the amount

3726of pages she faxed. These pages included the four documents sent by USPS

3739first - class mail mentioned above.

374552. After faxing the documents to Mr. Smith's fax num ber, Ms. Weems

3758received a fax transmission report. The report indicated " Results OK. " The

3769term " OK " on a fax transmission report is generally accepted as meaning that

3782the transmission was completed successfully.

378753. On January 16, 2020, Ms. Weems also sent a copy of the NOPA and

3802Notice of Taxpayer Rights to Mr. Smith by e - mail.

381354. Ms. Weems sent the e - mail to Mr. Smith at mark@swagcpa.com Ð the

3828e - mail address she obtained from Mr. Smith's office, and which he confirmed

3842was his through testimony at the heari ng.

385055. The e - mail's subject line stated " Audit Number 200262550 - 010

3863WKDR II, INC. " The e - mail stated as follows:

38731) Please respond back to me by e - mail letting

3884me know you did receive the Notice of

3892Proposed Assessment (Nopa) and Taxpayer

3897Rights by Email and Fax please.

39032) Good afternoon, Mr. Smith. I'm e - mailing you the

3914Notice of Proposed Assessment (Nopa) & Taxpayer

3921Rights. I also faxed you the Notice of Proposed

3930Assessment (Nopa) & Taxpayer Rights to fax

3937number 941 - 866 - 7691. The Original Notice of

3947Proposed Assessment (Nopa) & Taxpayer Rights

3953was mailed out on 1/14/2020. Any questions call the

3962Nopa Line at 850 - 617 - 8565. Thanks, Lisa Weems.

397356. The e - mail included an attachment labeled " 3125_001.pdf. "

3983Ms. Weems testified that the attachment was a co py of the NOPA and

3997Taxpayer Rights.

399957. Ms. Weems requested a " delivery receipt " and " read receipt " through

4010her e - mail platform for the e - mail she sent to Mr. Smith. This was her

4028customary practice when sending e - mails.

403558. A few seconds after sending her e - mail, she received a " delivery

4049receipt " confirmation that the e - mail was delivered to mark@swagcpa.com.

406059. Shortly thereafter, Ms. Weems received a " read receipt " confirmation

4070that her e - mail was received by Mr. Smith and was " read. "

408360. The use of delivery and read receipts are not novel practices. Delivery

4096and read receipts are used by a sender of an e - mail to confirm that the e - mail

4116sent has been delivered to the addressee and, subsequently " read , " that is ,

4128opened by the recipient.

413261. Ms. Weems keeps a monthly log of the NOPAs she sends out by fax

4147and e - mail. Ms. Weems' s monthly log for January 2020 includes entries that

4162confirm she sent the WKDR NOPA by e - mail and fax to Mr. Smith at the

4179contact information he provided.

418362. In addition to her personal monthly log, Ms. Weems also used SAP Ð a

4198Department computer system that employees work in every day Ð to

4209document her activities. On January 16, 2020, Ms. Weems made a notation in

4222SAP that stated as follows: " I faxed the Notice of Pro posed Assessment

4235(NOPA) & taxpayer rights to Mark Smith on 1/16/20 to fax number 941 - 866 -

42517691. I e - mailed the Notice of Proposed Assessment (NOPA) and taxpayer

4264rights to Mark Smith on 1/16/20 to e - mail address (mark@swagcpa.com). See

4277attachments and notes. "

4280Testimony of Mark Smith

428463. Mr. Smith testified that he did not receive the NOPA by USPS first -

4299class mail, fax, or e - mail. If the undersigned took Mr. Smith's testimony as

4314true, all three of the Department's avenues of sending the NOPA failed.

432664. Mr. Smith testified that the NOPA, sent by USPS first - class mail, in

4341the same fashion used for several other letters that he had received from the

4355Department, was not received.

435965. Other than Mr. Smith's denial, WKDR provided no evidence that the

4371NOPA and acc ompanying documents Ms. Weems mailed in separate

4381packages to WKDR at its address and to WKDR's representative's address

4392were not received.

439566. Mr. Smith testified that during the time the NOPA was sent, his

4408business utilized an electronic faxing service c alled MyFax.com. Through this

4419service, he received faxes in e - mail format, with the contents of the fax

4434attached to the e - mail as a PDF document.

444467. Mr. Smith testified that he did not receive the fax from Ms. Weems.

4458Mr. Smith also testified that he rarel y read faxes because " 90 plus percent of

4473our faxes are payroll - related " and belonged to his business partner .

4486Mr. Smith did not credibly explain how he comes to know about the ten

4500percent of faxes directed to him. While perhaps his business partner screen s

4513faxes, it is inconceivable that a business firm would not ensure that incoming

4526faxes are directed to the person to whom they are sent. That is particularly

4540true where, as here, Mr. Smith has provided his business fax number as a

4554means to give him notices regarding WKDR's audit.

456268. Although the Department provided documentation of a delivery and

4572read receipt of the NOPA sent by e - mail to Mr. Smith, Mr. Smith testified

4588that he did not receive it. Mr. Smith offered no credible explanation for the

4602delivery and read receipts. Once again, it is not credible that a CPA who

4616serves as the POA for taxpayer WKDR would not be reviewing e - mails

4630delivered to his e - mail address, when his office has provided tha t e - mail

4647address to the Department. Notably, he acknowledged reviewing other e - mail

4659communications from the Department with regard to WKDR's audit.

4668Mr. Smith's feigned ignorance of an e - mail delivered to him and opened by

4683him is not credible and is not cr edited.

469269. The competent substantial evidence establishes that the Department

4701mailed the NOPA to both Mr. Smith and WKDR at the addresses provided on

4715the POA form.

471870. The testimony that Mr. Smith did not receive the NOPA is not

4731credible . WKDR did not deny that it received the NOPA mailed to it; WKDR

4746offered no testimony on the subject . 5 The NOPA was mailed to the same

4761addresses provided by Mr. Smith and Mr. Plattner on the POA form and used

4775by the Department to successfully communicate with Mr. Smith d uring the

4787audit.

478871. WKDR and Mr. Smith were on notice that a NOPA was forthcoming.

4801The Department advised WKDR and Mr. Smith by letter through regular

4812mail and e - mail, on at least two occasions, that a NOPA was going to be

4829issued and that the Department anticipated an assessment of additional

4839taxes of approximately $801,967.00.

484472. The Department provided notice of the NOPA in a manner reasonably

4856calculated to inform WKDR and its representative of WKDR's rights and of

4868the deadlines to take action to prot ect those rights.

487873. WKDR and the Department communicated frequently during the

4887audit, but after issu ance of the NOPA, communications with WKDR and

4899Mr. Smith ceased for several months. Mr. Smith did not reach out to the

4913Department to find out why communi cations ceased . The reasonable

4924inference is that Mr. Smith was fully aware of why the previous

4936communications during the audit stopped: because the audit had culminated

49465 In its post - hearing submittal, WKDR argued that the NOPA mail should have been sent to

4964Mr. Plattner. But the NOPA package was addressed to WKDR, the taxpayer, at the mailing

4979address given on the NOPA. WKDR had the opportunity in the POA form to designate

4994Mr. Plattner as the taxpayer contact person but chose not to do so.

5007in the NOPA and it was up to WKDR to contest the NOPA in a timely

5023hearing request .

502674. On or around February 18, 2021, the Department issued an NIL

5038against WKDR, by which it notified WKDR that it intended to freeze funds

5051from WKDR's bank account in the amount of $999,999.99.

506175. The NIL provided that WKDR had 21 days from the date of recei pt of

5077the NIL to dispute the matter.

508376. On February 19, 2021, WKDR submitted a petition for a chapter 120

5096administrative hearing to challenge the NOPA. WKDR's petition challenging

5105the Department's NOPA was filed with the Department 403 days after the

5117dat e on the NOPA (January 13, 2020) and 286 days after the deadline for

5132filing a petition to request an administrative hearing had passed.

514277. On February 23, 2021, WKDR timely filed a petition for an

5154administrative hearing to dispute the NIL. WKDR's dispute of the NIL is

5166solely based on its challenge to the NOPA , and its claim that it did not

5181receive the NOPA when issued the year before .

519078. WKDR failed to timely exercise its opportunity to protest the amount

5202of the Department's assessment, the underlying au dit findings, and the

5213methods the Department used to reach the amount in the assessment.

522479. There is no claim by WKDR in this case that the content of the Notice

5240of Taxpayer R ights was unclear regarding the deadline to request a hearing

5253or the manner in which a hearing must be requested; its claim is solely that

5268it did not receive the NOPA and the accompanying Notice of Taxpayer

5280Rights , a claim which is not credible .

528880. In sum , the persuasive and credible evidence adduced at hearing

5299demonstrates that the Department sent the NOPA to WKDR's representative

5309by USPS first - class mail, e - mail, and fax, and to WKDR directly by USPS

5326first - class mail ; and that Mr. Smith received the NOPA by USPS first - class

5342mail, e - mail, and fax, and that WKDR received the NOPA by USPS first - class

5359mail.

53608 1 . WKDR did not submit a timely request for hearing to dispute the

5375NOPA.

5376C ONCLUSIONS OF L AW

53818 2 . DOAH has jurisdiction over the parties and the subject matter of this

5396cause pursuant to sections 120.569, 120.57(1), 120.80(14), and 72.011(1)(a),

5405Florida Statutes.

54078 3 . Section 120.80(14) provides as follows:

5415(b) Taxpayer contest proceedings. Ð

54201. In any administrative proceeding brought

5426pursuant to this chapter as authorized by

5433s. 72.011(1), the taxpayer shall be designated the

" 5441petitioner " and the Department of Revenue shall

5448be designated the " respondent, " except that for

5455actions contesting an assessment or denial of

5462refund under chapter 207, the Department of

5469Highway Safety and Motor Vehicles shall be

5476designated the " respondent, " and for actions

5482contesting an assessment or denial of refund under

5490chapters 210, 550, 561, 562, 563, 564, and 565, t he

5501Department of Business and Professional

5506Regulation shall be designated the " respondent. "

55122. In any such administrative proceeding, the

5519applicable department's burden of proof, except as

5526otherwise specifically provided by general law,

5532shall be limited t o a showing that an assessment

5542has been made against the taxpayer and the

5550factual and legal grounds upon which the

5557applicable department made the assessment.

55623.a. Prior to filing a petition under this chapter, the

5572taxpayer shall pay to the applicable depa rtment the

5581amount of taxes, penalties, and accrued interest

5588assessed by that department which are not being

5596contested by the taxpayer. Failure to pay the

5604uncontested amount shall result in the dismissal of

5612the action and imposition of an additional penalty

5620of 25 percent of the amount taxed.

5627b. The requirements of s. 72.011(2) and (3)(a) are

5636jurisdictional for any action under this chapter to

5644contest an assessment or denial of refund by the

5653Department of Revenue, the Department of

5659Highway Safety and Motor Vehicles, or the

5666Department of Business and Professional

5671Regulation.

56728 4 . Section 72.011(2) provides, in pertinent part:

5681(2)(a) An action may not be brought to contest an

5691assessment of any tax, interest, or penalty assessed

5699under a section or chapter specified in subsection

5707(1) more than 60 days after the date the assessment

5717becomes final. An action may not be brought to

5726contest a denial of refund of any tax, interest, or

5736penalty paid under a section or chapter specified in

5745subsection (1) more than 60 days after the date the

5755denial becomes final.

5758(b) The date on which an assessment or a denial of

5769refund becomes final and procedures by which a

5777taxpayer must be notified of the assessment or of the

5787denial of refund must be established:

57931. By rule adopted by the Department of Revenue;

58022. With respect to assessments or ref und denials

5811under chapter 207, by rule adopted by the

5819Department of Highway Safety and Motor Vehicles;

58263. With respect to assessments or refund denials

5834under chapters 210, 550, 561, 562, 563, 564, and

5843565, by rule adopted by the Department of

5851Business and Professional Regulation; or

58564. With respect to taxes that a county collects or

5866enforces under s. 125.0104(10) or s. 212.0305(5), by

5874an ordinance that may additionally provide for

5881informal dispute resolution procedures in

5886accordance with s. 213.21. (empha sis added).

589385. This is a bifurcated proceeding. The issue before the undersigned in

5905this proceeding is whether the Department issued a NOPA that triggered the

5917jurisdictional time limitations of section 72.011. See also § 120.80(14)(b)3.b.,

5927Fla. Stat. I f so, the issue becomes whether WKDR is jurisdictionally barred

5940from contesting the tax assessment by failing to timely petition the

5951Department for a hearing . A determination that WKDR's petition purporting

5962to contest the NOPA was untimely , such that WKDR is jurisdictionally

5973barred from contesting the NOPA would fully resolve these proceedings, as

5984the undersigned would lack jurisdiction to hear the petitions on the merits.

59968 6 . The Department asserts that WKDR is jurisdictionally time - barred

6009from contesting t he Department's tax assessment ( Case No. 21 - 08 45) and the

6025subsequent freeze of WKDR's bank account to attempt to collect on the

6037assessment ( Case No. 21 - 08 44).

60458 7 . The burden of proof in an administrative proceeding, absent a

6058statutory directive to the contrary, is on the party asserting the affirmative of

6071the issue. Dep't of Transp. v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981);

6087see also Dep't of Banking & Fin ., Div. of Sec. & Investor Prot. v. Osborne

6103Stern & Co. , 670 So. 2d 932, 935 (Fla. 1996). The standard of proof is the

6119preponderance of the evidence standard. § 120.57(1)(j), Fla. Stat.

61288 8 . As the party asserting the affirmative of the issue, the Departmen t

6143has the burden of proving by a preponderance of the evidence that it provided

6157notice of the issuance of the NOPA to WKDR and that WKDR did not timely

6172dispute it.

617489 . After the Department assesses taxes set forth in a NOPA , a taxpayer

6188may contest the assessment as specified in section 72.011.

61979 0 . Pursuant to section 72.011(2), a taxpayer has 60 days from the date an

6213assessment becomes final to file a petition for an administrative hearing. The

6225requirements of section 72.01 1(2) are jurisdictional; failure to file a petition

6237in that time period precludes DOAH from entertaining jurisdiction over the

6248matter. See Dep ' t of Rev . v. Nu Ï Life Health & Fitness C tr. , 623 So. 2d 747,

6269752 (Fla. 1st DCA 1992); see also § 72.011(5), Fla. S tat.

62819 1 . Section 72.011 requires the Department to adopt rules that establish

6294the date an assessment becomes final and procedures by which a taxpayer

6306must be notified of the assessment.

63129 2 . Pursuant to its rulemaking authority in sections 72.011(2), 213.06 (1),

6325and 213.21(1), Florida Statutes, the Department promulgated Florida

6333Administrative Code Rule 12 - 6.003 to implement sections 72.011(2),

6343213.21(1), and 213.34, Florida Statu t es.

63509 3 . Rule 12 - 6.003(1) partially carries out the legislative mandate in

6364section 72.011(2)(b)1. The rule, among other things, clearly establishes the

6374date an assessment becomes final. It provides in pertinent part:

6384(1)(a) A taxpayer may secure review of a Notice of

6394Proposed Assessment (Assessment) by

6398implementing the provisions of this section.

6404(b) To secure review of an Assessment, a taxpayer

6413must file a written protest postmarked or faxed

6421within 60 consecutive calendar days (150

6427consecutive calendar days if the Assessment is

6434addressed to a person outside the United States)

6442fr om the date of issuance on the Assessment.

6451(c) Protests postmarked or faxed more than 60

6459consecutive calendar days (150 consecutive

6464calendar days if the Assessment is addressed to a

6473person outside the United States) after the date of

6482issuance on the Asses sment will be deemed late

6491filed, and the Assessment becomes final for

6498purposes of chapter 72, F.S., upon the expiration of

650760 consecutive calendar days (150 consecutive

6513calendar days if the Assessment is addressed to a

6522person outside the United States) aft er the date of

6532issuance on the Assessment, unless the taxpayer

6539has timely secured a written extension of time

6547within which to file a protest.

6553(d)1. A taxpayer may request an extension of time

6562for filing a protest by mailing or faxing a written

6572request to the address or fax number designated on

6581the Assessment. In order for the taxpayer's request

6589to be considered timely, the request must be

6597postmarked or faxed within 60 consecutive

6603calendar days (150 consecutive calendar days if the

6611Assessment is addressed t o a person outside the

6620United States) from the date of issuance on the

6629Assessment. Each extension of time will be for 30

6638consecutive calendar days. Within a 30 consecutive

6645calendar day extension period, the taxpayer may

6652submit a request in writing to the a ddress or fax

6663number designated on the Assessment for an

6670additional 30 consecutive calendar day extension

6676within which to submit a written protest.

66832. Failure to mail or fax the written protest or

6693failure to mail or fax a written request for an

6703additional extension within a 30 consecutive

6709calendar day extension period shall result in

6716forfeiture of the taxpayer's rights to the

6723proceedings provided by this rule and the proposed

6731assessment will become a final assessment for

6738purposes of chapter 72, F.S., at th e expiration of

6748the extended filing period. (emphasis added).

67549 4 . The rule does not define the term " date of issuance, " which is the

6770operative date when calculating the 60 - day period to determine finality, but

6783it does not have to. The most reasonable inte rpretation of the " date of

6797issuance on the assessment " issued to WKDR is the date listed at the top of

6812the NOPA Ð January 13, 2020.

68189 5 . The NOPA specifically stated that the deadline to request a formal

6832hearing before DOAH was May 12, 2020, or 60 days from the date the

6846assessment becomes a final assessment.

68519 6 . It is clear that the Department has promulgated a rule that satisfies

6866the first directive of the statute Ð it establishes the date on which an

6880assessment becomes final. It is equally clear that the rule does not satisfy the

6894statute's second directive Ð it does not set forth procedures by which a

6907taxpayer must be notified.

69119 7 . The Department argues that the POA form adopted and incorporated

6924by reference in Florida Administrative Code Rule 12 - 6.0015 (titled Criteria

6936for Qualified Representatives), sets forth the " procedures " required by section

694672.011(2). Consistent with its title, rule 12 - 6.0015 speaks to who may

6959represent a person in a matter before the Department as a qualified

6971representa tive.

69739 8 . The POA form is the form used by taxpayers to designate attorneys or

6989other qualified representatives to communicate with the Department on their

6999behalf. The form provides information on what it means to be a qualified

7012representative, and require s those completing the form to provide contact

7023information for the taxpayer and its qualified representative if one is

7034designated. The only portion of the form that could be said to arguably set out

7049any " procedures " is section 6 , which provides that receipt of communications

7060from the Department by either the representative or the taxpayer will be

7072considered receipt by both. But nothing in the POA form addresses the

7084procedures by which the taxpayer is to be notified of an assessmen t.

709799 . The argument that the POA form establishes procedures by which the

7110taxpayer must be notified is rejected.

7116100 . WKDR argues that the Department's failure to enact a rule adopting

7129procedures prevents the Department from being able to meet its burde n of

7142proving that it provided notice of the NOPA to WKDR. WKDR argues that if

7156there is no rule explaining the procedure by which a taxpayer must be

7169notified of an assessment, it is impossible to determine whether notice to

7181WKDR was legally sufficient. Acce pting WKDR's argument would mean that

7192the Department cannot and has not iss ued any legally sufficient NOPAs to

7205notify taxpayers.

720710 1 . In State of Florida, Department of Revenue v. Ray Construction of

7221Okaloosa County, 667 So. 2d 859 (Fla. 1st DCA 1996), the Court rejected this

7235argument. The Court overturned the trial court's ruling that the 60 - day

7248deadline in section 72.011(2) was tolled because the Department failed to

7259sufficiently promulgate rules of procedure by which the taxpayer shall be

7270notified as req uired by section 72.011(2). The Court held that " the absence of

7284a rule does not overcome the fact of actual notice[.] " Id . at 862.

729810 2 . The undersigned finds that the absence of a rule that promulgates

7312the " procedures " by which taxpayers are to be notified of assessments does

7324not overcome the fact that WKDR was actually notified of the NOPA. The

7337Department's failure to promulgate rules o f procedure for notice does not

7349nullify the Department's issuance of every NOPA, incl uding the one at issue

7362in this case. While the absence of a promulgated procedural rule might

7374foreclose the Department from relying on constructive notice in a given case,

7386the absence of a rule cannot overcome the fact of actual notice as found here.

740110 3 . The Department proved by a preponderance of the evidence that it

7415sent the NOPA by U.S. first - class mail to WKDR and its representative,

7429Mr. Smith.

743110 4 . Proof of mailing of a document to the correct address creates a

7446presumption that the item mailed was, i n fact, received. W.T. Holding, Inc. v.

7460State Ag . for Health Care Admin. , 682 So. 2d 1224, 1225 (Fla. 4th DCA 1996).

" 7476[P]roof of general office practice satisfies the requirement of showing due

7487mailing. " See Brown v. Giffen Indus., Inc. , 281 So. 2d 897, 900 (Fla. 1973).

7501The presumption, however, is rebuttable. W.T. Holding , Inc. , 682 So. 2d at

75131225 . " [T]he denial of receipt does not automatically overcome the

7524presumption but instead creates a question of fact which must be resolved by

7537the trial court. " Scutieri v. Miller , 584 So. 2d 15, 16 (Fla. 3d DCA 1991).

7552105 . WKDR offered no evidence to rebut the presumption that it received

7565the NOPA.

7567106 . Mr. Smith's testimony claiming he did not receive the NOPA mailed

7580to him was not credible and therefor e insufficient to rebut the presumption of

7594receipt.

7595107 . In addition , the undersigned conclude s that the Department proved

7607by a preponderance of the evidence that it sent the NOPA by e - mail and fax

7624to WKDR's representative on January 16, 2020, and that it was received in

7637both formats.

763910 8 . After receiving actual notice of the assessment and actual notice of

7653the procedures and information to contest the assessment, WKDR did not

7664dispute the NOPA within 60 days of the date of issuance on the NOPA , or

7679within 60 days thereafter (that is, within 60 days after the assessment

7691bec ame final).

7694Conclusion

769510 9 . The Department met its burden of proving that it served a NOPA

7710with an issuance date of January 13, 2020, on WKDR and its representative

7723by U.S. firs t - class mail, and, in addition, on WKDR's representative by e - mail

7740and fax. The Department met its burden of proving that the NOPA and

7753Notice of Taxpayer Rights were received by WKDR and by its representative.

7765WKDR had actual notice of the NOPA and of its right to contest it.

7779110 . WKDR submitted its petition for a formal administrative hearing to

7791contest the assessment well after May 12 , 2020, which is 60 days after the

7805assessment became final. Because WKDR failed to file a timely challenge

7816pursuant to sect ions 72.011 and 120.80(14)(b)3.b., WKDR's challenge to the

7827assessment ( Case No. 21 - 0845) is jurisdictionally time - barred.

78391 11 . Because the only basis for WKDR's challenge to the Department's

7852Notice of Intent to Levy ( Case No. 21 - 0844) was WKDR's untimely challenge

7867to the underlying assessment in Case No. 21 - 0845, Case No. 21 - 0844 also

7883may not proceed.

78861 12 . DOAH does not have jurisdiction to hear the merits of Case Nos. 21 -

79030844 and 21 - 0845.

7908R ECOMMENDATION

7910Based on the foregoing Findings of Fact and Conclusions of Law, it is

7923R ECOMMENDED that the Department of Revenue enter a final order

7934dismissing DOAH Case Nos. 21 - 0844 and 21 - 08 45.

7946D ONE A ND E NTERED this 30th day of November , 2021 , in Tallahassee,

7960Leon County, Florida.

7963S

7964J ODI - A NN V. L IVINGSTONE

7972Administrative Law Judge

79751230 Apalachee Parkway

7978Tallahassee, Florida 32399 - 3060

7983(850) 488 - 9675

7987www.doah.state.fl.us

7988Filed with the Clerk of the

7994Division of Administrative Hearings

7998this 30th day of November , 2021 .

8005C OPIES F URNISHED :

8010Mark S. Hamilton, General Counsel J. Clifton Cox, Esquire

8019Department of Revenue Office of the Attorney General

8027Post Office Box 6668 Revenue Litigation Bureau

8034Tallahassee, Florida 32314 - 6668 The Capitol , Plaza Level 01

8044Tallahassee, Florida 32399

8047Kristian Oldham, Esquire

8050Department of Revenue Allison M. Dudley, Esquire

8057Post Office Box 6668 Office of the Attorney General

8066Tallahassee, Florida 32314 - 6668 R evenue Litigation Bureau

8075The Capitol , Plaza Level 01

8080Jacek Stramski, Esquire Tallahassee, Florida 32399 - 1050

8088Department of Revenue

8091Post Office Box 6668 John G. Savoca, Assistant Attorney General

8101Tallahassee, Florida 32314 - 6668 Office of the Attorney General

8111Revenue Litigation Bureau

8114Doug Plattner The Capitol , Plaza Level 01

81213118 Walter Travis Drive Tallahassee, Florida 32399

8128Sarasota, Florida 34240

8131Michael J. Bowen, Esquire

8135James H. Sutton, Esquire Akerman LLP

8141Moffa, Sutton & Donnini, PA 50 North Laura Street, Suite 3100

81528875 Hidden River Pkwy, Suite 230 Jacksonville, Florida 32202

8161Tampa, Florida 33637 - 2087

8166James A. Zingale, Executive Director

8171Department of Revenue

8174Post Office Box 6668

8178Tallahassee, Florida 32314 - 6668

8183N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

8194All parties have the right to submit written exceptions within 15 days from

8207the date of this Recommended Order. Any exceptions to this Recommended

8218Order should be filed with the agency that will issue the Final Order in this

8233case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 03/30/2022
Proceedings: Petitioner's Notice of Appeal filed.
PDF:
Date: 03/02/2022
Proceedings: Final Order filed.
PDF:
Date: 03/02/2022
Proceedings: Final (filed in Case No. 21-000845).
PDF:
Date: 11/30/2021
Proceedings: Recommended Order
PDF:
Date: 11/30/2021
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 11/30/2021
Proceedings: Recommended Order (hearing held August 18, 2021). CASE CLOSED.
PDF:
Date: 10/15/2021
Proceedings: Petitioner's Proposed Non-Final Orders relating to DOAH Case Nos. 21-0844, 21-0845, and 21-1488RX filed.
PDF:
Date: 10/15/2021
Proceedings: Respondent's Proposed Final Order filed.
PDF:
Date: 10/15/2021
Proceedings: Respondent's Proposed Recommended Order filed.
PDF:
Date: 10/15/2021
Proceedings: Notice of Appearance (Allison Dudley; filed in Case No. 21-001488RX).
PDF:
Date: 10/15/2021
Proceedings: Notice of Appearance (Allison Dudley) filed.
PDF:
Date: 09/15/2021
Proceedings: Notice of Filing Transcript.
PDF:
Date: 09/15/2021
Proceedings: Department's Notice of Filing Volume II of the August 18, 2021 Hearing Transcript filed.
PDF:
Date: 09/14/2021
Proceedings: Notice of Filing Transcript.
PDF:
Date: 09/14/2021
Proceedings: Department's Notice of Filing Volume I (Redacted) of the August 18, 2021 Hearing Transcript filed.
PDF:
Date: 08/17/2021
Proceedings: WKDR II, Inc.'s Designation of Jefferey Barnard's Deposition Testimony on July 22, 2201 that is Relevant for the August 18, 2021 Hearing filed.
PDF:
Date: 08/17/2021
Proceedings: Joint Recommendation regarding Order of Presentations for Hearing on 8.18.2021 filed.
PDF:
Date: 08/16/2021
Proceedings: Department's Notice of Filing Deposition of Lisa Weems, Taken on 6.28.2021 filed.
PDF:
Date: 08/16/2021
Proceedings: Department's Designations of Cletus Wenz's Deposition Testimony on 5.27.2021 that is Relevant for the 8.18.2021 Hearing filed.
PDF:
Date: 08/16/2021
Proceedings: Department's Designations of Volume II of Mark Smith's Deposition Testimony on 7.2.2021 that is Relevant for the 8.18.2021 Hearing filed.
PDF:
Date: 08/16/2021
Proceedings: Department's Notice of Filing Volume II of the Deposition of Mark Smith, Taken on 7.2.2021 filed.
PDF:
Date: 08/16/2021
Proceedings: Department's Designations of Mark Smith Deposition Testimony on 6.25.2021 that is Revelant for the 8.18.2021 Hearing filed.
PDF:
Date: 08/16/2021
Proceedings: Department's Notice of Filing Volume I of the Deposition of Mark Smith, Taken on 6.25.2021 filed.
PDF:
Date: 08/16/2021
Proceedings: Department's Designations of Jeffrey Barnard Deposition Testimony on 7.22.2021 that is Relevant for 8.18.2021 Hearing filed.
PDF:
Date: 08/16/2021
Proceedings: Department's Designations of Douglas Plattner's Deposition Testimony on 8.11.2021 that is Relevant for Hearing 8.18.2021 Hearing filed.
PDF:
Date: 08/16/2021
Proceedings: Department's Notice of Filing the Deposition of Douglas Plattner, Taken on 8.11.2021 filed.
PDF:
Date: 08/13/2021
Proceedings: Order Denying Motion to Expand Scope of August 18th Hearing.
PDF:
Date: 08/12/2021
Proceedings: Respondent Florida Department of Revenue's Notice of Filing Exhibits filed.
PDF:
Date: 08/11/2021
Proceedings: Department's Response to WKDR II, Inc.'s Motion to Expand the Scope of the August 18, 2021 Hearing filed.
PDF:
Date: 08/11/2021
Proceedings: Notice of Telephonic Pre-hearing Conference (set for August 11, 2021; 3:00 p.m., Eastern Time).
PDF:
Date: 08/10/2021
Proceedings: Amended Joint Pre-Hearing Stipulation for August 18, 2021 Hearing on Jurisdictional Issues filed.
PDF:
Date: 08/06/2021
Proceedings: WKDR II, Inc.'s Motion to Expand the Scope of the August 18, 2021 Hearing to Include Jurisdictional Issue Relating to Fla. Stat. 213.345 filed.
PDF:
Date: 08/06/2021
Proceedings: WKDR II, Inc.'s Notice of Filing Jefferey Barnard Deposition Transcript filed.
PDF:
Date: 07/27/2021
Proceedings: Department of Revenue's Third Amended Notice of Taking Deposition of Douglas Plattner filed.
PDF:
Date: 07/23/2021
Proceedings: Order Granting Respondent's Motion for Official Recognition.
PDF:
Date: 07/23/2021
Proceedings: Respondent's Unopposed Motion for Official Recognition Pursuant to Section 120.569(2)(i), Fla. Stat. filed.
PDF:
Date: 07/16/2021
Proceedings: Department of Revenue's Responses to WKDR II, Inc.'s Second Set of Interlocking Discovery Requests filed.
PDF:
Date: 07/14/2021
Proceedings: WKDR II, Inc.'s Notice of Taking Deposition of Jeff Barnard filed.
PDF:
Date: 07/13/2021
Proceedings: Department of Revenue's Renotice of Taking Deposition of Douglas Plattner filed.
PDF:
Date: 07/01/2021
Proceedings: Amended Order Granting Continuance and Rescheduling Hearing on the Thershold Issues by Zoom Conference (hearing set for August 18, 2021; 9:00 a.m., Eastern Time).
PDF:
Date: 07/01/2021
Proceedings: Order Granting Continuance and Rescheduling Hearing on the Threshold Issues by Zoom Conference (hearing set for August 18, 2021; 9:00 a.m., Eastern Time).
PDF:
Date: 07/01/2021
Proceedings: Order Canceling Hearing on Merits.
PDF:
Date: 06/30/2021
Proceedings: Department of Revenue's Designations of Relevant Testimony in Cletus Wenz Deposition filed.
PDF:
Date: 06/30/2021
Proceedings: Department of Revenue's Notice of Filing Cletus Wenz Deposition Transcript filed.
PDF:
Date: 06/29/2021
Proceedings: Joint Prehearing Stipulation for Hearing on Jurisdictional Issues filed.
PDF:
Date: 06/29/2021
Proceedings: Department's Response to Petitioner's Third Motion for Continuance filed.
PDF:
Date: 06/29/2021
Proceedings: WKDR II, Inc.'s Motion to Continue July 7, 2021 and August 18-19, 2021 Hearings filed.
PDF:
Date: 06/24/2021
Proceedings: Department of Revenue's Second Amended Notice of Taking Deposition of Douglas Plattner filed.
PDF:
Date: 06/22/2021
Proceedings: WKDR II, Inc.'s Responses to Department of Revenue's Request for Admissions filed.
PDF:
Date: 06/16/2021
Proceedings: Department of Revenue's Amended Notice of Taking Depositions of Douglas Plattner and Mark Smith filed.
PDF:
Date: 06/16/2021
Proceedings: WKDR II, Inc.'s Second Set of Interlocking Discovery Requests to Florida Department of Revenue filed.
PDF:
Date: 06/15/2021
Proceedings: Department of Revenue's Notice of Taking Deposition of Lisa Weems filed.
PDF:
Date: 06/15/2021
Proceedings: Department of Revenue's Notice of Taking Depositions of Douglas Plattner and of Mark Smith filed.
PDF:
Date: 06/02/2021
Proceedings: Department of Revenue's Responses to Petitioner's Interlocking Discovery Requests filed.
PDF:
Date: 06/01/2021
Proceedings: Order Denying Petitioner's Motion to Compel the Deposition of Mr. Jeff Barnard.
PDF:
Date: 05/28/2021
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 05/28/2021
Proceedings: Notice of Hearing (by Zoom Conference).
PDF:
Date: 05/27/2021
Proceedings: Department of Revenue's Response to Petitioner's Motion to Compel the Deposition of Mr. Jeff Barnard filed.
PDF:
Date: 05/25/2021
Proceedings: Order on Petitioner's Motion to Reconsider Pending Motions.
PDF:
Date: 05/25/2021
Proceedings: WKDR, Inc.'s Motion to Compel the Deposition of Mr. Jeff Barnard filed.
PDF:
Date: 05/25/2021
Proceedings: Department of Revenue's Response to Petitioner's Motion to Reconsider Order Bifurcating Issues filed.
PDF:
Date: 05/24/2021
Proceedings: Department of Revenue's Second Amended Notice of Taking Deposition of Cletus Wenz filed.
PDF:
Date: 05/24/2021
Proceedings: Department of Revenue's Amended Notice of Taking Deposition of Cletus Wenzfiled.
PDF:
Date: 05/24/2021
Proceedings: Department of Revenue's Notice of Taking Deposition of Cletus Wenz filed.
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Date: 05/21/2021
Proceedings: Department of Revenue's Request for Admissions filed.
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Date: 05/20/2021
Proceedings: WKDR II, Inc.'s Motion to Reconsider this Court's Order on Pending Motions dated May 20, 2021 regarding the Department of Revenue's Motion to Bifurcate Issues filed.
PDF:
Date: 05/20/2021
Proceedings: Order Rescheduling Hearing by Zoom Conference (hearing set for August 18 and 19, 2021; 9:30 a.m., Eastern Time).
PDF:
Date: 05/20/2021
Proceedings: Order on Pending Motions.
PDF:
Date: 05/13/2021
Proceedings: Order of Consolidation (DOAH Case Nos. 21-0844, 21-0845, and 21-1488).
PDF:
Date: 05/13/2021
Proceedings: Order of Consolidation (DOAH Case Nos. 21-0844, 21-0845, and 21-1488).
PDF:
Date: 05/12/2021
Proceedings: Department of Revenue's Agreed Motion to Consolidate Cases, Agreed Motion for Continuance, and Unagreed Motion to Bifurcate Issues filed.
PDF:
Date: 05/10/2021
Proceedings: Order Granting Continuance (parties to advise status by May 13, 2021).
PDF:
Date: 05/06/2021
Proceedings: Notice of Appearance (John Savoca) filed.
Date: 05/06/2021
Proceedings: CASE STATUS: Motion Hearing Held.
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Date: 05/04/2021
Proceedings: WKDR II, Inc.'s First Set of Interlocking Discovery Requests to Florida Department of Revenue filed.
PDF:
Date: 05/03/2021
Proceedings: WKDR II, Inc.'s Notice of Serving Responses to the Department of Revenue's First Request for Production filed.
PDF:
Date: 05/03/2021
Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for May 6, 2021; 10:00 a.m., Eastern Time).
PDF:
Date: 05/03/2021
Proceedings: Department's Response to Petitioner's Motion for Continuance and Extension of Discovery Deadlines filed.
PDF:
Date: 04/30/2021
Proceedings: WKDR II, Inc.'s Motion for Continuance and Extension of Discovery Deadlines filed.
PDF:
Date: 04/30/2021
Proceedings: WKDR II, Inc.'s Response to the Department of Revenue's Motion to Compel Discovery filed.
PDF:
Date: 04/22/2021
Proceedings: Department of Revenue's Motion to Compel Discovery filed.
PDF:
Date: 04/15/2021
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 04/15/2021
Proceedings: Notice of Hearing by Zoom Conference (hearing set for May 20 and 21, 2021; 9:30 a.m., Eastern Time).
PDF:
Date: 04/12/2021
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 04/12/2021
Proceedings: Notice of Appearance (Michael Bowen) filed.
PDF:
Date: 03/26/2021
Proceedings: Order of Consolidation (DOAH Case Nos. 21-0844 and 21-0845)
Date: 03/25/2021
Proceedings: CASE STATUS: Status Conference Held.
PDF:
Date: 03/24/2021
Proceedings: Notice of Telephonic Status Conference (status conference set for March 25, 2021; 2:30 p.m., Eastern Time).
PDF:
Date: 03/15/2021
Proceedings: Order Granting Motion to Withdraw as Counsel and Extending Time to Respond to the Initial Order.
PDF:
Date: 03/12/2021
Proceedings: Department of Revenue's Response to the Motion To Withdraw by Counsel for Petitioner filed.
PDF:
Date: 03/12/2021
Proceedings: Department of Revenue's First Request for Production filed.
PDF:
Date: 03/11/2021
Proceedings: Motion to Withdraw as Counsel filed.
PDF:
Date: 03/11/2021
Proceedings: Department of Revenue's Unilateral Response to Initial Order filed.
PDF:
Date: 03/05/2021
Proceedings: Notice of Appearance (J. Clifton Cox) filed.
PDF:
Date: 03/04/2021
Proceedings: Initial Order.
PDF:
Date: 03/04/2021
Proceedings: Addendum to Notice of Proposed Assessment filed.
PDF:
Date: 03/04/2021
Proceedings: Notice of Proposed Assessment filed.
PDF:
Date: 03/04/2021
Proceedings: Petition for Chapter 120 Hearing filed.
PDF:
Date: 03/04/2021
Proceedings: Agency referral filed.

Case Information

Judge:
JODI-ANN V. LIVINGSTONE
Date Filed:
03/04/2021
Date Assignment:
03/04/2021
Last Docket Entry:
03/30/2022
Location:
Tallahassee, Florida
District:
Northern
Agency:
Department of Revenue
 

Counsels

Related Florida Statute(s) (10):