STATE OF FLORIDA DEPARTMENT OF REVENUE
TALLAHASSEE, FLORIDA
BUSINESS DEPOT-ACCOUNTING AND )
TAX CENTER, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 07-0467
) (DOAH)
FLORIDA DEPARTMENT OF REVENUE )
) DOR 07-5-FOF
Respondent. )
______)
FINAL ORDER
This cause came before me, as Executive Director of the Florida Department of Revenue (the Department) for the purpose of issuing a final order. The Administrative Law Judge assigned by the Division of Administrative Hearings issued a Recommended Order, recommending that the Department enter a Final Order sustaining the Notice of Intent to Levy on the Petitioner’s assets. A copy of the Recommended Order entered on the 2nd day of May, 2007, by Administrative Law Judge J.D. Parrish is attached to this Final Order and is incorporated to the extent described herein. The Department timely filed one exception to a certain conclusion of law in the Recommended Order, a copy of which is also attached to this Final Order. The Petitioner did not file any exceptions nor did the Petitioner file responses to the Department's exceptions.
The Department adopts and incorporates in this Final Order the Findings of Fact contained in paragraphs 1-10 and the Conclusions of Law contained in paragraphs 11, 12, 14, and 15. Conclusion of Law contained in paragraph 13 is modified as reflected below.
The Department has jurisdiction of this cause.
Ruling on Recommended Order Conclusion of Law Paragraph 13
The second sentence in Paragraph 13 of the Recommended Order states that, “Additionally, the letter dated January 16, 2007, that was treated as a request for an administrative hearing in this cause was executed more than 21 days after the Notice of Intent to Levy was filed.” However, section 213.67(8), Fla. Stat. specifically provides, “[a]n action may not be brought to contest a notice of intent to levy under chapter 120 or in circuit court, later than 21 days after the date of receipt of the notice of intent to levy.” (emphasis added). Petitioner’s initial request for an administrative hearing was received by the Department on December 21, 2006, which was within 21 days of receipt of the Notice of Intent to Levy. The petition, while timely filed, was determined by the Department to be legally insufficient and was dismissed with leave to amend. Petitioner’s January 16, 2007 letter was accepted by the Department as Petitioner’s amended petition and was forwarded to the Division of Administrative Hearings. The Respondent, in paragraph 3 of Respondent’s Proposed Recommended Order accurately noted that “Petitioner timely challenged the Notice of Intent to Levy, by filing a petition for a Chapter 120 Administrative Hearing (Petition).” Therefore, the second sentence of Paragraph 13 of the Recommended Order is replaced to read: “The Petitioner timely challenged the Notice of Intent to Levy, by filing a petition for a Chapter 120 Administrative Hearing (Petition) within 21 days of receipt of the Notice of Intent to Levy.”
Accordingly, it is ORDERED that the Administrative Law Judge's Order recommending that the Department sustain the Notice of Intent to Levy against the Petitioner’s assets in the amount of $278.46 to satisfy the liability owed by the Petitioner to the Department, as modified, is adopted.
DONE AND ENTERED in Tallahassee, Leon County, Florida this __25th____
day of __May______, 2007.
STATE OF FLORIDA
DEPARTMENT OF REVENUE
__JZ______
Jim Zingale
Executive Director
CERTIFICATE OF FILING
I HEREBY CERTIFY that the foregoing FINAL ORDER has been filed in the official records of the Department of Revenue this _25th____day of __May______, 2007.
_NP______
Nancy Purvis
Agency Clerk
Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by filing a Notice of Appeal pursuant to Rule 9.110 Florida Rules of Appellate Procedure, with the Agency Clerk of the Department of Revenue in the Office of the General Counsel, P.O Box 6668, Tallahassee, Florida 32314-6668, and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the Clerk of the Department.
Copies furnished to:
J.D. Parrish, Administrative Law Judge
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-3060
S.G. Ross
Business Depot-Accounting & Tax Center, Inc.
4611 South University Drive, Suite 455
Davie, Florida 33328
John Mika, Assistant Attorney General
Office of the Attorney General
The Capitol-Plaza Level 01
Tallahassee, Florida 32399-1050
J. Bruce Hoffmann, General Counsel
Department of Revenue
204 Carlton Building
Tallahassee, Florida 32314-6668
Jim Zingale, Executive Director
Department of Revenue
104 Carlton Building
Tallahassee, Florida 32399-0100
******************************************************
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BUSINESS DEPOT-ACCOUNTING AND
TAX CENTER, INC.,
Petitioner,
vs. Case No. 07-0467
DEPARTMENT OF REVENUE,
Respondent.
______
RECOMMENDED ORDER
Pursuant to notice a formal hearing was held on March 29, 2007, by video teleconference from Lauderdale Lakes, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: No Appearance
For Respondent: John Mika, Esquire
Assistant Attorney General
Office of the Attorney General
The Capitol, Plaza Level 01
Tallahassee, Florida 32399
STATEMENT OF THE ISSUE
The issue in this case is whether the Respondent, Department of Revenue (Respondent or Department), may levy on the Petitioner’s bank account in order to satisfy a tax liability owed to the Respondent. The Respondent asserts the Petitioner, Business Depot-Accounting and Tax Center, Inc. (Petitioner), owes the Department for delinquent sales tax, interest, and penalties.
PRELIMINARY STATEMENT
On October 18, 2006, the Respondent filed an Electronic Judgment Lien Certificate with the Secretary of State naming the Petitioner as the judgment debtor owing $1167.20. Subsequently, the Respondent issued a Notice of Intent to Levy to advise the Petitioner that it intended to levy on a bank account in the possession or control of the Regent Bank. The notice further asserted that the levy would proceed unless the delinquent amount owed to the Department were paid within 21 days of the notice. The notice was dated November 28, 2006. On January 16, 2007, the Petitioner filed a request for an administrative hearing and maintained that the assessments underlying the delinquent amount were calculated erroneously.
On January 26, 2007, the Department forwarded the matter to the Division of Administrative Hearings for formal proceedings. The forwarding instrument alleged that the Petitioner “has challenged the Department’s assessment of Sales and Use Tax.” A Motion to Dismiss filed by the Department on February 2, 2007, was denied. An Order of Pre-hearing Instructions was ignored by the Petitioner. The Department’s Motion in Limine was deemed moot when the Petitioner failed to appear for the hearing. Notice of the hearing was provided to all parties at their addresses of record. No returned mail suggested that notice was not effected. No one appeared to represent the Petitioner’s cause in this matter.
At the hearing, the Respondent presented testimony from Covodis McCoy, a Revenue Specialist; and Noreen Marquez, a Revenue Specialist. The Respondent’s Exhibits 1 through 9 were admitted into evidence. A transcript of the proceedings has not been filed. The Respondent’s Proposed Recommended Order has been considered in the preparation of this Order. The Petitioner did not submit any evidence or post-hearing comments.
FINDINGS OF FACT
1. The Respondent is the state agency charged with the responsibility of collecting sales and use tax owed to the State of Florida. See § 213.05, Fla. Stat. (2006).
2. At all times material to the allegations of this case, the Petitioner was responsible for collecting and remitting to the Department sales and use tax. The return forms itemizing information for these payments require the taxpayer, Petitioner, to represent gross sales, exempt sales, as well as other data that the Department uses to compute the amount that must be remitted to the state.
3. In this case, after extensive communications with the Petitioner, the Department determined that $10,524.20 was owed for taxes, penalties, and interest. This amount was calculated based on estimates of the delinquency. 4. A Notice of Final Assessment dated August 28, 2006, was issued by the Department to the Petitioner that outlined the amounts claimed to be owed. On or about September 27, 2006, the Petitioner responded to the notice and, under oath, represented that the tax returns were filed. The Department took the Petitioner’s representations into consideration and re-calculated the tax liability owed by the Petitioner. Currently, the Department asserts that the Petitioner’s delinquent amount is $278.46.
5. Accordingly, when that amount remained unpaid, the Department sought a tax warrant, gave notice of its intent to levy on the assets of the Petitioner, and provided notice that it intended to collect monies against the Petitioner’s bank account at Regent Bank.
6. The Department issued a Notice of Freeze to the Regent Bank that instructed it not to transfer, dispose of, or return assets belonging to the Petitioner.
7. The Department also gave notice to the Petitioner of its intent to levy on the bank account with a formal Notice of Intent to Levy.
8. The Petitioner challenged the notice by seeking an administrative hearing.
9. The Petitioner did not appear at the hearing and did not offer any evidence in support of its challenge.
10. The Petitioner’s letter dated September 28, 2006, was not submitted within twenty days of the issuance of the Notice of Final Assessment.
CONCLUSIONS OF LAW
11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. §§ 120.57(1), and 213.67, Fla. Stat. (2006).
12. Section 213.67, Florida Statutes (2006), provides:
213.67 Garnishment.—
(1) If a person is delinquent in the payment of any taxes, penalties, and interest owed to the department, the executive director or his or her designee may give notice of the amount of such delinquency by registered mail to all persons having in their possession or under their control any credits or personal property, exclusive of wages, belonging to the delinquent taxpayer, or owing any debts to such delinquent taxpayer at the time of receipt by them of such notice. Thereafter, any person who has been notified may not transfer or make any other disposition of such credits, other personal property, or debts until the executive director or his or her designee consents to a transfer or disposition or until 60 days after the receipt of such notice, except that the credits, other personal property, or debts which exceed the delinquent amount stipulated in the notice shall not be subject to the provisions of this section, wherever held, in any case in which the taxpayer does not have a prior history of tax delinquencies. If during the effective period of the notice to withhold, any person so notified makes any transfer or disposition of the property or debts required to be withheld hereunder, he or she is liable to the state for any indebtedness owed to the department by the person with respect to whose obligation the notice was given to the extent of the value of the property or the amount of the debts thus transferred or paid if, solely by reason of such transfer or disposition, the state is unable to recover the indebtedness of the person with respect to whose obligation the notice was given. If the delinquent taxpayer contests the intended levy in circuit court or under chapter 120, the notice under this section remains effective until that final resolution of the contest. Any financial institution receiving such notice will maintain a right of setoff for any transaction involving a debit card occurring on or before the date of receipt of such notice.
(2) All persons who have been notified must, within 5 days after receipt of the notice, advise the executive director or his or her designee of the credits, other personal property, or debts in their possession, under their control, or owing them, and must advise the executive director or designee within 5 days after coming into possession or control of any subsequent credits, personal property, or debts owed during the time prescribed by the notice. Any such person coming into possession or control of such subsequent credits, personal property, or debts may not transfer or dispose of them during the time prescribed by the notice or before the department consents to a transfer.
(3) During the last 30 days of the 60-day period set forth in subsection (1), the executive director or his or her designee may levy upon such credits, other personal property, or debts. The levy must be accomplished by delivery of a notice of levy by registered mail, upon receipt of which the person possessing the credits, other personal property, or debts shall transfer them to the department or pay to the department the amount owed to the delinquent taxpayer.
(4) A notice that is delivered under this section is effective at the time of delivery against all credits, other personal property, or debts of the delinquent taxpayer which are not at the time of such notice subject to an attachment, garnishment, or execution issued through a judicial process.
(5) Any person acting in accordance with the terms of the notice or levy issued by the executive director or his or her designee is expressly discharged from any obligation or liability to the delinquent taxpayer with respect to such credits, other personal property, or debts of the delinquent taxpayer affected by compliance with the notice of freeze or levy.
(6)(a) Levy may be made under subsection (3) upon credits, other personal property, or debt of any person with respect to any unpaid tax, penalties, and interest only after the executive director or his or her designee has notified such person in writing of the intention to make such levy.
(b) No less than 30 days before the day of the levy, the notice of intent to levy required under paragraph (a) shall be given in person or sent by certified or registered mail to the person's last known address.
(c) The notice required in paragraph (a) must include a brief statement that sets forth in simple and nontechnical terms:
1. The provisions of this section relating to levy and sale of property;