Florida/Georgia Personal Injury & Workers Compensation

...The said enactment further requires that the person charging or collecting the said rental pass the same on to the lessee, Section 7-a of the Act, F.S.A. § 212.07, and that he also keep suitable records of such rentals and taxes, Section 12-f of the Act, F.S.A. § 212.12, and makes it a misdemeanor for any lessor to fail to pass the said tax on to the lessee, Section 7-c of the Act, or to fail or refuse to keep suitable records thereof, Section 12-g of the Act....

...Under the Florida Sales Tax Act, an assessment issues only after the filing of a tax return or upon the failure of a taxpayer to file the return. Once a return is filed, DOR is authorized to audit or inspect the records of the dealers, and, in the event of a deficiency, to issue an assessment. See Section 212.12(6)(a), Florida Statutes (1979). And after an assessment is imposed, the department may proceed to collect the taxes, together with any interest and penalty on the basis of the assessment. § 212.12(4), Fla....

...or rentee *825 of the vehicle; that the expressed legislative intent is that "the end consumer, or last retail sale shall be the sale intended to be taxed and in so far as may be practicable there [shall] be no duplication or pyramiding of the tax." Section 212.12 (11), Fla....

...On June 26, 1987, DOR issued a Notice of Intent to Make Sales and Use Tax Audit Changes, therein assessing Vanjaria $28,879 for the additional sales tax due on the property, in addition to interest in the amount of $9,238 (12% annually), and a penalty of $7,219 pursuant to section 212.12(12), Florida Statutes....

...e 90- day detention period that he was able to avoid because of the FBI’s intervention on his behalf. Oliveros contends that after the 90 days of detention had passed, a three-member board, the “Cuban Review Panel,” established by 8 C.F.R. §212.12(d)(1), would have reviewed Casanova’s case and considered whether to 14 release him, weighing several factors, including his future criminal threat and his past criminal history. See 8 C.F.R. §§212.12 (d)(2)(iii) & (iv) and 212.12(d)(3)(ii). Given Casanova’s criminal history, Oliveros argues that Casanova likely would have been indefinitely detained....

...urt. See § 72.011(1), (3)(b). One who contests a tax and utilizes the procedure of paying the contested amount into the registry of the court cannot be said to have evaded the payment of the tax for purposes of liability for the penalty provided in section 212.12(2)(a), nor can the ultimate payment of such funds be considered "in jeopardy" for purposes of the provision in section 212.15(4) (under which a warrant may be issued for collection by the sheriff through levying upon the property of the taxpayer)....

...under Section 212.05(5). Because of this, appellant contends that the Comptroller's ruling creates double taxation-a tax on the drop-in items when purchased by appellant, and a tax on their use or rental when installed on the premises of a customer. Section 212.12(12) contains a declaration of legislative intent that wherever, in construction, administration or enforcement of the chapter on sales taxes there may be a question respecting the duplication of the tax, that the "end consumer, or last...

...BARKETT, C.J., and OVERTON, SHAW, GRIMES, KOGAN and HARDING, JJ., concur. NOTES [1] The Department estimated the retail price of 300 pounds of marijuana to be $210,000. Thus, the resulting tax assessed against Herre amounted to $105,000. [2] § 212.0505(1)(b), Fla. Stat. (Supp. 1988). [3] § 212.12(2), Fla....

...TDT. The plaintiffs recognize that the county comptroller has the responsibility of auditing, enforcing, assessing and collecting the TDT from "dealers" such as the defendants. See Orange County, Fla., Code § 25-137. The TDT statutes, specifically section 212.12(5)(b), Florida Statutes, provides: *628 In the event any dealer 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...

...imposed to extract compensation or restore the status quo. 481 U.S. at 422, 107 S.Ct. at 1838. Punitive civil penalties were issuable only from courts of law, where trial by jury was customary. Id. The penalty in this instance is imposed pursuant to section 212.12, Florida Statutes (1991), which provides, in part: When any person, firm, or corporation required hereunder to make any return or to pay any tax or fee imposed by this chapter fails to timely file such return or fails to pay the tax or...

...eturn or willfully attempting to evade the payment of such a tax or fee shall be liable for a specific penalty of 50 percent of the tax bill or fee and for fine and punishment as provided by law for a conviction of a misdemeanor of the first degree. § 212.12(2)(a)....

...iew Panel concluded that Benitez was releaseable under the criteria established by the Cuban Review Plan at such time as the INS determined that a suitable sponsorship to a half-way house could be arranged. 8 See 8 U.S.C. § 1182 (d)(5)(A); 8 C.F.R. § 212.12 (2002) (Parole determinations and revocations respecting Mariel Cubans). On March 10, 2003, Benitez’s Notice of Releaseability was revoked because the INS concluded, without a hearing, that Benitez was involved in a planned jail escape. See 8 C.F.R. § 212.12 (e)....

...onviolent person; (ii) The detainee is likely to remain nonviolent; (ííí) The detainee is not likely to pose a threat to the community following his release; and (iv) The detainee is not likely to violate the conditions of his parole.” 8 C.F.R. § 212.12 (d)(2)....

...which is probative of whether the detainee is likely to adjust to life in a community, is likely to engage in future acts of violence, is likely to engage in future criminal activity, or is likely to violate the conditions of his parole.” 8 C.F.R. § 212.12 (d)(3). . According to § 212.12(d)(1), *1292 The Director shall designate a panel or panels to make parole recommendations to the Associate Commissioner for Enforcement....

...If the vote of a two-member Panel is split, it shall adjourn its deliberations concerning that particular detainee until a third Panel member is added. A recommendation by a three-member Panel shall be by majority vote. The third member of any Panel shall be the Director of the Cuban Review Plan or his designee. 8 C.F.R. § 212.12 (d)(1)....

...2001. . Benitez disputes his involvement in the planned jail escape. This issue, however, is not before this Court. . Mariel Cubans who are being detained have their cases reviewed every year to determine whether they should be paroled. See 8 C.F.R. § 212.12 (g)(2)....

...nd interest against them. They contend the assessment of the use tax and 100 percent penalty under section 212.05(1)(a)2, Florida Statutes, was unlawful, and further, that simultaneous imposition of an additional 25 percent *1236 penalty pursuant to section 212.12(2) was improper....

...we do not decide), but this failure does not absolve appellants of the duty to pay the assessed use tax and penalty in accordance with the statute. Next, appellants contend that the Department wrongfully imposed a 25 percent late penalty pursuant to section 212.12(2) in addition to the penalty provided in section 212.05(1)(a)2. We agree and reverse. Section 212.05(1)(a)2, Florida Statutes (1985), states that the penalty equal to the use tax provided in this section "shall be in lieu of the penalty imposed by s. 212.12(2) and is mandatory and shall not be waived by the department." In addition, Rule 12A-1.007(1)(f), Florida Administrative Code, states in part that any purchaser who returns a boat to this state within six months of purchase "shall be liable for payment of the tax, plus interest and the mandatory penalty equal to the tax, which penalty is in lieu of the penalty provided in Section 212.12, Florida Statutes." The express language of the statute and the rule indicate that the only penalty to be imposed in a case such as this is the one specified in section 212.05(1)(a)2....

...date of departure, the purchaser shall be liable for use tax on the cost price of the boat and, in addition thereto, payment of a penalty to the Department of Revenue equal to the tax payable. This penalty shall be in lieu of the penalty imposed by s. 212.12(2) and is mandatory and shall not be waived by the department....

...If an issue can be determined without declaring a statute unconstitutional, courts should endeavor to do so. State ex rel. City of Casselberry v. Mager, 356 So.2d 267 (Fla. 1978). We agree, however, with Lloyd that under the facts of this case and the statutory framework, the best estimate provisions of section 212.12(5)(b), Florida Statutes (1989), cannot be invoked to impose liability upon Lloyd as a "successor" dealer. Section 212.12(5)(b) provides: (b) In the event any dealer or other person charged herein fails or refuses to make his records available for inspection so that no audit or examination has been made of the books and records of such dealer or person, f...

...These courts explain: This salutary principle is found in the reason that the duty to pay taxes, while necessary to the business of the sovereign, is still a duty of pure statutory creation and taxes may be collected only within the clear definite boundaries recited by statute ... Maas Brothers, Inc., 195 So.2d at 198. Section 212.12(5)(b) allows the Department to assess by guesstimates based upon selected available data, and then be afforded the presumption of correctness. These are rather Draconian provisions, to say the least. It seems clear from the language of section 212.12(5)(b) that its best estimate provisions should not come into operation unless the dealer or person to be charged has done something wrong or obstructive to prevent the Department from making a fair or ordinary audit....

...None of those circumstances occurred in this case and therefore the statutory provisions could not be invoked. The Department's estimate relied solely on Lloyd's own, adequate, records for the more current years after Lloyd purchased the concessions. Records like these are not even listed in section 212.12(5)(b) as usable, even if that section were applicable. Section 212.12(5)(b) provides that the information used for the assessment must be based on "information then available to [the Department] for the taxable period of retail sales of such dealer......

...eir own records which would have been for the relevant taxable period. Accordingly, we reject the Department's sales tax assessment because, Lloyd not having been guilty of any default listed by the statute, the Department was not entitled to invoke section 212.12(5)(b). The Department's *740 audit was based on improper data and improper reliance on section 212.12(5)(b) and therefore the assessment of the predecessor's allegedly unpaid sales taxes against Lloyd is also reversed....

...“regardless of the policy year for which the dividends or premium refunds are being reimbursed.” There is no statutory authority for carrying one year’s negative net premium forward as an offset against a subsequent year’s positive net 8 See, e.g., § 212.12(1)(a)1., Fla....

...a nonviolent person; (ii) The detainee is likely to remain nonviolent; (iii) The detainee is not likely to pose a threat to the community following his release; and (iv) The detainee is not likely to violate the conditions of his parole.” 8 C.F.R. § 212.12(d)(2). The panel also must consider the following factors when determining whether to recommend further detention or release on parole of a detainee: “(i) The nature and number of disciplinary infractions or incident reports recei...

...which is probative of whether the detainee is likely to adjust to life in a community, is likely to engage in future acts of violence, is likely to engage in future criminal activity, or is likely to violate the conditions of his parole.” 8 C.F.R. § 212.12(d)(3). 7 According to § 212.12(d)(1), The Director shall designate a panel or panels to make parole recommendations to the Associate Commissioner for Enforcement....

...ew Panel concluded that Benitez was releaseable under the criteria established by the Cuban Review Plan at such time as the INS determined that a suitable sponsorship to a half-way house could be arranged.8 See 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R. § 212.12 (2002) (Parole determinations and revocations respecting Mariel Cubans). On March 10, 2003, Benitez’s Notice of Releaseability was revoked because the INS concluded, without a hearing, that Benitez was involved in a planned jail escape. See 8 C.F.R. § 212.12(e).9 Therefore, Benitez’s current detention results not only from his inadmissible alien status, but also from his violations of the conditions of his earlier immigration parole and the INS’s determination that he has not refrained from criminal conduct while in custody.10 three-member Panel shall be by majority vote. The third member of any Panel shall be the Director of the Cuban Review Plan or his designee. 8 C.F.R. § 212.12(d)(1). 8 Although the Notice was served/delivered on January 17, 2002, it is dated December 13, 2001. 9 Benitez disputes his involvement in the planned jail escape. This issue, however, is not before this Court. 10 Mariel Cubans who are being detained have their cases reviewed every year to determine whether they should be paroled. See 8 C.F.R. § 212.12(g)(2)....

...ng in a tax of $105,000. See § 212.0505(1)(a), Fla. Stat. (Supp. 1988). The Department assessed the statutory surcharge of 25 percent, resulting in a surcharge of $52,500. Id. § 212.0505(1)(b). The Department assessed a 50 percent penalty under subsection 212.12(2), Florida Statutes (Supp. 1988), for failure to have filed a return and paid the tax. Under subsection 212.12(2), "[w]hen any person ... required ... to make any return or to pay any tax ... imposed by this chapter fails to timely file such return or fails to pay the tax ... due within the time required hereunder, ... a specific penalty shall be added...." Id. § 212.12(2)(a)....

...(b) In addition to any other tax there shall also be a 25 percent surcharge on the estimated price of the transaction or incident taxable under paragraph (a). [2] The Department computed the estimated retail price of 300 pounds of marijuana to be $210,000. [3] In addition, willful evasion under paragraph 212.12(2)(a) is a first degree misdemeanor....

...[17] As to the position advanced by the dissent, subsection 212.0505(3), Florida Statutes, provides: The taxes imposed under this section are subject to the same interest and penalties and the same procedures for collection and enforcement as other taxes imposed under this part, except that a dealer's credit under s. 212.12(1) is not allowed....

...The department must attempt to avoid double taxation. It is well recognized that "[d]ouble taxation is not only to be avoided, but [also] the intention of the legislature to impose it will not be presumed." 71 Am.Jur.2d State and Local Taxation § 33 (1973); and see Section 212.12(12), Florida Statutes (1977)....

...date of departure, the purchaser shall be liable for use tax on the cost price of the boat and, in addition thereto, payment of a penalty to the Department of Revenue equal to the tax payable. This penalty shall be in lieu of the penalty imposed by § 212.12(2) and is mandatory and shall not be waived by the department....

...mendment which could not be retroactively applied). Since the funds collected by Blackshears are deemed to be state funds (even if erroneously or improperly collected), Blackshears is fully subject to the penalties and interest provisions set out in section 212.12....

...The Supreme Court concluded that “this case continues to present a live case or controversy” because Benitez’s one-year parole was “not only limited to one year, but subject to the Secretary’s discretionary authority to terminate” under 8 C.F.R. § 212.12(h) (2004)....

...authorized by § 1231(a)(6)).” Clark, 125 S. Ct. at 721 n.3. Accordingly, under Clark and because he has now prevailed in this case, Benitez’s parole is no longer subject to the one-year limitation or the Secretary’s discretionary authority to revoke parole under § 212.12(h)....

...The tax due for such repairs is thus paid as part of the sales transaction. Accordingly, the trial court reasoned that “[t]o require GM to pay tax on the transactions would amount to double taxation or pyramiding of tax prohibited under Florida law. See section 212.12(12), Florida Statutes.” Analysis Because the material facts are not in dispute, “[t]he standard of review governing a trial court’s ruling on a motion for summary judgment posing a pure question of law is de novo.” Major League Baseball v....

...tance of taxation on tangible personal property, either at the point of sale or at the subsequent time of use. The “anti-pyramiding” principle is codified in several provisions of Florida’s sales and use taxes statute. See §§ 212.06(4) & 212.12(12), Fla. Stat. (2011). Specifically, section 212.06(4), provides that “there shall be no duplication” of the sales and use taxes. In addition, section 212.12(12) provides that it is the Legislature’s intent that only the end consumer should be subject to tax as follows: It is hereby declared to be the legislative intent that, whenever in the construction, administration, or enforcement of...

...Furthermore, the Ohio Supreme Court reached the same result based on its determination that the Ohio Legislature would not have intended to “impos[e] a second layer of taxation.” Daimler Chrysler Corp., 881 N.E.2d at 844. Florida’s law provides an even stronger basis for reaching the same result, as section 212.12(12) expressly provides the Legislature’s “intent that, whenever in the construction, administration, or enforcement of this chapter there may be any question respecting a duplication of the *1196 tax, the end consumer, or last reta...

relating to the penalty assessed pursuant to F.S. 212.12(2), the final judgment in favor of appellee should

ERVIN, Judge. Appellant, State of Florida, Department of Revenue (department), appeals orders of the circuit court denying the state’s motions for statutory interest assessed by it against appellees Air Jamaica and Wardair pursuant to Section 212.12(3), Florida Statutes, based on alternative grounds of lack of jurisdiction and estoppel....

...3267 , 91 L.Ed.2d 558 (1986). *448 The state filed motions to enforce mandate subsequent to both the Florida Supreme Court and United States Supreme Court decisions. The state’s motions request payment of the tax owed and statutory interest imposed by Section 212.12(3), Florida Statutes....

...In addition to their jurisdictional argument, the airlines contend that the state is estopped, by reason of its stipulations, from collecting the accrued statutory interest amounts. Again we disagree. The department of course may waive its entitlement to interest. Section 212.12(4) provides that the department may settle or compromise any such injuries or penalties, and section 213.21 gives the department the right to establish procedures for informal conferences for the resolution of disputes relating to the assessment of taxes, interest and penalties....

...As to the former argument, we find nothing in the record from which we can determine that the department waived its right to collect interest. Interest cannot be waived by the state’s failure to make an explicit request for it, in that interest accrues automatically upon the dealer’s failure to remit the tax timely. See § 212.12(3), Fla.Stat....

...Moreover, there *449 is nothing in the language of the stipulations signed by the airlines and the department to suggest waiver of statutory interest. 3 We also find no merit in the argument of the airlines that they remitted the tax to the state in conformance with section 212.12(3), by placing the funds in escrow accounts....

...Department of Revenue, 457 So.2d 1008 (Fla.1984), appeal dismissed, 474 U.S. 891 , 106 S.Ct. 213 , 88 L.Ed.2d 214 (1985); and Eastern Airlines, Inc. v. Department of Revenue, 455 So.2d 311 (Fla.1984), appeal dismissed, 474 U.S. 892 , 106 S.Ct. 213 , 88 L.Ed.2d 214 (1985). . Section 212.12(3) provides that “[w]hen any dealer or other person charged herein, fails to remit the tax, or any portion thereof, on or before the day when such tax is required by law to be paid, there shall be added to the amount due interest at...

...Stein, 144 Fla. 387 , 198 So. 82 . In making the contractor subject to the tax upon the manufactured cost without any deductions for expenses, Rule 51(5) does not conflict with any provision of F.S. c. 212, F.S.A., and in fact is in accord with F.S. § 212.12(5), F.S.A....

...rsonal property as defined herein and who leases or rents such property within the state. For the exercise of said privilege a tax is levied on each taxable transaction or incident and shall be due and payable, according to the brackets set forth in § 212.12(10) as follows: U * * * “(2) At the rate of four percent of the cost price of each item or article of tangible personal property when the same is not sold but is used, consumed, distributed or stored for use or consumption in this state.�...

payable, according to the brackets set forth in § 212.12(10) $ * * " Florida Statutes § 212.02(3) (c),

...es and compensation.” . Art. Y, Sec. 4, Fla.Const.Board of County Comm’rs v. Boswell, Fla.1964, 167 So.2d 866 . . “The Revenue Commission has authority to make assessments of taxes, or additional taxes, in any one of three situations stated in Section 212.12(6): “(1) When a dealer fails to make a return. “(2) When a dealer makes a ‘grossly incorrect’ return. “(3) When a dealer makes a return that is ‘false or fraudulent’.” See F.C. Sec. 212.12(6), F.S.A.1959, the provision governing this litigation....

...State Racing Commission (1935), 119 Fla. 142 , 161 So. 58 ; Polar Ice Cream & Creamery Company v. Andrews (Fla.App.1963), 150 So.2d 504 . . “ * ♦ * the findings of jurisdictional facts required to be recited in an order assessing taxes pursuant to either subsection 212.12(6) or Section 212.14 must be sufficiently specific, but need not be more detailed than is reasonably necessary, to apprise the taxpayer in a general way of the factual basis upon which the assessment is made....

...Accordingly, the petition for certiorari is granted. The part of the order of the Commission assessing the deficiency tax and interest thereon is affirmed, and that part of the Commission’s order assessing discretionary penalty in the amount of 25% under the provisions of § 212.12(2), F.S.A., is quashed....

maximum 25% penalty under § 212.12(2). Modification is allowed by § 212.12(5) if the penalty would be

...This petition for writ of certiorari seeks review of an order of the circuit court entered in its appellate capacity. The order for which review is sought affirmed the county court conviction of petitioner on a charge of intentional evasion of payment of sales tax, Section 212.12(2), Florida Statutes (1975), following his plea of nolo contendere which reserved the right to appeal the denial of a motion to dismiss premised upon petitioner’s assertion that the statute of limitations had expired prior to the date prosecution was commenced....

...He pleaded no contest to failing to pay over to *673 the State of Florida $22,620 in sales taxes he had collected in connection with the sale of two vessels. In the restitution order the judge required payment of $36,412, which includes the 50% penalty arising under section 212.12(2)(a), Florida Statutes, and the interest provided by section 212.12(3)....

...Certainly, the State of Florida was damaged by defendant’s failure to make seasonable payment of the tax collected and withheld to the entity entitled to it, the State of Florida. On the other hand, it is not quite so clear that the 50% penalty in section 212.12(2)(a) constitutes a damage or loss to the state caused by defendant’s criminal conduct....

...Actually the State has earned, by reason of defendant’s crime, something that it was not previously entitled to have: viz., an additional 50% of the taxes unpaid. We therefore conclude that so much of the restitution order as requires the payment of civil penalties under section 212.12(2)(a) must be reversed....

...e or consumption in this state of tangible personal property.” It cited State Department of Revenue v. Anderson, 403 So.2d 397 (Fla.1981), as giving “great weight” to rule 12A1.038, and found that its “estimated assessment” was valid under section 212.12....

...me of the mileage in Florida, so as to qualify for the proration partial exemption. However, since Latin Express and Fast Bus Lines did not comply with these requirements, Latin Express was not entitled to the partial exemption. 2 We find that under section 212.12(5), DOR properly based its assessment on the only information available to it, the purchase prices of the buses, and that Latin Express did not meet its burden of showing that the assessment amount was incorrect....

212.081(3)(b), Florida Statutes (1993), and section 212.12(12), Florida Statutes (Supp. 1994). This pyramiding

...§ 212.06(1)(a), Fla. Stat. At the moment of collection, the taxes become state funds that are due to the Department the following month. § 212.15(1)(a), Fla. Stat. And dealers are compensated for collecting and remitting the taxes to the Department. § 212.12(1), Fla....

...7 nontaxable transactions from its customers, which the dealer needed to either remit to the state or refund to its customers). What’s more, under the statutory framework, Oracle may be compensated for serving the State as a dealer. See § 212.12(1), Fla. Stat....

...§ 212.06(1)(a), Fla. Stat. At the moment of collection, the taxes become state funds that are due to the Department the following month. § 212.15(1)(a), Fla. Stat. And dealers are compensated for collecting and remitting the taxes to the Department. § 212.12(1), Fla....

...7 nontaxable transactions from its customers, which the dealer needed to either remit to the state or refund to its customers). What’s more, under the statutory framework, Oracle may be compensated for serving the State as a dealer. See § 212.12(1), Fla. Stat....

...§ 212.06(1)(a), Fla. Stat. At the moment of collection, the taxes become state funds that are due to the Department the following month. § 212.15(1)(a), Fla. Stat. And dealers are compensated for collecting and remitting the taxes to the Department. § 212.12(1), Fla....

...7 nontaxable transactions from its customers, which the dealer needed to either remit to the state or refund to its customers). What’s more, under the statutory framework, Oracle may be compensated for serving the State as a dealer. See § 212.12(1), Fla. Stat....

...trial in the absence of any pending motion for summary judgment, and that tax assessments such as the one at issue must be considered prima facie correct, with the burden of showing the *752 contrary on the party against whom the assessment is made. § 212.12(5)(b), Fla....

...or enforcement of this chapter there may be any question respecting a duplication of the tax, the end consumer, or last retail sale, be the sale intended to be taxed and insofar as may be practicable there be no duplication or pyramiding of the tax. § 212.12(12), Fla....

...2nd DCA 1965), for appellant’s argument that the penalty statute is “discretionary”. The Sugar Cane case dealt with a sales tax penalty under Section 212.-12(2), Florida Statutes, (1965), which the court found was a “discretionary penalty”. The court was undoubtedly referring to subparagraph (5) of Section 212.12, which provided that for good cause shown the Department was authorized to “compromise penalties after its investigation reveals that the penalty would be too severe or unjust”....