CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1997 WL 791693
...willfully directs any employee of the corporation to fail to collect or pay over, evade, defeat, or truthfully account for such tax...." Section
213.29 further provides that the executive director of the Department may compromise any jeopardy assessment penalty "as set forth in s.
213.21." The estimated jeopardy assessment against Pogge totalled $109,314.10....
...The Department never treated the 1988 transaction between itself and attorney Datillio as an accord and satisfaction. The Department never characterized Datillio's payment on *527 Pogge's behalf as compromise of a disputed amount. Moreover, the Department did not follow the procedures of section 213.21(3)(a), Florida Statutes, which require the Department to maintain records of all compromises and that such records state the basis of any compromise....
0 red0 yellow3 green0 procedural
Cited as authorityDalmau (1998)phrase: "rule_authority"
CopyPublished | Florida 1st District Court of Appeal
...The
trial court also noted that Florida Administrative Code Rule 12-6.003 refers to a
NOPA as an assessment, and it reasoned that at the time the Department issues a
NOPA, it has completed its work on the audit and has fixed the amount of additional
tax due. The trial court rejected Appellant’s argument that section
213.21(1)(b),
Florida Statutes, which provides for a tolling of the statute of limitations period for
the issuance of final tax assessments when informal protest procedures are sought,
establishes that the assessment contemplated in section
95.091(3)(a) is a final
assessment....
...yment. As the Department
acknowledges, a taxpayer is under no legal obligation to pay a tax assessment until
the assessment becomes final. More important to our decision, the Legislature has
9
addressed in section 213.21, Florida Statutes (2010), the statute of limitations in the
taxing context in terms of a “final assessment.” Section 213.21(1)(a) authorizes the
Department to “adopt rules for establishing informal conference procedures within
the department for resolution of disputes relating to assessment of taxes, interest,
and penalties and the denial of refunds, and for informal hearings . . . .” Section
213.21(1)(b) provides that the “statute of limitations upon the issuance of final
assessments shall be tolled during the period in which the taxpayer is engaged in a
procedure under this section.” (Emphasis added).
In rejecting the argument that section 213.21(1)(b) supported Appellant’s
position, the trial court reasoned that the statute, which, according to it, “provides
for a tolling of the limitations period for the issuance of ‘final assessments’ when
certain informal procedu...
...While that may be the case,
the fact remains that the statute talks of a “final assessment” in terms of the tolling
of the statute of limitations, which, in taxing cases, is section
95.091. Had the
Legislature wished to, it could have simply used the word “assessment” in section
213.21(1)(b)....
...ated in the statute of limitations is
a final assessment. If, as the Department contends, a proposed assessment was the
assessment contemplated in section
95.091(3)(a), then there would be no need for
10
section
213.21(1)(b) and the tolling of the statute pending the informal dispute or
conference procedures because the necessary act for purposes of the statute of
limitations, i.e., the issuance of the proposed assessment, would have already
occurred by the time informal procedures were invoked....
...We see no reason to conclude
that a proposed assessment is the “assessment” for purposes of section
95.091(3)(a)
only in cases where a taxpayer does not dispute the proposed assessment. Instead,
we construe, as we must, section
95.091(3)(a) and section
213.21(1)(b) in para
materia....
...o harmonize the statutes
and to give effect to legislative intent). Doing so leads to the conclusion that the
assessment contemplated in section
95.091(3)(a) is a final assessment. 2
2
Although our conclusion is guided by the plain language of section
213.21(1)(b),
the legislative history of the statute supports our conclusion. A legislative staff
analysis for the bill at issue provided in part, “This section clarifies that when
informal conference procedures pursuant to s.
213.21, F.S., are entered into, the
period of limitation for issuing a final assessment shall be tolled for the time the
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While the Department argues that we must give deference to its longstanding...
...would have become final, without an informal protest, within the statute of
limitations period, and no timeliness challenge could have been made by Appellant.
Had Appellant informally challenged the proposed assessment, the statute of
limitations would have been tolled pursuant to section 213.21(1)(b)....
...filed unless a notice of deficiency for such year was issued not later than the date
prescribed in s.
95.091(3).” Both parties and the trial court likened a notice of
deficiency in the corporate income tax context to a NOPA in the sales and use tax
context. However, in light of section
213.21(1)(b), we find the Department’s
reliance upon section
220.705 to be misplaced, and we conclude that the trial court
erred in granting summary judgment in the Department’s favor....
0 red0 yellow1 green0 procedural
CopyPublished | District Court of Appeal of Florida | 1996 Fla. App. LEXIS 7572, 1996 WL 392957
...Under the Department’s argument, it is the bookkeeping entry which the Department has elevated to a taxable event rather than the actual use of the vessel, a proposition not supported by any statutory or rule citation. The hearing officer noted DOR’s broad discretion, under section 213.21(3), in determining whether to assess penalties and interest for the late payment of sales or use tax if “the noncompliance is due to reasonable cause and not to willful negligence, willful neglect, or fraud.” She found that “no e...
