CopyCited 19 times | Published | Florida 1st District Court of Appeal | 25 Fla. L. Weekly Fed. D 118
...f Bank of America, N.A. (Bank), the successor by merger to NationsBank, N.A. The issue presented is whether a lender/financer is entitled to receive the legislatively created sales tax refund provided to motor vehicle dealers under the provisions of section 212.17(2) and (3), Florida Statutes. We reverse. This action commenced in April 1997, when the Bank filed a complaint seeking refunds and credits pursuant to section 212.17(2) and (3), for sales tax paid by dealers in connection with motor vehicle installment sales contracts....
...Vendors' rights under the Contracts." The Department answered the complaint, and raised various affirmative defenses. Among other things, the Department asserted that because the Bank is not the selling dealer, it cannot satisfy the requirements of section 212.17, Florida Statutes, and therefore lacks standing to seek a refund or credit for the subject taxes....
...This denial letter states in pertinent part: Bank does not meet the statutory requirements which require the applicant to be "a dealer who has paid the tax". The motor vehicle dealer is the entity who collected the tax from the purchaser and pays the tax to the Department. Section 212.17, F.S., does not entitle a third party who is "assigned" a security interest in tangible personal property to a refund on a bad debt or repossessed merchandise since they are not the "dealer who paid the tax"....
...the sales price. (citation omitted). The Bank filed a Motion for Partial Summary Judgment and Supporting Memorandum of Law. The motion asked the court to determine, as a matter of law, that the Bank is entitled to sales tax refunds and credits under section 212.17, because it is an assignee of the rights afforded by the statute....
...Thereafter, the Department filed its motion for partial summary judgment with supporting affidavit. On July 22, 1998, the circuit court issued an order granting the Bank's motion for summary judgment. Among other things, the court found that in enacting the section 212.17(2) and (3) refund provisions, the legislature intended "to provide relief to those who unjustly suffer an economic loss when they ultimately fail to collect amounts for which sales tax has already been paid." The court further found that Florida common law favors the assignment of contractual and statutory rights, and where, as here, the statute is silent on the issue of assignability, a court must fill the statutory gaps by relying on Florida common law. Since section 212.17 is silent with respect to assignment of statutory rights, and since Florida does not have an anti-assignment statute, the court concluded the Bank, as assignee, is entitled to the rights of the selling dealer to any tax refunds or credits....
...position with regard to assignability of sales tax refunds. Further, the court found the "determination of whether statutory rights are assignable is a legal issue that does not require agency expertise." The concluding portion of the order states: Section 212.17(2) and (3) create a right to sales tax refunds or credits. Florida law recognizes the assignability of statutory rights unless the statute expressly prohibits assignment or the assignment offends some clearly articulated public policy. Section 212.17 does not prohibit assignment and nothing in the public policy of Florida prohibits assignment of sales tax refunds or credits. Accordingly, [bank] is legally entitled to claim the sales tax refunds or credits under Section 212.17 as assignee of the dealer's rights....
...se or other consumption, in this state, shall, at the time of making sales, collect the tax imposed by this chapter from the purchaser. (Emphasis supplied). The statutory provisions directly applicable to the instant controversy are portions *641 of section 212.17, Florida Statutes. Section 212.17 states in pertinent part: (1)(a) In the event purchases are returned to a dealer by the purchaser or consumer after the tax imposed by this chapter has been collected from or charged to the account of the consumer or user, the dealer s...
...Thus, "[i]nquiry into legislative intent may begin only where the statute is ambiguous on its face." See Streeter,
509 So.2d at 271. See also City of Safety Harbor v. Communications Workers of America,
715 So.2d 265, 267 (Fla. 1st DCA 1998). The provision here at issue, section
212.17(2) and (3), states clearly and unambiguously that the dealer may take a credit or tax refund on the unpaid balance of the tax after repossession of the property....
...Based upon these memoranda, the circuit court concluded the Department does not have a longstanding, unequivocal policy of denying sales refunds to assignees of motor vehicle dealers. In so concluding, it seems the circuit court failed to consider that since its enactment, the Department has administered section 212.17(2) and (3) to permit sales tax refunds only to qualifying dealers....
...In this vein, it is reasonable to assume the legislature is cognizant of the business practice of dealers with regard to assignment of installment contracts to banks, yet the legislature has not enacted an express authorization for refund of sales tax to the dealers' assignees. Further, the plain language of section 212.17(2) and (3) limits such tax refunds to dealers who retain a security interest in the installment contracts....
...In summary, we conclude the circuit court failed to give sufficient consideration to the principle that tax refund statutes are to be strictly construed against the taxpayer, and failed to accord proper deference to the manner in which the Department has applied section 212.17(2) and (3) since its enactment....
CopyCited 4 times | Published | Florida 1st District Court of Appeal
...*78 By letter dated April 15, 1977, the Office of the Comptroller notified the Petitioner that the Florida Department of Revenue had audited its claim for refund and had recommended that payment of the refund be denied because the petitioner did not claim credit for the tax paid on its bad debts in the manner required by Section 212.17(3), Florida Statutes (1975)....
...On May 3, 1977, petitioner, through its trustee in bankruptcy, filed a request for a rehearing and re-examination of the denial of its claim for a refund of overpayment of Florida sales tax in the amount of $520,060.00. Petitioner made its claim pursuant to Section
215.26, Florida Statutes (1975). It also claimed that Section
212.17(3), Florida Statutes (1975), should entitle it to a refund in the amount requested. By letter dated June 3, 1977, the Department of Revenue, on behalf of the Comptroller of the State of Florida, denied petitioner's request for a rehearing and re-examination. Those agencies had concluded that neither Section
215.26 nor Section
212.17(3) authorized a refund of sales tax paid on the unpaid balance of the accounts which had been found to be worthless and had been written off as bad debts....
...t for rehearing and re-examination had been denied. On July 28, 1977, petitioner filed its petition for review in this Court for review of the respondent Agencies' final agency action denying petitioner's request for a refund under Section
215.26 or
212.17(3), Florida Statutes (1975), or both of these statutes....
...We now direct our attention to the merits of the case. Our decision turns upon the proper interpretation of certain sections of Chapter 215 F.S. and Chapter 212 F.S. Petitioner predicates its claim for a refund of the taxes in question upon the provisions of Section
212.17 and Section
215.26. Section
212.17 which deals with credits for returned goods provides that such credits may be had in one of three situations: First, in the event purchases are returned to the dealer by the purchaser or consumer after the sales tax imposed has been co...
...o be applied against subsequently accrued taxes. Further provision is made for the refund of taxes to a dealer who has retired from business and who has filed a final return, if *79 it is established that the taxes were not due. (Emphasis supplied). Section 212.17(1) F.S....
...bad debts subsequently charged off became due when the sales were made and the purchasers at that time became obligated to pay the same (Section
212.06(1)(a)). The second situation under which a dealer is entitled to a credit under the provisions of Section
212.17 is that where tangible personal property is sold under a retained title or conditional sale contract, and is later repossessed by the dealer. Subsection (2) of Section
212.17 provides that a dealer who has remitted the tax imposed may take credit in future tax returns for the tax paid by him on the unpaid balance of the purchase price when he repossesses the property, in the same manner as he may do so under subsection (1)....
...ot retained title or conditional sales, but were sales made pursuant to several different types of credit plans. Here title passed to the purchaser upon delivery of the goods. Petitioner places great reliance upon the provisions of subsection (3) of Section 212.17 to support its claim for a refund of taxes paid upon goods sold on credit which transaction later turned out to be "bad debts"....
...Since petitioner went into bankruptcy and therefore is making no future sales or tax returns, there is nothing against which any credit may be had for "bad debts" charged off. The only instance wherein a refund (as against a credit) may be made under this statute is that provided in subsection (1) of Section 212.17 wherein it is established and determined by the department that no tax was due to be paid in the first instance....
...credit sales states: "The full amount of the tax on credit sales, installment sales, and sales made on any kind of deferred payment plan shall be due at the moment of the transaction in the same manner as a cash sale." We hold that the provisions of Section 212.17(3) authorize only the extension of a credit or set-off against future tax liability and do not authorize a refund of sales taxes collected on personal property sold on credit under the facts of this case....
...Rather, the constitutional test to be applied to such a tax is whether the classifications created by such tax are reasonable and not arbitrary. Goulden v. Kirk,
47 So.2d 567 (Fla. 1950) and Allied Stores of Ohio v. Bowers,
358 U.S. 522,
79 S.Ct. 437,
3 L.Ed.2d 480 (1959). The classifications created by Section
212.17 are reasonable and not arbitrary....
...Finally, we find the argument of petitioner to the effect that to deny it a refund of the taxes in question is unconstitutional as being in violation of the Supremacy Clause of the Federal Constitution, in that such a construction of the effect of Section 212.17(3) F.S. allegedly interferes with the Federal Bankruptcy Act, to be without merit. The taxes sought to be recovered are not assets of the bankrupt estate. As we have herein stated, Section 212.17 deals with credits against future tax liability, not refunds of taxes already imposed and collected....
