(1)(a) When by or pursuant to the laws of any other state or foreign country any taxes, licenses, and other fees, in the aggregate, and any fines, penalties, deposit requirements, or other material obligations, prohibitions, or restrictions are or would be imposed upon Florida insurers or upon the agents or representatives of such insurers, which are in excess of such taxes, licenses, and other fees, in the aggregate, or which are in excess of the fines, penalties, deposit requirements, or other obligations, prohibitions, or restrictions directly imposed upon similar insurers, or upon the agents or representatives of such insurers, of such other state or country under the statutes of this state, so long as such laws of such other state or country continue in force or are so applied, the same taxes, licenses, and other fees, in the aggregate, or fines, penalties, deposit requirements, or other material obligations, prohibitions, or restrictions of whatever kind shall be imposed by the Department of Revenue upon the insurers, or upon the agents or representatives of such insurers, of such other state or country doing business or seeking to do business in this state. In determining the taxes to be imposed under this section, 80 percent and a portion of the remaining 20 percent as provided in paragraph (b) of the credit provided by s. 624.509(5), as limited by s. 624.509(6) and further determined by s. 624.509(7), shall not be taken into consideration.
(b) As used in this subsection, the term “portion of the remaining 20 percent” shall be calculated by multiplying the remaining 20 percent by a fraction, the numerator of which is the sum of the salaries qualifying for the credit allowed by s. 624.509(5) of employees whose place of employment is located in an enterprise zone created pursuant to chapter 290 and the denominator of which is the sum of the salaries qualifying for the credit allowed by s. 624.509(5).
(2) Any tax, license, or other obligation imposed by any city, county, or other political subdivision or agency of a state, jurisdiction, or foreign country on Florida insurers or their agents or representatives shall be deemed to be imposed by such state, jurisdiction, or foreign country within the meaning of subsection (1).
(3) This section does not apply as to personal income taxes, nor as to sales or use taxes, nor as to ad valorem taxes on real or personal property, nor as to reimbursement premiums paid to the Florida Hurricane Catastrophe Fund, nor as to emergency assessments paid to the Florida Hurricane Catastrophe Fund, nor as to special purpose obligations or assessments imposed in connection with particular kinds of insurance other than property insurance, except that deductions, from premium taxes or other taxes otherwise payable, allowed on account of real estate or personal property taxes paid shall be taken into consideration by the department in determining the propriety and extent of retaliatory action under this section.
(4) For the purposes of this section, a “similar insurer” is an insurer with identical premiums, personnel, and property to that of the alien or foreign insurer’s Florida premiums, personnel, and property. The similar insurer’s premiums, personnel, and property shall be used to calculate any taxes, licenses, other fees, in the aggregate, or any fines, penalties, deposit requirements, or other material obligations, prohibitions, or restrictions that are or would be imposed under Florida law and under the law of the foreign or alien insurer’s state of domicile.
(5) The excess amount of all fees, licenses, and taxes collected by the Department of Revenue under this section over the amount of similar fees, licenses, and taxes provided for in this part, together with all fines, penalties, or other monetary obligations collected under this section and ss. 626.711 and 626.743 exclusive of such fees, licenses, and taxes, shall be deposited by the Department of Revenue to the credit of the Insurance Regulatory Trust Fund; provided that such excess amount shall not exceed $125,000 for 1992, and for any subsequent year shall not exceed $125,000 adjusted annually by the lesser of 20 percent or the growth in the total of such excess amount. The remainder of such excess amount shall be deposited into the General Revenue Fund.
Cited 12 times | Published | Supreme Court of Florida | 1992 WL 171313
...estrictions of whatever kind shall be imposed by the department upon the insurers, or upon the agents or representatives of such insurers, of such other state or country doing business or seeking to do business in this state. [13] Currently found in section 624.5091, Florida Statutes (1991).
...The Florida Department of Revenue (DOR) appeals a final summary judgment in favor of Liberty National Insurance Company (Liberty). We affirm. Liberty, a health and life insurer organized under the laws of Alabama and domiciled in Alabama, was subject to and paid Florida Retaliatory Tax pursuant to section 624.5091. The dispute in this case concerns the proper method of calculating the retaliatory tax. The legislature has provided that certain financial exactions be excluded from the calculation. Section 624.5091(3), Florida Statutes (1993), provides in part: "This section does not apply as to personal income taxes, nor as to ad valorem taxes on real or personal property, nor as to special purpose obligations or assessments imposed by another...
...Accordingly, including the FCHA assessment in the retaliatory tax computation lowered Liberty's tax assessment. The DOR conducted an audit of Liberty for the periods of 1986 through 1990. The DOR treated the FCHA payments as special purpose obligations or assessments under 624.5091(3), and thereby excluded them in calculating the insurance retaliatory tax to be paid by Liberty....
...tently interpreted the retaliatory tax statute as requiring exclusion of such obligations or assessments from both Florida and the foreign state in calculating the retaliatory tax. The trial judge correctly determined, however, that: Florida Statute § 624.5091(3) as it existed before May 29, 1994, excludes special purpose obligations or assessments "imposed by other states" from the computation of the retaliatory tax....
...administrative assessment imposed by section 440.51, Florida Statutes, shall be included in the calculation of the retaliatory tax, constitutes an unlawful exercise of delegated legislative authority). The DOR also argued that the 1994 amendment to section 624.5091(3), in which the legislature deleted the phrase "by another state," further supported its interpretation....
...This provision also directly relates to the funding and solvency of the trust fund in emergency situations. Providing for how to deal with an emergency in the context of this emergency fund can hardly be considered extraneous to creation of the trust fund. Last, the plaintiffs challenge section 4 which amends section 624.5091(3), Florida Statutes, to provide that reimbursement premiums and emergency assessments paid to the CAT Fund shall be excluded from the calculation of the retaliatory tax authorized by section 624.5091, Florida Statutes....
...to the fund. Resolving the question of whether fund premiums are subject to this tax is a policy decision of the Legislature. This section could have just as appropriately been included in the CAT Fund section itself, rather than as an amendment to section 624.5091....
...e State Board of Administration to "request an expedited opinion from the United States Internal Revenue Service as to the tax-exempt status of the state with respect to revenues collected" by the Fund, and other matters; and Section 4, which amends section 624.5091, Florida Statutes (a part of the Florida Insurance Code), relating generally to the amount, and method of computation, of retaliatory taxes to be imposed by the Department of Revenue upon foreign insurers for the purpose of ensuring that Florida insurers are competing on an equal footing with foreign insurers....
...The challenged rule provides, in pertinent part, that assessments imposed by other states which are comparable to the worker's compensation administrative assessment imposed by section 440.51, Florida Statutes, shall be included in the calculation of the retaliatory tax provided in section 624.5091, Florida Statutes (1993)....
...This rule challenge was instituted by Zurich Insurance Company ("Zurich"). Zurich is an insurer domiciled in the State of New York and authorized to do business in Florida. As a foreign insurer doing business in Florida, Zurich is subject to the provisions of Florida's retaliatory tax, section 624.5091, Florida Statutes....
...w. We conclude that if section 440.51 is a "special purpose obligation or assessment," Zurich may not be required by rule to include the New York Workers' Compensation Administration Board Fund assessment in its retaliatory tax calculations, because section 624.5091(3), Florida Statutes (1993) expressly excluded from the retaliatory tax computation "special purpose obligations or assessments imposed by another state in connection with particular kinds of insurance other than property insurance ....
KAHN, Judge. American Southern Insurance Company (American Southern) appeals from a final judgment in favor of the Department of Revenue (Department) involving the Department’s construction and application of section 624.5091(1), Florida Statutes (1991)....
...do business in Florida. In June 1990, the Department issued a notice of intent to audit American Southern for the taxable years 1985 through 1989. On June 12,1992, pursuant to the audit, the Department assessed a retaliatory tax of $1,349,604 under section 624.5091(1), Florida Statutes (1991)....
...In December 1992, American Southern filed a complaint for declaratory and injunc-tive relief in circuit court, contesting the remaining assessment of $866,788 in retaliatory tax. American Southern challenged the assessment as contrary to the intent and purpose of section 624.5091 and, in the alternative, asserted that the statute, as applied, violated equal protection rights under the Florida and federal constitutions. Specifically, American Southern challenged the Department’s calculation of the tax based on its construction of the term “similar insurer” contained in section 624.5091(1)....
...can Southern. On April 6, 1994, the circuit court entered a final judgment granting American Southern’s motion for summary judgment and declining to reach the constitutional issues. On April 12, 1994, the Florida Legislature passed a bill amending section 624.5091 to include a definition of “similar insurer” at subsection (4)....
...The Department also filed a motion for summary judgment on rehearing. The circuit court denied both motions and, after a bench trial on the disputed factual issues, entered final judgment in favor of the Department. American Southern has appealed, asserting that the Department’s construction and application of section 624.5091(1) is erroneous as a matter of law. II. Department’s Construction Constitutes a Valid Interpretation and Application of Statute The retaliatory tax statute, section 624.5091(1), Florida Statutes (1991), provides in pertinent part: When by or pursuant to the laws of any other state or foreign country any taxes, licenses, and other fees, in the aggregate, ......
...As the trial court explained, the Department’s interpretation simply fails to reward American Southern for investing in Georgia property: The basic requirement of the retaliatory tax statute is to create a level playing field by discouraging excessive taxes or other burdens. § 624.5091(1), Florida Statutes....
...xas insurer. Atlantic Ins. Co., 62 Cal.Rptr. at 790 , 255 Cal.App.2d 1 ; Republic Ins., 138 N.W.2d at 781-82 ; Employers Casualty, 107 P.2d at 717-18 . 4 *816 We do not reach American Southern’s contention that the definition of similar insurer in section 624.5091(4), Florida Statutes (Supp.1994), may not be applied retroactively to the years in question. For the reasons set out in part II of this opinion, the Department’s construction of section 624.5091(1) is valid irrespective of the 1994 amendment. AFFIRMED. BARFIELD and ALLEN, JJ., concur. . Section 624.5091(1), Florida Statutes (1991), provides in pertinent part: When by or pursuant to the laws of any other state or foreign country any taxes, licenses, and other fees, in the aggregate, ......
...in force or are so applied, the same taxes, licenses, and other fees, in the aggregate, ... shall be imposed by the Department of Revenue upon the insurers ... of such other state or country doing business or seeking to do business in this state. . Section 624.5091(4), Florida Statutes (Supp....
One of the challenged provisions amended section 624.5091(3), Florida Statutes (Supp.1994), . Section
This Florida statute resource is curated by Graham W. Syfert, Esq., a Jacksonville, Florida personal injury and workers' compensation attorney. Attorney Syfert regularly works with Chapter 624 in the context of insurance disputes and represents clients throughout Northeast Florida. For legal consultation, call 904-383-7448.
