191 So. 3d 516
Fla. Dist. Ct. App.2016Background
- Dept. of Revenue audited American Heritage (tax years 2005–2008) and issued a Notice of Proposed Assessment on March 29, 2010, for $220,330.79 (sales tax deficiency based on characterization of plantation shutters as fixtures).
- Notice advised a 60-day deadline to file an informal protest or administrative/judicial challenge; American Heritage did not timely challenge the assessment.
- In 2013 the Department collected $6,525.95 (≈3% of assessment) from American Heritage’s frozen bank account; American Heritage then requested a refund of that amount, claiming overpayment because the assessment was erroneous.
- The Department denied the refund; American Heritage filed a chapter 120 petition within 60 days of the denial, styled as a challenge to the refund denial but seeking in substance to invalidate the 2010 assessment.
- DOAH relinquished jurisdiction and the Department dismissed the chapter 120 petition as an untimely attempt to contest the assessment more than 60 days after it became final. The Second District affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a chapter 120 petition filed within 60 days of a refund denial is timely when it effectively contests an earlier tax assessment | American Heritage: petition challenges refund denial (timely) because it paid an amount and sought refund; thus review within 60 days of refund denial is permitted | Dept.: petition is in substance a challenge to the 2010 assessment and is jurisdictionally time‑barred because not brought within 60 days of finality of assessment | Petition was an action "brought to contest" the original assessment (its purpose was to dispute the assessment); action is untimely and dismissed |
| Whether construing refund-review petitions to permit late assessment challenges renders § 72.011(2)(a)’s assessment deadline meaningless | American Heritage: permitting refund-based challenges would vindicate overpayments and allow review of unlawful assessments after payment | Dept.: allowing this would nullify the separate 60-day assessment limit and let taxpayers circumvent the jurisdictional deadline | Court held such a reading would conflict with statutory scheme; both 60-day limits must be given effect |
| Whether Newsweek due-process precedent requires a postpayment remedy here | American Heritage (raised on appeal): denial of remedy after partial payment violates procedural due process per Newsweek | Dept.: argument not preserved below; and Newsweek is distinguishable because that case involved taxes later held unconstitutional and Florida had held out a postpayment remedy | Argument unpreserved and, on the merits, inapplicable—Newsweek does not control because facts differ and statute here warned of the 60-day bar |
Key Cases Cited
- Donato v. American Tel. & Tel. Co., 767 So. 2d 1146 (Fla. 2000) (statutory language is given its common and ordinary meaning)
- Markham v. Neptune Hollywood Beach Club, 527 So. 2d 814 (Fla. 1988) (time bars framed as jurisdictional statutes of nonclaim operate as divestiture of jurisdiction)
- May v. Illinois National Insurance Co., 771 So. 2d 1143 (Fla. 2000) (jurisdictional nonclaim statutes automatically bar untimely claims)
- Newsweek, Inc. v. Florida Department of Revenue, 522 U.S. 442 (1998) (due process concerns where state appears to promise a clear postpayment remedy but then denies it)
- Pogge v. Department of Revenue, 703 So. 2d 523 (Fla. 1st DCA 1997) (construing earlier statute language excluding refund actions from the assessment time bar; distinguished)