STATE OF FLORIDA, DEPARTMENT OF REVENUE TALLAHASSEE, FLORIDA

Transcription

1 STATE OF FLORIDA, DEPARTMENT OF REVENUE TALLAHASSEE, FLORIDA GREATER MIAMI JEWISH CEMETERY ASSOCIATION, INC. Petitioner, CASE NO vs. DOR FOF DEPARTMENT OF REVENUE, Respondent FINAL ORDER THIS CAUSE came before the for the purpose of issuing a Final Order. The Administrative Law Judge assigned by the Division of Administrative Hearings heard this cause and issued a Recommended Order. A copy of that Order is attached to this Final Order. The Department has jurisdiction of this cause. STATEMENT OF THE ISSUE The Department adopts and incorporates in this Final Order the Statement of the Issue in the Recommended Order. PRELIMINARY STATEMENT Department adopts and incorporates in this Final Order the Preliminary Statement in the Recommended Order. FINDINGS OF FACT The Department adopts and incorporates in this Final Order the Findings of Fact in the Recommended Order. CONCLUSIONS OF LAW

2 6. Conclusion of Law number 6. set forth in the Recommended Order is adopted and is specifically incorporated by reference as if fully set forth herein. 7. through 12. Conclusions of Law 7. through 12. are rejected and are hereby replaced with Conclusions of Law 7. through 14, as follows: 7. Tax exemptions are a matter of legislative grace. It is a well-recognized rule of law that tax exemptions must be strictly construed against the taxpayer seeking them in favor of the State. Sebring Airport Authority v. McIntyre, 642 So.2d 1072 (Fla. 1994) Capital City Country Club v. Tucker, 613 So.2d 446 (Fla. 1993); Asphalt Pavers, Inc. v. Dept. Of Revenue, 584 So.2d 55 (Fla. 1st DCA 1991). The parties have indicated, in the Prehearing Stipulation, their agreement with the applicability of this rule of law in this particular matter. The Petitioner has met its burden of proof. 8. Petitioner claims that it is automatically entitled to exemption pursuant to Section (7)(o)l.b., Florida Statutes, which provides that: 1. There are exempt from the tax imposed by this part transactions involving: * * * b. Sales or leases to nonprofit religious, nonprofit charitable, nonprofit scientific, or nonprofit educational institutions when used in carrying on their customary nonprofit religious, nonprofit charitable, nonprofit scientific or nonprofit educational, activities, including church cemeteries... [emphasis added] 9. The cited language does not create any type of exempt entity. Instead, the language indicates that only certain types of transactions engaged in by entities meeting one of the definitions contained in Section (7)(o), Florida Statutes for religious, charitable, educational or scientific institutions, are entitled to receive exemption from tax. This statutory provision specifically indicates that the exemption for a religious, charitable, educational or scientific

3 institution can be used by a qualifying exempt entity only for those transactions involving the carrying on of the customary nonprofit purpose of the entity. The placement of the words "church cemeteries" after the listing of the types of exempt activities that may be engaged in by an entity that meets the definition, under Section (7)(o), Florida Statues, of a "nonprofit religious institution," is designed to set forth a specific example of a customary nonprofit religious purpose. That is, the operation and management of a church (or, religious) cemetery is a type of customary nonprofit religious activity for which a qualifying religious institution can use its exemption. In order for a church or religious cemetery to qualify for exemption as a religious institution itself, it must meet one of the definitions for "religious institutions" set forth in Section (7)(o)2.a., Florida Statutes. 10. Section (7)(o)2.a., Florida Statutes, provides, in part, that: 2. The provisions of this section... shall be strictly defined, limited, and applied in each category... a. "Religious institutions" means churches, synagogues and established physical places for worship at which nonprofit religious services and activities are regularly conducted and carried on. The term "religious institutions" includes nonprofit corporations the sole purpose of which is to provide free transportation services to church members, their families and other church attendees. The term "religious institutions" also includes state, district, or other governing or administrative offices the function of which is to assist or regulate the customary activities of religious organizations or members. The term "religious institutions" also includes any nonprofit corporation which is qualified.as nonprofit pursuant to s. 501(c)(3), United States Internal Revenue Code, as amended, which owns and operates a Florida television station... The term... also includes any nonprofit corporation... which provides regular religious services to Florida state prisoners Petitioner has met its burden of proving that it is

4 entitled to exemption from sales and use taxes as a "religious institution". The uncontroverted evidence is that Petitioner owns two cemeteries for persons of the Hebrew faith and has a chapel, i.e., an established physical place of worship. Petitioner conducts and carries on regular nonprofit religious services and activities at the chapel. Thus, Petitioner qualifies for exemption pursuant to Section (7)(o)2.a., Florida Statutes. Based on the foregoing, it is, ORDERED that the application of the Petitioner as a religious institution is approved and that the Petitioner is granted a consumer's certificate of exemption. DONE AND ENTERED in Tallahassee, Leon County, Florida this 21st day of December STATE OF FLORIDA DEPARTMENT OF REVENUE L.H. FUCHS EXECUTIVE DIRECTOR CERTIFICATE OF FILING I HEREBY CERTIFY that the foregoing Final Order has been filed in the official records of the, this 21st day of December JUDY LANGSTON AGENCY CLERK JUDICIAL REVIEW Any party to this Order has the right to seek judicial review of the Order pursuant to section , F.S., by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Department in the Office of the General Counsel, Post Office Box 6668, Tallahassee, Florida , and by filing a copy of the

5 Notice of Appeal, accompanied by the applicable filing fees, with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this order is filed with the Clerk of the Department. Attachment: Administrative Law Judge's Recommended Order Copies furnished to: Linda Rigot Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL Max Silver, Esquire Silver & Silver 150 Southeast Second Avenue, Suite 500 Miami, Florida William B. Nickell, Esquire Assistant General Counsel Post Office Box 6668 Tallahassee, FL Linda Lettera, Esquire General Counsel Post Office Box 6668 Tallahassee, FL STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS GREATER MIAMI JEWISH CEMETERY ASSOCIATION, INC., Petitioner,

6 vs. Case No DEPARTMENT OF REVENUE, Respondent. RECOMMENDED ORDER Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on June 30, 1998, in Miami, Florida. APPEARANCES For Petitioner: Max R. Silver, Esquire Silver & Silver 150 Southeast Second Avenue, Suite 500 Miami, Florida For Respondent: William B. Nickell, Esquire 501 South Calhoun Street, Suite 304 Tallahassee, Florida STATEMENT OF THE ISSUE The issue presented is whether Petitioner is entitled to a consumer certificate of exemption as a religious institution. PRELIMINARY STATEMENT Petitioner applied to the Department for a consumer certificate of exemption, and the Department denied that application by Notice of Intent to Deny dated October 24, Petitioner requested an evidentiary hearing regarding that denial. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding. Petitioner presented the testimony of Rabbi David Oler and of Max Silver. Additionally, Petitioner's Exhibits numbered 1 and 2 were admitted in evidence. Respondent offered no witnesses or exhibits.

7 FINDINGS OF FACT 1. Petitioner, Greater Miami Jewish Cemetery Association, Inc., is a Florida not-for-profit corporation chartered on June 23, 1931, and is an exempt organization under Section 501(c)(3) of the Internal Revenue Code of Petitioner is a non-stock membership corporation which has three constituent members, namely, Beth David Congregation of Miami, Florida; Beth El Congregation of Miami Beach, Florida; and Beth Jacob Congregation of Miami Beach, Florida, which synagogues are existing Florida not-for-profit corporations exempt from taxation under Section 501(c)(3) of the Internal Revenue Code. 2. Petitioner maintains and operates two cemeteries in Miami, Dade County, Florida, which are dedicated to burial of members of its constituent member synagogues and other persons of the Hebrew faith, including free burial plots for indigent persons of the Hebrew faith, and, as such, have been classified under the State of Florida Funeral and Cemeteries Act as "church cemeteries." 3. It is a religious obligation of the Hebrew faith to provide for and bury the dead. It is usual for synagogues to maintain cemeteries for their members. 4. No synagogue is located on the premises of Petitioner because some Jews are forbidden to be on the grounds near dead bodies. Accordingly, Jewish cemeteries do not have synagogues on the premises, and, conversely, synagogues do not have cemeteries on their premises, as some churches do. 5. Petitioner does have, however, a room or chapel area where religious services are conducted by Petitioner's constituent members, the three synagogues. Those religious services and activities conducted there include burial services, services on religious holy days, and memorial services. CONCLUSIONS OF LAW 6. The Division of Administrative Hearings has jurisdiction

8 over the parties hereto and the subject matter hereof. Sections and (1), Florida Statutes. 7. The parties have stipulated that tax exemptions must be strictly construed against the taxpayer seeking an exemption and that Petitioner must show entitlement to the exemption from sales and use tax sought by Petitioner in this proceeding. Petitioner has met its burden of proof. 8. Petitioner claims it is exempt from sales and use tax as a religious institution pursuant to Section (7)(o)1.b, Florida Statutes, which provides that: 1. There are exempt from the tax imposed by this part transactions involving: * * * b. Sales or leases to nonprofit religious... institutions when used in carrying on their customary nonprofit religious... activities, including church cemeteries The Department does not dispute the applicability of this Section to some of Petitioner's transactions. The Department argues that this Section, however, relates to exempt transactions, not to exempt entities, which are covered by Section (7)(o)2.a, Florida Statutes. The Department's argument is consistent with the 'statutory language, and, Petitioner, accordingly, is entitled to engage in the described transactions without being obligated for the payment of sales and use taxes. 10. Section (7)(o)2.a, Florida Statutes, provides in part, as follows: 2. The provisions of this section authorizing exemptions from tax shall be strictly defined, limited, and applied in each category as follows: a. `Religious institutions' means churches, synagogues, and established physical places for worship at which nonprofit religious services and activities are regularly conducted and carried on.

9 11. Petitioner has met its burden of proving that it is also entitled to an exemption from sales and use taxes as a religious institution, an exempt entity. The uncontroverted evidence is that Petitioner owns two cemeteries for persons of the Hebrew faith and has a chapel, i.e., an established physical place for worship, at which nonprofit religious services and activities are regularly conducted by Petitioner's constituent synagogues. 12. The Department relies on several final orders issued by it regarding applications for certificates of exemption as religious institutions by other taxpayers, for which final orders official recognition was granted. However, although those cases involved the interpretation of portions of Section (7)(o)2.a not involved in this proceeding, none of those cases involved a cemetery, let alone a religious cemetery. Those final orders, therefore, are not dispositive of this proceeding or even persuasive. The determination of entitlement depends upon the facts involved in each case, and the facts in this matter are uncontroverted. The Department's intended denial of Petitioner's application is contrary to the statutory language. RECOMMENDATION Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Petitioner's application for a consumer certificate of exemption. DONE AND ENTERED this 24th day of September, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida

10 (850) SUNCOM Fax Filing (850) Filed with the Clerk of the Division f Administrative Hearings this 24th day of September, COPIES FURNISHED: Max R. Silver, Esquire Silver & Silver 150 Southeast Second Avenue, Suite 500 Miami, Florida William B. Nickell, Esquire 501 South Calhoun Street, Suite 304 Tallahassee, Florida Linda Lettera, General Counsel 204 Carlton Building Tallahassee, Florida Larry Fuchs, Executive Director 104 Carlton Building Tallahassee, Florida NOTICE OF RIGHT TO SUBMIT EXCEPTIONS All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should he filed with the agency that will issue the Final Order in this case.