STATE OF FLORIDA, DEPARTMENT OF REVENUE TALLAHASSEE, FLORIDA. UNTO OTHERS, INC. Petitioner, Case No DOR FOF

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1 STATE OF FLORIDA, DEPARTMENT OF REVENUE TALLAHASSEE, FLORIDA UNTO OTHERS, INC. Petitioner, vs. Case No DOR FOF DEPARTMENT OF REVENUE Respondent. FINAL ORDER This cause came on before the Department of Revenue 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 dated August 31, A copy of the Recommended Order is attached to this Final Order. No exceptions to the Recommended Order were filed and there are no proposed substituted orders to consider. 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 The Department adopts and incorporates in this Final Order the Preliminary Statement in the Recommended Order. FINDINGS OF FACT The Department adopts and incorporates by reference the findings of fact set forth in the Recommended Order. CONCLUSIONS OF LAW

2 The Department adopts and incorporates in this Final Order the Conclusions of Law in the Recommended Order. Based on the foregoing, it is, ORDERED that Unto Others Inc.'s application for a consumers' certificate of exemption be denied. ENTERED in Tallahassee, Leon County, Florida this 22nd day of October, State of Florida DEPARTMENT OF REVENUE L.H. FUCHS EXECUTIVE DIRECTOR I HEREBY CERTIFY that the foregoing FINAL ORDER in UNTO OTHERS INC. V. DEPARTMENT OF REVENUE, DOAH Case No , has been filed in the official records of the Florida Department of Revenue this 22nd day of October, JUDY LANGSTON AGENCY CLERK Copies furnished to: Errol H. Powell, Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida E. Patrick Heeney, Secretary Unto Others Inc. 500 Northeast 8th Street Pompano Beach, Florida Linda Lettera, General Counsel William B. Nickell, Assistant General Counsel

3 Florida Department of Revenue P.O. Box 6668 Tallahassee, FL NOTICE OF RIGHT TO JUDICIAL REVIEW A party who is adversely affected by this final order is entitled to judicial review pursuant to Section , Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk of the Department of Revenue and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate District where the party resides. The Notice of appeal must be filed within 30 days of rendition of the order to be reviewed. STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS UNTO OTHERS, INC., Petitioner, vs. Case No DEPARTMENT OF REVENUE, Respondent. RECOMMENDED ORDER Pursuant to notice, a formal hearing was held in this case by video teleconference on June 12, 1998, at Fort Lauderdale, Florida, before Errol H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings. APPEARANCES For Petitioner: E. Patrick Heeney, Secretary

4 Unto Others, Inc. 500 Northeast 8th Street Pompano Beach, Florida For Respondent: William B. Nickell Assistant General Counsel Department of Revenue 501 South Calhoun Street, Suite 304 Tallahassee, Florida STATEMENT OF THE ISSUE The issue for determination is whether Petitioner should be granted a consumer's certificate of exemption pursuant to Subsection (7)(o), Florida Statutes. PRELIMINARY STATEMENT Unto Other, Inc. (Petitioner) applied for a consumer's certificate of exemption pursuant to Subsection (7), Florida Statutes. By Notice of Intent to Deny (Notice) dated January 30, 1998, the Department of Revenue (Respondent) notified Petitioner that its application was being denied. The grounds stated in the Notice for the denial were the following: (1) "Your organization does not provide, nor does it raise funds for charitable institutions which provide one or more of the charitable services listed in the statute"; and (2) "Your organization fails to meet the qualification for exemption from sales and use taxation, as set forth in Section (7), Florida Statutes." By letter dated February 25, 1998, Petitioner's President challenged the denial and requested a formal hearing. On March 12, 1998, this matter was referred to the Division of Administrative Hearings. Prior to hearing, the parties entered into and filed a prehearing stipulation in which, among other things, they stipulated to certain facts. At hearing, Petitioner presented the testimony of one witness and Respondent called no witnesses to testify. The parties entered one joint composite exhibit into evidence.(en 1)

5 No transcript of hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the conclusion of the hearing. Only Respondent filed a post-hearing submission which has duly considered in the preparation of this recommended order. FINDINGS OF FACT 1. The Department of Revenue (Respondent) is the state agency charged with enforcement of Chapter 212, Florida Statutes, and the issuance of certificates of exemption. 2. Unto Others, Inc. (Petitioner) is an organization incorporated in the State of Florida as a non-profit corporation. Petitioner's Articles of Incorporation, Article II, states Petitioner's purpose as follows: The purposes for which the Corporation [Petitioner] is organized are exclusively religious, charitable, scientific, literary, and educational within the meaning of section 501(c)(3) of the Internal Revenue Code of 1986 or the corresponding provision of any future United States Internal Revenue law. 3. Petitioner made application to the Respondent for a certificate of exemption as a charitable institution pursuant to Subsection (7)(o)2.b, Florida Statutes. Petitioner did not make application for an exemption as a scientific, religious, or educational institution, but it may in the future apply under these criteria. 4. By Notice of intent to Deny (Notice) dated January 30, 1998, the Respondent notified Petitioner that its application was being denied. The grounds stated in the Notice for the denial were the following: (1) "Your organization does not provide, nor does it raise funds for charitable institutions which provide one or more of the charitable services listed in the statute [Subsection (7)(o)2.b., Florida Statutes]."; and (2) "Your organization fails to meet the qualification for exemption from sales and use taxation, as set forth in Section

6 212.08(7), Florida Statutes." 5. Currently, Petitioner's sole function is the raising of funds to enable Petitioner to rehabilitate people and dwellings. All of Petitioner's activities are conducted by non-paid volunteers. 6. No evidence was presented to show that Petitioner rehabilitates any person or dwelling, or holds religious services. 7. No evidence was presented to show that Petitioner governs or administers any office within any hierarchy of a larger organization. 8. No evidence was presented to show that Petitioner participates with or controls another organization. 9. No evidence was presented to show that Petitioner expends more than 50 percent of its expenditures toward any charitable service. 10. No evidence was presented to show that Petitioner disburses more than 50 percent of its expenditures directly for a charitable service or to any entity that directly provides or performs any charitable service. 11. No evidence was presented to show that Petitioner directly provides or performs any charitable service for any entity or person; or that Petitioner provides any goods or services as a charitable service. 12. No evidence was presented to show that Petitioner directly provides a reasonable percentage of any charitable service fee or at a substantially reduced cost to persons, animals, or organizations that are unable to pay for such services. 13. No evidence was presented to show that any charitable service was provided free or at a substantially reduced cost.

7 14. No evidence was presented to show that persons, animals, or organizations actually received any charitable service and that those persons, animals, or organizations were unable to pay for such service(s) 15. Petitioner does not currently provide any of the services listed in Subsection (7)(o). CONCLUSIONS OF LAW 16. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section and Subsection (1), Florida Statutes. 17. A tax exemption is to be strictly construed against the claimer of the exemption. State ex re. Szabo Food Services, Inc. v. Dickinson, 286 So.2d 529 (Fla. 1973); Capital City Country Club v. Tucker, 613 So.2d 448 (Fla.1993); Asphalt Pavers, Inc. v. Department of Revenue, 584 So.2d 55 (Fla. 1st DCA 1991). Moreover, doubtful language in exemption statutes is construed against the taxpayer. United States Gypsum Co. v. Green, 110 So.2d 409 (Fla. 1959) 18. Petitioner has the burden of showing its entitlement to the exemption. Grant v. Pederson, 99 So.2d 292 (Fla. 1957). part: 19. Section , Florida Statutes, provides in pertinent The sale at retail, the rental, the use, the consumption, the distribution, and the storage to be used or consumed in this state of the following are hereby specifically exempt from the tax imposed by this chapter. * * * (7) MISCELLANEOUS EXEMPTIONS. (o) Religious, charitable, scientific, educational, and veterans' institutions and organizations.-

8 1. There are exempt from the tax imposed by this chapter 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; and.... * * * 2. The provisions of this section authorizing exemptions from tax shall be strictly defined, limited, and applied in each category as follows: * * * b. "Charitable institutions" means only nonprofit corporations qualified as nonprofit pursuant to s. 501(c)(3), Internal Revenue Code of 1954, as amended, and other nonprofit entities, the sole or primary function of which is to provide, or to raise funds for organizations which provide, one or more of the following services if a reasonable percentage of such service is provided free of charge, or at a substantially reduced cost, to persons, animals, or organizations that are unable to pay for such service: (I) Medical aid for the relief of disease, injury, or disability; (II) Regular provision of physical necessities such as food, clothing, or shelter; (III) Services for the prevention of or rehabilitation of persons from alcoholism or drug abuse; the prevention of suicide; or the alleviation of mental, physical, or sensory health problems;

9 (IV) Social welfare services including adoption placement, child care, community care for the elderly, and other social welfare services which clearly and substantially benefit a client population which is disadvantaged or suffers a hardship; (V) Medical research for the relief of disease, injury, or disability; (VI) Legal services; or (VII) Food, shelter, or medical care for animals or adoption services, cruelty investigations, or education programs concerning animals; and the term includes groups providing volunteer staff to organizations designated as charitable institutions under this sub-subparagraph; nonprofit organizations the sole or primary purpose of which is to coordinate, network, or link other institutions designated as charitable institutions under this sub-subparagraph with those persons, animals, or organizations in need of their services; and non-profit national, state, district, or other governing, coordinating, or administrative organizations the sole or primary purpose of which is to represent or regulate: the customary activities of other institutions designated as charitable institutions under this sub-subparagraph Rule 12A-1.001, Florida Administrative Code, provides in pertinent part: (3) RELIGIOUS, EDUCATIONAL, CHARITABLE, VETERANS' AND SCIENTIFIC ORGANIZATION, HOMES FOR THE AGED, NURSING HOMES OR HOSPICES, FEDERAL AND STATE CHARTERED CREDIT UNIONS, FLORIDA RETIRED EDUCATORS ASSOCIATION AND LOCAL CHAPTER, ORGANIZATIONS PROVIDING SPECIAL EDUCATIONAL AND SOCIAL BENEFITS TO MINORS, STATE THEATER CONTRACT ORGANIZATIONS, MILITARY MUSEUM FUNDRAISERS (sic), COAST GUARD AUXILIARIES, AND CEMETERY ASSOCIATIONS.

10 (a) A sale or lease directly to or sales or leases of tangible personal property by churches, or a sale or lease directly to nonprofit religious, nonprofit educational nonprofit charitable institutions, and veterans' organizations, for use in the course of their customary nonprofit religious, nonprofit educational, nonprofit charitable activities, and for use by veterans, organizations, including church cemeteries, are exempt from the tax imposed by Chanter 212, F.S... However, such institutions or organizations desiring to qualify for the exemption must obtain from the Department of Revenue a consumer's certificate of exemption, and payment must be made directly to the dealer by the exempt entity... (g) 1. "Charitable institutions" means only nonprofit corporations qualified as nonprofit pursuant to s. 501(c)(3), United States Internal Revenue Code, 1954, as amended, and other nonprofit entities that meet the following requirements: a. the sole or primary function is providing a "qualified charitable service" as defined in this subsection; and b. a reasonable percentage of such service is provided free of charge, or at a substantially reduced cost, to persons, animals, or organizations that are unable to pay for such service. 2. "Qualified charitable service" means: a. Medical aid for the relief of disease, injury, or disability; b. Regular provision of physical necessities such as food, clothing, or shelter; c. Services for the prevention of or rehabilitation of persons from alcoholism or drug abuse; the prevention of suicide; or the alleviation of mental, physical, or sensory health problems; services include public education or awareness programs intended to relieve or prevent any

11 disease, injury, or disability; d. Social welfare services including adoption placement, child care, community care for the elderly, and other social welfare services which clearly and substantially benefit a client population which is disadvantaged or suffers a hardship; e. Medical research for the relief of disease, injury, or disability; f. Legal services; g. Food, shelter, or medical care for animals or adoption services, cruelty investigations, or education programs concerning animals; h. Providing volunteer manpower to charitable institutions as defined in this subsection; or i. Raising funds for "charitable institutions" as defined in this subsection. 3.a. For the purpose of this subsection the following terms and phrases shall have the meaning ascribed to them except when the context clearly indicates a different meaning: I. "Persons unable to pay" means persons whose annual income is 150 percent or less of the current Federal Poverty Guidelines or whose uncompensated hospital charges exceed 25 percent of their annual family income for the preceding 12 months. A charity day shall be computed from the amount of uncompensated services to persons unable to pay.... c. For providers of low-income housing, "persons unable to pay" means persons who qualify as "low-income persons" pursuant to Florida's "State Housing Strategy Act." d. "Substantially reduced cost" means the normal charge, market price, or fair market value to a purchaser or

12 recipient, diminished in an amount of considerable quantity. e. "Sole or primary function" means that a charitable institution, excluding hospitals, must establish and support its function as providing or raising funds for services as outlined in subparagraphs 1. and 2. above, by expending in excess of 50.0 percent of the charitable institution's operational expenditures towards "qualified charitable services", as defined in subparagraph 2.a. -- g. within the charitable institution's most recent fiscal year. 4.a. For charitable institutions other than hospitals, a "reasonable percentage" of the charitable services provided free or at a substantially reduced cost to those unable to pay will be determined by the particular circumstances of each institution. The following factors shall be considered in determining whether a nonprofit entity is providing a reasonable percentage of its charitable services free of charge or at a substantially reduced cost to persons, animals, or institutions unable to pay for such services: I. services are provided free of charge; II. services are provided at a substantially reduced cost to the recipient; III. available services are provided to anyone who requests the service without regard to ability to pay; IV. the ratio of services offered without cost or at a substantially reduced cost to the cost of all services provided; V. the fair market value of the provided services offered free or at a substantially reduced cost compared to the amount of sales tax savings to the institution resulting from exemption; VI. the likelihood that due to the nature of the services

13 provided and the geographic area in which the services are provided, the services will be delivered to those unable to pay; VII. medical research services and public education and awareness programs are intended to benefit the public in that they are directed toward or involve diseases, injuries, or disabilities which can affect members of the public. b. If a charitable institution, other than a hospital, does not screen to determine whether its clientele are unable to pay, the institution may submit to the Department a statement signed by an officer or director of the institution which specifies the institution's best good faith estimate of the percentage of its services provided without charge or at a substantially reduced cost to persons unable to pay and the basis for the estimate. 21. Subsection (7)(o) provides an exemption for charitable institutions from Florida's sales, storage, and use tax and provides that the exemption shall be strictly defined, limited, and applied. 22. Strictly construing Subsection (7)(o), Petitioner has failed to demonstrate that it satisfies all the requirements for the exemption. Petitioner has demonstrated only that it is a non-profit organization. RECOMMENDATION Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order denying a consumer's certificate of exemption to Unto Others, Inc. DONE AND, ENTERED this 31st day off August, 1998, in Tallahassee, Leon County, Florida.

14 ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida (850) SUNCOM Fax Filing (850) Filed with Clerk of the Division of Administrative Hearings this 31st day of ENDNOTE ENDNOTE 1 The joint composite exhibit consists of Petitioner's Articles of Incorporation and By-Laws filed with the Secretary of State of the State of Florida. COPIES FURNISHED: E. Patrick Heeney, Secretary Unto Others Inc. 500 Northeast 8th Street Pompano Beach, Florida William B. Nickell Assistant General Counsel Department of Revenue 501 South Calhoun Street, Suite 304 Tallahassee, Florida Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida

15 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 be filed with the agency that will issue the final order in this case.