On February 25, 2021, the Florida Supreme Court has issued a joint order regarding the constitutionality of the Hillsborough County transportation surtax in Robert Emerson, et al., v. Hillsborough County, Florida, etc., et al. and Stacy White v. Hillsborough County, Florida, etc. et al. The opinion, drafted by Justice Canady, found the spending directives to be unconstitutional because they conflicted with a state law that gives the county commission the authority to allocate such funds. Furthermore, the Florida Supreme Court found that the entire charter amendment must be struck because it could not be reasonably said that voters would have voted for and approved of the tax without its accompanying spending plan.
UPDATE - On Wednesday, March 3, 2021, the Hillsborough County commissioners voted to refund more than $500,000 in sales tax collected from its 1% local transportation surtax. The Hillsborough County 1% tax has recently been found unconstitutional by from the Florida Supreme Court. Hillsborough County intends to work with the Florida Department of Revenue to assist in refunding the tax collected. The Department indicated, however, that it is likely that the refund disbursements will require court involvement due to the unusual nature of the circumstances. Hopes that the Florida Supreme Court may grant a rehearing on the issue of refunds were lost after the expiration of the 14 day period for either party to file a motion for rehearing.
Florida’s Surtax
In addition to the Florida sales tax, imposed at a rate of 6% on retail sales of tangible personal property made within the state, Florida counties are authorized to impose certain local taxes as well. One such local tax is the 1% surtax, which is essentially a 1% sales tax in addition to the 6% state sales tax rate. The surtax is authorized by section 212.055(1)(a), Florida Statutes, which provides that a charter county may “levy a discretionary sales surtax, subject to approval by a majority vote of the electorate of the county.” The surtax rate may be up to 1% and approved in a referendum held at a general election.
Constitutional Conflict
The issue that arose in both Robert Emerson, et al., v. Hillsborough County, Florida, etc., et al. and Stacy White v. Hillsborough County, Florida, etc. et al. related to section 212.055(1)(d), Florida Statutes, which provides that “[p]roceeds from the surtax shall be applied to as many or as few of the uses enumerated [in the statute] in whatever combination the county commission deems appropriate.” In other words, it is the county commission that has the authority to direct the application of surtax revenues pursuant to Florida statutes.
The Hillsborough County transportation surtax, Revised Charter art. XI (2018), identified the purpose of the surtax to be funding for a variety of categories of “transportation improvements throughout Hillsborough County.” The tax proceeds were designated for distribution in three ways: (1) the general purpose portion, under which 54% of the tax proceeds were distributed to the county and each municipality to be spent in accordance with article 11; (2) the transit restricted portion, under which 45% of the proceeds were to be distributed to the Hillsborough Area Regional Transit Authority to be spent in accordance with article 11; and (3) planning and development, under which 1% of the proceeds were to be distributed to the metropolitan planning organization for purposes of assisting the other entities receiving funds and in carrying out the purpose of article 11.
The Florida Supreme Court found that Article 11 directly conflicted with section 212.055(1)(d), Florida Statutes. Specifically, the legislature did not allow proceeds of the surtax to be allocated based on a provision of a charter amendment. Hillsborough county believed that article 11 and Florida statutes could be read as operating in concert with one another. However, the fact that Article 11 had a provision recognizing the supremacy of state law and referencing compliance with the surtax statute did not resolve the underlying problem that Article 11 was in direct conflict with the statute.
Hillsborough county argued in the alternative that the offending sections of the surtax could be removed from Article 11 while the rest of the charter amendment remained intact. The county looked to a provision of the amendment which essentially stated any conflicts the charter had with state law would default to the state law. This was similarly rejected by the court. Finally, the Florida Supreme Court remained unconvinced on Hillsborough County’s argument regarding the “powers of local self-government” which recognized that a charter provision may limit the exercise by a county commission of unenumerated powers of local self-government not inconsistent with general law. The Court found that the powers of local self-government did not allow for a replacement of the specific provisions of Florida’s surtax statute.
Severability of Hillsborough County’s 1% Transportation Surtax
The lower circuit court originally upheld the surtax levy but invalidated portions of the charter amendment governing the use and distribution of surtax proceeds. In other words, the lower circuit court broke up the law to remove the invalid parts while allowing the rest to remain in effect. Florida’s Second District Court of Appeals certified that the case involved issues of great public importance requiring an immediate resolution by the Florida Supreme Court. The Florida Supreme Court subsequently accepted pass-through jurisdiction in order to rule on the issue.
On appeal, the Appellants, Robert Emerson, et al., and Stacy White, contended that the trial court erred in severing the surtax and its valid provisions from those parts of the amendment identified as unconstitutional. Meanwhile, Hillsborough County cross-appealed on the basis that the charter amendment should remain intact and in effect because none of the provisions violated the Florida constitution. Alternatively, the County argued that if provisions of the charter amendment are deemed unconstitutional, they should be removed from the amendment while allowing the remainder to remain in effect.
While the lower court agreed that the 1% transportation surtax could remove the language which conflicted with Florida statutes, the Florida Supreme Court disagreed. Specifically, the Florida Supreme Court looked to whether the taint of an illegal provision had the affect of “infecting” the entire law such that the entire amendment must be eliminated. Looking to the overall intent of the statute, the Court found that the offending terms of Article 11 were not “functionally independent” from the portion of Article 11 that imposed the surtax. Because it could not be said that voters would have adopted the unoffending portions without the offending portions, the Court struck down Article 11 in its entirety.
Conclusion
The conflict between federal and state governments is often displaying in mainstream media, particularly now in 2021 as conservative state governors and a new liberal president find themselves in opposition. However, conflicts between state and local governments can affect Americans just as, if not more, directly. While a 1% sales surtax may not seem to be significant for Hillsborough County, it was intended to be used to improve transportation – something that every resident in Hillsborough County partakes in. Moreover, the tax would be on all sales of tangible personal property, making it a tax that residents of Hillsborough County likely interact with on a daily basis. Hillsborough County residents voted for this tax, however, it is unlikely most voters realized that the surtax was being distributed in such a way that made it unconstitutional.
Article 11 intended to distribute the majority, 54%, of the surtax proceeds to counties and municipalities in accordance with their populations. Meanwhile, 45% of the proceeds were to be distributed directly the Hillsborough Area Regional Transit Authority. Both were directed to use the funds in accordance with Article 11, which broadly allowed for “transportation improvements.” Article 11 was furthermore enacted for a period of 30 years! Ultimately, Hillsborough County was set to receive an enormous sum of money which it would distribute to various entities for a very vague purpose. Section 212.055(1)(a), Florida Statutes was likely enacted in large part to prevent a misuse of funds. It seems that without it, Hillsborough County could have easily been able to use these funds in a variety of ways which Hillsborough County voters never intended.
About the Author: Jeanette Moffa is an attorney in the Fort Lauderdale office of Moffa, Sutton, & Donnini, P.A. She focuses her practice in Florida state and local tax, with an emphasis on sales and use tax. Jeanette provides SALT planning and consulting as part of her practice, addressing issues such as nexus and taxability, including exemptions, inclusions, and exclusions of transactions from the tax base. In addition, she handles tax controversy, working with state and local agencies in resolution of assessment and refund cases. You can learn more about Jeanette HERE.
About the Firm: At the Law Office of Moffa, Sutton, & Donnini, PA, our primary practice area is Florida taxes, with a very heavy emphasis in Florida sales and use tax. We have defended Florida businesses against the Florida Department of Revenue since 1991 and have over 100 years of cumulative sales tax experience within our firm. Our partners are both CPAs/Accountants and Attorneys, so we understand both the accounting side of the situation as well as the legal side. We represent taxpayers and business owners from the entire state of Florida. Call our offices today for a FREE INITIAL CONSULTATION to confidentially discuss how we can help put this nightmare behind you.
AUTHORITY
Robert Emerson, et al, vs Hillsborough County, Florida, SC19-1250, (Fla Sp Ct, 2/25/21) (held Hillsborough County 1% Surtax was held invalid because the local ordinance invalided designated where the tax revenue had to be spent in violation of the surtax statute).
Section 212.055, Fla. Stat (Surtax authorization statute)
ADDITIONAL RESOURCES
Florida Discretionary Sales Surtax: DOR Errors, by Matthew Parker, Esq., Published May 11, 2014
Fl Sales Tax: $5,000 Surtax Cap on Bulk Sales, by James Sutton, CPA, Esq., Published July 4, 2018
8.5% Hillsborough County Surtax Rate: 2019, by Matthew Parker, Esq., Published January 1, 2019
Sales and Use Tax TAA 12-025: Appropriate Discretionary Sales Surtax Rate Issue, November 2, 2012
2021 Florida Economic Nexus Legislation, by James Sutton, CPA, Esq., Published February 1, 2021