Part 3 - FL DOR's Bad Legislative Package 2022

On December 29, 2021, we posted an article on our website entitled, “Florida DOR’s 2022 Legislative Package BAD for Florida Business”, which included a link to the twenty proposed ideas prepared by the Florida Department of Revenue (“DOR”). These ideas are a wish list of how the DOR wants to further mistreat taxpayers. We are posting a series of articles involving a more in-depth review of these proposed ideas and how the ideas may impact you and your business. Senator Joe Gruters, from Senate District 23, is sponsoring this legislation in SB 1382, and Representative Cyndi Stevenson, from House District 17, is the sponsor of the companion bill in the House in HB 1041.

One of the heaviest handed taxpayer’s business rights infringements in the DOR’s 2022 proposal is found in concept number five, which is entitled “Refusal to Give Records/Resale Certificate.” The proposed language is confusing in several aspects. However, the DOR’s proposal clearly indicates the intent to allow. The DOR could immediately suspend a business’s ability to maintain a resale certificate to purchase and resell alcoholic beverages or tobacco products. The DOR could do so for failing to provide records. Worse off, the DOR must report to the Department of Business and Professional Regulation (“DBPR”) to remove the business’s license to sell alcohol and/or tobacco products. This concept can impact every bar, restaurant, package store, liquor store, and convenience store. Moreso, this consequence could be triggered by any DOR employee that wants to make the life of a business owner incredibly difficult.

DOR’s authoritative move involves the DOR’s authority under s. 212.13, Fla. Stat., which primarily involves the DOR’s authority to audit a business. However, the language of the statute can allow other DOR employees to request records, i.e., a collector, an investigator, or an auditor, to name a few. The proposed statutory language would allow ANY DOR employee to request records from a business licensed by DBPR to sell alcohol or tobacco. By failing to provide records within ten days of the request by ANY DOR employee, the DOR will then have “deemed sufficient cause” to notify DBPR for further action by DBPR concerning the business’s alcoholic beverage or tobacco license. In addition to impacting the alcoholic beverage or tobacco license, the DOR will suspend the business’s resale certificate.

Not only are there serious issues and consequences with the ability of ANY DOR employee to suspend the resale certificate and ABT license of a business owner, but there are also issues with the type and extent of the notices and written requests to impacted businesses. Requests of such a grave and impactfully nature should require at least certified mail. This proposal appears to take the easiest way to quickly close a business that holds an alcoholic beverage or tobacco license.

Another troubling aspect of this proposed concept is that a business could be shut down within ten days by ANY DOR employee before the business owner is given the opportunity to establish reasonable cause to establish that the records do not exist. Sometimes, it takes the mail more than ten days just to be delivered. Under the DOR’s view of how the world should work, the DOR can shut down a business before the business even receives the notice!

So, ANY DOR employee can request records of a business with an alcoholic beverage or tobacco license, and the failure to provide the records with in ten days is sufficient cause to immediately suspend the resale certificate and the alcoholic beverage or tobacco license. The business can try and establish reasonable cause for failing to provide the records within thirty days, but by then it will be too late, and the irrevocable damage will be done. Putting everything else in the DOR’s legislative package aside, this idea unequivocally establishes how the DOR views all businesses as being “guilty until proven innocent.” The proposed change lacks any procedural due process, as a business has a property right in its resale certificate and alcoholic beverage or tobacco license.

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 150 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

212.13 - Records required to be kept; power to inspect; audit procedures

561.29 Revocation and suspension of license; power to subpoena

2022 Florida Department of Revenue Legislative Package

ADDITIONAL RESOURCES

Florida DOR’s 2022 Legislative Package BAD for Florida Businesses, published December 29, 2021

FLORIDA SALES TAX AUDIT HELP, published August 24, 2020, by James Sutton, CPA, Esq.