City of Miami v. Florida Retail Federation, Inc.

• Decision Date: 28 December 1982
• Docket Number: No. 82-231,82-231
• Citation: 423 So.2d 991
• Parties: CITY OF MIAMI, a municipal corporation, Appellant, v. FLORIDA RETAIL FEDERATION, INC., a Florida corporation; Superex Drugs, Inc., a Michigan corporation; Jefferson Stores, Inc., a Delaware corporation, and G.C. Murphy, Company, a Pennsylvania corporation, Appellees.
• Court: Florida District Court of Appeals

Page 991

423 So.2d 991

CITY OF MIAMI, a municipal corporation, Appellant, v. FLORIDA RETAIL FEDERATION, INC., a Florida corporation; Superex Drugs, Inc., a Michigan corporation; Jefferson Stores, Inc., a Delaware corporation, and G.C. Murphy, Company, a Pennsylvania corporation, Appellees.

No. 82-231.

District Court of Appeal of Florida,

Third District.

Dec. 28, 1982.

Jose R. Garcia-Pedrosa, City Atty. and Mikele S. Carter, Asst. City Atty., for appellant.

Roberts, Baggett, LaFace, Richard & Wiser and Barry Richard, Tallahassee, for appellees.

Before HENDRY, BASKIN and JORGENSON, JJ.

BASKIN, Judge.

The City of Miami appeals from an amended final judgment entered in a class action. ¹ A group of merchants filed a lawsuit to recover excess payments of occupational license taxes. They contended that City of Miami Ordinance 9188 violated section 205.043, Florida Statutes (Supp.1980), which permits cities to increase occupational license taxes up to 100% over the 1971 level with regard to businesses for which the tax was $100 or less; up to 50% for businesses for which the tax fell between $101 and $300; and up to 25% for businesses for which the tax was greater than $300. The trial court agreed and ruled that the ordinance violated section 205.043, Florida Statutes (Supp.1980) to the extent that the ordinance raised occupational license taxes 100% without regard to the 1971 taxes paid by merchants. The court required the City to reimburse merchants for 1980-81 and 1981-82 occupational license tax overpayments and to pay the merchants' attorneys a sum equal to one-third of the gross amount of reimbursement for 1980-1982.

The City contests the reimbursement to those taxpayers who failed to protest their tax payments. In addition, the City challenges the requirement that it pay attorneys' fees on behalf of taxpayers who receive no benefit because they cannot be located.

Concerning the necessity for protest, the merchants assert that they paid the taxes under statutory mandate subjecting them to substantial sanctions ² in the event they failed to comply. They contend that, accordingly, their taxes were paid involuntarily and they were not required to protest. As to attorneys' fees, the merchants raise the City's failure to present the issue to the trial court. We are asked to decide whether taxpayers who failed to protest their taxes at time of payment may recover excess occupational license taxes paid pursuant to city ordinance and whether the City must pay attorneys' fees on behalf of those taxpayers who are not reimbursed. We affirm.

We turn first to the need to protest. A taxpayer is entitled to a refund of taxes paid pursuant to an unlawful assessment, Coe v. Broward County, 358 So.2d 214 (Fla. 4th DCA 1978), but voluntary payment of an illegal tax prevents the taxpayer from obtaining a refund. Broward County v. Mattel, 397 So.2d 457 (Fla. 4th DCA 1981). In Mattel, the court stated: "Contrary to appellant's contention, no statutory provision authorizing a refund is necessary for the taxpayer to obtain a refund where payment of an illegal tax is involuntary. 31A Fla.Jur.2d, Taxation § 887." Id. at 459. Thus, whether taxpayers who failed to protest may obtain a refund depends on whether the excessive tax was paid voluntarily or involuntarily. The Mattel court reasoned that the threat that sanctions would be imposed if license taxes were not paid rendered the payment of the illegal tax involuntary and that recovery was available despite the absence of protest. Here, as in Mattel, the tax under consideration was unlawfully assessed, nonpayment subjected taxpayers to severe sanctions, and, accordingly, payment was involuntary.

The City relies primarily on Ingraham v. City of Miami, 388 So.2d 305 (Fla. 3d DCA 1980) and Willig v. Blake, 358 So.2d 871 (Fla. 3d DCA 1978) to support its assertion that the taxpayer must protest an illegal tax in order to receive a refund. In our view, those cases do not decide the issues before us. In Willig, the court considered the sufficiency of notice to the tax collector of a contest under section 194.171, Florida Statutes (1975), governing ad valorem taxation. The basis for...