Davis v. Ponte Vedra Club
| Decision Date | 23 March 1955 |
| Citation | 78 So.2d 858 |
| Parties | L. O. DAVIS, as Sheriff of St. Johns County, Florida, and C. M. Gay, as Comptroller of the State of Florida, Appellants, v. PONTE VEDRA CLUB, a Corporation not for profit organized and existing under thelaws of the State of Florida, Appellee. |
| Court | Florida Supreme Court |
Richard W. Ervin, Atty. Gen., Fred M. Burns, and John D. Moriarty, Asst. Attys. Gen., for appellants.
Adair, Kent, Ashby & Crenshaw, Jacksonville, for appellee.
This is an appeal from a final decree of the Circuit Court of St. Johns County, the effect of which was to enjoin the State Comptroller and the Sheriff of St. Johns County, hereinafter referred to as the appellants, from proceeding against Ponte Vedra Club, hereinafter referred to as the appellee, for the purpose of collecting state taxes on taxable purchases of tangible personal property made by the appellee, whose records do not indicate that such taxes were paid by the appellee to the various sellers or vendors from whom the purchases were made. The appellee is a non-profit corporation which operates a hotel, bath club and golf course. As such it collects rentals from guests of the hotel, which rentals are subject to the sales tax, levied by Section 212.03 of the Act, F.S.1953, F.S.A. There is no issue here as to this tax. By reason of its exercising such taxable privileges appellee is a registered dealer under the Act. In this operation the appellee necessarily purchases tangible personal property for its own use and consumption, for example sheets for beds, towels, uniforms for employees, food for the dining room and the like. The purchases made during the period from November 1, 1949 to December 31, 1952 run well over $1,000,000. The records relating to purchases in the amount of approximately $65,000 from one hundred thirty seven different Florida merchants do not affirmatively show that the tax was collected from the appellee on these purchases. The Comptroller assessed taxes on these all the way back to November 1, 1949, which, together with interest and penalties, aggregates $2,584.94. The articles in question were used and consumed by the appellee but its records do not indicate whether or not the sales tax was added to or included in the sale price of these articles. There is no dispute on this. It is the contention of the appellee that the records of the sellers of these articles should show whether or not a sales tax was collected and that the Comptroller is limited to checking the records of these sales to determine whether or not the tax has been paid and collected.
The question involved in this appeal may be stated as follows:
Can the State of Florida, through its Comptroller, proceed directly against a registered dealer, who is the purchaser and ultimate consumer of tangible personal property from vendors located in Florida, and collect the sales tax direct from the purchaser where the records of such purchaser fail to show that the tax has been collected from him by such vendors or sellers?
Section 212.06(2)(d) F.S.1953, F.S.A., provides:
'The term 'dealer' is further defined to mean any person who has sold at retail, or used, or consumed, or distributed, or stored for use or consumption in this state, tangible personal property and who cannot prove that the tax levied by this chapter has been paid on the sale at retail, the use, the consumption, the distribution, or the storage of said tangible personal property.' (Emphasis supplied.)
The question as to who is to pay the tax, against whom the tax is levied, was set at rest by the Supreme Court in the case of Spencer v. Mero, 52 So.2d 679, wherein the Court said:
'The sales tax law provides that the person exercising a taxable privilege shall be subject to a tax and for the exercise of the privilege a 'tax is levied', 212.05, F.S.1941, F.S.A.; that ...
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...repeal the exemption to the extent of the tax imposed by the act. Finally, I find merit in appellant's contention that in Davis v. Ponte Vedra Club, Fla., 78 So.2d 858, which involved a tax levied under F.S. Chapter 212, F.S.A. on a nonprofit corporation engaged in transient rentals and in ......
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...way in Tennessee, see Herbert Shainberg, 33 T.C. 241, 249). It reaffirmed the doctrine of the Spencer v. Mero case in Davis v. Ponte Vedra Club, 78 So.2d 858, 859; and in Scripto, Inc. v. Carson, 105 So.2d 775, affd. 362 U.S. 207 (1960), it made the statement, perhaps by way of obiter dictu......
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State ex rel. Housing Authority of Plant City v. Kirk, 38907
...repudiate and recede from so much of the language in the cases of Spencer v. Mero (52 So.2d 679 (Fla.1951)) and Davis v. Ponte Vedra Club (78 So.2d 858 (Fla.1955)) as is in conflict with our decision in the Gaulden case (Gaulden v. Kirk, 47 So.2d 567 (Fla.1950)).' Green v. Panama City Housi......
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Green v. Panama City Housing Authority
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