Department of Revenue of Florida v. Young American Builders, AA--209
| Decision Date | 02 April 1976 |
| Docket Number | No. AA--209,AA--209 |
| Court | Florida District Court of Appeals |
| Parties | DEPARTMENT OF REVENUE OF FLORIDA, an agency of the State of Florida, and Robert Shevin, as Attorney General of the State of Florida, Appellants, v. YOUNG AMERICAN BUILDERS, a Florida Corporation, and A. Curtis Powers, as Clerk of the Circuit Court in and for Alachua County, Florida, Appellees. |
Robert L. Shevin, Atty. Gen., and Zollie M. Maynard, Jr., Asst. Atty. Gen., for appellants.
Leonard E. Irland, Jr., Clayton, Duncan, Johnston, Clayton, Quincey, Ireland & Felder, Gainesville, for appellee Young American Builders, a corporation. No appearance for appellee Powers.
By interlocutory appeal the Department of Revenue and Attorney General complain of the circuit court's order denying their motion to dismiss an action by Young American Builders, a corporation, for an injunction against the application to Builders of the Department's Rule 12A--4.13(22), which Builders alleges violates the due process clauses of the Florida and United States Constitutions. The Department and Attorney General assert that Builders has an administrative remedy under ch. 120, F.S., and consequently that the circuit court lacks jurisdiction.
The questioned Rule provides in pertinent part that the documentary stamp tax payable on a deed under ch. 201, F.S., shall be calculated on the total price of a home, including house and lot, when developed by a corporation which conveys the lot to a homesteader and then builds his house on it. The Rule provides that 'the critical factor' in determining whether to tax the transaction as a unity 'is the intention of the parties.'
Builders' complaint asserts that the Rule is unconstitutional because there is no opportunity for a hearing before its application by the Department and because it creates an 'irrebutable presumption' that specified transactions are 'joint venture contracts' or 'package deals.' The Department and Attorney General aver that a ch. 120, F.S., hearing to determine whether Builders' transactions are 'package deals' is precisely what the Rule contemplates and what Builders should have sought administratively before seeking judicial relief. See Pest Control Comm'n of Fla. v. Ace Pest Control, Inc., 214 So.2d 892 (Fla.App.1st, 1968); Odham v. Foremost Dairies, Inc., 128 So.2d 586, 593 (Fla.1961).
It is clear to us that the circuit court has jurisdiction to act and properly denied the motion to dismiss. It may...
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