Department of Revenue v. Markham

• Decision Date: 05 November 1979
• Docket Number: No. MM-314,MM-314
• Citation: 381 So.2d 1101
• Parties: DEPARTMENT OF REVENUE of the State of Florida, Appellant, v. William MARKHAM, as Broward County Property Appraiser, et al., Appellee.
• Court: Florida District Court of Appeals

Page 1101

381 So.2d 1101

DEPARTMENT OF REVENUE of the State of Florida, Appellant, v. William MARKHAM, as Broward County Property Appraiser, et al., Appellee.

No. MM-314.

District Court of Appeal of Florida, First District.

Nov. 5, 1979.

E. Wilson Crump, II, Asst. Atty. Gen., Jim Smith, Atty. Gen., for appellant.

Gaylord A. Wood, Jr., Fort Lauderdale, James R. Rich, of Christiansen, Jacknin & Myers, Palm Beach, for appellee.

LARRY G. SMITH, Judge.

The question presented in this case is whether "household goods" as currently defined in the Florida Statutes ¹ owned by nonresidents but not held for commercial purposes or resale, are subject to ad valorem taxation under Florida's tax laws. The trial judge determined that such property is not taxable, and the Department of Revenue appeals that ruling. We affirm the trial judge.

Suit was filed by appellee William Markham, as property appraiser for Broward County (as well as individually and as a taxpayer of Broward County), seeking a declaratory judgment as to whether or not household goods and personal effects of nonresidents are subject to ad valorem taxation. Appellee David L. Reid, as property appraiser for Palm Beach County, was allowed to intervene in the action as a party plaintiff. In 1967 Markham's predecessor in office included in the tax roll household goods or furnishings, personal effects, and wearing apparel. The inclusion of such property was found to be error by the Auditor General under the authority of Attorney General's Opinion 068-59, dated April 10, 1968. ² Subsequently, on October 12, 1976, the Department enacted Rule 12D-7.02, Florida Administrative Code, which provided in part that household goods and personal effects belonging to persons not residing and making their permanent home in Florida are taxable, not exempt. Another opinion from the Attorney General, AGO 077-128, was issued on December 8, 1977, ruling that household goods and personal effects of nonresidents are taxable. Both Markham and Reid alleged uncertainty as to the existence or nonexistence of certain rights, status, immunities, power or privileges with respect to the matters set forth in the complaint. Markham's complaint alleged doubt concerning the Department's failure to distribute forms for the purpose of making application for exemption of household goods, if taxable; he also questioned whether Florida residents must annually apply for exemption of such goods, or have the same taxed; and he further expressed doubts concerning whether a return of such property is required to be filed by the taxpayer, and whether property owned by a condominium association is entitled to exemption as to such property. In addition to the doubts and uncertainties created by the conflicting interpretations of the statutes, Markham's affidavit in support of his motion for summary judgment discloses another and most practical reason for his concern. That is, that in order to properly assess the household goods and personal effects of nonresidents, Markham estimated the addition of approximately 12 people to his staff would be required, and he further determined that the estimated revenues to be received from taxation of such property of nonresidents would be far outweighed by the costs of administration and assessment. ³ We conclude, as did the trial judge, that the plaintiffs have standing to maintain the suit. Reid v. Kirk, 257 So.2d 3 (Fla.1972). If the Department's rule requiring assessment and taxation of household goods and personal effects of nonresidents is without statutory basis, it is invalid, and should be eliminated from consideration by the taxing officials. See Department of Revenue v. Young American Builders, 358 So.2d 1096 (Fla. 1st DCA 1978). ⁴

Under the Department's view (somewhat over-simplified) the taxing formula reads: "household goods" constitute "personal property" for purposes of ad valorem taxation (Section 192.001(11)(a) Florida Statutes); unless "expressly exempted from taxation" all "personal property" in the State is taxable (Section 196.011, Florida Statutes); and the only express exemption of household goods and personal effects applies to persons "residing and making his or her permanent home" in Florida (Section 196.181, Florida Statutes 1977).

In answer to the Department's views we have the benefit of appellees' briefs and arguments, and the well reasoned opinion and judgment of the trial judge, which together set forth an explanation and interpretation of the statutes which we believe is correct. Briefly, the position of the property appraisers (appellees) is that by enactment of Chapter 67-377, Laws of Florida 1967, excluding "household furnishings, wearing apparel, and effects of the person" (used for the comfort of the owner and not for commercial purposes), from the definition of "tangible personal property" (Section 200.01, Florida Statutes 1965), and by repeal of the statutory provisions relating to the method of valuation and filing of returns for such items of property (Sections 200.08(2), (3), Florida Statutes 1965 (repealed by Chapter 67-377)), the 1967 Legislature effectively excluded household goods and personal effects from the personal property ad valorem taxation laws of Florida, without regard to residency of the owner. And further, that Chapter 70-243, Laws of Florida 1970, which added a definitional section (Section 192.001, Florida Statutes 1970, Supp.), and defined "household goods" as a category of "personal property", was simply a "technical amendments" act that made no substantive change in the law relating to such property.

As mentioned above, Chapter 67-377 provided in part for the exclusion of household goods and personal effects (used for the comfort of the owner and not held for commercial purposes) from the definition of "tangible personal property" under Section 200.01, Florida Statutes. In the same session, however, the legislature also enacted Chapter 67-378, amending Section 192.201, Florida Statutes 1965 (exempting household goods and personal effects of Florida residents up to $1,000.00), by moving the $1,000.00 limitation contained in the 1965 statute. ⁵ If Chapter 67-377 eliminated household goods and personal effects from taxation, then Chapter 67-378, exempting such property as to Florida residents only, would appear to be redundant. We must construe statutory provisions so as to harmonize and reconcile them, and conflicting statutes should be construed so as to give effect to what appears to have been the primary legislative intention. See 30 Florida Jurisprudence "Statutes", § 119.

I.

We must begin with consideration of Section 200.08, Florida Statutes 1965, which governed the filing of tangible personal property tax returns. Subsection (2) deals with "household furnishings, wearing apparel, and effects of the person" actually being used and serving the creature comforts of the owner. That provision recognized such articles as falling within a special category of property, the true cash value of which was uncertain and speculative, and which therefore justified a different method of valuation and return for tax purposes than did other property. It also eliminated the requirement that the return be under oath as to such property. Subsection (3) made the filing of a return of household goods and personal effects "directory only", and not "mandatory"; and it further provided that the failure to file such a return would in no way affect the right of a taxpayer to object to a tax assessment, seek a review of that assessment, or to obtain homestead tax exemption or any other right. It is clear that household goods and personal effects were taxable as "tangible personal property" under the 1965 statutes. It may be observed that these provisions reflect a recognition of the special difficulties and problems involved in taxation of this type of property, as well as an intent to lessen the burdens of the taxpayer in connection with its return and taxation. We think these factors have a significant bearing upon the decision of the 1967 Legislature to eliminate such property from consideration for tax purposes.

Prior to the 1967 amendment, Section 200.01, Florida Statutes 1965, excluded only "motor vehicles" from the category of "tangible personal property". As amended (by Chapter 67-377), Section 200.01, Florida Statutes 1967, read as follows:

"200.01 Definition of Tangible Personal Property. (1) 'Tangible personal property' shall include all goods, chattels, vehicles (except motor vehicles and household furnishings, wearing apparel, effects of the person actually employed in the use of serving the creature comforts of the owner and not held for commercial purposes), animals and other articles of value capable of manual possession and whose chief value shall consist of the thing itself and not what it represents. The words 'personal property,' as used in this chapter, shall be synonymous with tangible personal property." (Florida Statutes 1967)

It is well to notice, again, that the same act, Chapter 67-377, repealed subsections (2) and (3) of Section 200.08, Florida Statutes 1965. These subsections, as previously noted, dealt with the special standards of valuation and somewhat relaxed requirements for the return and assessment of such property for tax purposes. We conclude, as did the trial judge, that after the passage of Chapter 67-377, household goods and personal effects, used for the comfort of the owner and not held for commercial purposes, were effectively eliminated from the operation of the taxing statutes, regardless of residency of the owner. ⁶

We have not overlooked the fact that both before and after the passage of Chapter 67-377 other general provisions existed and remained in the statutes indicating, as appellant argues, a conclusion contrary to the one we reach from our examination of the statutes. Specifically, Sections 192.01 and 192.03 remained unchanged in the 1965 and 1967 Florida...