Department of Revenue v. Kelly Boat Service, Inc., Y--315

Decision Date26 November 1975
Docket NumberNo. Y--315,Y--315
Citation324 So.2d 651
PartiesDEPARTMENT OF REVENUE et al., Appellants, v. KELLY BOAT SERVICE, INC., et al., Appellees.
CourtFlorida District Court of Appeals

Robert L. Shevin, Atty. Gen., and E. Wilson Crump, III, Asst. Atty. Gen., for appellants.

David W. Palmer and David W. Palmer, II, Crestview, for appellees.

SMITH, Judge.

The Department of Revenue appeals from a summary final judgment of the circuit court declaring, as authorized by Chapter 86, F.S.1973, the liability of appellee Kelly Boat Service, Inc., for payment of the admissions tax imposed by § 212.04, F.S.1973. The court held that Kelly, whose boats take on passengers at Destin for fishing in the Gulf of Mexico beyond the territorial limits of Florida, is taxable at the statutory rate on the admission fare charged at the dock, but that the State is foreclosed from assessing Kelly for taxes that should have been paid between August 1970 and the first day of August, 1973, the month in which the Department demanded the production of Kelly's record for audit. Sec. 212.14(6), F.S.1973. By cross-appeal, Kelly urges that its activities are not subject to the tax. Straughn v. Kelly Boat Service, Inc., 210 So.2d 266 (Fla.App.1st, 1968). Kelly and other cross-appellants complain also of the trial court's refusal to grant their complaint class action status.

The trial court was correct in its reading of our decision in Department of Revenue v. Pelican Ship Corp., 257 So.2d 56 (Fla.App.1st, 1972), cert. den. 262 So.2d 682 (Fla.1972), cert. dism. 287 So.2d 93 (Fla.1974), and in holding that Kelly's commercial activities, as evidenced by the record, render it liable to assessment for the admissions tax. The court was incorrect however, in foreclosing the Department of Revenue from making the assessment for the full three-year period authorized by § 212.14(6), F.S.1973. The State is not foreclosed, by reason of our 1968 decision in Straughn v. Kelly Boat Service, Inc., or otherwise, to assert that on the facts shown by this record Kelly should satisfy its full tax liability incurred within three years prior to August 1, 1973. North American Co. v. Green, 120 So.2d 603 (Fla.1960); Jackson Grain Co. v. Lee, 139 Fla. 93, 190 So. 464 (1939), 150 Fla. 232, 7 So.2d 143 (1942).

We have also considered but cannot sustain appellees' other points on the cross-appeal.

Affirmed in part, reversed in part.

BOYER, C.J., and SACK, MARTIN F.,...

To continue reading

Request your trial
4 cases
  • Air Jamaica, Ltd. v. State, Dept. of Revenue
    • United States
    • Florida District Court of Appeals
    • August 7, 1979
    ...better view in this type of case is that expressed by the District Court of Appeal, First District, in Department of Revenue v. Kelly Boat Service, Inc., 324 So.2d 651 (Fla. 1st DCA 1975); Department of Revenue v. Pelican Ship Corporation, 257 So.2d 56 (Fla. 1st DCA 1972); and see Departmen......
  • Department of Revenue v. Anderson
    • United States
    • Florida District Court of Appeals
    • September 25, 1980
    ...valid, according to Pelican. The Kelly I error and its correction have been revisited most notably in Department of Revenue v. Kelly Boat Service, Inc., 324 So.2d 651 (Fla. 1st DCA 1975), hereafter Kelly II, Davis, and Department of Revenue v. Hobbs, 368 So.2d 367 (Fla. 1st DCA 1979), with ......
  • Department of Revenue v. Hobbs
    • United States
    • Florida District Court of Appeals
    • February 9, 1979
    ...occurred outside Florida's territorial waters not to taxes on admissions which were obtained dockside; Department of Revenue v. Kelly Boat Service, Inc., 324 So.2d 651 (Fla. 1st DCA 1976); Davis and Sons, Inc. v. Askew, 343 So.2d 1329 (Fla. 1st DCA 1977).3 One of the court's prior orders, e......
  • George W. Davis & Sons, Inc. v. Askew
    • United States
    • Florida District Court of Appeals
    • March 30, 1977
    ...these taxes from its own pocket. We have not overlooked this court's opinion by a different panel in Department of Revenue v. Kelly Boat Service, Inc., 324 So.2d 651 (Fla. 1 DCA 1975), hereafter referred to as Kelly II, which reached a different conclusion from the ruling here on the questi......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT