Department of Revenue v. Kelly Boat Service, Inc., Y--315
| Decision Date | 26 November 1975 |
| Docket Number | No. Y--315,Y--315 |
| Citation | 324 So.2d 651 |
| Parties | DEPARTMENT OF REVENUE et al., Appellants, v. KELLY BOAT SERVICE, INC., et al., Appellees. |
| Court | Florida 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.
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 appelleeKelly 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...
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Department of Revenue v. Anderson
...reason of our 1968 decision in Straughn v. Kelly Boat Service, Inc., or otherwise, to assert that . . . Kelly should satisfy its full tax liability incurred within three years prior to August 1, 1973."
324 So.2d at 652(emphasis supplied). The two Florida cases cited in the majority's opinion to support its position that, under appropriate circumstances, a superseding opinion should be applied prospectively to a construction of the taxing statutes, i. e., City of Naples& Sons, Inc. v. Askew, 343 So.2d 1329 (Fla. 1st DCA 1977), although it was actually 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 seemingly disparate and virtually irreconcilable opinions. Kelly II held that the DepartmentShip Corp., 257 So.2d 56 (Fla. 1st DCA 1972), cert. den., 262 So.2d 682 (Fla. 1972), should only be given prospective effect even though the overruling decision itself, and cases following it, Department of Revenue v. Kelly Boat Service, Inc., 324 So.2d 651 (Fla. 1st DCA 1975) (Kelly II )and Department of Revenue v. Hobbs, supra, were applied retrospectively. The issue whether Pelican should be applied prospectively has already been decided contrary to the taxpayers'... -
Department of Revenue v. Hobbs
...So.2d 93 (Fla.1974), limited the Kelly I decision only to the collection of taxes on transactions which 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, entered on September 17, 1973, temporarily enjoined DOR from collecting taxes... -
Air Jamaica, Ltd. v. State, Dept. of Revenue
...finding support in Gay for its contrary result. I would reverse. 1 The other Florida decisions cited by the court, Department of Revenue v. Hobbs, 368 So.2d 367 (Fla. 1st DCA 1979);
Department of Revenue v. Kelly Boat Service, Inc., 324 So.2d 651 (Fla. 1st DCA 1975), cert. denied, 434 U.S. 836, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977); Department of Revenue v. Pelican Ship Corp., 257 So.2d 56 (Fla. 1st DCA 1972), cert. denied, 262 So.2d 682 (Fla.1972), cert. dism., 287State v. Delta Air Lines, Inc., 356 So.2d 1205 (Ala.Civ.App.1978). We conclude that the 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 Department of Revenue v. Hobbs, 368 So.2d 367 (Fla. 1st DCA 1979). See also Commonwealth... -
George W. Davis & Sons, Inc. v. Askew
...that the trial court was correct in ruling that the state is estopped to now require that Davis pay 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 question of payment of the back admission taxes. We have examined the record of that case and find that...