Department of Revenue v. Hobbs

Decision Date09 February 1979
Docket NumberNo. JJ-63,JJ-63
Citation368 So.2d 367
CourtFlorida District Court of Appeals
PartiesDEPARTMENT OF REVENUE, Appellant, v. E. M. HOBBS, etc., et al., Appellees.

Robert L. Shevin, Atty. Gen., E. Wilson Crump, II, Asst. Atty. Gen., for appellant.

David W. Palmer, Crestview, Eugene J. Cella, Tallahassee, for appellees.

ERVIN, Judge.

This appeal spawns from an unfortunate history of conflicting and sometimes confusing decisions from our court, discussed in detail infra. The Department of Revenue (DOR) appeals the lower court's final summary judgment holding that appellees were due refunds for admissions taxes paid by them for the years they were collected.

The appellees are proprietors of deep sea party fishing boats, who, for an admission fee paid at dockside, take their customers into the off-shore waters, usually beyond Florida's territorial limits. For many years the appellees collected no admissions taxes as required by § 212.04, Fla.Stat. (1969), from their customers. Later, under protest, each of the appellees remitted the taxes to appellant for which they now seek refunds.

Appellees' complaint, first filed in November, 1970, alleged the tax was illegal and could not be collected since their operations were similar to those of a party boat operator in Straughn v. Kelly Boat Service, 210 So.2d 266 (Fla. 1st DCA 1968). 1 The action was stayed, either by agreement of the parties or order of the court pending final disposition of similar cases 2 which presumably would affect the outcome of the instant case. After the mandate in Davis and Sons, Inc. v. Askew, supra note 2, was filed, the court found DOR was estopped from retaining the taxes which it had collected from appellees and ordered refunds.

DOR argues, and we agree, that under the circumstances estoppel cannot be invoked against the state and that the Davis decision stands on its own exceptional facts. Davis affirmed the trial court's judgment which had enjoined DOR from assessing admissions taxes against Davis between 1970 and the filing of mandate of Pelican, supra note 2. We conclude the facts in Department of Revenue v. Kelly Boat Service, Inc., supra note 2 (Kelly II ), are much more apposite to those before us than those in Davis. The Davis decision observed that in Kelly II :

(T)he primary focus of appellees . . . was . . . that the admission tax was illegal an issue which had been decided in Pelican but with different parties. . . . Although appellees in Kelly II referred to estoppel on several occasions . . . , there was never any clear focus on a contention of estoppel. There was no evidence presented in Kelly II (as was presented here) which would indicate that the Department, through its actions had encouraged appellees not to collect the tax during the interim between the decision in Kelly I and the decision in Pelican. Id. at 1333.

Appellees' position before the trial court was quite similar to that of the taxpayers in Kelly II. The entire thrust of appellees' original and amended complaints was that the collection of the admissions taxes was prohibited by Kelly I. Appellees' pleadings raised no allegations of estoppel. Before estoppel is permitted as a basis for relief, it, and all its elements, must be specifically alleged. Cf. Croft v. Young, 188 So.2d 859 (Fla. 1st DCA 1966).

The court's final summary judgment, finding the state estopped, affected taxes already collected, which were ordered refunded and taxes not collected, 3 which the Department was enjoined from collecting. As to the former, the Department can hardly be said estopped since clearly no representations were made to the taxpayers it would not collect taxes which it in fact collected.

As to the latter, the lower court's final judgment relied in part upon a letter from the Department, addressed to its audit and area supervisors, which had stated: "No attempt should be made at this time to make any back assessments." The court concluded that the letter, and other Department correspondence, "makes . . . clear that prior to Pelican, supra, decided January 6, 1972, the tax had not been collected." The mere fact of non-collection is hardly a basis for estoppel. Kelly II unequivocally stated that DOR was not foreclosed from back assessing Kelly for taxes which should have been paid between August, 1970, and the first day of August, 1973, the month the Department demanded the production of Kelly's records for audit pursuant to § 212.14(6), which permits the Department to back assess for all unpaid admissions taxes over a three year period. The correspondence here was not forwarded to appellees only to Department personnel. Even if it were established it was common knowledge among party boat operators that the Department had decided to delay its audits until the uncertainty of its authority to collect created by Kelly I was resolved, the circumstance of knowledge still would not create an estoppel against the state. The general rule is that administrative officers are not estopped through mistaken statements of the law. North American Company v. Green, 120 So.2d 603 (Fla.1959); Austin v. Austin, 350 So.2d 102 (Fla. 1st DCA 1977); First Nat. Bank, etc. v. Dept. of Revenue, 364 So.2d 38...

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21 cases
  • Air Jamaica, Ltd. v. State, Dept. of Revenue
    • United States
    • Florida District Court of Appeals
    • August 7, 1979
    ...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 v. United Airlines, Inc., 219 Va. 374, 248 S.E.2d 124 (1978); and American Airlines, Inc. v. D......
  • Department of Revenue v. Anderson
    • United States
    • Florida District Court of Appeals
    • September 25, 1980
    ...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 Department was not foreclosed b......
  • Pitcairn v. Vowell
    • United States
    • Florida District Court of Appeals
    • May 1, 1991
    ...is an affirmative defense and must be specifically pled. Dicks v. Colonial Finance Corp., 85 So.2d 874 (Fla.1956); Department of Revenue v. Hobbs, 368 So.2d 367 (Fla. 1st DCA), appeal dismissed, 378 So.2d 345 (Fla.1979); 22 Fla.Jur.2d, Estoppel and Waiver Sec. 8 (1980). Further, it is our v......
  • State Dept. of Revenue v. Anderson
    • United States
    • Florida Supreme Court
    • July 23, 1981
    ...603 (Fla.1959). Another general rule is that the state cannot be estopped through mistaken statements of the law. Department of Revenue v. Hobbs, 368 So.2d 367 (Fla. 1st DCA), appeal dismissed, 378 So.2d 345 (Fla.1979); Austin v. Austin, 350 So.2d 102 (Fla. 1st DCA 1977), cert. denied, 357 ......
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