Florida Ass'n of Broadcasters v. Kirk

Citation264 So.2d 437
Decision Date20 July 1972
Docket NumberNo. O--465,O--465
PartiesFLORIDA ASSOCIATION OF BROADCASTERS et al., Appellants, v. Claude R. KIRK, Jr., et al., as and constituting the State Revenue Commission, Appellees.
CourtCourt of Appeal of Florida (US)

Joseph C. Jacobs and E. C. Deeno Kitchen, of Ervin, Varn, Jacobs & Odom, and James E. Messer, of Thompson, Wadsworth & Messer, Tallahassee, for appellants.

Robert L. Shevin, Atty. Gen., and Winifred L. Wentworth, Asst. Atty. Gen., for appellees.

SPECTOR, Chief Judge.

Appellants seek review of a declaratory judgment concerning their liability for sales and use taxes under Section 212.05, Florida Statutes, F.S.A., arising out of their use of films and transcriptions during the year 1969. The lower court found appellants liable for the payment of taxes under the above cited section. We agree.

Appellants contend that they are not subject to Chapter 212, Florida Statutes, F.S.A., because the use of films are not a sale or rental of tangible personal property. Appellants set forth the situations by which films are rented and used in Florida as follows:

(1) A film is rented, sent to Florida and broadcast in Florida. The broadcaster pays a flat fee for the use of the film;

(2) a film is rented, sent to Florida and broadcast in Florida. The broadcaster pays a fee designated as rental of the film and another fee designated as a license fee for the right to broadcast; and

(3) the broadcaster buys, for a nominal price, a blank film and contracts with the out-of-state producer to process this film by impressing upon it the scenes and sounds of a desired broadcast.

Appellants attempt to distinguish between money paid for the actual physical film and that paid for the right to use the film. The right to use is a license so appellants contend that they are renting intangible personal property rather than tangible personal property. However, as the trial court pointed out, this reasoning is unsound. Every purchase or rental of property is the acquisition of the right to use that property for its intended purposes. Likewise, practically every piece of property subject to rent or sale is a product of someone's original idea and the rental thereof is for the purpose of using it.

The Supreme Court of Tennessee, when confronted with the issue of whether operators of motion picture theaters were liable for sales tax on film rented from producers, stated:

'There is scarcely to be found any article susceptible to sale or rent that is not the result of an idea, genius, skill and labor applied to a physical substance. . . . If these elements should be...

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13 cases
  • Comptroller of the Treasury v. Equitable Trust Co.
    • United States
    • Court of Appeals of Maryland
    • August 11, 1983
    ...892 (1973); Columbia Pictures Industries, Inc. v. Tax Commissioner, 176 Conn. 604, 410 A.2d 457 (1979); Florida Association of Broadcasters v. Kirk, 264 So.2d 437 (Fla.Dist.Ct.App.1972); United Artists Corp. v. Taylor, 273 N.Y. 334, 7 N.E.2d 254 (1937); Crescent Amusement Co. v. Carson, 187......
  • Arizona Lotus Corp. v. City of Phoenix, KOOL-R
    • United States
    • Court of Appeals of Arizona
    • March 24, 1983
    ...Ala. 490, 282 So.2d 892 (1973); American Television Co. v. Hervey, 253 Ark. 1010, 490 S.W.2d 796 (1973); Florida Association of Broadcasters v. Kirk, 264 So.2d 437 (Fla.App.1972); Turner Communications v. Chilivis, 239 Ga. 91, 236 S.E.2d 251 (1977); Mount Mansfield Television, Inc. v. Vermo......
  • Boswell v. Paramount Television Sales, Inc.
    • United States
    • Supreme Court of Alabama
    • August 30, 1973
    ...intended, for broadcast or telecast. An agreement similar to the one involved in this case was considered in Florida Association of Broadcasters v. Kirk, Fla.App., 264 So.2d 437, cert. denied, Fla., 268 So.2d 534 (1972), a proceeding for declaratory judgment concerning liability for sales a......
  • KTVO, Inc. v. Bair
    • United States
    • United States State Supreme Court of Iowa
    • June 29, 1977
    ...282 So.2d 892 (1973); American Television Company, Inc. v. Hervey, 253 Ark. 1010, 490 S.W.2d 796 (1973); Florida Association of Broadcasters v. Kirk, 264 So.2d 437 (Fla.App.1972); Mount Mansfield Television, Inc. v. Vermont Commissioner of Taxes, 133 Vt. 284, 336 A.2d 193 (1975). At least o......
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