Hansen v. Port Everglades Steel Corp., 3270
| Decision Date | 12 July 1963 |
| Docket Number | No. 3270,3270 |
| Citation | 155 So.2d 387 |
| Parties | L. O. HANSEN, as Tax Assessor of Broward County, Florida and Ray E. Green, as Comptroller of the State of Florida, Appellants, v. PORT EVERGLADES STEEL CORPORATION, a Florida corporation, and W. H. Meeks, Jr., as Tax Collector of Broward County, Florida, Appellees. |
| Court | Florida District Court of Appeals |
Ross, Norman & Cory, Ft. Lauderdale, for appellant L. O. Hansen, as Tax Assessor of Broward County.
John U. Lloyd, Ft. Lauderdale, for appellant Ray E. Green, as Comptroller of State of Florida.
Landefeld, Romanik & McMorrough, Hollywood, for appellee Port Everglades Steel Corporation.
Chancey & Chancey, Ft. Lauderdale, for appellee W. H. Meeks, Jr., as Tax Collector of Broward County.
The appellee Port Everglades Steel Corporation filed a suit in equity in the circuit court in Broward County against the county tax collector and the assessor and against the state comptroller, seeking a decree declaring immunity of certain personal property (imports) from ad valorem taxation and seeking refund of taxes levied on imports in 1960 and paid under protest.
The facts involved and the plaintiff's contentions based thereon are disclosed by the complaint, as follows:
'5. That a dispute exists between the plaintiff and the defendants as to whether or not the property of the plaintiff assessed by the defendant, L. O. Hansen, was subject to the tangible personal property tax imposed; that the jurisdiction of this Court is invoked by the plaintiff pursuant to Chapter 87, Florida Statutes, pertaining to declaratory decrees, judgments and orders; that the plaintiff alleges that the tangible personal property upon which 1960 taxes were paid under protest, were imports located within the enclosure of Port Everglades in Broward County, Florida, physically situate on open storage areas, on the dock, and in the warehouses owned by the Broward County Port Authority, which said imports were imported into the United States by the plaintiff herein for sale to wholesalers and retailers of said merchandise; that the plaintiff is in doubt as to the existence of the immunity granted to it by the United States Constitution under Article 1, Section 10, Clause 2, and Article 1, Section 8, Clause 3, from an imposition of local ad valorem taxes on imports.
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'7. The plaintiff further alleges that its primary business activity is that of importing merchandise from foreign countries for sale wholesalers and retailers of such imports; that the plaintiff corporation is the importer of record of all such imports and that all import duties paid to the United States are paid by the plaintiff; that all such imports are received at Port Everglades in Broward County Florida, and that said imports, after unloading and being placed upon the docks, are placed for storage in the public warehouses owned and operated by the Broward County Port Authority and on open storage areas, all within the Port Everglades enclosure; that the plaintiff corporation does not handle, move, or in any way come in physical contact with said imports nor does the said plaintiff corporation have any employees which perform any such functions; that the plaintiff corporation is not a manufacturer, user or consumer of any of such imports.
The defendants denied the above quoted allegations and presented four affirmative defenses, (1) that plaintiff had failed to exhaust administrative remedies (under § 200.36 Fla.Stat., F.S.A.), (2) that suit was barred because not timely filed (under § 192.21 Fla.Stat., F.S.A.), (3) a contention that plaintiff's right to contest the tax was waived by not filing a return claiming an exemption (under § 200.15 Fla.Stat., F.S.A.) and (4) that a law action to recover the tax, which had been dismissed, was res judicata.
Both the plaintiff and the defendants moved for summary judgment. Defendants' motions were denied. Plaintiff's motion was aided by the affidavit of an officer of the corporation which supported the factual allegations. No opposing affidavit was filed by defendants relating to such facts. Plaintiff's motion was granted, and summary final decree was entered holding that the imports were not subject to the ad valorem tax in question and ordering refund. 1 The tax assessor and state comptroller appealed, and plaintiff filed a cross-assignment contending interest should have been allowed.
On this appeal the appellants have not questioned the facts or contested the chancellor's holding that state taxation of these imports was interdicted by the United States Constitution. The four points briefed and argued by the appellants deal with their four affirmative defenses.
Appellants' first contention, that the law action filed to recover the tax payment was res judicata of the equity suit, is refuted by the record. The two proceedings were filed on the same day. The record shows that when considering motions to dismiss the law action the court took note of the pleadings in both cases and concluded that since each involved the same subject matter they should not both proceed, and dismissed the law action without prejudice or hindrance to proceeding in the equity suit. This is made to appear clearly from the wording of the trial judge's order granting the defendants' motions to dismiss the complaint in the law action.
Appellants' second point deals with its third defense, a contention that failure of the plaintiff to make advance claim of exemption justified the levy of ad valorem taxes on the imports. In rejecting that contention the chancellor did not commit error.
The statutory provision relied on by appellants, § 200.15, Fla.Stat., F.S.A., makes it the duty of the taxpayer in filing a return to disclose and claim exemptions, or have them considered waived for that tax year. While an advance claim of exemption could have been made with reference to the tax involved in the instant case (Cf. Frederick B. Cooper Co. v. Overstreet, Fla.App.1961, 126 So.2d 744, and Overstreet v. Frederick B. Cooper Co., Fla.1961, 134 So.2d 225) the chancellor's ruling that it was not indispensable is supportable on the theory relied upon by the appellees that these imports were immune from state ad valorem taxation by virtue of Art. I, Section 10, Clause 2 of the United States Constitution, which reads:
'No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection laws * * *.'
The Supreme Court of Florida has recognized the distinction between immunity from taxation and an exemption from taxation. See Park-N-Shop, Inc. v. Sparkman, Fla.1958, 99 So.2d 571. The distinction was stated in 31 Fla.Jur., Taxation § 132, as follows:
'Though the two terms are used interchangeably, a distinction is to be made between 'exemption' from taxation and 'immunity' from it: the term 'exemption' presupposes the existence of a power to tax, whereas the term 'immunity' connotes the absence of it.'
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State ex rel. Four-Fifty Two-Thirty Corp. v. Dickinson
...settlement by a court of a dispute to which the state was not directly but only vicariously interested.' See also: Hansen v. Port Everglades Steel Corp., 155 So.2d 387 (Fla.App.2, 1963). Neither Section 215.26 nor Section 199.252, Florida Statutes, pursuant to which relator seeks refund, pr......
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Coe v. ITT Community Development Corp., s. FF-398
...1st DCA 1965); when the assessment attempted to tax imports contrary to the United States Constitution, Hansen v. Port Everglades Steel Corp., 155 So.2d 387 (Fla. 2d DCA 1963) and Wright v. Reynolds Fasteners, Inc., 184 So.2d 699 (Fla. 3d DCA 1966), modified, 197 So.2d 295 (Fla.1967); and w......
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Reynolds Fasteners, Inc. v. Wright
...this case in the District Court in 184 So.2d 699 with the decision of the Second District Court of Appeal in Hansen v. Port Everglades Steel Corporation, Fla.App.1963, 155 So.2d 387. In each of these cases, suit was instituted for a refund of personal property taxes paid under protest which......
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Wright v. Reynolds Fasteners, Inc.
...immune from taxation, and we agree in accordance with the opinion of the Second District Court of Appeal in Hansen v. Port Everglades Steel Corporation, Fla.App.1963, 155 So.2d 387. The appellants contend that the claim of the plaintiff is barred by failure to comply with § 95.08, Fla.Stat.......