Joiner v. Pinellas Cnty.

• Decision Date: 03 May 2019
• Docket Number: Case No. 2D17-1040
• Parties: GARY JOINER, successor to MIKE WELLS, Pasco County Property Appraiser, Appellant, v. PINELLAS COUNTY, FLORIDA, a political subdivision of the State of Florida, and MIKE FASANO, as Pasco County Tax Collector, Appellees.
• Court: Florida District Court of Appeals

GARY JOINER, successor to MIKE WELLS,Pasco County Property Appraiser, Appellant, v. PINELLAS COUNTY, FLORIDA, a political subdivision of the State of Florida,and MIKE FASANO, as Pasco County Tax Collector, Appellees.

Case No. 2D17-1040

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

May 3, 2019

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

Appeal from the Circuit Court for Pasco County; Linda Babb, Judge.

Loren E. Levy of The Levy Law Firm, Tallahassee, for Appellant.

Yvette Acosta MacMillan, Senior Assistant County Attorney, Clearwater, for Appellee Pinellas County, Florida, a political subdivision of the State of Florida.

Frederick T. Reeves of Frederick T. Reeves P.A., New Port Richey, for Appellee Mike Fasano, as Pasco County Tax Collector.

ATKINSON, Judge.

The Pasco County Property Appraiser (Pasco Property Appraiser) appeals the entry of final summary judgment in favor of Pinellas County declaring the 12,400 acres of property it owns within Pasco County immune from ad valorem taxation. This case presents an issue of first impression: whether a county's immunity from taxation extends extraterritorially to property that it owns in another county. We conclude that it does not and reverse.

The 12,400 acres of real property, located entirely within Pasco County, consists of thirty-six parcels of land, collectively known as the Cross Bar Ranch and the A1 Bar Ranch (collectively, the Property). Pinellas County has paid ad valorem taxes on the Property since its acquisition in 1976 and 1989.¹

In January 2014, a certified public accountant employed by the Division of Inspector General for the Pinellas County Clerk and Comptroller conducted an updated audit that suggested that some or all of the parcels of the Property may be exempt from taxation. In May 2015, Pinellas County filed suit against the Pasco Property Appraiser seeking declaratory and injunctive relief concerning Pinellas County's immunity from paying ad valorem taxes on the Property and reimbursement for Pinellas County's payments for 2014 through 2016. The parties filed cross motions for summary judgment on purely legal grounds. Pinellas County's motion was granted, and the Pasco Property Appraiser filed this appeal.

This court reviews pure questions of law de novo. See Kirton v. Fields, 997 So. 2d 349, 352 (Fla. 2008); D'Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003). Resolution of the legal question here turns upon whether any property owned by a county, regardless of the property's geographic location, is immune from taxation or whether this immunity is confined to property that a county owns within its own borders.

In Park-N-Shop, Inc. v. Sparkman, 99 So. 2d 571 (Fla. 1957), the Florida Supreme Court held that ad valorem taxes could not be levied by the city and county against property owned by the county but leased to a private business, because the property of a county "is immune from taxation." Id. at 573.² The Pasco Property Appraiser argues that Park-N-Shop is distinguishable because its stated rationale—that the county should not assess taxes against its own land, pay the money to itself, then surcharge lessees for that amount—does not apply where a county is taxing a sister county. As such, it argues that a county's immunity from taxation does not apply in situations where one county is seeking such immunity of lands located outside of its jurisdictional boundaries. We agree.

The Pasco Property Appraiser contends that in the case of overlapping sovereignty, the sovereign acting outside of its territory must be treated as a private entity. Because the Property is within the jurisdictional boundaries of Pasco County, and subject to the authority of Pasco County as a result, the Pasco Property Appraiserargues that those lands are subject to taxation. The Pasco Property Appraiser commends the analogous reasoning of Georgia v. City of Chattanooga, 264 U.S. 472 (1924), in which the United States Supreme Court held that the state of Georgia, which had purchased land in Chattanooga, Tennessee, was not immune from condemnation of the lands by the city because land "acquired by one state in another state is held subject to the laws of the latter and to all the incidents of private ownership." Id. at 480.

The Pasco Property Appraiser also warns that extraterritorial application of immunity from taxation "would result in a skewed application of the doctrine and ultimately have unjust and impractical consequences." What if, the Pasco Property Appraiser queries, Pasco County purchases the Don CeSar hotel on St. Pete Beach in Pinellas County? It could operate a lucrative, for-profit enterprise, avoiding payment of ad valorem taxes to Pinellas County solely based upon its status as the property's owner. Not only would this deprive Pinellas County of substantial revenues, the Pasco Property Appraiser claims, but it would also elevate one county above another despite the fact that each county's sovereignty is coequal.

Pinellas County, on the other hand, argues that it is a political subdivision of the state of Florida and, as such, is afforded an "inherent sovereign immunity" from taxation. See Dickinson v. City of Tallahassee, 325 So. 2d 1, 3 (Fla. 1975) (holding state, county, and county school board were immune from tax levied by city); see also Canaveral Port Auth. v. Dep't of Revenue, 690 So. 2d 1226, 1228 (Fla. 1996) (holding that a port authority was not immune from ad valorem taxation because, unlike a county, it was not a political subdivision of the state); Park-N-Shop, 99 So. 2d at 573-74. Emphasizing the distinction between an exemption and immunity, Pinellas Countycontends that there is no power to tax the state or its political subdivisions because they are immune. Dickinson, 325 So. 2d at 1 ("Exemption presupposes the existence of a power to tax whereas immunity connotes the absence of that power." (quoting Orlando Utils. Comm'n v. Milligan, 229 So. 2d 262, 264 (Fla. 4th DCA 1969))). Because each county's sovereign immunity emanates, not from the county itself, but rather from the state, it argues that property owned by a county anywhere in the state is immune from ad valorem taxation.

Pinellas County challenges the Pasco Property Appraiser's argument that there are geographical limits on a county's sovereign immunity on the grounds that it presupposes that each county is in and of itself a sovereign, when a county is only a piece or subdivision of the state, which is actually the sovereign. On this basis, Pinellas County contends that the cases cited by the Pasco Property Appraiser relating to territory outside of a state are distinguishable.

The parties also address whether a statutory exemption from taxation applies depending on the use of the county-owned property. However, the record is not sufficiently developed to address this argument, and it was not the basis for the underlying judgment.³

***

The Florida Constitution and Florida Statutes confer upon each county the authorization to tax all property in the county. See art. VII, § 9, Fla. Const. (providingthat counties shall be authorized by law to levy ad valorem taxes); § 125.016, Fla. Stat. (2014) (authorizing counties to levy ad valorem tax "upon all property in the county"). Pinellas County's argument necessarily implies that this constitutional grant of authority to tax real property within a county's boundaries must yield to the common law immunity from taxation of another county who owns property situated therein. None of the cases cited by Pinellas County supports this assertion.

The gravamen of Pinellas County's argument is simply that because counties are subdivisions of the State, their sovereign immunity is derivative of the State's sovereign immunity; and since the State's sovereign immunity is statewide, so should a county's be:

The constitutional sovereign immunity of the State of Florida flows to its subdivisions and cloaks both Pinellas County and Pasco County. Each county's sovereign immunity emanates, not from the county itself, but rather, from the state. Therefore, Pinellas County's properties are immune from ad valorem taxation within the State of Florida.

Pinellas County cites no authority for the proposition that a county's immunity from taxation extends beyond its territorial boundaries, relying instead on the foregoing formulation.

Because counties are political subdivisions of the State, their ad valorem taxation power must necessarily yield to the immunity of the State, whose boundaries subsume all county property. But that does not mean that a county's taxation authority must yield to the immunity of another county, whose boundaries, of course, are neither overlapping nor coextensive with any other county.

Like a county's assertion of immunity from municipal taxes on property the county owns within its own boundaries, see Dickinson 325 So. 2d at 3, the State'sassertion of immunity from county taxation is not extraterritorial. However, a state that owns property outside its territorial boundaries cannot assert immunity from taxation by the jurisdiction in which that property lies, such as another state. In fact, this court is unaware of any political entity—not states, not Indian tribes, not nations—that can claim sovereign immunity from taxation for its extraterritorial land holdings. Pinellas County apparently aims to be the first.

Nations are not immune from taxation of their extraterritorial property. Cf. City of New York v. Permanent Mission of India to the United Nations, 618 F.3d 172, 175 (2d Cir. 2010) (holding that the Foreign Missions Act "permits the State Department to designate affirmative benefits such as tax exemptions and that the Act allows the State Department to make such tax exemptions preemptive of State and municipal tax laws"). Indian tribes are not immune from taxation of their extraterritorial property. See Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49 (1973) ("Absent express...