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Part V - FL DOR's Bad Legislative Package 2022


On December 29, 2021, we posted an article on our website entitled, “Florida DOR’s 2022 Legislative Package BAD for Florida Business,” which included a link to the twenty proposed ideas prepared by the Florida Department of Revenue (“DOR”). These ideas are a wish list of how the DOR wants to further mistreat taxpayers. We are posting a series of articles involving a more in-depth review of these proposed ideas and how the ideas may impact you and your business. Senator Joe Gruters, from Senate District 23, is sponsoring this legislation in SB 1382, and Representative Cyndi Stevenson, from House District 17, is the sponsor of the companion bill in the House in HB 1041.

Part V of this in-depth review looks at several of the DOR’s concepts that impact the Administrative Procedures Act, Ch. 120, Fla. Stat. First, the DOR continues to try and penalize Taxpayers that are unable to produce requested documents. Worse off, the DOR looks to stack the deck against Taxpayers and limit the admissibility of evidence in administrative hearings before the Division of Administrative Hearings (“DOAH”); Circuit Courts; and the District Courts of Appeal. Second, the DOR is also trying to make rulemaking of their regulations “easier” for the DOR, while simultaneously limiting a Taxpayer’s ability to challenge the DOR for actions that exceed the DOR’s statutory authority. To have any chance at standing up for businesses and their rights, The Administrative Law section of The Florida Bar, DOAH, the Joint Administrative Procedures Committee (“JAPC”), and business owners need to take a hard look at what the DOR is attempting to do as it impacts administrative hearing and the rulemaking process. Contacting your state senator and state representative are a must to protect your rights or the rights of your clients.

The DOR’s seventh concept attempts to limit a Taxpayer’s ability to introduce evidence in a Ch. 120 hearings before DOAH; Circuit Courts; and the District Courts of Appeal. The DOR wants to prevent Taxpayer’s from defending themselves, thereby stacking the deck against the Taxpayer and in favor of the Department. Petitions for an Administrative Hearings under s. 120.57(1), Fla. Stat. are supposed to be de novo hearings (i.e., a hearing in which a judge gets to make a decision), but the DOR wants to limit the Administrative Law Judge’s ability to look at Taxpayer’s records and infringe upon a Taxpayer’s rights. This same exclusionary rule would apply in Circuit Courts and the District Courts of Appeal in actions filed pursuant to s. 72.011(1)(a), Fla. Stat.

The DOR attempts to make administrative cases in Documentary Stamp Tax refunds easier for the DOR, in concept thirteen by being able to deny more Documentary Stamp Tax refunds. The DOR claims that the proposal merely codifies the 1st District Court of Appeal’s decision in 1701 Collins Miami Owner, LLC v. Department of Revenue. This “claim” could not be farther from the truth. The proposed language merely makes it easier for the DOR to deny a refund claim when there was clearly an error. The error would occur in the illegal imposition of Documentary Stamp Tax on tangible and intangible personal property included in a real property transaction. This concept will limit the admissible evidence in an administrative hearing involving the refund claim on the overpayment of Documentary Stamp Tax.

DOR’s concepts, eighteen, nineteen, and twenty, are all efforts to make the rulemaking process of their regulations under Ch. 120, Fla. Stat., much easier for the DOR.  All agencies are required to be given specific statutory authority from the Legislature to adopt rules.  In DOR’s eighteenth concept, they seek to be allowed the authority to adopt rules with just general legislative authority.  Subsection (1) of 213.06 is itself only a general statement of authority. The general statement in this statute does not address any substantive tax law provision. To say that section (1) is sufficient to adopt rules implementing revenue laws means they have authority to write rules regardless of the scope of the enabling legislation itself. That makes no sense and amounts to a carte blanche authority to write rules regardless of the scope of the statute. That is bizarre and unconstitutional as rules can only be within statutory limitations. What makes DOR so special that they should be allowed such an easier rulemaking ability and be allowed to contravene decades of caselaw and statutory mandates?

The nineteenth and twentieth DOR concepts attempt to make it easier for the DOR to utilize and extend emergency rules that were noticed because a Taxpayer challenged a DOR statement or action as being an unadopted rule. DOR’s nineteenth legislative concept seeks approval to utilize emergency rules as long as possible, and seeks to be exempt from the emergency rule requirements as required by s. 120.54(4), Fla. Stat. The twentieth concept seeks an indefinite stay of a challenge to DOR’s action as being an unpromulgated rule, if a Cabinet agency, which DOR is one of a few, publishes a notice of rule development under s. 120.54(2), Fla. Stat. Again, what makes DOR so special as compared to other State agencies?

One can see a theme in all these concepts by the DOR, which is to make it easier for the DOR, to the detriment of Taxpayers. These concepts are BAD for Florida businesses and Taxpayers. The DOR’s proposed legislation abuses Taxpayers and their rights under the law and allows the DOR to become like New York or California. Businesses should be concerned by the clear power grab and utilitarian mindset of the DOR.

At the Law Office of Moffa, Sutton, & Donnini, PA, our primary practice area is Florida taxes, with a very heavy emphasis in Florida sales and use tax. We have defended Florida businesses against the Florida Department of Revenue since 1991 and have over 150 years of cumulative sales tax experience within our firm. Our partners are both CPAs/Accountants and Attorneys, so we understand both the accounting side of the situation as well as the legal side. We represent taxpayers and business owners from the entire state of Florida. Call our offices today for a FREE INITIAL CONSULTATION to confidentially discuss how we can help put this nightmare behind you.


SB 1382 – Tax Administration

HB 1041 – Tax Administration

72.011, FS – Jurisdiction of Circuit Courts in specific tax matters

120.57(1), FS – Additional Procedures Applicable to Hearings Involving Issues of Material Fact.

120.56, FS – Challenges to Rules

120.54, FS - Rulemaking

2022 Florida Department of Revenue Legislative Package


Florida DOR’s 2022 Legislative Package BAD for Florida Businesses, published December 29, 2021

Part 1 – FL DOR’s 2022 Legislative Package, published January 9, 2022

Part 2 - FL DOR’s 2022 Legislative Package, published January ??, 2022

Part 3 - FL DOR’s 2022 Legislative Package, published January ??, 2022

Part 4 - FL DOR’s 2022 Legislative Package, published January ??, 2022

FLORIDA SALES TAX AUDIT HELP, published August 24, 2020, by James Sutton, CPA, Esq.

GO TO JAIL FOR NOT PAYING FLORIDA SALES TAX?, published November 3, 2013, by James Sutton, CPA, Esq.