Florida Sales Tax Audit Defense Attorney
A Form DR-840, Notice of Intent to Audit Books and Records, from the Florida Department of Revenue is not an accounting matter. It is the opening document of a legal proceeding governed by the Florida Administrative Procedure Act, with statutory deadlines that are jurisdictional and cannot be extended for any reason.
The Law Offices of Moffa, Sutton and Donnini, P.A. has concentrated on Florida sales tax audit defense since 1991. Our attorneys are also licensed CPAs, which means every audit we handle carries both the technical accounting analysis and the full attorney-client privilege that a CPA alone cannot provide. Offices in Tampa, Fort Lauderdale, and Tallahassee.
Call the Law Offices of Moffa, Sutton, & Donnini, P.A. today at (888) 444-9568 or contact us online to schedule a meeting with our tax audit attorney in Florida!
What Triggers a Florida Sales Tax Audit
Most Florida sales and use tax audits begin one of two ways: an informal phone call from a Florida Department of Revenue (FDOR) auditor asking questions about your business, or a DR-840 letter arriving by certified mail. Either is a formal audit initiation.
Under Section 213.34, Florida Statutes, the Department's general audit authority covers the prior three years of business records from the date a return was filed. If returns were never filed, or if fraud is suspected, that window has no outer limit.
Common triggers include industry-wide enforcement sweeps, mismatched 1099-K data against reported sales, missing or improperly executed resale or exemption certificates, cash-intensive operations, and prior audit history with the Department. The burden of proof rests almost entirely on the business: once a case reaches the protest stage, the auditor's preliminary findings are presumed correct. Overcoming that presumption takes documentation, legal argument, and litigation experience that standard bookkeeping does not provide.
Why an Attorney, Not Just a CPA, Should Run Your Audit Defense
Most business owners call their accountant first when a DR-840 arrives. That instinct is understandable, but it can foreclose options that only exist early in the process.
The Attorney-Client Privilege Gap
Confidential communications with an attorney are protected under Section 90.502, Florida Statutes, the lawyer-client privilege. This protection is broad and carries into any forum, state or federal.
Florida does recognize a separate accountant-client privilege under Section 90.5055, Florida Statutes, but it is materially narrower. It applies only in state evidentiary proceedings. It carries its own crime-fraud exception. It offers no protection in federal proceedings.
A civil sales tax audit can escalate toward a criminal referral. Under Section 212.15, Florida Statutes, collected-but-unremitted sales tax is held in trust for the State of Florida. Failing to remit is treated as theft of state funds, not merely a tax dispute. If an auditor suspects that pattern, communications that ran only through a CPA are exposed in ways that communications through counsel are not. The decision of who runs the audit from day one determines which privilege protects the entire case file.
Authority to Act: What a CPA Cannot Do
Once an audit reaches the protest stage, formal proceedings before the Division of Administrative Hearings (DOAH) or circuit court under Chapter 120 and Section 72.011, Florida Statutes require legal representation for any entity beyond a sole proprietor. An accountant cannot file a Chapter 120 petition. An accountant cannot appear at DOAH or argue a case before an administrative law judge.
An attorney who is also a CPA provides both forms of protection under one engagement and one privilege. There is no need to coordinate two separate professionals, no gaps in the record, and no moment when privileged communications move outside the protection of Section 90.502.
How a Florida Sales Tax Audit Defense Attorney Handles Each Stage
Stage 1: The Audit (DR-840 Through Records Review)
After the DR-840 is issued, the FDOR requests books and records under its inspection authority at Section 213.34(2), Florida Statutes. Taxpayers have corresponding recordkeeping obligations under Section 213.35, Florida Statutes.
Attorney representation at this stage controls what gets disclosed, and can require that the audit be conducted at counsel's office rather than on-site at your business. That single step prevents employees from inadvertently answering questions outside the audit scope and prevents the auditor from identifying additional exposure areas during a physical visit.
Audit period extensions, called tolling agreements under Section 213.345, Florida Statutes, require a written agreement. No tolling agreement should be signed without legal review. What appears to be a routine administrative extension can waive rights or expand the audit period in ways that compound the final assessment.
Stage 2: Notice of Intent to Make Audit Changes (DR-1215)
The DR-1215 sets out the auditor's preliminary findings. You generally have 30 days to respond and may request an audit conference under Section 213.34(2), Florida Statutes.
Signing the DR-1215 without qualification can waive your right to dispute the findings at the audit level. This document is the last point at which the auditor's methodology, sampling periods, and extrapolations can be challenged before the case moves to formal protest. If legal representation was not involved through the audit phase, this is the critical point to engage counsel.
Stage 3: Notice of Proposed Assessment (NOPA)
The NOPA states the final tax, penalty, and interest the Department believes is owed. Two jurisdictional deadlines run from the NOPA date. Missing either one permanently forfeits your right to challenge the assessment.
- 60 days: file an informal written protest with the Department's Technical Assistance and Dispute Resolution division in Tallahassee.
- 120 days: bypass the informal process and file a formal protest under Chapter 120, Florida Statutes.
These deadlines cannot be waived, tolled, or extended for any reason, including lack of representation. No court and no agency official has authority to revive them.
Stage 4: The Informal Protest
An informal protest is filed with the Department's Technical Assistance and Dispute Resolution division. Rule 12-6.003, Florida Administrative Code specifies exactly what the protest must contain: taxpayer identification, the audit number, the specific dollar amounts and periods being contested, a statement of facts, and supporting legal authority.
A protest grounded in the actual statutes and Department rules, not a general disagreement with the result, is typically the highest-leverage opportunity to reduce or eliminate an assessment before the case moves to litigation. The conferee reviewing the protest has authority to adjust the assessment if the legal arguments are sound. Most cases that go to litigation could have been resolved at this stage with a well-constructed protest.
Stage 5: Settlement and Compromise
The Department has statutory authority to compromise tax, penalty, and interest under Section 213.21, Florida Statutes, where reasonable doubt exists as to liability or collectibility. Negotiating a compromise requires understanding both the legal weaknesses in the Department's position and the practical parameters of what the Department will accept.
That leverage comes from having handled the case from the audit stage forward. A firm that enters at the settlement stage without the prior case history is negotiating without the full record.
Stage 6: Litigation Before DOAH or Circuit Court
If a protest is unsuccessful, or a formal challenge is filed from the outset, the case proceeds to the Division of Administrative Hearings (DOAH) or circuit court under Chapter 120 and Section 72.011, Florida Statutes. This stage requires full Florida tax litigation capability: discovery, expert testimony where appropriate, and trial experience before the administrative law judges and circuit court judges who hear Florida tax cases.
Our Tallahassee office places attorneys within walking distance of both DOAH and the Department's headquarters, which is not incidental. Proximity to the administrative forum where tax cases are resolved reflects the depth of our practice in that forum.
Statute of Limitations on Florida Sales Tax Assessments
Under Section 95.091, Florida Statutes, the Department's authority to assess additional tax generally expires three years from the date a return was filed or was due. There is no limitations period if a return was never filed or if fraud is involved.
Unfiled-return situations are better addressed through the Department's voluntary disclosure program before an audit begins rather than left unresolved. Once an audit is initiated, the absence of filed returns removes the three-year protection entirely and exposes the full history of the business to audit scrutiny.
The Law Offices of Moffa, Sutton and Donnini, P.A.
Since 1991, this firm has concentrated almost exclusively on Florida sales and use tax controversy. Shareholders Joseph C. Moffa, James H. Sutton, Jr., and Gerald J. Donnini, II each hold both law licenses and CPA credentials. The firm is not a general tax practice that occasionally handles state matters. Florida sales and use tax controversy is the practice.
Representation covers every stage: from the first DR-840 notice through audit, protest, settlement negotiation, and litigation. The firm also handles collection issues, Florida tax warrant defense, revocation hearings, and criminal tax investigations when a civil audit escalates. Offices in Tampa, Fort Lauderdale, and Tallahassee serve clients statewide.
When an audit crosses into criminal sales tax defense territory, the firm handles both the civil and criminal dimensions under one engagement. The privilege protections and the litigation strategy are coordinated from the start rather than assembled after the referral is made.
Contact the Law Offices of Moffa, Sutton, & Donnini, P.A. by calling (888) 444-9568 today to schedule a meeting with our tax adult lawyer in Florida!
Frequently Asked Questions
How much does a Florida sales tax audit defense attorney cost?
Fee structures vary by case complexity. The firm offers a free initial consultation to review your audit notice, explain the likely scope of work, and discuss fee arrangements before any commitment.
Can I let my CPA handle the audit?
A CPA is a valuable part of the team, particularly for reconstructing records and analyzing exemption documentation. A CPA cannot assert lawyer-client privilege under Section 90.502, Florida Statutes. A CPA cannot represent a business entity in a Chapter 120 proceeding before DOAH. A CPA is not positioned to identify the legal arguments that determine the outcome of a formal protest. For audits that have any chance of reaching the protest or litigation stage, a CPA alone is not sufficient.
What happens if I ignore the DR-840?
The Department will proceed using the best information available to it. In the absence of complete records, auditors use estimation methods: markup analysis, credit card reconciliation, and 1099-K data comparisons. Estimated assessments are routinely higher than what a documented response would have produced. The presumption-of-correctness rule at the protest stage then applies to those inflated estimates.
If an assessment reaches the point where the Department issues a Florida tax warrant, collection actions include bank account levies, asset seizures, and in cases involving collected-but-unremitted tax, criminal referral.
Is there a deadline to hire an attorney?
There is no formal deadline to retain counsel, but the decisions that determine case outcomes are made at the beginning of the process, not the end. What records to produce, whether to request an audit conference, whether to sign the DR-1215, and whether to accept a tolling agreement are all early-stage decisions. They are difficult or impossible to undo. Earlier engagement produces better outcomes because those decision points are addressed with legal guidance rather than after the fact.
Serving Clients Statewide
The firm represents businesses across Florida from offices in Tampa, Fort Lauderdale, and Tallahassee. Representation covers every county and industry segment, including retailers, restaurants, contractors, manufacturers, auto dealers, and professional services firms. If the Florida Department of Revenue has contacted your business, call 888-444-9568 or contact us online to schedule a free initial consultation.
• Jacksonville Sales Tax Attorney
About the Author
James H. Sutton, Jr., CPA, Esq. is a Shareholder at the Law Offices of Moffa, Sutton & Donnini, P.A. James concentrates in the area of Florida tax matters, with an almost exclusive focus on Florida sales and use tax. He joined the firm in 2011 and has been a licensed Certified Public Accountant since 1994 and a licensed member of The Florida Bar since 1998. Mr. Sutton has 30+ years of experience working in federal tax as well as state and local tax (“SALT”), including time at Arthur Andersen and a tax consulting firm handling state tax planning and consulting for Fortune 1,000 companies. Since 2002, Mr. Sutton has been an Adjunct Professor of Law at Stetson University College of Law teaching State and Local Tax, Accounting for Lawyers, and Federal Income Tax I, and also teaches Sales and Use Tax at Boston University College of Law's LLM in Taxation program. Mr. Sutton has been quoted by Fox News Tampa Bay, the Daily Business Review, Law360, Bloomberg BNA Daily Tax Report, State Tax Notes, and the Tampa Bay Business Journal.
