Legislative/Legal Update TPP Seminar December 3 – 5, 2012

On Tuesday, November 6, 2012, Florida Voters voted on five Constitutional Amendments specifically related to exemptions and the property assessment process. Amendments 2, 4, 9, 10 and 11 were the five amendments. Five Amendments Faced Florida Voters

Current law allows for an exemption to veterans who were Florida residents at the time of entering military service. The exemption to the amount of taxes paid is equal to the percentage of combat related injury as determined by the Veterans Administration. – For example, if the individual owes $1,000 in taxes and has a qualified disability that is equal to 50% then the taxes paid would be $500.00

Florida Supreme Court Garcia V. Andonie, 37 Fla. L. Weekly S613 (Fla. Oct. 4, 2012) The issue presented in this case was whether property owners who are present in the United States under temporary visas may receive homestead tax exemption based on the residency status of their minor children, who were born in the United States. The property owners were foreign citizens in the United States under a temporary visa. As a result, they could not be considered permanent residents so as to be entitled to homestead tax exemption. The minor children were born in the United States and, therefore, were citizens of the United States. In essence the question was whether the minor children could be considered permanent residents despite their parents’ non-residency status. In a unanimous decision, the Court held that homestead tax exemption should have been granted.

Florida Supreme Court Delta Property Mgmt. V. Profile Inv., Inc., 87 So.3d 765 (Fla. 2012) This case involved the validity of a tax deed where the property owner did not receive notice of the tax deed sale. The Florida Supreme Court held that due process considerations required “that where a notice sent by certified mail is returned undeliverable, the clerk of court must take additional reasonable steps to notify a titleholder of the upcoming tax sale.” The reasonable steps depend on the particular circumstances of the case and may include “checking the records of the taxing authorities for a change of address submitted by the legal titleholder; resending notice by regular mail so that no signature is required; posting notice on the property to be sold not merely at the last known address of the titleholder; or sending a notice addressed to ‘occupant’ by regular mail.” Here, the clerk did not take any further action to accomplish notice and, therefore, the tax deed was invalid.

Florida Supreme Court Telli v. Broward County, 94 So.3d 504 (Fla. 2012); Antunes V. Sarasota County, 94 So.3d 513 (Fla. 2012) These cases involve challenges to term limits imposed on county commissioners in charter counties. The district court in Telli held that county commissioners were a different class of constitutional officers than property appraisers, tax collectors, supervisors of elections, clerks of the court, or county sheriffs. Snipes v. Telli, 67 So.3d 415 (Fla. 4 th DCA 2011). As a result, the district court concluded that Cook v. City of Jacksonville, 823 So.2d 86 (Fla. 2002), was uncontrolling. Cook held that term limits on county constitutional officers could not be imposed absent an amendment to the Florida Constitution. Therefore, charter counties could impose term limits on their commissioners. The trial court in Antunes reached a contrary conclusion and ruled that Cook was controlling. In a surprising and rare decision, the Florida Supreme Court receded from its prior decision in Cook because it “undermines the ability of counties to govern themselves as that broad authority has been granted to them by home rule power through the Florida Constitution.” Id. At 513. Accordingly, charter counties may now impose term limits on their constitutional officers via the county charter.

Florida Supreme Court Scott v. Williams, No. SC This case involves a challenge to the rewrite of the Florida Retirement System (FRS) passed in 2011 (Chapter , Laws of Florida). In particular, the plaintiffs challenged the mandatory three percent of gross compensation contribution by employees that were members of the FRS before passage of the legislation. The elimination of cost-of-living adjustments for service earned after July1, 2011 – the effective date of the act – as applied to members of the FRS before passage of the legislation also was challenged. The trial court held unconstitutional the challenged portions of Chapter The First District Court certified the question as requiring immediate resolution by the Supreme Court. The Court accepted jurisdiction and oral argument was conducted on September 5, No decision has been issued.

DCA Opinion Wilkinson v. Clarke, 91 So.3d 897 (Fla. 2d DCA 2012) This case is another decision involving the taxpayer’s failure to pay taxes prior to delinquency in years subsequent to filing suit. Here, the parties had argued a summary judgment motion, and the trial court indicated that it would reserve ruling at the hearing. The trial court later communicated its decision via a letter to the parties and requested that an order be prepared and forwarded to the court. The letter was dated April 4, Before the court entered the proposed order, the property appraiser filed a motion to dismiss on April 7, asserting that the taxpayer had failed to pay the subsequent year’s taxes by April 2. As a result, the property appraiser argued the taxes were delinquent and the case should be dismissed pursuant to section (5). The trial court denied the motion because of its belief that it already had indicated its ruling in the case before the taxes became delinquent. The district court reversed. The court concluded that Florida law was ‘“clear that jurisdiction to entertain an assessment contest is conditioned on the taxpayer’s obligation to keep taxes current for all years subsequent to the year in question.”’ Id. at 898, quoting Higgs v. Armada Key West Ltd. P’ship, 903 So.2d 303, 305 (Fla. 3d DCA 2005). Once the taxes became delinquent on April 1, the trial court lost jurisdiction to subsequently enter the summary judgment order.

DCA Opinion Turner v. Dep’t of Revenue, No. 1D (Fla. 1 st DCA Mar. 26, 2012); Crapo v. Dep’t of Revenue, 1D (Fla. 1 st DCA Mar. 26, 2012) In 2011, a total of 65 property appraisers filed administrative rule challenges against the Department of Revenue (“department”), which were consolidated into one case. The rule challenge against the department involved three issues: (1) whether the Value Adjustment Board (“VAB”) evidence exchange rule, which provided that the evidence exchange process was optional, complied with the controlling statutory provisions; (2) whether portions of the 2010 VAB Training constituted unpromulgated rules; and (3) whether PTO Bulletin constituted an unpromulgated rule.

Conclusion The results of the rule challenge against the department are twofold. First, the “optional” VAB evidence exchange process prescribed by the department in rule 12D-9.020(1), (2)(a), and (2)(b), was held invalid. The evidence exchange process is mandatory and is controlled by sections (4)(a) and (1)(d), Florida Statutes (2010). If a property appraiser submits a written request for evidence to the taxpayer and the taxpayer fails to provide the requested evidence to the property appraiser at least 15 days prior to the VAB hearing, the evidence may not be introduced at the hearing. Second, the 2010 VAB Training and PTO bulletin were determined not to constitute rules requiring formal rulemaking. The training materials and bulletin, therefore, are not binding on special magistrates, VABs, or VAB attorneys. The department cannot enforce compliance with the legal principles expressed in these materials and the statements were not the department’s legal advice or position on legal issues. The statements in the training and bulletin are legally unenforceable. Special magistrates and VABs, instead, must rely on the arguments and evidence presented during the hearing and the advice of their VAB attorneys.

Questions?