Tax Alerts

FL – Taxpayer lacked standing to challenge department's former practice

The taxpayer did not have standing to contest a notice of proposed assessment that assessed Florida sales and use tax, a penalty, and interest.

Department’s Former Practice Regarding Notices of Proposed Assessments

The Florida Department of Revenue sent the taxpayer a notice of proposed assessment by regular mail, fax, and e-mail. The department employed a practice under which taxpayers with assessments less than $100,000 were notified solely by first class mail and taxpayers with assessments greater than $100,000 were notified by first class mail, fax, and email.

Taxpayer’s Burden of Proof

The taxpayer had the burden to prove, by a preponderance of the evidence, that:

  • the challenged department practice was, in effect, an unadopted rule; and

  • that it was substantially affected by the challenged practice.

Subsequently, the department no longer made a distinction between small and large assessments when determining how to send notices, and instead sent all such notices by U.S. mail, unless requested by a taxpayer or its representative to send it by other means.

Taxpayer Failed to Meet Burden of Proof

A substantially affected person is one who will suffer a real or immediate injury in fact because of the alleged unadopted rule and who is within the zone of interests to be protected or regulated. In this instance, the taxpayer failed to prove:

  • that the challenged agency practice currently exists and is applied to taxpayers; or

  • that the former, now abandoned agency practice could be applied to the taxpayer in the future.

Consequently, the taxpayer lacked standing to bring the petition challenging the department’s former practice. WKDR II, Inc. v. Florida Department of Revenue, Florida Division of Administrative Hearings, Case No. 22-0117RU, July 14, 2022

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