DEPARTMENT OF REVENUE ET AL., APPELLANTS,
v.
KELLY BOAT SERVICE, INC., ET AL., APPELLEES
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The Florida Department of Revenue appealed a trial court decision that limited the assessment period for admissions tax owed by Kelly Boat Service, Inc. for its fishing boat operations in the Gulf of Mexico. The appellate court affirmed that Kelly's commercial activities are taxable but reversed the trial court's limitation on the retroactive assessment period.
Kelly Boat Service is liable for admissions tax on passenger fares charged at the dock based on its commercial activities. The Department of Revenue is not foreclosed from assessing Kelly for the full three-year period authorized by statute despite the 1968 Straughn decision and the timing of the audit demand.
[1] Commercial boat operations taking passengers beyond territorial limits are subject to Florida admissions tax on fares charged at the dock.
[2] The Department of Revenue is not foreclosed from assessing admissions tax for the full three-year period authorized by statute, absent specific statutory limitations.
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Join FLexlaw to unlock all legal intelligence“Kelly, whose boats take on passengers at Destín for fishing in the Gulf of Mexico beyond the territorial limits of Florida, is taxable at the statutory rate on the admission fare charged at the dock”
Establishes that Kelly's commercial activity in transporting passengers is subject to the admissions tax
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Join FLexlaw to unlock all legal intelligenceKelly Boat Service, Inc. operated boats that took passengers from Destin, Florida for fishing in the Gulf of Mexico beyond Florida's territorial limit…
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SMITH, Judge.
The Department of Revenue appeals from a summary final judgment of the circuit court declaring, as authorized by Chapter 86, F.S.1973, the liability of appellee Kelly Boat Service, Inc., for payment of the admissions tax imposed by § 212.04, F.S.1973. The court held that Kelly, whose boats take on passengers at Destín for fishing in the Gulf of Mexico beyond the territorial limits of Florida, is taxable at the statutory rate on the admission fare charged at the dock, but that the State is foreclosed from assessing Kelly for taxes that should have been paid between August 1970 and the first day of August, 1973, the month in which the Department demanded the production of Kelly’s record for audit. Sec. 212.14(6), F.S. 1973. By cross-appeal, Kelly urges that its activities are not subject to the tax. Straughn v. Kelly Boat Service, Inc., 210 So. 2d 266 (Fla.App.1st, 1968). Kelly and other cross-appellants complain also of the trial court’s refusal to grant their complaint class action status.
The trial court was correct in its reading of our decisión in Department of Revenue v. Pelican Ship Corp., 257 So. 2d 56 (Fla.App.1st, 1972), cert. den. 262 So. 2d 682 (Fla.1972), cert. dism. 287 So. 2d 93 (Fla.1974), and in holding that Kelly’s commercial activities, as evidenced by the record, render it liable to assessment for the admissions tax. The court was incor rect, however, in foreclosing the Department of Revenue from making the assessment for the full three-year period authorized by § 212.14(6), F.S.1973. The State is not foreclosed, by reason of our 1968 decision in Straughn v. Kelly Boat Service, Inc., or otherwise, to assert that on the facts shown by this record Kelly should satisfy its full tax liability incurred within three years prior to August 1, 1973. North American Co. v. Green, 120 So. 2d 603 (Fla.1960); Jackson Grain Co. v. Lee, 139 Fla. 93, 190 So. 464 (1939), 150 Fla. 232, 7 So. 2d 143 (1942).
We have also considered but cannot sustain appellees’ other points on the cross-appeal.
Affirmed in part, reversed in part.
BOYER, C. J., and SACK, MARTIN F., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Dep't OF Revenue v. Hobbs, 368 So. 2d 367 (Fla. 1st DCA 1979)…(Fla.1974), limited the Kelly I decision only to the collection of taxes on transactions which occurred outside Florida’s territorial waters— not to taxes on admissions which were obtained dockside; Department of Revenue v. Kelly Boat Service, Inc., 324 So. 2d 651 (Fla. 1st DCA 1976); Davis and Sons, Inc. v. Askew, 343 So. 2d 1329 (Fla. 1st DCA 1977). . One of the court’s prior orders, entered on September 17, 1973, temporarily enjoined DOR from collecting taxes then due or alleged due until final dispositio…
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George W. Davis & Sons, Inc. v. Reubin O'D. Askew, 343 So. 2d 1329 (Fla. 1st DCA 1977)…the trial court was correct in ruling that the state is es-topped to now require that Davis pay these taxes from its own pocket. We have not overlooked this court’s opinion by a different panel in Department of Revenue v. Kelly Boat Service, Inc., 324 So. 2d 651 (Fla. 1 DCA 1975), hereafter referred to as Kelly II, which reached a different conclusion from the ruling here on the question of payment of the back admission taxes. We have examined the record of that case and find that the primary focus of appel…
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Dep't OF Revenue of the State of Fla. v. Anderson, 389 So. 2d 1034 (Fla. 1st DCA 1980)…ge W. Davis & Sons, Inc. v. Askew, 343 So. 2d 1329 (Fla. 1st DCA 1977), although it was actually valid, according to Pelican. The Kelly I error and its correction have been revisited most notably in Department of Revenue v. Kelly Boat Service, Inc., 324 So. 2d 651 (Fla. 1st DCA 1975), hereafter Kelly II, Davis, and Department of Revenue v. Hobbs, 368 So. 2d 367 (Fla. 1st DCA 1979), with seemingly disparate and virtually irreconcilable opinions. Kelly II held that the Department was not foreclosed by Kelly I o…1 / 2
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- N. Am. Co. v. Green, 120 So. 2d 603 (Fla. 1959)
- Jackson Grain Co. v. LEE, 150 Fla. 232 (Fla. 1942)
- Straughn v. Kelly Boat Serv., Inc., 210 So. 2d 266 (Fla. 1st DCA 1968)
- MJR Minton, LLC v. Long Doggers Eateries, 251 So. 3d 348 (Fla. 5th DCA 2018)
- Dep't OF Revenue v. Pelican Ship Corp., 257 So. 2d 56 (Fla. 1st DCA 1972)
- Jackson Grain Co. v. Lee, 139 Fla. 93 (Fla. 1939)
- Carillon Hotel & the Ins. Co. of N. Am. v. Mary Schlitzer & the Fla. Dep't of Commerce, 287 So. 2d 93 (Fla. 1973)
- Seaboard Coast Line R.R. Co. v. Herman Nieuwendaal et ux., 262 So. 2d 682 (Fla. 1972)
- Pelican Ship Corp. v. Dep't OF Revenue, 262 So. 2d 682 (Fla. 1972)