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Taxpayer Rights in Florida: New Opportunity for Meaningful Reform

Published: April 20th, 2018

By: Mark E. Holcomb

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The 2018 Florida Legislature granted greater independence and authority to the Department of Revenue’s office of Taxpayer Rights Advocate. Oversight of the Taxpayer Rights Advocate will shift from the Department to the Governor’s office; the Taxpayer Rights Advocate will also be responsible for recommending administrative and legislative changes to the Governor and legislative leadership to resolve problems encountered by taxpayers.  These changes provide a new opportunity for the Taxpayer Rights Advocate to become a voice for all taxpayers (not just those in dire straits) and spur meaningful reforms protecting taxpayer rights in Florida.   This article explains key aspects of the new law and suggests a few of the many reforms that should be considered.

Florida Taxpayers’ Bill(s) of Rights

Florida voters amended the state constitution in 1992 to require the legislature to adopt a “Taxpayers’ Bill of Rights” that “in clear and concise language, sets forth taxpayers’ rights and responsibilities and government’s responsibilities to deal fairly with taxpayers under the laws of this state.”[1]

Two statutes have been adopted summarizing these rights: one for state taxes administered by the Florida Department of Revenue (DOR);[2]  and the other for local property taxes.[3]  Labeling either of these statutes a ‘bill of rights’ is something of a misnomer.  While these statutes purport to “guarantee that the rights, privacy, and property of Florida taxpayers are adequately safeguarded and protected,”[4] in reality these statutes merely compile and summarize rights granted under other state laws and DOR regulations, and are “available only insofar as they are implemented in other parts of the Florida Statutes or rules.”[5]  The statutes serve as a convenient reference point rather than a self-executing source of actual protection (such as the Bill of Rights to the U.S. Constitution), although that distinction may not always be recognized in the courts.[6]

That is not to suggest that either Bill of Rights is unimportant. The rights listed are central to the integrity of a state tax system heavily dependent upon voluntary taxpayer compliance.  These rights reflect basic due process (the right to notice and an opportunity to be heard before taxes are assessed), the right to maintain confidentiality over taxpayer information, and the right to simple and nontechnical explanations of audit adjustments and refund denials.[7]  But these rights remain subject to conditions and limitations contained in the cited implementing statutes and regulations.  The stated “guarantee” of taxpayer rights is largely idealized; the devil is in the details.

Potentially, one of the most meaningful of the state-level Taxpayer’s Bill of Rights is the last one:

The right to fair and consistent application of the tax laws of this state by the Department of Revenue.[8]

This right embodies the constitution’s acknowledgement of government’s responsibility to deal fairly with taxpayers.[9]  A taxpayer’s right to equal protection of the tax laws has long been recognized in case law[10] (reflected in the right to “consistent” application of the tax laws), but the right to “fair” application of the tax laws has not received the same level of attention.  What is “fair” in any given circumstance is certainly open to debate, and the scope of that right remains unsettled.[11]

Notably, even though the 1992 constitutional mandate broadly applies to “government’s responsibilities to deal fairly with taxpayers under the laws of this state,” the state-level Taxpayer’s Bill of Rights does not, in fact, protect taxpayers in the assessment and collection of all state taxes.  The statute does not apply to taxes administered by state agencies other than DOR, such as the Department of Business and Professional Regulation (e.g., alcoholic beverage, tobacco and pari-mutuel wagering taxes) or the Department of Highway Safety and Motor Vehicles (e.g., interstate motor carrier fuel taxes).  Only selected portions of the Taxpayer’s Bill of Rights apply to DOR’s administration of the state’s reemployment assistance tax.[12]  There is also no taxpayer bill of rights for tourist development and tourist impact (or local “bed”) taxes that are locally administered under authority of state law.[13]

Taxpayer Rights Advocate Program

DOR’s office of Taxpayer Rights Advocate was created in 1992 to assist taxpayers in situations where the agency’s tax assessment and collection procedures threaten imminent and irreparable harm.[14]  The Taxpayer Rights Advocate is currently appointed by and reports directly to DOR’s Executive Director.[15]

Circumstances may arise in which DOR’s normal tax assessment and collection process is inadequate to protect a taxpayer’s interests from imminent and irreparable harm[16] or from unprofessional treatment by DOR employees.  In those circumstances, the taxpayer may seek assistance from the Taxpayer Rights Advocate.[17]  The Taxpayer Rights Advocate has the power to issue taxpayer assistance orders that suspend or stay DOR actions when a taxpayer suffers or is about to suffer a significant hardship as a result of a tax determination, collection or enforcement process.[18] The order may provide relief only as an extraordinary measure, and not as a means to contest the merits of a tax liability or as a substitute for normal procedures for review of a tax assessment, collection proceeding or refund denial.[19]

Empowering the Taxpayer Rights Advocate

The 2018 Legislature enacted two important changes to the Taxpayer Rights Advocate program. First, effective July 1, 2018, the Taxpayer Rights Advocate will report directly to the Chief Inspector General in the Executive Office of the Governor, who will have sole responsibility for appointing and removing the Taxpayer Rights Advocate.[20] The Chief Inspector General is responsible for promoting accountability, integrity and efficiency in state agencies under the Governor’s jurisdiction.[21]  Although the Taxpayer Rights Advocate remains under the DOR Executive Director’s general supervision for administrative purposes (such as adequately staffing the program), insulating the Taxpayer Rights Advocate from direct control of the state’s primary revenue collection and enforcement agency is a distinct move toward independence.

Second, while its fundamental statutory duties remain unchanged, the Taxpayer Rights Advocate will now have an annual reporting obligation to the Governor, Senate President and House Speaker.[22] Among the information required to be included are “[r]ecommendations for administrative or legislative action as appropriate to resolve problems encountered by taxpayers” and “[o]ther information as the taxpayers’ rights advocate may deem advisable.”[23]  That report must contain a complete and substantive analysis, not just statistical information.[24]

The Opportunity for Meaningful Reform

The Taxpayer Rights Advocate had a limited mission under prior law. The hope here is that, with fresh oversight from the Chief Inspector General, the Taxpayer Rights Advocate will assume an expanded role to more broadly champion reforms that strengthen taxpayer rights and improve tax administration for the benefit of all taxpayers, not just those whose rights or property are imperiled.  The National Taxpayer Advocate within the Internal Revenue Service, for example, seeks to improve service to and reduce burdens on all taxpayers, one component of which is resolving taxpayer problems.[25]  That broader focus provides a model for Florida’s Taxpayer Rights Advocate to emulate.  Expanding the Taxpayer Rights Advocate’s authority to include other revenue-collecting government agencies (such as the Department of Business and Professional Regulation and the Department of Highway Safety and Motor Vehicles),[26] or requiring those agencies to adopt their own taxpayer rights advocate programs, would also help ensure that those agencies “deal fairly” with taxpayers as directed by the constitution.

The Taxpayer Rights Advocate’s new reporting obligations to the Governor, Senate President and House Speaker expand its platform for advancing taxpayer rights. There will be no shortage of good ideas to improve taxpayer protections and administration of the state’s taxes.[27]  One starting point would be fulfilling the 1992 constitutional mandate by extending the existing Taxpayer’s Bill of Rights to include all taxes administered by state agencies (such as the Department of Business and Professional Regulation and the Department of Highway Safety and Motor Vehicles), not just those administered by DOR.  Including taxes that are locally administered pursuant to state law would also reasonably implement the constitution.  Adding detail to the scope of guaranteeing taxpayers the right to “fair” administration of the tax laws would be beneficial.  Finally, enacting a self-executing bill of rights, not subject to external limitations and conditions, would demonstrate the State’s commitment to taxpayer’s rights that voters approved back in 1992.

Whatever the outcome, the important first step is begin floating ideas for reform. The National Taxpayer Advocate publishes the Purple Book, a compilation of 50 recommendations for Congressional action to strengthen taxpayer rights and improve tax administration.[28]  Florida’s Taxpayer Rights Advocate would do well to similarly exercise its new reporting opportunity to the Governor and legislative leaders.

Conclusion

The 2018 legislature granted new independence to DOR’s Taxpayer Rights Advocate program and empowered that office to champion needed improvements to better protect the rights of Florida taxpayers. There are plenty of opportunities for meaningful reform.  For the benefit of all Florida taxpayers, the Taxpayer Rights Advocate should strive to fulfill this newfound potential.

 

[1] Art. I, §25, Fla. Const. (eff. July 1, 1993)(proposed by the Taxation and Budget Reform Commission).  The constitution refers to a “Taxpayers’ Bill of Rights” (plural), but the statutes refer to a “Taxpayer’s Bill of Rights” (singular).  Each term is used here in the context of the authority cited.

[2] Section 213.015, Fla. Stat. (2017).

[3] Section 192.0105, Fla. Stat.

[4] Section 213.015; Section 192.0105 substitutes “the taxpayers of this state” for “Florida taxpayers.”

[5] Id.

[6] At least one appellate court has referred to the property tax bill of rights as granting substantive legal rights. Nikolits v. Haney, 221 So. 3d 725, 730 (Fla. 4th DCA 2017)(Section 192.0105 “gives to the taxpayer the right of due process in the assessment and tax collection process”).

[7] See, e.g., Section 192.015(1), (2) and (4); and Section 213.015(3), (5), (6), (8), and (9), Fla. Stat.

[8] Section 213.015(21), Fla. Stat. (with no citation to implementing law).

[9] Art. I, §25, Fla. Const.

[10] See, e.g., Regal Kitchens, Inc. v. Florida Dept. of Revenue, 641 So. 2d 158, 164 (Fla. 1st DCA 1994) (acknowledging “the Department’s duty to give equal treatment to similarly situated taxpayers” and the right of an aggrieved taxpayer to “raise an equal protection claim if the Department is engaging in any form of selective or discriminatory taxation”).

[11] Substantive due process should, at a minimum, guarantee that the application of the tax laws be rational and not discriminatory, arbitrary, capricious or oppressive. See generally, Jackson v. State, 191 So. 3d 423, 428 (Fla. 2016)(discussing parameters of substantive due process protections).

[12] See Section 443.1316(2)(b), Fla. Stat.

[13]  Counties that levy the tourist development tax or the tourist impact tax may elect to locally administer these taxes rather than have them administered by DOR. Section 125.0104(10), Fla. Stat.

[14] Sections 20.21(3) and 213.018, Fla. Stat.

[15] Id. at(3).  The Executive Director, in turn, is appointed by the Governor and Cabinet, Section 20.05(1)(g), who sit as the head of DOR.  Section 20.21(1).

[16] Such as in the collections process, in which DOR may (among other actions) garnish taxpayer bank accounts, revoke taxpayer registrations and issue warrants in an effort to satisfy delinquent tax debts. See Sections 213.67, 213.69 and 213.692, Fla. Stat.

[17] The law does not currently require the creation of a taxpayer rights advocate for taxes administered by other state agencies or local governments.

[18] Section 213.018(2).

[19] Id. at (2)(a).

[20] CS/HB 7087, Ch. 2018-118, §§1 and 39, Laws of Fla. (amending Sections 20.21(3) and 213.018(1), respectively).

[21] Section 14.32(1), Fla. Stat.

[22] CS/HB 7087, Ch. 2018-118, §1, Laws of Fla. (adding Section 20.21(3)(c)).

[23] Id. (adding Section 20.21(3)(c)6 and 7).

[24] Id.

[25] See https://taxpayeradvocate.irs.gov (last visited April 13, 2018).

[26] Both of these Departments are under the Governor’s jurisdiction, and so within the ambit of the Chief Inspector General’s authority. See Sections 20.165 and 20.24, Fla. Stat.

[27] Groups such as the Tax Section of The Florida Bar have long advocated a series of taxpayer rights reform principles.

[28] See https://taxpayeradvocate.irs.gov/reports/2017-annual-report-to-congress/NTA-Purple-Book (last visited April 13, 2018).