How Amendment 6 Will Impact Florida Tax Law

The End of Agency Deference:

How Amendment 6 Will Impact Florida Tax Law

Florida voters approved Amendment 6 to the Florida Constitution in the November 2018 midterm election. Amendment 6 requires state court judges and administrative law judges to interpret state statutes and regulations de novo, or anew, without deferring to an administrative agency’s interpretation of the law. This constitutional amendment ends the state’s longstanding doctrine of judicial deference to agency interpretation of the law, which has figured prominently in the development of Florida tax law.^[1] This article examines the history of Florida courts’ deference to the Department of Revenue’s interpretation of the tax laws, and how Amendment 6 will alter the future development of those laws.

Amendment 6 Overview

Amendment 6 bundles a number of discrete constitutional provisions, from creating crime victims’ rights to raising state court judges’ mandatory retirement age. Tucked away at the tail end of the amendment is a less publicized provision that adds new Section 21 to Article V of the Florida Constitution:

SECTION 21. Judicial interpretation of statutes and rules.—In interpreting a state statute or rule, a state court or an officer hearing an administrative action pursuant to general law may not defer to an administrative agency’s interpretation of such statute or rule, and must instead interpret such statute or rule de novo.

Art. V, §21, Fla. Const. The amendment appears to be self-executing, because it does not require implementing legislation^[2] and becomes effective January 8, 2019.^[3]

Amendment 6 was placed on the ballot by the state Constitution Revision Commission, which meets every 20 years to consider and propose state constitutional amendments that are subject to voter approval.^[4] The Commission’s stated intent is that the provision apply to state court judges and administrative law judges (i.e., “an officer hearing an administrative action pursuant to general law”),^[5] even though ALJs are not Article V judges.^[6] The inclusion of ALJs is important because a greater number of tax assessments are challenged administratively before ALJs than are contested in circuit court or appellate court.

The concept of de novo interpretation of a statute or regulation is well-established in Florida law. The Latin phrase means “over again” or “anew,”^[7] in the sense that a legal matter is considered by a judge as though it had not been presented before and no decision previously rendered.^[8] In the context of Amendment 6, de novo review of a state statute or regulation will require state court judges and administrative law judges to interpret and apply the law independent of a state agency’s interpretation, in any proceedings between the agency and a private party.^[9]

Agency Deference in Florida Tax Law

Prior to voter approval of Amendment 6, courts (with few exceptions) routinely deferred to agency interpretation of the law:

[A]n agency’s interpretation of a statute it is charged with enforcing is entitled great deference and will be approved by this Court if it is not clearly erroneous.^[10]

This doctrine was fostered by a belief that agencies have special expertise in their particular areas of administration or enforcement; the revenue department was no exception.^[11]

Florida courts have long afforded the Department of Revenue (and its predecessor, the State Revenue Commission) wide latitude in enforcing the state’s tax laws within the bounds set by statute. Since at least the early 1950’s, courts have deferred to the Department’s interpretation of the tax laws, even if contrary, equally reasonable interpretations of the law favored the taxpayer:

Although not necessarily controlling, as where made without the authority of or repugnant to the provisions of a statute, the contemporaneous administrative construction of the enactment by those charged with its enforcement and interpretation is entitled to great weight, and courts generally will not depart from such construction unless it is clearly erroneous or unauthorized.^[12]

In L. B. Price Mercantile Co. v. Gay, 44 So. 2d 87, 90 (Fla. 1950), the Florida Supreme Court observed that “departmental construction of a taxing statute acquiesced in for a long time by those affected by the statute is entitled to great weight when the statute is reasonably susceptible to two constructions.” The Department’s regulations, too, received judicial deference, fostering a climate that encouraged expansive rulemaking:

The administrative rules interpreting the sales and use tax statute, although made by an extra-judicial body, should be accorded considerable persuasive force before any court called upon to interpret the statute. Courts generally will not depart from such construction unless it is clearly erroneous or unauthorized.^[13]

These broad pronouncements of judicial deference are seemingly at odds with the equally time-honored maxim that taxing statutes must be strictly construed against the taxing authority, and all doubts or ambiguities resolved in favor of the taxpayer.^[14] Some courts attempted to reign in this unbridled enthusiasm for agency deference, holding that deference was appropriate only when a statute is ambiguous, in which case the statute must be construed strongly against the government and in favor of the taxpayer.^[15] Contrary to the Florida Supreme Court’s observation in L.B. Price that deference to the Department’s interpretation is appropriate where a statute is reasonably susceptible to two constructions, the appellate court in Department of Revenue v. Brookwood Associates, Ltd. took the opposite view:

Taxing statutes and statutes conferring authority to impose taxes are to be strictly construed. When such statutes are so drawn that the legislative intent is in doubt or where such statutes are so ambiguous as to render the legislative intent questionable or unclear then it is the duty of the taxing authority, and the duty of the courts when litigation arises, to construe such statutes or ambiguities liberally in favor of the taxpayer or citizen and strictly against the taxing authority. If a taxing statute does not reveal with certainty the intent of the legislature and is suceptible [sic] of two meanings, the meaning most favorable to the taxpayer should be adopted. This is particularly true in instances wherein one meaning results in imposing the tax and the other relieves imposition of the tax.^[16]

The latter approach seems to be the more widely accepted view in contemporary tax cases.^[17]

Effect of Amendment 6 on Future Development of Florida Tax Law

Regardless of the propriety of applying agency deference in tax cases, taxpayers will not face that obstacle in the future. Taxpayers will engage the Department on a more level playing field, without having to battle supposed agency expertise in a particular area of tax law. No longer will a “tie” between two reasonable interpretations of the law favor the Department, nor will the Department be afforded wide latitude in administering the tax laws. Rather, taxpayers will stand on equal footing before the courts.

Conclusion

Amendment 6 should be an invaluable development for taxpayers challenging the Department of Revenue’s interpretation of Florida’s tax laws. Taxpayers will no longer fight an uphill battle against judicial deference to the agency’s interpretation. For assistance with this and other state and local tax matters, please contact a member of our State and Local Tax Team.

^[1] Under federal law, this doctrine is known colloquially as “Chevron deference,” in reference to the landmark U.S. Supreme Court decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), setting forth the test applied to federal agencies. Chevron deference has proven increasingly controversial in recent years, provoking criticism from several U.S. Supreme Court Justices and proposed legislation to end the doctrine.
^[2] Gray v. Bryant, 125 So. 2d 846, 851 (Fla. 1960)(“The basic guide, or test, in determining whether a constitutional provision should be construed to be self-executing, or not self-executing, is whether or not the provision lays down a sufficient rule by means of which the right or purpose which it gives or is intended to accomplish may be determined, enjoyed, or protected without the aid of legislative enactment.”)
^[3] Art. XI, §5(e), Fla. Const. (unless otherwise provided, constitutional amendment is effective on first Tuesday after first Monday in January following November election).
^[4] Art. XI, §2, Fla. Const.
^[5] The Commission’s analysis is available at: http://flcrc.gov/Proposals/Commissioner/2017/0006/Analyses/2017p0006.pre.ex.pdf.
^[6] Rather, ALJs are executive branch employees of the Department of Management Services, Division of Administrative Hearings. See Sections 20.22(2)(f) and 120.65(4), Fla. Stat.; e.g., Department of Revenue v. WHI Limited Partnership, 754 So. 2d 205, 206 (Fla. 1st DCA 2000)(recognizing that ALJs are “quasi-judicial officer[s] of a quasi-judicial forum,” but are not “judge[s] of a court of competent jurisdiction” for purposes of taxpayer confidentiality statute).
^[7] https://www.merriam-webster.com/dictionary/de%20novo
^[8] E.g., Lee v. St. Johns County Board of County Commissioners, 776 So. 2d 1110, 1113 (Fla. 5th DCA 2001).
^[9] See the Commission’s analysis at note 5 above.
^[10] Florida Interexchange Carriers Ass’n v. Clark, 678 So. 2d 1267, 1270 (Fla. 1996).
^[11] See, e.g., In re Advisory Opinion to the Governor, 509 So. 2d 292, 311-312 (Fla.1987)(“[T]he subordinate factors in complex areas such as taxation should be left to the appropriate agency having expertise and flexibility.”)
^[12] Gay v. Canada Dry Bottling Co. of Florida, Inc., 59 So. 2d 788, 790 (1952); see also, L. B. Smith Aircraft Corp. v. Green, 94 So. 832, 835 (Fla.1957).
^[13] State ex rel. Szabo Food Services, Inc. of North Carolina v. Dickinson, 286 So. 2d 529, 531 (Fla. 1973); see also, Department of Revenue v. Skop, 383 So. 2d 678, 679 (Fla. 5th DCA 1980)(“It is also settled law in this state that a construction placed on a statute by a state administrative officer is a persuasive force and influential with the courts when not in conflict with the Constitution or the plain intent of the statute”).
^[14] E.g., Gulf American Land Corp. v. Green, 149 So. 2d 396, 398 (Fla. 1st DCA 1962).
^[15] New Sea Escape Cruises, Ltd. v. Department of Revenue, 823 So. 2d 161, 163 (Fla. 4th DCA 2002), approved sub nom. Department of Revenue v. New Sea Escape Cruises, Ltd., 894 So. 2d 954 (Fla. 2005).
^[16] Department of Revenue v. Brookwood Associates, Ltd., 324 So. 2d 184, 187 (Fla. 1st DCA 1975).
^[17] E.g., Department of Revenue v. Lockheed-Martin Corp., 905 So. 2d 1017, 1020 (Fla. 1st DCA 2005)(“Administrative construction of a statute, the legislative history of the statute’s enactment, and other extraneous matters are properly considered only when the construction of a statute results in a doubtful meaning”).

About the Authors:
H. French Brown, IV focuses on state and local taxation, governmental relations and lobbying, and administrative law. Prior to joining Dean Mead, Mr. Brown was in private practice at another Tallahassee law firm. He began his legal career at the Florida Department of Revenue, where he quickly rose to the position of Deputy Director of Technical Assistance and Dispute Resolution. Mr. Brown also assists businesses with Florida tax planning and controversies. He may be reached at fbrown@www.deanmead.com.

Robert S. Goldman offers clients over 40 years of experience practicing in state and local taxation. He represents clients in audits, protests, litigation, rulemaking, tax planning, and legislation. His experience includes all the major state and local taxes (sales taxes, property taxes, corporate income taxes, communications service taxes, gross receipts taxes, insurance premium taxes, documentary stamp taxes). Mr. Goldman’s range of experience spans diverse industries including retail, manufacturing, energy, leasing, hospitality, telecommunications, government contracting, health care, transportation, and the service sector. He may be reached at rgoldman@www.deanmead.com.

Mark E. Holcomb has 33 years of experience practicing in state and local taxation. He represents clients before the Florida Department of Revenue and local taxing authorities, and in litigation at the trial and appellate levels. Mr. Holcomb advises clients on a broad range of state and local taxes, including corporate income and franchise tax, sales and use tax, documentary stamp tax, communication services tax, insurance premium tax, ad valorem tax and motor fuels tax, in tax controversy work and in planning opportunities. He may be reached at mholcomb@www.deanmead.com.