MR COMFORT FURNITURE CORP v. DEPARTMENT OF REVENUE (2022)

Mr. Comfort Furniture Corp. appeals final agency action by the Department of Revenue dismissing, with prejudice, its petition for administrative hearing challenging a tax assessment. See §§ 120.569(2), 120.57(1), Fla. Stat. (2020). The Department dismissed the petition as untimely under section 72.011(2)(a), Florida Statutes (2020), which requires a taxpayer to bring any such challenge within 60 days after the assessment becomes final. However, in its petition for administrative hearing, Mr. Comfort denied ever receiving the notice of proposed tax assessment. It also asserted that the required notice of proposed tax assessment was not issued by the Department on the date printed on the assessment form in the record. The documents in the record lack any indication that the Department sent the notice to Mr. Comfort or its representative on the date printed on the form. As no hearing was held, there is no testimony or other evidence in the record to establish the date the notice was transmitted or mailed.

Because there was no hearing before the agency action and because the validity of the agency's order dismissing the petition depends on disputed facts establishing or failing to establish the timeliness of the petition, we remand the case for an evidentiary hearing. See § 120.68(7)(a), Fla. Stat. (2021). Further proceedings are necessary under sections 120.569 and 120.57 to determine the disputed facts on the timeliness of the petition, the date the notice of proposed assessment was issued, and whether any tolling occurred. See Campbell v. Dep't of Health, 233 So. 3d 488, 489–90 (Fla. 1st DCA 2017); see also Roeder v. Florida Dep't of Env't Prot., 303 So. 3d 979, 981 (Fla. 1st DCA 2020).

Reversed and Remanded.

Bilbrey, J.

Roberts and Ray, JJ., concur.