DEPARTMENT OF REVENUE, APPELLANT,
v.
CAMPUS COMMUNICATIONS, INC., APPELLEE
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The Department of Revenue appealed a trial court ruling that invalidated a tax rule applying to free publications. The First District Court of Appeal reversed the trial court, finding the rule valid under prior precedent, but certified a question to the Florida Supreme Court regarding whether the rule is unconstitutional as applied to student newspapers like The Independent Florida Alligator.
The court reversed the trial court's invalidation of the rule based on binding precedent from North American Publications, Inc. v. Department of Revenue holding the rule valid. However, the court certified a question to the Florida Supreme Court regarding whether the rule is unconstitutional as applied to The Alligator and similarly situated school publications, noting The Alligator is factually distinguishable as a true newspaper rather than an advertising publication.
[1] A prior appellate decision holding a regulation to be a valid exercise of delegated legislative authority is binding on subsequent cases involving the same regulation, ev…
[2] A publication's status as a taxable item under a regulation may depend on the percentage of advertising content and the presence of traditional newspaper features.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Rule 12A-1.08(4) indicates that "[s]o-called newspapers which are given away for advertising and public relations purposes are taxable." The Alligator is clearly not a "shopper" but is a "newspaper" within the common sense of the word and is not given away for advertising and public relations purposes.”
Establishes the distinction between true newspapers and advertising 'shoppers,' suggesting the rule may not apply to The Alligator
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe Independent Florida Alligator is a student newspaper that is given away free and contains between 53-55% advertising content, along with tradition…
The full statement of facts, procedural history, and disposition for this case are member content.
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THOMPSON, Judge.
The Department of Revenue (the Department) appeals from a trial court order which found that Rule 12A-1.08(3)(d) and (4), Fla.Admin. Code, is an invalid exercise of delegated legislative authority. Based on this court’s recent holding in North American Publications, Inc. v. Department of Revenue, 436 So. 2d 954 (Fla. 1st DCA 1983), rev. denied, 449 So. 2d 265 (Fla.1984), that Rule 12A-1.08(3)(d) and (4) is a valid exercise of delegated legislative authority, we reverse.
While we feel bound to follow North American, we feel that the instant publication, The Independent Florida Alligator (The Alligator) is factually distinguishable from the publication in North American (The Neighbor), such that a different result may be required herein. The Neighbor had an advertising copy of approximately 75 percent whereas The Alligator, during the period relevant herein, had an advertising content of between 53 percent to 55 percent. In other cases holding that a particular publication is taxable and in which the opinions contain sufficient facts to determine the nature of the publication involved, a large majority of the publications was devoted to advertising. In Department of Revenue v. Shop, 383 So. 2d 678 (Fla. 1st DCA 1980), approximately 85 percent of the Metro News was devoted to advertising. In Green v. Home News Publishing Co., Inc., 90 So. 2d 295 (Fla.1956), the “large majority” of the Shopper Advertiser was devoted to advertising.
Additionally, unlike The Neighbor, the Metro News, and the Shopper Advertiser, The Alligator has traditional newspaper features such as national and international news, weather, sports, editorial opinions, comics, and classified ads. Florida Administrative Code Rule 12A-1.08(4) indicates that “[s]o-called newspapers which are given away for advertising and public relations purposes are taxable.” The Alligator is clearly not a “shopper” but is a “newspaper” within the common sense of the word and is not given away for advertising and public relations purposes. Under these circumstances, it may not be proper to deny The Alligator a § 212.08(6), Fla.Stat., tax exemption merely because it is primarily given to the reader free of charge.
Accordingly, we certify the following question to the Florida Supreme Court as one of great public importance under Rule 9.030(a)(2)(A)(v), Fla.R. App.P.:
Is Rule 12A-1.08, Fla.Admin.Code, which requires taxation of all publications which are not sold but are given away, unconstitutional as applied to The Alligator and similarly situated school publications?
NIMMONS and BARFIELD, JJ., concur.
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Citator
Cited By
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Campus Commc'ns, Inc. v. Dep't OF Revenue, 473 So. 2d 1290 (Fla. 1985)…EHRLICH, Justice. This case is before us to respond to a question certified by the district court to be of great public importance in Department of Revenue v. Campus Communications, Inc., 454 So. 2d 30 (Fla. 1st DCA 1984). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Campus Communications is a not-for-profit corporation which publishes The Independent Florida Alligator (The Alligator), a student-operated newspaper distributed free of char…
Authorities Cited
- Dep't OF Revenue of the State of Fla. v. Skop, 383 So. 2d 678 (Fla. 5th DCA 1980)
- Green v. Home News Publ'g Co., Inc., 90 So. 2d 295 (Fla. 1956)
- N. Am. Publ'ns, Inc. v. Dep't OF Revenue & Off. of the Comptroller, 436 So. 2d 954 (Fla. 1st DCA 1983)