BENJAMIN MOSES AND MINNA MOSES, HIS WIFE; STANLEY L. ZAKARIN AND ARLENE ZAKARIN, HIS WIFE; ROBERT A. ZAKARIN AND JILL ZAKARIN, HIS WIFE, APPELLANTS,
v.
FRANKLIN B. BYSTROM, AS PROPERTY APPRAISER OF DADE COUNTY, FLORIDA, APPELLEE
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Taxpayers appealed a summary judgment denying agricultural land classification because they failed to timely file a required return with the county property appraiser. The court reversed, holding that proper mailing of the return creates a rebuttable presumption of receipt sufficient to survive summary judgment and require trial on the filing issue.
The court held that while the statute requires actual receipt of the return (not mere mailing), proper addressing and mailing of correspondence creates a rebuttable presumption of receipt that is sufficient to survive summary judgment. The fact finder, not the court, must determine whether the return was actually delivered and filed.
[1] Filing a tax return requires actual receipt by the relevant office, not merely mailing.
[2] The taxpayer bears the risk of non-delivery of mailed tax documents.
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“The specific provision that it be "filed" clearly mandates that the return must be received by the appraiser's office in a timely fashion.”
Establishes that the statute requires actual receipt, not mere mailing
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Join FLexlaw to unlock all legal intelligenceAppellants mailed an agricultural classification return to the Dade County property appraiser on January 6, 1981, as evidenced by a secretary's affida…
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SCHWARTZ, Chief Judge.
The taxpayers appeal from a summary judgment denying their claim to a 1981 agricultural classification on the ground that no return seeking that relief had been “filed” with the Dade County property appraiser as required by section 193.461(3)(a), Florida Statutes (1979).1 Prior to the hearing, the appellants had filed a secretary’s affidavit that the return had been duly and properly addressed and mailed on January 6, 1981; the county submitted an affidavit that the 1981 return could not be found in the appraiser’s files. We reverse.
I
We first reject the appellants’ contention that merely mailing the return was sufficient to comply with the statute. The specific provision that it be “filed” clearly mandates that the return must be received by the appraiser’s office in a timely fashion. Blake v. R.M.S. Holding Corp., 341 So. 2d 795, 799 (Fla. 3d DCA 1977); see Outboard Marine Domestic International Sales Corp. v. Florida Stevedoring Corp., 483 So. 2d 823, 824 (Fla. 3d DCA 1986). The taxpayers’ reliance on section 192.047(1), Florida Statutes (1979)2 in this regard is entirely misplaced. That section concerns only the determination of the appropriate date of filing when accomplished by mail. It has no effect upon the requirement that filing actually take place. In other words, the taxpayer, not the appraiser, takes the risk of a failure of the postal service to deliver the return.
II
We do agree, however, that the issue of whether the return was in fact delivered and filed was not properly resolved by summary judgment. It is well-settled that the fact, as is claimed in this case, that correspondence is properly addressed and mailed constitutes prima facie evidence — or, otherwise stated, creates a “presumption” — that it was received by the addressee. Brown v. Griffen Industries, Inc., 281 So. 2d 897 (Fla.1973); Abrams v. Paul, 453 So. 2d 826 (Fla. 1st DCA 1984); Berwick v. Prudential Property and Casualty Insurance Co., 436 So. 2d 239 (Fla. 3d DCA 1983). In accordance with this rule, appropriate mailing will alone support a finding that the item was received, even in the face of evidence, such as that pro-. duced by the county below,3 which indicates that it was not. See Milros-Sans Souci, Inc. v. Dade County, 296 So. 2d 545 (Fla. 3d DCA 1974) (fact that Dade County assessor had properly mailed notice of assessment supported factual finding that notice had been received despite specific sworn testimony of taxpayer to the contrary), cert. denied, 310 So. 2d 744 (Fla.1975); see generally, In re Estate of Carpenter, 253 So. 2d 697, 705 (Fla.1971) (facts giving rise to presumption are evidence supportive of ultimate conclusion even though presumption itself is dissipated). The lower court erred, therefore, in determining as a matter of law that the return had not been “filed.” The cause is remanded for trial on that issue. See also Scott v. Johnson, 386 So. 2d 67 (Fla. 3d DCA 1980); Winky’s, Inc. v. Francis, 229 So. 2d 903 (Fla. 3d DCA 1970); see generally, Abrams v. Paul, supra.
Reversed and remanded with directions.
. 193.461 Agricultural lands; classification and assessment.—
(3)(a) No lands shall be classified as agricultural lands unless a return is filed on or before March 1 of each year.... Failure to make timely application by March 1 shall constitute a waiver for 1 year of the privilege herein granted for agricultural assessment.
. 192.047 Date of filing.—
(1) For the purposes of ad valorem tax administration, the date of an official United States Postal Service postmark of an application for exemption, an application for special assessment classification, or a return filed by mail shall be considered the date of filing the application or return.
. The appellee points to the fact that although the letter of transmittal accompanying the return, a copy of which was produced at the hearing, indicated that a return receipt was requested, none was ever received by the taxpayers. While this may well be persuasive to the fact finder that the return was indeed not delivered to the appraiser, it is obviously not sufficient to establish that fact conclusively.
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Peninsula Fed. Sav. & Loan Ass'n v. DKH Props., Ltd., 616 So. 2d 1070 (Fla. 3d DCA 1993)…ficient to sustain a finding of the nonexistence of the presumed fact is introduced, in which event the bubble bursts and the existence of the fact is determined without regard to the presumption.” Id. (citations omitted); see also Moses v. Bystrom, 489 So. 2d 834, 836 (Fla. 3d DCA 1986). .The letter also referred to an agreement by Peninsula to release $35,000 to fund the mini-permanent loan fee. If the letter was received by the' lender, the lender had a duty to speak if it felt that it had not agreed to r…
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United Auto. Ins. Co. v. Vale, 811 So. 2d 727 (Fla. 3d DCA 2002)…uttable “presumption that mail properly addressed, stamped and mailed was received by the addressee.” Brown v. Giffen Industr., Inc., 281 So. 2d 897, 900 (Fla.1973); accord Service Fire Ins. Co. v. Markey, 83 So. 2d 855 (Fla.1955); Moses v. Bystrom, 489 So. 2d 834 (Fla. 3d DCA 1986); Brake v. State Unemployment Appeals Comm’n, 473 So. 2d 774 (Fla. 3d DCA 1985); Berwick v. Prudential Prop. & Cas. Ins. Co., 436 So. 2d 239 (Fla. 3d DCA 1983).…
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Marcel Kimelman and Aron Kalisz v. Ellenbogen, 559 So. 2d 384 (Fla. 3d DCA 1990)…rt to conduct an evidentiary hearing and to make a finding as to whether the motion and notice of hearing was actually timely received by counsel for the ap [*385] pellants. See Hammett v. Hammett, 510 So. 2d 632 (Fla.3d DCA 1987); Moses v. Bystrom, 489 So. 2d 834 (Fla.3d DCA 1986). If timely notice was received, the judgment shall be reinstated. If there is a determination to the contrary, the judgment shall remain vacated. Moses v. Bystrom, 489 So. 2d at 836.…
Authorities Cited (11 total)
- In re Est. of Coketine Bray Carpenter v. Carpenter, 253 So. 2d 697 (Fla. 1971)
- Brown v. Giffen Indus., Inc., 281 So. 2d 897 (Fla. 1973)
- Abrams v. Paul, 453 So. 2d 826 (Fla. 1st DCA 1984)
- Winky's, Inc. v. Ivy M. Francis, 229 So. 2d 903 (Fla. 3d DCA 1969)
- Scott v. Johnson, 386 So. 2d 67 (Fla. 3d DCA 1980)
- Milros-Sans Souci, Inc. v. Dade Cnty., 296 So. 2d 545 (Fla. 3d DCA 1974)
- Blake v. R. M. S. Holding Corp., 341 So. 2d 795 (Fla. 3d DCA 1977)
- Berwick v. Prudential Prop. & Cas. Ins. Co., 436 So. 2d 239 (Fla. 3d DCA 1983)
- Outboard Marine Dom. Int'l Sales Corp. & Yatacha C.A. For Use & Benefit of Underwriters at Lloyds of London v. Fla. Stevedoring Corp., 483 So. 2d 823 (Fla. 3d DCA 1986)
- Meaders Clifton de Loache v. de Loache, 310 So. 2d 744 (Fla. 1975)