Last month, the First DCA issued an opinion favorable to our client, Mr. Comfort Furniture Corp.  The case is Mr. Comfort Furniture Corp. v. Department of Revenue, and the opinion can be found here.  The issue involved whether the Department properly dismissed Mr. Comfort’s petition for administrative hearing, as untimely.

The case began when the Department initiated an audit against Mr. Comfort for sales and use tax.  Ultimately, the Department prepared a notice of proposed assessment, alleging that Mr. Comfort owed tax.  The notice contained two deadlines:  a deadline to protest the notice, and a deadline to challenge the notice through filing a petition for administrative hearing.

After the deadlines in the notice passed, Mr. Comfort filed a petition for administrative hearing.  In the petition, Mr. Comfort disputed that the petition was untimely, arguing that the Department never provided a right to challenge the notice within the deadlines.  Mr. Comfort thus requested that the Department refer the petition for an administrative hearing to resolve the factual dispute on timeliness.

The Department did not refer the petition for a hearing, instead entering a final order dismissing the petition with prejudice.  Mr. Comfort then appealed the final order to the First DCA.

On appeal, Mr. Comfort continued arguing that the Department should have referred the petition for an administrative hearing to resolve the disputed facts, as required under sections 120.569 and 120.57, Florida Statutes.  The First DCA agreed with Mr. Comfort’s position.  In reversing the final order, the First DCA held:

“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.”

Many administrative cases involve similar disputes over whether the agency provided the party with a point of entry to challenge the agency’s action.  For example, the agency’s notice may get lost in the mail or may be mailed to the wrong location.  If a factual dispute exists as to the timeliness of a petition, then, as confirmed by this case, the affected party is entitled to an evidentiary hearing to resolve the dispute.

Jonathan Taylor is an associate attorney with The Law Offices of Moffa, Sutton, & Donnini, P.A.  Mr. Taylor concentrates in the areas of Florida tax appeals and general administrative appeals.  Mr. Taylor also volunteers with Guardian ad Litem to handle appellate matters.  Mr. Taylor can be reached at 954-234-2884 or