Sales Tax Refund Motor Vehicle Dealer In Florida

The dispositive question in this proceeding is whether a motor vehicle dealer's assignment to a financing institution of all the dealer's rights in a motor vehicle retail sales installment contract includes an assignment of the dealer's inchoate right to receive a sales tax refund if the buyer subsequently defaults on the installment contract. "Under Florida law, parties can assign causes of action derived from a contract or a statute." See Forgione v. Dennis Pirtle Agency, Inc., 701 So. 2d 557, 559 (Fla. 1997). See also National Union Fire Ins. Co. v. Salter, 717 So. 2d 141, 142 (Fla. 5th DCA 1998), review denied, 727 So. 2d 908 (Fla. 1999). An "assignment transfers to the assignee all the interests and rights of the assignor in and to the thing assigned." See State v. Family Bank of Hallandale, 667 So. 2d 257, 259 (Fla. 1st DCA 1995); Rose v. Teitler, 736 So. 2d 122 (Fla. 4th DCA 1999). Where the statute is silent with respect to the question of the assignee's rights, courts must look to the common law to fill the statutory gap. the general rule is that "an assignee stands in the shoes of his assignor." See Cadle Co. II, Inc. v. Stamm, 633 So. 2d 45, 46 (Fla. 1st DCA 1994), quoting FDIC v. Bledsoe, 989 F.2d 805, 809-810 (5th Cir. 1993). Section 212.17(2) and (3) create a right to sales tax refunds or credits. Florida law recognizes the assignability of statutory rights unless the statute expressly prohibits assignment or the assignment offends some clearly articulated public policy. Section 212.17 does not prohibit assignment and nothing in the public policy of Florida prohibits assignment of sales tax refunds or credits. Accordingly, bank is legally entitled to claim the sales tax refunds or credits under Section 212.17 as assignee of the dealer's rights. Section 212.081, Florida Statutes provides an expression of legislative intent with respect to the tax levied on the sale of motor vehicles. the provision states in pertinent part: (2)(a) It is further declared to be the legislative intent that the tax levied by this chapter and imposed by this section is not a tax on motor vehicles as property but a tax on the privilege to sell, . . . motor vehicles; . . . (Emphasis supplied). Additional indicia of legislative intent may be found in section 212.06, Florida Statutes, which states in part: (1)(a) . . . the full amount of the tax on a credit sale, installment sale, or sale made on any kind of deferred payment plan shall be due at the moment of the transaction in the same manner as on a cash sale. (3) Every dealer making sales, whether within or outside the state, of tangible personal property for distribution, storage, or use or other consumption, in this state, shall, at the time of making sales, collect the tax imposed by this chapter from the purchaser. (Emphasis supplied). The statutory provisions directly applicable to the instant controversy are portions of section 212.17, Florida Statutes. Section 212.17 states in pertinent part: (1)(a) In the event purchases are returned to a dealer by the purchaser or consumer after the tax imposed by this chapter has been collected from or charged to the account of the consumer or user, the dealer shall be entitled to the reimbursement of the amount of tax collected or charged by the dealer, in the manner prescribed by the department. (2) a dealer who has paid the tax imposed by this chapter on tangible personal property sold under a retained title, conditional sale, or similar contract, or under a contract wherein the dealer retains a security interest in the property pursuant to chapter 679, may take credit or obtain a refund for the tax paid by the dealer on the unpaid balance due him or her when he or she repossesses (with or without judicial process) the property within 12 months following the month in which the property was repossessed. When such repossessed property is resold, the sale is subject in all respects to the tax imposed by this chapter. (3) a dealer who has paid the tax imposed by this chapter on tangible personal property or services may take a credit or obtain a refund for any tax paid by the dealer on the unpaid balance due on worthless accounts within 12 months following the month in which the bad debt has been charged off for federal income tax purposes. If any accounts so charged off for which a credit or refund has been obtained are thereafter in whole or in part paid to the dealer, the amount so paid shall be included in the first return filed after such collection and the tax paid accordingly. At common law, there was no right to a refund of taxes from the sovereign. Thus, statutes authorizing tax refunds or exemptions are in derogation of common law; statutes in derogation of the common law must be strictly construed. See Ady v. American Honda Finance Corp., 675 So. 2d 577, 581 (Fla. 1996), citing Southern Attractions Inc. v. Grau, 93 So. 2d 120 (Fla. 1956). See also Carlile v. Game and Fresh Water Fish Commission, 354 So. 2d 362, 364 (Fla. 1977)("Statutes in derogation of the common law . . . will not be interpreted to displace the common law further than is clearly necessary."); Wal-Mart Stores, Inc. v. McDonald, 676 So. 2d 12, 17 (Fla. 1st DCA 1996)(statutes in derogation of the common law "must be strictly construed in favor of the common law."), approved by Merrill Crossings Associates v. McDonald, 705 So. 2d 560 (Fla. 1997). The provision here at issue, section 212.17(2) and (3), states clearly and unambiguously that the dealer may take a credit or tax refund on the unpaid balance of the tax after repossession of the property. The legislature presumably is aware that motor vehicle dealers routinely finance motor vehicle sales through banks, and assign a security interest in such vehicle sales to the lending institution. Despite the common knowledge concerning such transactions, the legislature has not enacted a provision authorizing a refund of the uncollected portion of prepaid sales tax to the dealer's assignee.