
    Louis E. FISCHER, Petitioner, v. STATE of Florida, DEPARTMENT OF REVENUE, Respondent.
    No. NN-306.
    District Court of Appeal of Florida, First District.
    June 23, 1980.
    Rehearing Denied July 18, 1980.
    Joseph Z. Fleming, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Barbara Sta-ros Harmon, Asst. Atty. Gen., for respondent.
   BOOTH, Judge.

This cause is before us on appeal from final agency action by the Department of Revenue (Department) upholding a sales tax deficiency, delinquent penalty and interest assessed against Petitioner Fischer on account of his purchase of an airplane. The facts, as found by the hearing officer, are:

On November 24, 1976, petitioner purchased an airplane (the Corsair) in Florida from R. D. Whittington Aircraft Sales, Inc., for which he paid eighty thousand dollars ($80,000.00). Sales tax has never been paid on account of this transaction.
Before the purchase, petitioner asked George W. Sullivan, an airplane mechanic and test pilot, to evaluate the Corsair as an investment for resale. After petitioner acquired the Corsair, he caused three new cylinders to be installed and had the carburetor, the magneto and the propeller overhauled. Within three or four months of petitioner’s acquisition, several prospective purchasers had inspected the Corsair. In the spring of 1977, petitioner began displaying the Corsair. At various times, petitioner engaged other pilots to ferry the Corsair to aircraft shows at Cherry Point, North Carolina, Greenville-Spartanburg, South Carolina, and elsewhere. At the time of the hearing, the Corsair had been flown approximately 43 hours since petitioner had acquired it, ten to twelve hours of which petitioner flew himself, in the course of displaying the Corsair and checking out repairs.
Petitioner has traded in airplanes for the last several years and has been recognized as a dealer in aircraft by the Internal Revenue Service. Petitioner, who moved to Florida from California, applied to respondent for a dealer’s certificate promptly upon learning that he was required to do so. On November 24, 1976, however, petitioner was not registered as an aircraft dealer with respondent. After an unsuccessful attempt to register effective retroactively to July 1, 1972, petitioner registered as a dealer with respondent, effective October 1, 1977. According to respondent’s records, R. D. Whittington Aircraft Sales, Inc., was not registered as a dealer with respondent on November 24, 1976, and has not registered since.
Petitioner obtained an address for R. D. Whittington Aircraft Sales, Inc., from respondent and, on or about December 20, 1977, sent by certified mail a blanket resale and exemption certificate to the address respondent had furnished. A return receipt indicated that the certificate was delivered as addressed. In the past, respondent has treated sales to dealers as exempt from sales tax where the purchaser furnished the seller a resale and exemption certificate at the time of the sale and even when the certificate has been furnished afterwards, where the purchaser was registered as a dealer with respondent at the time of the transaction.

The facts as stated by the hearing officer and shown on the record establish that petitioner was (1) a dealer, and (2) purchased the Corsair aircraft for the purpose of resale. The Department, however, relies on its Rule 12A-1.38 F.A.C. to disqualify the transaction from exemption. The same rule was relied on by the Department and the hearing officer in disallowing the exemption as to boats purchased for rental purposes in Anderson v. Department of Revenue, 380 So.2d 1083 (Fla. 3d DCA 1980). That determination was reversed by the District Court of Appeal, Third District, holding:

The question of whether a taxpayer may avoid the assessment of a tax by showing that the use was for an exempt purpose when the taxpayer failed to file the required dealer’s certificate prior to the sale has not been determined in Florida, so far as we have been able to discover. In the situation reflected by the finding of the examiner in this case, we hold that it would be grossly unfair not to allow the taxpayer to show the true situation. It must be borne in mind that a tax has been collected from the user in many of the situations covered by this assessment. .
Additionally, the Department of Revenue, as found by the examiner, changed its position with regard to the necessity for the dealer’s certificate during the progress of its determination of the tax due from the sale of the appellants’ boats. This change of position seriously handicapped the appellants in their attempts to satisfy the Department concerning the taxable status of the sales. We hold that the appellants had a right to rely upon the interpretation of the statute as originally set forth. See the principle enunciated in Outdoor Advertising Art v. Florida Department of Transportation, 366 So.2d 114 (Fla. 1st DCA 1979).

In the Anderson case, the DOR sought to assess a deficiency against the seller of sailing vessels because the various purchasers of the boats were not registered dealers at the time of the sales. The evidence showed that the boats were in fact purchased for the exempt purpose of rental, but that Rule 12A-1.38 was not complied with, as stated by the hearing officer, and quoted by the District Court, in the Anderson case:

The basic question for determination is whether registration as a dealer and submission of a resale certificate some months after the date of sale, as was done in the transactions under consideration, can relate back and provide exemption for such sales. . . . Although it is apparent that the exempt status of the various boat purchases could have been established if the purchasers had been registered as dealers at the time of sale, no evidence has been submitted by Petitioner that they were then so registered or had otherwise complied with the above provisions of Rule 12A-1.38. In view of such failure of proof, relief cannot be granted from the proposed tax assessment with respect to the sales price of the vessels and the interest and penalties thereon.

The foregoing determination was reversed by the District Court in Anderson, and the court held that the tax exempt status could be established and certificates obtained subsequent to the sale in accord with the Department’s prior practices. We agree.

Accordingly, the order below is REVERSED and the cause REMANDED with directions that the assessment be vacated.

LARRY G. SMITH, J., concurs.

ERVIN, J., dissents with opinion.

ERVIN, Judge,

dissenting.

I understand neither the rationale of the Third District Court of Appeal’s decision in Anderson v. State, Dept. of Revenue, 380 So.2d 1083 (Fla. 3d DCA 1980), nor that of the majority here. The Anderson court’s reasoning was based upon three vague premises: (1) It would be grossly unfair not to allow the taxpayer (a dealer in sailing vessels) to show the “true situation”; (2) the imposition of both the sales and rental tax constituted double taxation, and (3) the tax should not be imposed because the department changed its position concerning the necessity for a dealer’s certificate during the pendency of the proposed assessment proceedings.

It is unclear from Anderson whether it based its reversal upon legal or equitable grounds. Unquestionably the department has the authority to adopt a rule requiring a dealer to either collect the tax or take a valid resale certificate from the purchaser at the time of the transaction. See, Section 212.02(3)(a), Florida Statutes (1977), providing that a resale must be in strict compliance with the department's rules. While it is true that Rule 12A-1.38 provides no time limitations for the dealer’s acceptance of the resale certificate, the agency’s interpretation of the rule is entirely consistent with Sections 212.06(l)(a), .06(3), and .11(1), variously requiring the dealer to collect the 4% sales tax at the moment of the sale from the purchaser, requiring him to pay the tax monthly on the first day of each month, and to make a return on or before the 20th day of the month to the department showing gross sales or purchases arising during the preceding month.

It has long been recognized that administrative rules of the Department of Revenue interpreting sales and use tax statutes are to be accorded considerable weight by the court. Klosters Rederi A/S v. State, etc., 348 So.2d 656, 660 (Fla. 3d DCA 1977); State ex rel. Szabo Food Services, Inc. of N. C. v. Dickinson, 286 So.2d 529 (Fla.1973). We recently rejected a challenge to Rule 12B-5.03, which urged that the rule imposes a tax for the failure to keep records and, as such, the rule exceeds the department’s rulemaking authority. In Pioneer Oil Co., Inc. v. State, etc., 381 So.2d 263 (Fla. 1st DCA 1980), Pioneer, a licensed dealer of fuels, complained that the department was without authority to require it to remit a tax from fuel sales merely because the purchaser failed to furnish it with a resale certificate. Even though we recognized the exempt nature of the transaction, we denied Pioneer’s claim for a refund stating: “[N]one of these [purchasers’] certificates contained a dealer’s license number and none of the purchasers were dealers when the fuel was sold. There being no valid certificates to transfer the obligation, Pioneer remained responsible for collecting and paying the tax.” Id. at 265. (e. s.) Accord, Belcher Oil Company v. State, Dept. of Revenue, 382 So.2d 793 (Fla.lst DCA 1980), where we observed that Rule 12B-5.-03 “merely implements the taxing statutes, and does not exceed the authority conferred by Section 206.59(1) to make rules and regulations having the force and effect of law governing reports and accounts by persons dealing with motor fuel in this state, . .” Clearly then the department’s policy, expressed in both rules 12A-1.38, and 12B-5.03, is consistent with the authority conferred to it by the taxing statutes, and the department was authorized to require the collection of the tax even though the seller later received a dealer’s resale certificate from the purchaser.

The Anderson court’s reference to double taxation is equally vague. In the absence of Rule 12A-1.71(2), providing that equipment purchased solely for rental purposes is exempt at the time of its acquisition, the department undoubtedly could levy a sales tax upon the sale of a boat, and then a rental tax upon the same boat. As was observed in Ryder Truck Rental, Inc. v. Bryant, 170 So.2d 822, 825 (Fla.1964), multiple taxes levied upon the same motor vehicle do not constitute pyramiding or a duplication of the tax since each is placed on a separate and distinct taxable privilege. In each case the tax is passed on by the taxpayer to his customer. If the department has the authority to require that a resale certificate be received on or about the time of the sales transaction — a subject not discussed in Anderson — then there would be no bar to its levy of both taxes upon the different activities of the same boat. Under the circumstances, I fail to see any element of double taxation either in Anderson or here.

Although the Anderson opinion does not expressly mention estoppel, but rather refers generally to gross unfairness and the department’s change of position, the elements of estoppel may have there been present. Still, before estoppel can be sustained as a basis for relief against the taxing authority, it, and all its elements, must be specifically alleged. Department of Revenue v. Hobbs, 368 So.2d 367 (Fla. 1st DCA 1979). Those elements include (1) a representation by the party estopped to the party claiming estoppel as to some material fact, (2) a reliance upon the representation by the party claiming the estoppel, and (3) a change in such party’s position, caused by his reliance to his detriment. Greenhut Construction Co., Inc. v. Knott, 247 So.2d 517 (Fla. 1st DCA 1971). In Anderson, a representation was made to the taxpayer by one of the department’s agents that a refund could be obtained from the dealer if the vessel he had purchased was solely for rental purposes, provided he forwarded a resale certificate to the seller. The taxpayer apparently relied upon this representation to his detriment in later sales of boats which were to be used exclusively for rental purposes by not collecting the tax from his purchasers. Cf. Davis and Sons, Inc. v. Askew, 343 So.2d 1329 (Fla. 1st DCA 1977).

The facts here are altogether different. The findings entered by the hearing officer reveal that no representation was made by the department to the taxpayer before his purchase of the aircraft. Estoppel then is clearly not a defense available to the taxpayer. Moreover, the hearing officer found that the department “treated sales to dealers as exempt from sales tax where the purchaser furnished the seller a resale and exemption certificate and when the certificate [was] furnished afterwards, where the purchaser was registered as a dealer with the respondent [the department] at the time of the transaction.” (e. s.) Here, Fischer did not register as a dealer with the department until approximately eleven months following the sales transaction, and did not furnish a resale certificate to the dealer until more than a year later. Consequently there was no change of department policy even remotely affecting Fischer.

The majority’s opinion represents little more than a judicially created exemption to the taxing statutes, and is an unwarranted deviation from the expressed legislative intent that all sales be taxed except those that are “specifically . . exempted by this chapter . . . .” Section 212.-21(2). 
      
      . Rule 12A-1.38, F.A.C., in pertinent part:
      (1) It is the specific legislative intent that each and every sale, admission, use, storage, consumption or rental is taxable under Chapter 212, F.S., unless such sale, admission, use, storage, consumption or rental is specifically exempt. The exempt status of the transaction must be established by the dealer. Unless the dealer shall have taken from the purchaser a certificate to the effect that the property or service was purchased for resale and bearing the name and address of the purchaser and the number of his dealer’s certificate of registration or a certificate bearing the number of his consumer’s exemption certificate, the sale shall be deemed to be a taxable sale at retail.
      * * * * # *
      (3) A dealer shall refuse to accept a resale certificate, except as provided in Rule 12A-1.64(23), and shall collect the tax unless the purchaser has obtained a dealer’s certificate of registration from the Department of Revenue and the number of his dealer’s certificate of registration is stated on the resale certificate.
     
      
      . See, Belcher Oil Co. v. State, 382 So.2d 793 (Fla. 1st DCA 1980), wherein this court commented on Anderson, in part, as follows:
      It had apparently been the Department’s practice to allow a purchaser to register as a dealer and submit a resale certificate some months after the date of sale, thereby retroactively qualifying the sale as exempt. This change of position on the part of the Department was obviously a significant factor in the court’s decision reversing the tax assessment in that case.
     
      
      . While the burden is placed upon the seller to collect the sales tax, Section 212.06(3), the person who purchased the tangible personal property at retail may be liable for the payment of the tax if he cannot prove the tax was paid to the vendor. Section 212.07(9).
     
      
      . Rule 12B-5.03, adopted pursuant to Chapter 206, taxing fuels, requires precisely as does Rule 12A-1.38 that unless the buyer furnishes the dealer a resale certificate, the dealer is required to collect and remit the tax to the department.
     
      
      . Even if it were the law, which clearly it is not, that the taxing authority may be estopped by changing its position in other cases not involving the taxpayer, the facts as above noted are markedly different from those in Anderson. The department’s agents there permitted purchasers of rental equipment following the sales to register with the department as dealers and to furnish to the sellers resale certificates. The agents apparently considered their policy consistent with Rule 12A-1.71(2), which exempts sales of rental equipment from the sales tax. There is no showing either from this record or from the facts recited in Anderson that the department ever allowed a purchaser not registered as a dealer at the time of the sale to file, following the sale, a resale certificate with the seller — except in those instances when the property sold was rental equipment. The property sold here was not intended for rental purposes but purportedly for resale.
     