a,
Filing + SSOSOZOS E-Filed 1210212015 05:10:54 PM
IN THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT
IN AND FOR VOLUSIA COUNTY, FLORiDA
CIVI DIVISION
SAS LEXINGTON CLUB AT SPRING
ARBOR MANAGERS, LLC, a Florida
limited liability company/
Case
Plaintiff,
No.: J2a t;*
/
tqoSd-
Division:
vs.
MORGAN B. GILREATH, JR., as
Property Appraiser; RHONDA C. ORR as
Tax Collector; VOLUSIA COUNTY, a political
subdivision of the State of Florida; and
MARSHALL STRANBURG as Executive
Director of the Florida Department of Revenue,
Defendants.
COMPLAINT
PlAiNtiff, SAS LEXINGTON CLUB AT SPRING ARBOR MANAGERS, LLC,
A
Florida limited. liability company, sues Defendants, MORGAN R. GILREATH, JR. as
Property Appraiser of Volusia County, Florida ("Appraiser"), RHONDA C' ORR as Tax
Collector of Volusia County, Florida ("Collector'), VOLUSIA COUN'[Y, a political
subdivision of the State of Florida, and MARSHALL STRANBURG ("Stranburg"),
as
the Executive Director of the Florida Department of Revenue, and alleges:
1.
This is an action for declaratory and anciliary relief concerning an ad
valorem real estate tax assessment for the tax year 20\5. Jurisdiction is predicated upon
Clrapter 86, Florida Statutes and section L94.17"1, Florida Statutes.
2,
Ptaintiff is a Florida limited liability company'
3.
Appraiser is sued herein in his official capacity and is a necessary party to
the action pursuant to section 194.181,(2), Florida Statutes.
4.
Collector is sued herein in his official capacity and is a necessary party to
the action pursuant to section 194.1'81(3), Florida Statutes'
5.
Defendant Volusia County is a necessary party to this action pursuant to
section 13.06 of the County Charter.
6.
Defendant Stranburg is sued in his official capacity as Executive Director
of the Florida Department of Revenue and is a necessary party to this action pursuant to
section
L9
4.\81. (5),
7.
Florida Statutes.
The real property forming the subject of this action is located in Volusia
County, Florida and owned by the Plaintiff, identified as parcel number 06-17-30'00-000380, hereinafter referred to as the "Subject Property".
8.
Plaintiff maintains in good faith that the Subject Property is entitled to
exemption from ad valorem tax and, therefore, has made no tax payment prior to
commencing this action. Under these circumstances, the jurisdictional requirement of
section 194.171,(3), Florida Statutes, is deemed to have been satisf ied.International Society
for Krishna
Consciousness of
1991), rez:. den.
g.
5925o.2d
Miami
681,
Beach,
lnc. a. Robbins,583 So. 2d 767 (Fla. 3ra DCA
(Fla. 1991),
Plaintiff has performed all conditions precedent which are required to be
performed by Plaintiff in establishing its right to bring this action and to the relief
requested. Specificaily, and without limitation, this action has been filed within the
time period prescribed by section194.171'(2), Florida Statutes.
10.
The Subject Property is a 154 unit apartment community known
as
"Lexington At Hunters Creek Apartments",located in Deland, Florida.
11,.
Record title to the Subject Property is in Lexington Club At Spring Arbor
Partners, LTD., a dissolved Florida limited partnership (the "Partnership"). Plaintiff
acquired ownership of the Subject Property by way of an assignment of partnership
interest dated November 1,5, 2013, with an effective date
executed by the Partnership's general partner.
of November 29, 2013,
A true copy of said assignment is
attached hereto as Exhibit "A".
12.
Plaintiff delivered a completed Ad Valorem Tax Exemption Application
and Return (DR-504), to Appraiser on February 27, 2015.
A true copy of said
Application, together with attachments, is attached hereto as Composite Exhibit "8",
and is incorporated herein by refe::ence.
13.
The Subject Property was being used on January L, 2015, and at all other
material times, to provide affordable housing to persons or families meeting the
extremely-1ow-income, very-1ow-income, low-income
or
moderate-income limits
as
specified in section 420.0004, Florida Statutes.
1"4.
Section 196.1978, Florida Statutes, authorizes a charitable exemption for
property used to provide affordable housing to eligible persons, as defined therein. The
statutes requires that the property meet the criteria set forth in section 196.195, Florida
Statutes which mandates that the owner be a non-profit entity.
15.
Section 196.1978, Florida Statutes, specifically provides that
" ...... any
property owned by a limited liability company which is disregarded as an entity for
Federal income tax purposes will be treated as owned by its sole member."
16.
Plaintiff is a disregarded entity for Federal income tax purposes pursuant
to Treasury Regulati on
17.
30'1..77 01 -3 (b)
(1xii).
Plaintiff's sole member is Southern Affordable Services, Inc., a Florida not
for profit corporation ("SAS"). SAS has been exempted from Federal income tax by the
Internal Revenue Service pursuant to section 501(c)(3) of the Internal Revenue Code'
and thereby meets the requirements of section 196.195, Florida Statutes.
18.
Plaintiff's use of the Subject Property to provide low income housing
satisfies the requirements of section 196.1978, Florida Statutes, and entitles Plaintiff to
an exemption from ad valorem taxes.
19.
Notwithstanding Plaintiff's ownership and use of the Subject Property
as
described hereinabove, Appraiser denied an exemption for tax year 2015 based on his
belief that Plaintiff is a corporation operating for profit. See "Notice of Disapproval of
Application for Property Tax Exemption
or
Classification
by the Volusia County
Property Appraiser", atrue copy of which is attached hereto as Exhibit "C".
20.
Contrary to Appraiser's assertion, no part of the net earnings nor any
proceeds from the sale or disposition of the Subject Property
will inure to the benefit of
a person or company operating for profit. See, Articles of Incorporation of Southern
Affordable Services, Inc, Art. III(C)
in Composite Exhibit "B" attached.
- Purpose and Art, X -
Dissolution, incorporated
21,. Plaintiff is in
doubt concerning the Subject Property's entitlement to
receive a governmental exemption for tax year 2015 and is entitled to have that doubt
removed by the Court.
22.
There exists a present, real and bona fide controversy between Plaintiff
and Appraiser over the classification of the Subject Property for ad valorem tax
purposes in 2015.
WHEREFORE, Plaintiff demands that this Court take jurisdiction over this cause
and the parties hereto, enter an order setting aside the assessment on the Subject
property an6 directing that the property be classified as exempt for
201,5;
and further,
that this Court enter an order directing Collector to cancel the original bill; and, finally,
to award Irlaintiff its costs incurred in bringing this action pursuant to section 194.192,
Florida Statutes, and award such other general relief as may be just and equitable'
E. V. Kelley', Jr.
Florida Bar No. 451
HiLL, WARD & HENDERSON, P.A.
101 E. Kennedy Boulevard, Suite 3700
Tampa, FL 33601
rob.kelley@hwhlaw. c om
relitrevk@hwhlaw.com
(813) 221-3e00
(813) 221,-2900 FAX
Attorney for Piaintiff
7504561.1