Hillsborough transportation tax refund spurs more questions than answers

TAMPA — It’s a simple three-word question surrounding the transportation surtax in Hillsborough County voided by the Florida Supreme Court on Feb. 25.

What happens next?

The government agencies involved in how to refund $502 million collected since the voter-approved penny-on-the-dollar sales tax started Jan. 1, 2019, offer a near-universal three-word response.

We don’t know.

“It’s not up to the county commission anymore. It’s a court case. It’s out of our hands,” said Hillsborough Commission Chair Pat Kemp.

The commission unanimously approved a resolution last week calling for the money to be refunded to the public. Though, in essence, the action didn’t differ at all from the path on which the county’s legal staff already had embarked.

But, the logistics of how a refund would work and when it would begin are mysteries right now. Attorneys for both Hillsborough County and the Hillsborough Area Regional Transit Authority said the Florida Department of Revenue suggested more court action could be required.

“This is a very unprecedented situation, even for the Department of Revenue, and they indicated that a judicial process would be most appropriate for providing that refund process,” said Rob Brazel, chief assistant county attorney.

Would the Department of Revenue then be the lead agency in seeking court guidance?

No, said Bethany Webster, the department’s communications director. That’s up to Hillsborough County and the jurisdictions holding transportation surtax money in escrow.

Here’s what is known:

The Florida Supreme Court order is not final until the 15-day window closes for a party to request a rehearing. That window shuts end of the business day on Friday, March 12.

Will someone file for a rehearing?

“We don’t see any basis for filing for a motion for rehearing,” said Alan Zimmet, the county’s outside counsel from the Bryant, Miller Olive law firm.

So when will businesses stop charging the extra sales tax?

Shortly after the rehearing deadline closes, and if nobody seeks a rehearing, the court will issue a legal mandate that finalizes the Feb. 25 ruling.

After that, the Department of Revenue will issue what it calls a Taxpayer Information Publication to notify businesses in Hillsborough County to stop collecting the additional 1 percent surtax in accordance with the mandate’s timeline, said Webster.

The notice will be emailed to businesses registered to remit sales tax to the department. It also will be posted on the department’s website at https://floridarevenue.com/taxes/tips/Pages/default.aspx.

Does that end the legal challenges to the tax?

No.

A second lawsuit over the sales tax remains open in Hillsborough Circuit Court. The challenge is from Robert Emerson of Apollo Beach, and it seeks damages on behalf of Emerson and all others who paid the sales tax.

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The case has been on hold since 2019 pending the Florida Supreme Court ruling. A status conference is now scheduled for March 29.

Does that mean some of the money might be swallowed up by legal fees?

Yes.

“When there are attorneys involved in a class action, they are going to get paid in some manner,” Brazel told commissioners last week.

That possibility was one of the reasons Commissioner Kimberly Overman cited for supporting the commission’s March 3 resolution to try to expedite a refund process “if possible and do it in the most efficient fashion, without losing that to something other than the purpose of the tax. And I think that’s most important.”

Some members of the public have suggested a trade. The county could suspend its other local option surtax, the Community Investment Tax for 26 months, and plug the accumulated money from the transportation surtax into the community investment treasury. The result would be a 6.5 percent sales tax rate in Hillsborough for a little more than two years with more than $500 million sitting in escrow available immediately for community investment.

Is this likely?

“I can’t see that at all as legally feasible,” said Kemp.