               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                              IN THE DISTRICT COURT OF APPEAL
                                              OF FLORIDA
                                              SECOND DISTRICT

SUSAN K. DEFRANCES,                           )
                                              )
             Appellant,                       )
                                              )
v.                                            )      Case No. 2D17-3973
                                              )
BILL FURST, as Property Appraiser of          )
Sarasota County, Florida, BARBARA             )
FORD-COATES, as Tax Collector of              )
Sarasota County, Florida, and                 )
LEON M. BIEGALSKI, as                         )
Executive Director of the Florida             )
Department of Revenue,                        )
                                              )
             Appellees.                       )
                                              )

Opinion filed March 27, 2019.

Appeal from the Circuit Court for Sarasota
County; Frederick P. Mercurio, Judge.

Sherri L. Johnson of Johnson Legal of
Florida, Sarasota, for Appellant.

J. Geoffrey Pflugner, Anthony J.
Manganiello, and Jason A. Lessinger of
Icard, Merrill, Cullis, Timm, Furen &
Ginsburg, P.A., Sarasota, for Appellee Bill
Furst, as Property Appraiser of Sarasota
County.

Ashley Moody, Attorney General,
and Robert P. Elson, Assistant Attorney
General, Tallahassee, for Appellee
Marshall Stanburg, as Executive Director
of the Florida Department of Revenue.
No appearance for Appellee Barbara
Ford-Coates.


KELLY, Judge.

              Susan K. DeFrances appeals from a final judgment in favor of the

Department of Revenue and the Sarasota County Property Appraiser and Tax Collector

finding that her property is subject to assessment for back taxes for the year 2014.

Section 193.092, Florida Statutes (2013), authorizes the assessment of property for

back taxes where the property has escaped taxation. Because we conclude that Ms.

DeFrances's property did not escape taxation, we reverse.

              The facts are not in dispute. Ms. DeFrances holds a life estate in a large

parcel of waterfront property in Sarasota County. She resides in a single family home

situated on the property. There is also a rental home on the property. In 2014, the

Property Appraiser assessed the value of the property at $302,400. Ms. DeFrances

timely paid the taxes. The previous year, the property had an assessed value of

$2,269,560. The change in assessed value occurred when the Property Appraiser's

office transferred data from one computer assisted mass appraisal system to another.1

Eventually, the Property Appraiser's office became aware that an error had occurred

during the transfer, and as a result, in 2015, it sent Ms. De Frances a Notice of




              1The  parties have characterized what happened as being in the nature of
a clerical or administrative error. In 2013, the system valued the parcel by treating it as
being made up of five lots each with its own value. The new system, however, used a
different methodology (per front foot versus per lot) to arrive at the value of the parcel,
which it treated as a single parcel made up of a single lot. Other factors that the new
system used to calculate value were not entered into the system resulting in the
reduced value. The new system also applied Ms. DeFrances's homestead exemption to
the entire parcel.


                                           -2-
Proposed Increase in Assessed Value and Taxes notifying her that the 2014

assessment was being retroactively increased to $4,920,600. She also received a bill

from the Tax Collector for $26,254.30 in back taxes for the 2014 tax year.

              Ms. DeFrances filed a three count declaratory judgment action challenging

the 2014 back taxes, the 2014 revised assessed value, and the 2015 assessed value.

Ultimately, the trial court ruled against her on all counts. In this appeal, we are asked to

review only the trial court's judgment as to the count challenging the 2014 back taxes.

              Section 193.092 governs the assessment of property for back taxes. Ms.

DeFrances's complaint sought a declaration that the assessment of back taxes against

her was not authorized by section 193.092(1), which requires property appraisers to

assess back taxes, for up to three years, on property that should have been taxed but

was not.2 "Only property which has 'escaped taxation' may be back-taxed under



              2In   pertinent part, section 193.092(1) states:

       When it shall appear that any ad valorem tax might have been lawfully
       assessed or collected upon any property in the state, but that such tax
       was not lawfully assessed or levied, and has not been collected for any
       year within a period of 3 years next preceding the year in which it is
       ascertained that such tax has not been assessed, or levied, or collected,
       then the officers authorized shall make the assessment of taxes upon
       such property in addition to the assessment of such property for the
       current year, and shall assess the same separately for such property as
       may have escaped taxation at and upon the basis of valuation applied to
       such property for the year or years in which it escaped taxation, noting
       distinctly the year when such property escaped taxation and such
       assessment shall have the same force and effect as it would have had if it
       had been made in the year in which the property shall have escaped
       taxation, and taxes shall be levied and collected thereon in like manner
       and together with taxes for the current year in which the assessment is
       made. But no property shall be assessed for more than 3 years' arrears of
       taxation, and all property so escaping taxation shall be subject to such
       taxation to be assessed in whomsoever's hands or possession the same
       may be found, except that property acquired by a bona fide purchaser who


                                              -3-
[section 193.092(1)]." Okeelanta Sugar Refinery, Inc. v. Maxwell, 183 So. 2d 567, 568

(Fla. 4th DCA 1966). "Once the Tax Assessor has certified the tax roll and the tax

levied thereon paid on particular described property, said property cannot again be

taxed for that particular year." Id.

              While there is no statutory definition of "escape taxation," Florida

Administrative Code Rule 12D-8.006(1), which implements section 193.02(1), provides:

              "Escape taxation" means to get free of tax, to avoid taxation,
              to be missed from being taxed, or to be forgotten for tax
              purposes. Improvements, changes, or additions which were
              not taxed because of a clerical or some other error and are a
              part of and encompassed by a real property parcel which
              has been duly assessed and certified, should be included in
              this definition . . . Property under-assessed due to an error in
              judgment should be excluded from this definition. Korash v.
              Mills, 263 So. 2d 579 (Fla. 1972).

The first part of the definition appears to have originated in Okeelanta in which the court

held that "escape taxation" means "to get free of tax, to avoid taxation, to be missed

from being taxed, or to be forgotten for tax purposes." 183 So. 2d at 568.

              Ms. DeFrances's property was not missed, overlooked, or forgotten—the

entire parcel as well as the improvements were assessed and included on the tax roll.

In fact, the Property Appraiser acknowledged this in answers to interrogatories: "[T]here

is no specific, defined area of land that escaped taxation since the land was valued as a




       was without knowledge of the escaped taxation shall not be subject to
       assessment for taxes for any time prior to the time of such purchase, but it
       is the duty of the property appraiser making such assessment to serve
       upon the previous owner a notice of intent to record in the public records
       of the county a notice of tax lien against any property owned by that
       person in the county.




                                            -4-
whole." Rather, the property was undervalued as the result of an error. The appellees

argue that because the error is the type the Property Appraiser may correct under rule

12D-8.021, the resulting back taxes may be assessed. We disagree. Rule 12D-8.021

sets forth the procedure for the correction of errors by property appraisers, it does not

address the circumstances under which back taxes may be assessed. Section 193.092

governs when back taxes may be assessed, and it authorizes back taxes when property

has "escaped taxation," not when it has simply been mistakenly undervalued. See

Countryside Country Club, Inc. v. Smith, 573 So. 2d 14, 16 (Fla. 2d DCA 1990) (stating

that although a property appraiser is allowed to correct clerical errors and to assess

back taxes on property that has escaped taxation, he may not reassess property once

taxes are levied and paid); United Tel. Co. of Fla. v. Colding, 408 So. 2d 594, 595 (Fla.

2d DCA 1981) (distinguishing between property that has escaped taxation versus

property that has been taxed but was erroneously valued); Okeelanta, 263 So. 2d at

568 (noting that section 193.092 is not a basis for the correction of tax rolls that have

been accepted and certified by the property appraiser).

              The appellees argue that Korash v. Mills, 263 So. 2d 579 (Fla. 1972),

stands for the proposition that back taxes may be assessed where a property partially

escapes taxation in that a portion of the value of the property has escaped taxation. On

the contrary, Korash cites Okeelanta with approval and reaffirms that a back

assessment that simply increases the valuation of property that was already assessed

is void. See Korash, 263 So. 2d at 580-81.

              In Korash, the property in question was an oceanfront lot upon which a

motel had been built. 263 So. 2d at 579-580. The property appraiser assessed the




                                            -5-
land and the motel separately and recorded the values on separate cards. Somehow

the cards got separated, and only the value reflected on the card pertaining to the land

was entered on the tax roll. Id. at 580. The following year the error was discovered and

the property appraiser increased the assessment for the prior year. The owner refused

to pay the back tax assessment arguing that for tax purposes the property included the

land together with the improvements, that they could not be assessed separately, and

that the late assessment of the motel separately was an improper attempt to increase

the prior year's valuation. The lower court agreed. Id.

              The supreme court disapproved the lower court's decision. It began its

analysis by explaining that the flaw in the lower court's reasoning was in characterizing

what happened as an increase in valuation for the prior year. Id. It continued stating:

              If it Were only for the purpose of an Increase in the valuation
              of the total property then we would agree with the chancellor,
              for it has been consistently so held. It will be seen however
              that in these prior cases the increase has been an attempted
              increase in Amount only (after an assessment of the
              improvement for a total lesser Amount) and not instances
              where the entire improvement was skipped and failed to be
              noted at all for taxation because of error or oversight as in
              the present case.

Id. at 580-81 (alteration in original) (footnote omitted). Here, no portion of Ms.

DeFrances's property was skipped—it is an increase in amount of the valuation of the

total property.

              The appellees' argument relies in part on a sentence in Korash that states,

"we have here an instance where the principal value of the property has indeed

'escaped' taxation which is fairly within the contemplation of [section 193.092]." Id. at

581-82. But read in context, this sentence is no more supportive of their position than




                                            -6-
the rest of the opinion. The court takes pains to distinguish between property that has

not been assessed at all and property that has been assessed but undervalued due to

an error:

                      We must keep in mind the distinction between
              changes and "miscalculations" by the assessor which "up"
              the amount previously assessed after tax roll certification,
              and the situation here where there has been no billing at all
              on the improvement (or it could be a separate, "overlooked"
              parcel of land) which has been completely excluded from the
              tax roll.

                     The distinction is clear. The "back assessment" here
              was in fact the initial and original assessment never
              theretofore assigned to the principal value of the property, a
              new $650,000.00 motel. There has been no reevaluation,
              no recalculation and no reassessment of the property in this
              sense. It simply turns out to be a separate assessment of
              land and buildings which, while not intended to be the usual
              manner of assessment, was the result of oversight and was
              without any change in the basic valuation made by the
              assessor but "lost" on a separate card [the previous year].


Id.

              The appellees also assign significance to the fact that Korash notes that

the change in the assessment was the result of an error and not the result of change in

judgment by the assessor. Again, in context this distinction is of no benefit to the

appellees. The court is distinguishing the facts before it from those in Markham v.

Friedland, 245 So. 2d 645 (Fla. 4th DCA 1971), in which an increase in an assessment

due to the inclusion of an omitted improvement was precluded because the omission

was the result of an exercise in judgment by the assessor rather than an error:

       Markham [v. Friedland] involved the unusual circumstance of a
       difference in Judgment by successive tax assessors, one placing a
       partially completed structure on the tax roll as "substantially
       complete" and then "after very careful consideration" striking it; the



                                            -7-
       other belatedly in 1969 (after certification) trying to add the
       improvement as "85% Complete." This falls within the "judgment
       exercised" theory described Subjudice, resulting in a rare instance
       of precluding the back assessment of an "omitted improvement"
       because it really had not escaped consideration. We do not see
       this result as inconsistent with our view.

Korash, 263 So. 2d at 581.

              The principle that a partial escape from taxation that is the result of a

correctable error is encompassed by section 193.092(1) is reflected in rule

12D-8.006(1) which specifies that "[i]mprovements, changes, or additions which were

not taxed because of a clerical or some other error and are a part of and encompassed

by a real property parcel which has been duly assessed and certified, should be

included in this definition if back taxes are due." Robbins v. Kornfield, 834 So. 2d 955

(Fla. 3d DCA 2003), illustrates the application of this principal, albeit in a case that

seems primarily concerned with when a property appraiser can make changes to a base

year assessment of homestead property. In Kornfield, the taxpayers built an addition to

their home that increased its square footage. Id. at 956. Due to an error by the

property appraiser, that additional square footage was not included in the calculation of

the value of the property for nine years. Id. When the property appraiser discovered

the error, it placed a back assessment on the property and sought back taxes for three

of the nine years pursuant to section 193.092. Id. On appeal, the court approved the

back assessment on the portion of the property that escaped taxation. Id. at 957.3



              3InSmith v. Krosschell, 937 So. 2d 658 (Fla. 2006), the court also
addressed the question of when a property appraiser could make retroactive changes to
the base year assessment of homestead property. In the case before it, a data entry
error had eliminated the homestead dwelling entirely from the property records. Id. at
659. The court concluded that a data entry error that "totally eliminates the
improvements on real property" is subject to correction under section 197.122(1),


                                             -8-
             While the error here may be correctable in the records of the Property

Appraiser, it did not result in any portion of Ms. DeFrances's property escaping taxation

as that term has been defined in the case law or as it is defined in rule 12D-8.006. The

entire parcel and all the improvements were assessed and placed on the tax roll. The

correction here did nothing more than increase the valuation of property that had

already been assessed. Therefore, we reverse the summary judgment in favor of the

appellees, and remand with directions to the trial court to enter judgment in favor of Ms.

DeFrances as to count 1 of her complaint.

             Reversed and remanded.




NORTHCUTT and LUCAS, JJ., Concur.




Florida Statutes. Id. at 661. Kornfield had found the error in that case correctable
under a recent amendment to section 193.155, Florida Statutes. The Krosschell opinion
opts not to resolve whether the amended version of section 193.155 applies and limits
its discussion to the correction of errors under 197.122(1). Id. at 660-61. The opinion
addresses only the issue of when a base year assessment of homestead property may
be corrected—it does not speak to the issue of when back taxes may be assessed in
connection with the correction of an error.


                                            -9-
