Schultz v. Time Warner Entertainment Co.

861 So. 2d 466, 2003 Fla. App. LEXIS 17381, 2003 WL 22681543
CourtDistrict Court of Appeal of Florida
DecidedNovember 14, 2003
DocketNo. 5D02-2406
StatusPublished
Cited by1 cases

This text of 861 So. 2d 466 (Schultz v. Time Warner Entertainment Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schultz v. Time Warner Entertainment Co., 861 So. 2d 466, 2003 Fla. App. LEXIS 17381, 2003 WL 22681543 (Fla. Ct. App. 2003).

Opinion

TORPY, J.

This is an ad valorem taxation dispute between the Citrus County Property Appraiser and other taxing authorities (hereinafter collectively “Appellant”) and Appel-lee, owner of a cable television franchise, involving the propriety of the assessment of portions of Appellee’s cable system. After trial without a jury, the lower court entered judgment resolving the disputed issues in Appellee’s favor. Appellant raises one issue on appeal, whether the court erred when it determined that “exterior cable drops” are not “tangible personal property” and thus not taxable. Because we conclude that the lower court erred on this point, we reverse that portion of the final judgment.

The facts pertaining to this issue are fairly simple and undisputed. Appellee’s cable system originates at the point where the signal is received. The signal traverses public utility easements, either below ground or on utility poles, via coaxial cable or fiber optic tube. It is then connected to the individual subscribers’ residences by “exterior cable drops,” which are either aerial drops from poles or underground connections.

The parties agree that the transmission lines in the public easements are taxable as the tangible personal property of Appel-lee. The parties also agree that the cables installed inside the subscribers’ residences (the interior portion of the drops), which are not owned, and are frequently not installed, by Appellee, are not taxable to Appellee. The point of disagreement between the parties is how to treat the exterior cable drops.

Appellee admits that it owns the exteri- or cable drops even though they traverse subscribers’ properties. Indeed, Appellee maintains the drops, replaces defective components and retains the right to remove them (albeit not exercised) if service is terminated. Furthermore, Appellee depreciates the cost of each drop on its federal income tax returns. Appellee’s expert valued the drops for all tax years in issue at two million eight hundred twenty three thousand dollars ($2,823,000). Because ownership is not an issue, the only issue to be resolved here is whether the drops are tangible or intangible personal property, the latter being exempt from the ad valo-rem taxation in question.

When authorized by general law, the constitution authorizes the county to levy ad valorem taxes on everything except “intangible personal property.” Art. VII, § 9, Fla. Const. General law permits the taxation of all “tangible personal property which is not immune under the state or federal constitutions from ad valorem taxation, in that county and taxing jurisdiction in which it is physically present on January 1 of each year.... ” § 192.032(2), Fla. Stat. (2001). No argument is advanced by Appellee that it or it’s property has an immunity from taxation. Instead, Appel-lee argues that the cable drops are not tangible property; rather, it urges that the drops should be classified as “make ready.” This argument was accepted by [468]*468the trial judge who found that the cable drops are “similar to ‘make ready,’ ” and therefore not taxable. We think this argument is fallacious.

“Make ready” is not a defined phrase in the constitution, statutes or decisional law of Florida. The phrase, however, seems to have been adopted in this ease from a July 15, 1993, letter drafted by a technical ad-visor for the Department of Revenue, in which the advisor concluded that “make ready costs” are intangible property and not taxable. In the letter, addressed to the property appraiser of another county, the advisor described “make ready costs” as the costs incurred in moving power lines on utility poles to make room for a cable company’s lines. Because cable companies are required under franchise agreements with local governments to utilize existing utility poles and underground conduits, they must reimburse the utility companies for the utilities’ costs in moving their wires and equipment to make room for the cable lines. The Department’s ad-visor further explained that these make ready costs are:

analogous to transplanting a tree to clear the way for an underground cable line or pipeline, as a part of the cost of the easement. The transplanting of a tree would be part of the cost of the easement. If, later, the old cable or pipe were dug up and new cable or pipe installed, the cost of transplanting the tree would not be incurred a second time.

Using this analogy, the advisor concluded that “make ready costs” are costs incurred in acquiring the license to use the utility easement, and therefore “part of the value of the license agreements.” As such, “make ready costs” are not properly included in the valuation of the cable company’s tangible personal property.

Unlike the trial court, we fail to see the “similarity” between cable drops and “make ready costs,” except that both are expenses incurred by the cable company, a fact common to acquisitions and expenditures of every kind. The points of dissimilarity, however, are numerous. The cable company does not acquire an easement from its individual subscribers. Nor do the individual subscribers have to take any steps in preparation for the cable drop. The drop is nothing more than a physical connection between the cable system and the subscribers’ residences by way of coaxial cable. This connection is no less tangible and no less vital to signal transmission than any other physical part of the system. Without the drops, the system is unable to get the signals to the subscribers. Furthermore, unlike “make ready costs,” if the drop is removed due to deterioration, the cost must be incurred again. “Make ready,” conversely, involves nothing tangible and is not an integral part of a cable company’s signal transmission system. It is simply a one-time cost in “making ready” an easement. We conclude, therefore, that the trial judge erred in determining that cable drops are similar to “make ready” and therefore intangible.

Our conclusion that cable drops are not intangible personalty is supported by the statutory definitions of intangible and tangible personal property:

“Intangible personal property” means money, all evidences of debt owed to the taxpayer, all evidences of ownership in a corporation or other business organization having multiple owners, and all other forms of property where value is based upon that which the property represents rather than its own intrinsic value.

§ 192.001(11)0»), Fla. Stat. (2001).

“Tangible personal property” means all goods, chattels, and other articles of val[469]*469ue ... capable of manual possession and whose chief value is intrinsic to the article itself.

§ 192.001(ll)(d), Fla. Stat. (2001).

These definitions clearly distinguish intangible property, such as stock certificates, where the item represents something of value, from tangible property, which represents nothing, but which has intrinsic value. Cable drops are clearly tangible. They are a good. Their only value is their intrinsic value. They are capable of manual possession. Conversely, they are not intangible by definition because they are not evidences of debt or ownership, and they do not represent some other property.

In concluding that the exterior cable drops are taxable, we align our court with courts of other jurisdictions that have reached the same conclusion on this issue. See, e.g., Chillicothe Cablevision v. Tax Commissioner of Ohio,

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Related

Schultz v. Time Warner Entertainment Co.
906 So. 2d 297 (District Court of Appeal of Florida, 2005)

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Bluebook (online)
861 So. 2d 466, 2003 Fla. App. LEXIS 17381, 2003 WL 22681543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schultz-v-time-warner-entertainment-co-fladistctapp-2003.