Florida Senate - 2011                                    SB 1198
       
       
       
       By Senator Bogdanoff
       
       
       
       
       25-01095A-11                                          20111198__
    1                        A bill to be entitled                      
    2         An act relating to the communications services tax;
    3         amending s. 202.16, F.S.; providing for a rounding
    4         algorithm; allowing dealers to compute the tax using
    5         the rounding algorithm for certain aggregated state
    6         and local taxes; providing for retroactive
    7         application; clarifying that the act does not provide
    8         for an assessment of any tax not paid or create a
    9         right to a refund of any tax paid before a date
   10         certain; amending s. 202.11, F.S.; conforming a cross
   11         reference; providing an effective date.
   12  
   13  Be It Enacted by the Legislature of the State of Florida:
   14  
   15         Section 1. Section 202.16, Florida Statutes, is amended to
   16  read:
   17         202.16 Payment.—The taxes imposed or administered under
   18  this chapter and chapter 203 shall be collected from all dealers
   19  of taxable communications services on the sale at retail in this
   20  state of communications services taxable under this chapter and
   21  chapter 203. The full amount of the taxes on a credit sale,
   22  installment sale, or sale made on any kind of deferred payment
   23  plan is due at the moment of the transaction in the same manner
   24  as a cash sale.
   25         (1)(a) The taxes collected under this chapter and chapter
   26  203 shall be paid by the purchaser of the communications service
   27  and shall be collected from such person by the dealer of
   28  communications services.
   29         (2)(b) Each dealer of communications services selling
   30  communications services in this state shall collect the taxes
   31  imposed under this chapter and chapter 203 from the purchaser of
   32  such services, and such taxes must be stated separately from all
   33  other charges on the bill or invoice. Notwithstanding the
   34  requirement in this paragraph and in s. 202.35 to separately
   35  state such taxes, a public lodging establishment licensed under
   36  chapter 509 may notify purchasers of the taxes imposed under
   37  this chapter on a notice in a guest room posted in a manner
   38  consistent with the requirements of s. 509.2015, rather than
   39  separately stating the taxes on the guest bill or invoice.
   40         (3)(2)(a) A sale of communications services that are used
   41  as a component part of or integrated into a communications
   42  service or prepaid calling arrangement for resale, including,
   43  but not limited to, carrier-access charges, interconnection
   44  charges paid by providers of mobile communication services or
   45  other communication services, charges paid by cable service
   46  providers for the transmission of video or other programming by
   47  another dealer of communications services, charges for the sale
   48  of unbundled network elements, and any other intercompany
   49  charges for the use of facilities for providing communications
   50  services for resale, must be made in compliance with the rules
   51  of the department. Any person who makes a sale for resale which
   52  is not in compliance with these rules is liable for any tax,
   53  penalty, and interest due for failing to comply, to be
   54  calculated pursuant to s. 202.28(2)(a).
   55         (a)(b)1. Any dealer who makes a sale for resale shall
   56  document the exempt nature of the transaction, as established by
   57  rules adopted by the department, by retaining a copy of the
   58  purchaser’s initial or annual resale certificate issued pursuant
   59  to s. 202.17(6). In lieu of maintaining a copy of the
   60  certificate, a dealer may document, prior to the time of sale,
   61  an authorization number provided telephonically or
   62  electronically by the department or by such other means
   63  established by rule of the department. The dealer may rely on an
   64  initial or annual resale certificate issued pursuant to s.
   65  202.17(6), valid at the time of receipt from the purchaser,
   66  without seeking additional annual resale certificates from such
   67  purchaser, if the dealer makes recurring sales to the purchaser
   68  in the normal course of business on a continual basis. For
   69  purposes of this paragraph, the term “recurring sales to a
   70  purchaser in the normal course of business” means sales in which
   71  the dealer extends credit to the purchaser and records the debt
   72  as an account receivable, or in which the dealer sells to a
   73  purchaser who has an established cash account, similar to an
   74  open credit account. For purposes of this paragraph, purchases
   75  are made from a selling dealer on a continual basis if the
   76  selling dealer makes, in the normal course of business, sales to
   77  the purchaser no less frequently than once in every 12-month
   78  period.
   79         (b)2. A dealer may, through the informal conference
   80  procedures provided for in s. 213.21 and the rules of the
   81  department, provide the department with evidence of the exempt
   82  status of a sale. Exemption certificates executed by entities
   83  that were exempt at the time of sale, resale certificates
   84  provided by purchasers who were active dealers at the time of
   85  sale, and verification by the department of a purchaser’s active
   86  dealer status at the time of sale in lieu of a resale
   87  certificate shall be accepted by the department when submitted
   88  during the protest period but may not be accepted in any
   89  proceeding under chapter 120 or any circuit court action
   90  instituted under chapter 72.
   91         (4)(a)(3) Notwithstanding the rate of tax on the sale of
   92  communications services imposed pursuant to this chapter and
   93  chapter 203, the department shall make available in an
   94  electronic format or otherwise the tax amounts and brackets
   95  applicable to each taxable sale based on a rounding algorithm
   96  that carries the tax computation to the third decimal place and
   97  rounds the tax to a whole cent using a method that rounds up to
   98  the next cent whenever the third decimal place is greater than
   99  four. Dealers may elect to compute the tax due on a transaction,
  100  on an item, or an invoice basis, and shall allow the rounding
  101  algorithm to be applied to the aggregate state and local taxes
  102  imposed pursuant to this chapter and chapter 203. The department
  103  may allow but shall not require a dealer to collect the tax
  104  based on a bracket system such that the tax collected results in
  105  a tax rate no less than the tax rate imposed pursuant to this
  106  chapter and chapter 203.
  107         (b) This subsection is intended to be remedial in nature
  108  and applies retroactively. This subsection does not provide a
  109  basis for an assessment of any tax not paid or create a right to
  110  a refund of any tax paid under this section before July 1, 2011.
  111         (5)(4) Each purchaser of a communications service is liable
  112  for the taxes imposed under this chapter and chapter 203. The
  113  purchaser’s liability is not extinguished until the tax has been
  114  paid to the department, except that proof of payment of the tax
  115  to a dealer of communications services engaged in business in
  116  this state is sufficient to relieve the purchaser from further
  117  liability for the tax.
  118         Section 2. Subsection (11) of section 202.11, Florida
  119  Statutes, is amended to read:
  120         202.11 Definitions.—As used in this chapter:
  121         (11) “Retail sale” means the sale of communications
  122  services for any purpose other than for resale or for use as a
  123  component part of or for integration into communications
  124  services to be resold in the ordinary course of business.
  125  However, any sale for resale must comply with s. 202.16(3)(2)
  126  and the rules adopted thereunder.
  127         Section 3. This act shall take effect July 1, 2011.