Florida Senate - 2020 SB 1112 By Senator Taddeo 40-00351C-20 20201112__ 1 A bill to be entitled 2 An act relating to a bottled water excise tax; 3 revising the title of ch. 211, F.S.; creating part III 4 of ch. 211, F.S., entitled “Tax on Extraction of Water 5 for Bottling”; creating s. 211.40, F.S.; defining 6 terms; creating s. 211.41, F.S.; imposing an excise 7 tax upon bottled water operators; specifying the rate 8 of the tax and the trust fund where tax proceeds are 9 to be deposited; requiring that tax proceeds be 10 separately accounted for and be used for certain 11 purposes; creating s. 211.42, F.S.; specifying 12 requirements for bottled water operators in filing 13 monthly returns and declarations of estimated tax 14 with, and remitting estimated taxes to, the Department 15 of Revenue; authorizing the department to provide for 16 credits of overpaid taxes and to grant extensions for 17 filing and payment under certain circumstances; 18 specifying the department’s rulemaking authority; 19 creating s. 211.43, F.S.; specifying interest payable 20 on unpaid taxes; specifying the delinquency penalty 21 for failure to timely file a return; specifying the 22 penalty for the substantial underpayment of taxes; 23 specifying the interest payable on underpayments of 24 estimated taxes; providing that a penalty or interest 25 for underpayment of estimated tax may not be imposed 26 under certain circumstances; providing construction; 27 authorizing the department to settle or compromise 28 taxes in accordance with certain provisions; creating 29 s. 211.44, F.S.; authorizing the department to adopt 30 rules; requiring local governments to cooperate with 31 the department and furnish information without cost to 32 the department for certain purposes; specifying 33 recordkeeping requirements for bottled water 34 operators; specifying the department’s authority to 35 inspect, examine, and audit bottled water operator 36 books and records, issue subpoenas, require testimony 37 under oath or affirmation of certain persons, and 38 apply for certain judicial orders; specifying 39 requirements and procedures for the department in 40 conducting audits, assessing deficiencies, and 41 crediting or refunding overpayments; specifying 42 procedures and requirements for claiming refunds; 43 providing that amounts due remain a lien on certain 44 property; specifying requirements and procedures for 45 warrants and alias tax executions issued by the 46 department; requiring that suits brought by the 47 department for violations be brought in circuit court; 48 creating s. 211.45, F.S.; providing criminal penalties 49 for certain violations; providing an effective date. 50 51 Be It Enacted by the Legislature of the State of Florida: 52 53 Section 1. Chapter 211, Florida Statutes, entitled “Tax on 54 Production of Oil and Gas and Severance of Solid Minerals,” is 55 retitled “Tax on Production of Oil and Gas, Severance of Solid 56 Minerals, and Extraction of Water for Bottling.” 57 Section 2. The Division of Law Revision is directed to 58 create part III of chapter 211, Florida Statutes, consisting of 59 ss. 211.40-211.45, Florida Statutes, to be entitled “Tax on 60 Extraction of Water for Bottling.” 61 Section 3. Section 211.40, Florida Statutes, is created to 62 read: 63 211.40 Definitions.—As used in this part, the term: 64 (1) “Bottled water operator” means a person engaged in the 65 business of bottling or packaging for sale water extracted from 66 waters of the state. The term does not include a person who 67 bottles or packages water from a public water system as defined 68 in s. 403.852(2). 69 (2) “Department” means the Department of Revenue. 70 (3) “Waters of the state” has the same meaning as the term 71 “waters” as defined in s. 403.031(13). 72 Section 4. Section 211.41, Florida Statutes, is created to 73 read: 74 211.41 Bottled water excise tax; distribution and use of 75 tax proceeds.— 76 (1) An excise tax is levied upon every person who acts as a 77 bottled water operator at a rate of 12.5 cents per gallon of 78 water extracted from waters of the state. 79 (2) The proceeds of the tax imposed by this section must be 80 deposited in the Wastewater Treatment and Stormwater Management 81 Revolving Loan Trust Fund and must be accounted for separately 82 within the fund. The tax proceeds must be used to provide grants 83 and loans to local governmental agencies pursuant to s. 84 403.1835, with priority to projects to connect existing onsite 85 sewage treatment and disposal systems to central sewerage 86 systems. 87 Section 5. Section 211.42, Florida Statutes, is created to 88 read: 89 211.42 Returns; filing requirements; estimated tax 90 declarations.— 91 (1) Each bottled water operator shall prepare and submit to 92 the department a return on or before the 25th day of each month 93 showing the total amount of water extracted from waters of the 94 state during the previous month, the source and county of 95 extraction, the location of all facilities from which taxable 96 water was extracted, and other information required by 97 department rule. The department shall prescribe the form of the 98 return by rule. The return must be filed on or before the last 99 day prescribed for payment of the tax and must be signed and 100 verified under oath by the bottled water operator or the bottled 101 water operator’s authorized representative. 102 (a) The return must include a statement of the tax due 103 under this part and such other information as the department may 104 reasonably require. 105 (b) A return must be filed even though no tax is due. Any 106 tax, penalty, or interest due must be remitted with the return. 107 (2)(a) Each bottled water operator subject to the tax under 108 this part shall file, on a form prescribed by the department, a 109 declaration of estimated tax on or before the 25th day of the 110 month following the month taxable water extraction occurred and 111 shall remit to the department an amount equal to 90 percent of 112 the estimated tax. 113 (b) The declaration may be amended under rules prescribed 114 by the department. The installment due must be increased or 115 decreased to reflect the change in estimated tax occasioned by 116 the amendment. 117 (c) The department may provide for credit of any 118 overpayment of amounts due under this part which the department 119 determines to have been made against the installment required 120 under this subsection. 121 (d) Any estimated tax paid for a month is deemed assessed 122 upon the last date for payment of the tax imposed under this 123 part. 124 (3) If any due date prescribed by this section falls on a 125 Saturday, Sunday, or state or federal holiday, the last date 126 prescribed for filing or payment is the next day that is not a 127 Saturday, Sunday, or holiday. The date of receipt by the 128 department, or the postmark date if mailed, determines the 129 timeliness of payment or filing. 130 (4) The department may grant an extension of time for 131 payment or filing of a return upon written request submitted on 132 or before the due date. 133 Section 6. Section 211.43, Florida Statutes, is created to 134 read: 135 211.43 Interest and penalties; failure to pay tax or file 136 return; estimated tax underpayments.— 137 (1) If any part of the tax imposed by this part is not paid 138 on or before the due date, interest must be added to the amount 139 due at the rate of 12 percent per year from the due date until 140 the date of payment. 141 (2) A bottled water operator who fails to file the return 142 required under s. 211.42 by the due date shall pay a delinquency 143 penalty. If tax is due with the return, the delinquency penalty 144 is 10 percent for each month, or portion thereof, of the amount 145 of tax due with the return, not to exceed 50 percent. If no tax 146 is due with the return, the delinquency penalty is $50 for each 147 month, or portion thereof, during which the return was not 148 filed, not to exceed $300 in aggregate. The amount of tax due 149 with a return must be reduced by amounts properly creditable 150 against the tax liability shown on the return on the date the 151 return was due. 152 (3) A bottled water operator who makes a substantial 153 underpayment of the tax due under this part shall pay a penalty 154 of 30 percent of the underpayment in addition to the delinquency 155 penalty imposed under subsection (2). For purposes of this 156 subsection, a substantial underpayment of tax is a deficiency of 157 tax in an amount exceeding 35 percent of the total tax due for a 158 month. 159 (4)(a) Except as provided in paragraph (c), a bottled water 160 operator is liable for interest at the rate of 12 percent per 161 year and a penalty at the rate of 12 percent per year on any 162 underpayment of estimated tax determined under this subsection. 163 (b) An underpayment of estimated tax is the excess of: 164 1. An amount equal to 90 percent of the tax for a month 165 which is shown to be due on a return or, if no return is filed, 166 90 percent of the tax finally due for the month, over 167 2. The amount, if any, paid on or before the due date of 168 the installment. 169 (c) The period of underpayment of estimated tax begins on 170 the date the installment is due and ends on the date the 171 underpayment is paid. A payment of estimated tax is deemed a 172 payment of a previous underpayment only to the extent the 173 payment exceeds the amount of estimated tax installment due 174 under subparagraph (b)1. 175 (d) A penalty or interest for underpayment of estimated tax 176 may not be imposed if the total amount of estimated tax paid on 177 or before the installment due date equals or exceeds the lesser 178 of: 179 1. Ninety percent of the tax finally due for the month; or 180 2. The amount of tax determined by the tax rate applicable 181 for the month times the taxable production for the previous 182 month. 183 (5) Any penalty or interest imposed under this section is 184 deemed assessed upon the assessment of the tax and must be 185 collected and paid in the same manner as the tax. 186 (6) Any penalty imposed by this section may be settled or 187 compromised by the department for reasonable cause in accordance 188 with s. 213.21. Interest imposed by this section may be settled 189 or compromised only as authorized by s. 213.21. 190 Section 7. Section 211.44, Florida Statutes, is created to 191 read: 192 211.44 Administration and enforcement; books and records; 193 refunds.— 194 (1) The department may adopt rules to administer this part, 195 including prescribing the form and content of returns and 196 reports. 197 (2) All state, county, or municipal agencies, boards, 198 bureaus, departments, or districts shall cooperate with the 199 department and furnish any information the department deems 200 necessary, without cost to the department, for the purposes of 201 administering, collecting, or enforcing the tax imposed under 202 this part. 203 (3)(a) Each bottled water operator shall keep suitable 204 books and records relating to the extraction of taxable waters 205 of the state to enable the department to determine the amount of 206 tax due under this part. Such books and records must be 207 preserved until the time within which the department may make an 208 assessment with respect thereto has expired in accordance with 209 s. 213.35. 210 (b) The department may inspect or examine the books, 211 records, or papers of any bottled water operator which are 212 reasonably required for the purposes of this part and may 213 require such person to testify under oath or affirmation or to 214 answer competent questions regarding such person’s business or 215 extraction of taxable waters of the state. 216 1. The department may issue subpoenas to compel third 217 parties to testify or to produce records or other evidence held 218 by them. 219 2. Any duly authorized representative of the department may 220 administer an oath or affirmation. 221 3. If any person fails to comply with a request of the 222 department for the inspection of records, fails to give 223 testimony or respond to competent questions, or fails to comply 224 with a subpoena, a circuit court having jurisdiction over such 225 person may, upon application by the department, issue orders 226 necessary to secure compliance. 227 (c) All books and records required to be kept under this 228 subsection must be available for inspection by the department 229 upon written request during normal business hours. 230 (4) The department may audit or examine the books and 231 records of a bottled water operator to determine whether returns 232 have been properly filed and tax has been properly paid. An 233 audit may be commenced for any month for which the power of the 234 department to make an assessment of amounts due under this part 235 is available. An audit must be commenced by service of a written 236 notice of intent to audit upon the bottled water operator, 237 either in person or by certified mail. The date of personal 238 contact or the date of the notice governs the period subject to 239 audit. If there is jeopardy to the revenue and jeopardy is 240 asserted in or with an assessment, the department must proceed 241 in the manner specified for jeopardy assessment in s. 213.732. 242 (5)(a) The department may assess, with or without an audit, 243 any deficiency resulting from nonpayment or underpayment of the 244 tax, interest, or penalties imposed by this part. The department 245 shall inform the bottled water operator by written notice of the 246 amount of any deficiency or overpayment revealed by an audit, 247 including the tax, interest, or penalties due, and shall explain 248 the basis for the determination. 249 (b) The department may make an assessment under this part 250 based upon the best information available to it. The department 251 may make an assessment based upon an estimate of amounts due 252 under this part if a bottled water operator fails to file a 253 return, files a grossly incorrect or fraudulent return, or 254 refuses to permit inspection of records. An assessment of the 255 amounts due under this part is deemed prima facie correct and 256 the bottled water operator has the burden of showing any error 257 in it. 258 (c) In the event of a deficiency, the department shall 259 issue its written notice to a bottled water operator for the 260 tax, penalties, or interest due. Full payment of the total 261 amount assessed must be made in the manner prescribed by the 262 department in its notice. 263 (6)(a) The department may credit or refund any overpayments 264 of amounts due under this part which are revealed by an audit or 265 for which a timely claim for refund has been properly filed. 266 (b) A claim for refund may be filed within the period 267 specified in s. 215.26(2). 268 (c) A claim for refund must be signed by the bottled water 269 operator or the bottled water operator’s duly authorized 270 representative, successor, or assignee and must include 271 information the department requires to determine the correctness 272 of the claim. 273 (7)(a) Amounts due under this part remain a lien upon the 274 property, assets, and effects of a bottled water operator until 275 paid or until collection thereof is barred under s. 95.091 and 276 may be recovered by the department, on behalf of the state, by 277 an action in any county where the property, assets, or effects 278 of the bottled water operator are located. 279 (b) When any tax imposed by this part becomes delinquent or 280 is otherwise in jeopardy, the department may issue a warrant for 281 the full amount due or estimated to be due, including the tax, 282 penalties, interest, and costs of collection. The warrant must 283 be directed to each sheriff and may be recorded with the clerk 284 of the circuit court in any county where the bottled water 285 operator’s property is located. Upon recording, the clerk of the 286 circuit court shall execute the warrant in the same manner 287 prescribed by law for executions upon judgments and is entitled 288 to the same fees for this service. Upon payment of the warrant, 289 the department shall satisfy the lien of record within 30 days. 290 Thereafter, any interested person may compel the department to 291 satisfy the lien of record. 292 (c) An alias tax execution may be issued whenever the 293 department deems it necessary. Each alias tax execution must be 294 so designated on its face and has the same force and effect as 295 the original. 296 (d) Tax executions may be levied upon any third party who 297 is in possession or control of any assets of a delinquent 298 bottled water operator or who is indebted to a delinquent 299 bottled water operator. Such tax executions have the force and 300 effect of a writ of garnishment. The third party shall pay the 301 debt or deliver the assets of the delinquent bottled water 302 operator to the department, and receipt by the department 303 discharges the third party completely to the extent of the debt 304 paid or assets surrendered to the department. 305 (e) When any tax execution becomes void, the department may 306 cancel it of record and shall do so upon the request of any 307 interested person. 308 (8) Any employee of the department may be designated by the 309 executive director to make and sign assessments, tax warrants, 310 and satisfactions of tax warrants. 311 (9) Any suit brought by the department against any person 312 for violating this part must be brought in circuit court. 313 Section 8. Section 211.45, Florida Statutes, is created to 314 read: 315 211.45 Criminal penalties.— 316 (1) A person who willfully fails to file a return or keep 317 books or records on the extraction of taxable waters of the 318 state, who files a fraudulent return, who willfully fails or 319 refuses to produce books or records, or who willfully violates 320 any provision of this part or any rule adopted by the department 321 under this part commits a misdemeanor of the first degree, 322 punishable as provided in s. 775.082 or s. 775.083. 323 (2) A person who withholds tax due under this part and 324 willfully fails to make remittance as required by this part or 325 who purports to make payments due under this part but willfully 326 fails to do so because the remittance fails to clear the bank or 327 depository institution against which it is drawn commits a 328 felony of the third degree, punishable as provided in s. 329 775.082, s. 775.083, or s. 775.084. 330 Section 9. This act shall take effect July 1, 2020.