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The Florida Senate

2011 Florida Statutes

Title XIV TAXATION AND FINANCE
Chapter 220 INCOME TAX CODE Entire Chapter
SECTION 153
Apportionment by sales factor.
F.S. 220.153
1220.153 Apportionment by sales factor.—
(1) DEFINITIONS.—As used in this section, the term:
(a) “Office” means the 2Office of Tourism, Trade, and Economic Development.
(b) “Qualified capital expenditures” means expenditures in this state for purposes substantially related to a business’s production or sale of goods or services. The expenditure must fund the acquisition of additional real property (land, buildings, including appurtenances, fixtures and fixed equipment, structures, etc.), including additions, replacements, major repairs, and renovations to real property which materially extend its useful life or materially improve or change its functional use and the furniture and equipment necessary to furnish and operate a new or improved facility. The term “qualified capital expenditures” does not include an expenditure for a passive investment or for an investment intended for the accumulation of reserves or the realization of profit for distribution to any person holding an ownership interest in the business. The term “qualified capital expenditures” does not include expenditures to acquire an existing business or expenditures in excess of $125 million to acquire land or buildings.
(2) APPORTIONMENT OF TAXES; ELIGIBILITY.—A taxpayer, not including a financial organization as defined in s. 220.15(6) or a bank, savings association, international banking facility, or banking organization as defined in s. 220.62, doing business within and without this state, who applies and demonstrates to the office that, within a 2-year period beginning on or after July 1, 2011, it has made qualified capital expenditures equal to or exceeding $250 million may apportion its adjusted federal income solely by the sales factor set forth in s. 220.15(5), commencing in the taxable year that the office approves the application, but not before a taxable year that begins on or after January 1, 2013. Once approved, a taxpayer may elect to apportion its adjusted federal income for any taxable year using the method provided under this section or the method provided under s. 220.15.
(3) QUALIFICATION PROCESS.—
(a) To qualify as a taxpayer who is eligible to apportion its adjusted federal income under this section:
1. The taxpayer must notify the office of its intent to submit an application to apportion its adjusted federal income in order to commence the 2-year period for measuring qualified capital expenditures.
2. The taxpayer must submit an application to apportion its adjusted federal income under this section to the office within 2 years after notifying the office of the taxpayer’s intent to qualify. The application must be made under oath and provide such information as the office reasonably requires by rule for determining the applicant’s eligibility to apportion adjusted federal income under this section. The taxpayer is responsible for affirmatively demonstrating to the satisfaction of the office that it meets the eligibility requirements.
(b) The taxpayer notice and application forms shall be established by the office by rule. The office shall acknowledge receipt of the notice and approve or deny the application in writing within 45 days after receipt.
(4) REVIEW AUTHORITY; RECAPTURE OF TAX.—
(a) In addition to its existing audit authority, the department may perform any financial and technical review and investigation, including examining the accounts, books, and records of the taxpayer as necessary, to verify that the taxpayer’s tax return correctly computes and apportions adjusted federal income and to ensure compliance with this chapter.
(b) The office may, by order, revoke its decision to grant eligibility for apportionment pursuant to this section, and may also order the recalculation of apportionment factors to those applicable under s. 220.15 if, as the result of an audit, investigation, or examination, it determines that information provided by the taxpayer in the application, or in a statement, representation, record, report, plan, or other document provided to the office to become eligible for apportionment, was materially false at the time it was made and that an individual acting on behalf of the taxpayer knew, or should have known, that the information submitted was false. The taxpayer shall pay such additional taxes and interest as may be due pursuant to this chapter computed as the difference between the tax that would have been due under the apportionment formula provided in s. 220.15 for such years and the tax actually paid. In addition, the department shall assess a penalty equal to 100 percent of the additional tax due.
(c) The office shall immediately notify the department of an order affecting a taxpayer’s eligibility to apportion tax pursuant to this section. A taxpayer who is liable for past tax must file an amended return with the department, or such other report as the department prescribes by rule, and pay any required tax, interest, and penalty within 60 days after the taxpayer receives notification from the office that the previously approved credits have been revoked. If the revocation is contested, the taxpayer shall file an amended return or other report within 30 days after an order becomes final. A taxpayer who fails to pay the past tax, interest, and penalty by the due date is subject to the penalties provided in s. 220.803.
(5) RULES.—The office and the department may adopt rules to administer this section.
History.—s. 11, ch. 2011-76.
1Note.—Section 35, ch. 2011-76, provides that:

“(1) The executive director of the Department of Revenue is authorized, and all conditions are deemed met, to adopt emergency rules under ss. 120.536(1) and 120.54(4), Florida Statutes, for the purpose of implementing this act.

“(2) Notwithstanding any other provision of law, such emergency rules shall remain in effect for 6 months after the date adopted and may be renewed during the pendency of procedures to adopt permanent rules addressing the subject of the emergency rules.”

2Note.—Section 4, ch. 2011-142, transferred all of the powers, duties, and functions of the Office of Tourism, Trade, and Economic Development to the Department of Economic Opportunity.