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2013 Florida Statutes
Chapter 213
STATE REVENUE LAWS: GENERAL PROVISIONS
STATE REVENUE LAWS: GENERAL PROVISIONS
CHAPTER 213
STATE REVENUE LAWS: GENERAL PROVISIONS
213.015 Taxpayer rights.
213.018 Taxpayer problem resolution program; taxpayer assistance orders.
213.025 Audits, inspections, and interviews.
213.05 Department of Revenue; control and administration of revenue laws.
213.051 Service of subpoenas.
213.053 Confidentiality and information sharing.
213.0532 Information-sharing agreements with financial institutions.
213.0535 Registration Information Sharing and Exchange Program.
213.055 Declared emergency; waiver or suspension of specified revenue laws.
213.06 Rules of department; circumstances requiring emergency rules.
213.071 Certification under seal of certain records by executive director.
213.10 Deposit of tax moneys collected.
213.12 Certain state-chartered financial institutions; immunity from certain state and local taxes.
213.13 Electronic remittance and distribution of funds collected by clerks of the court.
213.131 Clerks of the Court Trust Fund within the Department of Revenue.
213.21 Informal conferences; compromises.
213.22 Technical assistance advisements.
213.2201 Publications by the department.
213.23 Consent agreements extending the period subject to assessment or available for refund.
213.235 Determination of interest on deficiencies.
213.24 Accrual of penalties and interest on deficiencies; deficiency billing costs.
213.25 Refunds; credits; right of setoff.
213.255 Interest.
213.256 Simplified Sales and Use Tax Administration Act.
213.26 Contracts with county tax collectors.
213.27 Contracts with debt collection agencies and certain vendors.
213.28 Contracts with private auditors.
213.285 Certified audits.
213.29 Failure to collect and pay over tax or attempt to evade or defeat tax.
213.30 Compensation for information relating to a violation of the tax laws.
213.34 Authority to audit.
213.345 Tolling of periods during an audit.
213.35 Books and records.
213.37 Authority to require sworn statements.
213.50 Failure to comply; revocation of corporate charter or license to operate a public lodging establishment or public food service establishment; refusal to reinstate charter or license.
213.67 Garnishment.
213.68 Garnishment; collecting entity of counties which self-administer collection of tourist development tax.
213.69 Authority to issue warrants.
213.692 Integrated enforcement authority.
213.70 Taxpayers’ escrow requirement.
213.73 Manner and conditions of sale of property subject of a levy by the Department of Revenue.
213.731 Collection action; notice; taxpayer’s protest and review rights.
213.732 Jeopardy findings and assessments.
213.733 Satisfaction of warrant.
213.74 Certificate of sale; deed of real property; legal effect.
213.75 Application of payments.
213.755 Filing of returns and payment of taxes by electronic means.
213.756 Funds collected are state tax funds.
213.757 Willful failure to pay over funds or destruction of records by agent.
213.758 Transfer of tax liabilities.
213.015 Taxpayer rights.—There is created a Florida Taxpayer’s Bill of Rights to guarantee that the rights, privacy, and property of Florida taxpayers are adequately safeguarded and protected during tax assessment, collection, and enforcement processes administered under the revenue laws of this state. The Taxpayer’s Bill of Rights compiles, in one document, brief but comprehensive statements which explain, in simple, nontechnical terms, the rights and obligations of the Department of Revenue and taxpayers. Section 192.0105 provides additional rights afforded to payors of property taxes and assessments. The rights afforded taxpayers to ensure that their privacy and property are safeguarded and protected during tax assessment and collection are available only insofar as they are implemented in other parts of the Florida Statutes or rules of the Department of Revenue. The rights so guaranteed Florida taxpayers in the Florida Statutes and the departmental rules are:
(1) The right to available information and prompt, accurate responses to questions and requests for tax assistance.
(2) The right to request assistance from a taxpayers’ rights advocate of the department, who shall be responsible for facilitating the resolution of taxpayer complaints and problems not resolved through the normal administrative channels within the department, including any taxpayer complaints regarding unsatisfactory treatment by department employees. The taxpayers’ rights advocate may issue a stay order if a taxpayer has suffered or is about to suffer irreparable loss as a result of an action by the department (see ss. 20.21(3) and 213.018).
(3) The right to be represented or advised by counsel or other qualified representatives at any time in administrative interactions with the department, the right to procedural safeguards with respect to recording of interviews during tax determination or collection processes conducted by the department, the right to be treated in a professional manner by department personnel, and the right to have audits, inspections of records, and interviews conducted at a reasonable time and place except in criminal and internal investigations (see ss. 198.06, 199.218, 201.11(1), 203.02, 206.14, 211.125(3), 211.33(3), 212.0305(3), 212.12(5)(a), (6)(a), and (13), 212.13(5), 213.05, 213.21(1)(a) and (c), and 213.34).
(4) The right to freedom from penalty attributable to any taxes administered by the Department of Revenue; freedom from payment of uncollected sales, use, motor or diesel fuel, or other transaction-based excise taxes administered by the Department of Revenue; and to abatement of interest attributable to any taxes administered by the Department of Revenue, when the taxpayer reasonably relies upon binding written advice furnished to the taxpayer by the department through authorized representatives in response to the taxpayer’s specific written request which provided adequate and accurate information (see ss. 120.565 and 213.22).
(5) The right to obtain simple, nontechnical statements which explain the reason for audit selection and the procedures, remedies, and rights available during audit, appeals, and collection proceedings, including, but not limited to, the rights pursuant to this Taxpayer’s Bill of Rights and the right to be provided with a narrative description which explains the basis of audit changes, proposed assessments, assessments, and denials of refunds; identifies any amount of tax, interest, or penalty due; and states the consequences of the taxpayer’s failure to comply with the notice.
(6) The right to be informed of impending collection actions which require sale or seizure of property or freezing of assets, except jeopardy assessments, and the right to at least 30 days’ notice in which to pay the liability or seek further review (see ss. 198.20, 199.262, 201.16, 206.075, 206.24, 211.125(5), 212.03(5), 212.0305(3)(j), 212.04(7), 212.14(1), 213.73(3), 213.731, and 220.739).
(7) The right to have all other collection actions attempted before a jeopardy assessment unless delay will endanger collection and, after a jeopardy assessment, the right to have an immediate review of the jeopardy assessment (see ss. 212.15, 213.73(3), 213.732, and 220.719(2)).
(8) The right to seek review, through formal or informal proceedings, of any adverse decisions relating to determinations in the audit or collections processes and the right to seek a reasonable administrative stay of enforcement actions while the taxpayer pursues other administrative remedies available under Florida law (see ss. 120.80(14)(b), 213.21(1), 220.717, and 220.719(2)).
(9) The right to have the taxpayer’s tax information kept confidential unless otherwise specified by law (see s. 213.053).
(10) The right to procedures for retirement of tax obligations by installment payment agreements which recognize both the taxpayer’s financial condition and the best interests of the state, provided that the taxpayer gives accurate, current information and meets all other tax obligations on schedule (see s. 213.21(4)).
(11) The right to procedures for requesting cancellation, release, or modification of liens filed by the department and for requesting that any lien which is filed in error be so noted on the lien cancellation filed by the department, in public notice, and in notice to any credit agency at the taxpayer’s request (see ss. 198.22, 199.262, 212.15(4), 213.733, and 220.819).
(12) The right to procedures which assure that the individual employees of the department are not paid, evaluated, or promoted on the basis of the amount of assessments or collections from taxpayers (see s. 213.30(2)).
(13) The right to an action at law within the limitations of s. 768.28, relating to sovereign immunity, to recover damages against the state or the Department of Revenue for injury caused by the wrongful or negligent act or omission of a department officer or employee (see s. 768.28).
(14) The right of the taxpayer or the department, as the prevailing party in a judicial or administrative action brought or maintained without the support of justiciable issues of fact or law, to recover all costs of the administrative or judicial action, including reasonable attorney’s fees, and of the department and taxpayer to settle such claims through negotiations (see ss. 57.105 and 57.111).
(15) The right to have the department begin and complete its audits in a timely and expeditious manner after notification of intent to audit (see s. 95.091).
(16) The right to have the department actively identify and review multistate proposals that offer more efficient and effective methods for administering the revenue sources of this state (see s. 213.256).
(17) The right to have the department actively investigate and, where appropriate, implement automated or electronic business methods that enable the department to more efficiently and effectively administer the revenue sources of this state at less cost and effort for taxpayers.
(18) The right to waiver of interest that accrues as the result of errors or delays caused by a department employee (see s. 213.21(3)).
(19) The right to participate in free educational activities that help the taxpayer successfully comply with the revenue laws of this state.
(20) The right to pay a reasonable fine or percentage of tax, whichever is less, to reinstate an exemption from any tax which a taxpayer would have been entitled to receive but which was lost because the taxpayer failed to properly register as a tax dealer in this state or obtain the necessary certificates entitling the taxpayer to the exemption (see s. 212.07(9)).
(21) The right to fair and consistent application of the tax laws of this state by the Department of Revenue.
History.—s. 1, ch. 92-315; ss. 9, 23, ch. 95-272; s. 120, ch. 95-417; s. 37, ch. 96-397; s. 37, ch. 96-410; s. 9, ch. 97-287; s. 10, ch. 2000-210; s. 18, ch. 2000-355; s. 30, ch. 2002-218.
213.018 Taxpayer problem resolution program; taxpayer assistance orders.—A taxpayer problem resolution program shall be available to taxpayers to facilitate the prompt review and resolution of taxpayer complaints and problems which have not been addressed or remedied through normal administrative proceedings or operational procedures and to assure that taxpayer rights are safeguarded and protected during tax determination and collection processes.
(1) The executive director of the Department of Revenue shall designate a taxpayers’ rights advocate and adequate staff to administer the taxpayer problem resolution program.
(2) The taxpayers’ rights advocate may, with or without a formal written request from the taxpayer, issue a taxpayer assistance order that suspends or stays actions or proposed actions by the department when a taxpayer suffers or is about to suffer a significant hardship as a result of a tax determination, collection, or enforcement process.
(a) Relief or remedy may be granted by a taxpayer assistance order only as an extraordinary measure. The process shall not be used to contest the merits of a tax liability or as a substitute for informal protest procedures or normal administrative or judicial proceedings for the review of a tax assessment or collection action or denial of refund.
(b) The running of the period of limitations on assessment shall be tolled from the date of a taxpayer’s request for a taxpayer assistance order until either the date the request is denied or the date specified in the taxpayer assistance order, whichever is applicable.
History.—s. 2, ch. 92-315.
213.025 Audits, inspections, and interviews.—Except in criminal and internal investigations, the department shall conduct its audits, inspections of records, and interviews at reasonable times and places.
History.—s. 4, ch. 92-315.
1213.05 Department of Revenue; control and administration of revenue laws.—The Department of Revenue shall have only those responsibilities for ad valorem taxation specified to the department in chapter 192, taxation, general provisions; chapter 193, assessments; chapter 194, administrative and judicial review of property taxes; chapter 195, property assessment administration and finance; chapter 196, exemption; chapter 197, tax collections, sales, and liens; chapter 199, intangible personal property taxes; and chapter 200, determination of millage. The Department of Revenue shall have the responsibility of regulating, controlling, and administering all revenue laws and performing all duties as provided in s. 125.0104, the Local Option Tourist Development Act; s. 125.0108, tourist impact tax; chapter 198, estate taxes; chapter 201, excise tax on documents; chapter 202, communications services tax; chapter 203, gross receipts taxes; chapter 206, motor and other fuel taxes; chapter 211, tax on production of oil and gas and severance of solid minerals; chapter 212, tax on sales, use, and other transactions; chapter 220, income tax code; ss. 336.021 and 336.025, taxes on motor fuel and special fuel; 2s. 376.11, pollutant spill prevention and control; s. 403.718, waste tire fees; s. 403.7185, lead-acid battery fees; s. 538.09, registration of secondhand dealers; s. 538.25, registration of secondary metals recyclers; s. 624.4621, group self-insurer’s fund premium tax; s. 624.5091, retaliatory tax; s. 624.475, commercial self-insurance fund premium tax; ss. 624.509-624.511, insurance code: administration and general provisions; s. 624.515, State Fire Marshal regulatory assessment; s. 627.357, medical malpractice self-insurance premium tax; s. 629.5011, reciprocal insurers premium tax; and s. 681.117, motor vehicle warranty enforcement.
History.—s. 5, ch. 63-253; s. 4, ch. 65-371; ss. 10, 21, 35, ch. 69-106; s. 43, ch. 71-355; s. 62, ch. 73-333; s. 1, ch. 79-9; s. 42, ch. 79-164; s. 3, ch. 82-75; ss. 16, 80, ch. 82-226; s. 12, ch. 82-385; s. 72, ch. 86-152; s. 9, ch. 87-102; s. 16, ch. 87-198; s. 4, ch. 89-167; s. 11, ch. 89-171; s. 39, ch. 90-132; s. 102, ch. 90-136; s. 28, ch. 90-203; s. 13, ch. 90-351; s. 89, ch. 91-112; s. 1, ch. 92-318; s. 64, ch. 93-207; s. 37, ch. 95-280; s. 121, ch. 95-417; s. 81, ch. 99-2; s. 1, ch. 2000-152; ss. 34, 58, ch. 2000-260; s. 38, ch. 2001-140; s. 4, ch. 2006-185; s. 19, 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.—Paragraphs (4)(a) and (b) of s. 376.11 were transferred to paragraphs (1)(a) and (b) of s. 206.9935 by s. 3, ch. 86-159.
213.051 Service of subpoenas.—For the purpose of administering and enforcing the provisions of the revenue laws of this state, the executive director of the Department of Revenue, or any of his or her assistants designated in writing by the executive director, shall be authorized to serve subpoenas and subpoenas duces tecum issued by the state attorney relating to investigations concerning the taxes enumerated in s. 213.05.
History.—s. 6, ch. 78-59; s. 1126, ch. 95-147.
213.053 Confidentiality and information sharing.—
1(1) This section applies to:
(a) Section 125.0104, county government;
(b) Section 125.0108, tourist impact tax;
(c) Chapter 175, municipal firefighters’ pension trust funds;
(d) Chapter 185, municipal police officers’ retirement trust funds;
(e) Chapter 198, estate taxes;
(f) Chapter 199, intangible personal property taxes;
(g) Chapter 201, excise tax on documents;
(h) Chapter 202, the Communications Services Tax Simplification Law;
(i) Chapter 203, gross receipts taxes;
(j) Chapter 211, tax on severance and production of minerals;
(k) Chapter 212, tax on sales, use, and other transactions;
(l) Chapter 220, income tax code;
(m) Section 252.372, emergency management, preparedness, and assistance surcharge;
(n) Section 379.362(3), Apalachicola Bay oyster surcharge;
(o) Chapter 376, pollutant spill prevention and control;
(p) Section 403.718, waste tire fees;
(q) Section 403.7185, lead-acid battery fees;
(r) Section 538.09, registration of secondhand dealers;
(s) Section 538.25, registration of secondary metals recyclers;
(t) Sections 624.501 and 624.509-624.515, insurance code;
(u) Section 681.117, motor vehicle warranty enforcement; and
(v) Section 896.102, reports of financial transactions in trade or business.
(2)(a) All information contained in returns, reports, accounts, or declarations received by the department, including investigative reports and information and including letters of technical advice, is confidential except for official purposes and is exempt from s. 119.07(1).
(b) Any officer or employee, or former officer or employee, of the department who divulges any such information in any manner, except for such official purposes, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(3) The department shall permit a taxpayer, his or her authorized representative, or the personal representative of an estate to inspect the taxpayer’s return and may furnish him or her an abstract of such return. A taxpayer may authorize the department in writing to divulge specific information concerning the taxpayer’s account.
(4) The department, while providing reemployment assistance tax collection services under contract with the Department of Economic Opportunity through an interagency agreement pursuant to s. 443.1316, may release reemployment assistance tax rate information to the agent of an employer who provides payroll services for more than 100 employers, pursuant to the terms of a memorandum of understanding. The memorandum of understanding must state that the agent affirms, subject to the criminal penalties contained in ss. 443.171 and 443.1715, that the agent will retain the confidentiality of the information, that the agent has in effect a power of attorney from the employer which permits the agent to obtain reemployment assistance tax rate information, and that the agent shall provide the department with a copy of the employer’s power of attorney upon request.
(5) This section does not prevent the department from:
(a) Publishing statistics so classified as to prevent the identification of particular accounts, reports, declarations, or returns; or
(b) Using telephones, e-mail, facsimile machines, or other electronic means to:
1. Distribute information relating to changes in law, tax rates, interest rates, or other information that is not specific to a particular taxpayer;
2. Remind taxpayers of due dates;
3. Respond to a taxpayer to an electronic mail address that does not support encryption if the use of that address is authorized by the taxpayer; or
4. Notify taxpayers to contact the department.
(6) The department may make available to the Secretary of the Treasury of the United States or his or her delegate, the Commissioner of Internal Revenue of the United States or his or her delegate, the Secretary of the Department of the Interior of the United States or his or her delegate, or the proper officer of any state or his or her delegate, exclusively for official purposes, information to comply with any formal agreement for the mutual exchange of state information with the Internal Revenue Service of the United States, the Department of the Interior of the United States, or any state.
(7)(a) Any information received by the Department of Revenue in connection with the administration of taxes, including, but not limited to, information contained in returns, reports, accounts, or declarations filed by persons subject to tax, shall be made available to the following in performance of their official duties:
1. The Auditor General or his or her authorized agent;
2. The director of the Office of Program Policy Analysis and Government Accountability or his or her authorized agent;
3. The Chief Financial Officer or his or her authorized agent;
4. The Director of the Office of Insurance Regulation of the Financial Services Commission or his or her authorized agent;
5. A property appraiser or tax collector or their authorized agents pursuant to s. 195.084(1);
6. Designated employees of the Department of Education solely for determination of each school district’s price level index pursuant to s. 1011.62(2); and
7. The executive director of the Department of Economic Opportunity or his or her authorized agent.
(b) No information shall be disclosed as provided in paragraph (a) if such disclosure is prohibited by federal law.
(c) Any person designated in paragraph (a) shall be subject to the same requirements of confidentiality and the same penalties for violation of the requirements as the department.
(d) For the purpose of this subsection, “designated employees of the Department of Education” means only those employees directly responsible for calculation of price level indices pursuant to s. 1011.62(2). It does not include the supervisors of such employees or any other employees or elected officials within the Department of Education.
(8) Notwithstanding any other provision of this section, the department may provide:
(a) Information relative to chapter 211, chapter 376, or chapter 377 to the proper state agency in the conduct of its official duties.
(b) Names, addresses, and dates of commencement of business activities of corporations to the Division of Corporations of the Department of State in the conduct of its official duties.
(c) Information relative to chapter 212 and chapters 561 through 568 to the Division of Alcoholic Beverages and Tobacco of the Department of Business and Professional Regulation in the conduct of its official duties.
2(d) Names, addresses, sales tax registration information, and information relating to a public lodging establishment or a public food service establishment having an outstanding tax warrant, notice of lien, or judgment lien certificate to the Division of Hotels and Restaurants of the Department of Business and Professional Regulation in the conduct of its official duties.
(e) Names, addresses, taxpayer identification numbers, and outstanding tax liabilities to the Department of the Lottery and the Office of Financial Regulation of the Financial Services Commission in the conduct of their official duties.
(f) State tax information to the Nexus Program of the Multistate Tax Commission pursuant to any formal agreement for the exchange of mutual information between the department and the commission.
(g) Tax information to principals, and their designees, of the Revenue Estimating Conference for the purpose of developing official revenue estimates.
(h) Names and addresses of persons paying taxes pursuant to part IV of chapter 206 to the Department of Environmental Protection in the conduct of its official duties.
(i) Information relative to chapters 212 and 326 to the Division of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business and Professional Regulation in the conduct of its official duties.
(j) Information authorized pursuant to s. 213.0535 to eligible participants and certified public accountants for such participants in the Registration Information Sharing and Exchange Program.
(k) Information relative to chapter 212 and the Bill of Lading Program to the Office of Agriculture Law Enforcement of the Department of Agriculture and Consumer Services in the conduct of its official duties.
(l) Information relative to chapter 198 to the Agency for Health Care Administration in the conduct of its official business relating to ss. 409.901-409.9101.
(m) Information contained in returns, reports, accounts, or declarations to the Board of Accountancy in connection with a disciplinary proceeding conducted pursuant to chapter 473 when related to a certified public accountant participating in the certified audits project, or to the court in connection with a civil proceeding brought by the department relating to a claim for recovery of taxes due to negligence on the part of a certified public accountant participating in the certified audits project. In any judicial proceeding brought by the department, upon motion for protective order, the court shall limit disclosure of tax information when necessary to effectuate the purposes of this section.
(n) Information relative to ss. 376.70 and 376.75 to the Department of Environmental Protection in the conduct of its official business and to the facility owner, facility operator, and real property owners as defined in s. 376.301.
(o) Information relative to ss. 220.1845 and 376.30781 to the Department of Environmental Protection in the conduct of its official business.
(p) Names, addresses, and sales tax registration information to the Division of Consumer Services of the Department of Agriculture and Consumer Services in the conduct of its official duties.
(q) Information relative to the returns required by ss. 175.111 and 185.09 to the Department of Management Services in the conduct of its official duties. The Department of Management Services is, in turn, authorized to disclose payment information to a governmental agency or the agency’s agent for purposes related to budget preparation, auditing, revenue or financial administration, or administration of chapters 175 and 185.
(r) Names, addresses, and federal employer identification numbers, or similar identifiers, to the Department of Highway Safety and Motor Vehicles for use in the conduct of its official duties.
3(s) Information relative to ss. 211.0251, 212.1831, 220.1875, 561.1211, 624.51055, and 1002.395 to the Department of Education and the Division of Alcoholic Beverages and Tobacco in the conduct of official business.
(t) Information relative to chapter 202 to each local government that imposes a tax pursuant to s. 202.19 in the conduct of its official duties as specified in chapter 202. Information provided under this paragraph may include, but is not limited to, any reports required pursuant to s. 202.231, audit files, notices of intent to audit, tax returns, and other confidential tax information in the department’s possession relating to chapter 202. A person or an entity designated by the local government in writing to the department as requiring access to confidential taxpayer information shall have reasonable access to information provided pursuant to this paragraph. Such person or entity may disclose such information to other persons or entities with direct responsibility for budget preparation, auditing, revenue or financial administration, or legal counsel. Such information shall only be used for purposes related to budget preparation, auditing, and revenue and financial administration. Any confidential and exempt information furnished to a local government, or to any person or entity designated by the local government as authorized by this paragraph may not be further disclosed by the recipient except as provided by this paragraph.
(u) Rental car surcharge revenues authorized by s. 212.0606, reported according to the county to which the surcharge was attributed to the Department of Transportation.
(v) Information relative to ss. 212.08(7)(hhh), 220.192, and 220.193 to the Department of Agriculture and Consumer Services for use in the conduct of its official business.
(w) Taxpayer names and identification numbers for the purposes of information-sharing agreements with financial institutions pursuant to s. 213.0532.
(x) Information relative to chapter 212 to the Department of Environmental Protection in the conduct of its official duties in the administration of s. 253.03(7)(b) and (11).
(y) Information relative to ss. 253.03(8) and 253.0325 to the Department of Environmental Protection in the conduct of its official business.
(z) Information relative to s. 215.61(5) to the State Board of Education, the Division of Bond Finance, and the Office of Economic and Demographic Research.
1(aa) Information relating to tax credits taken under s. 220.194 to Space Florida.
(bb) Information to the director of the Office of Program Policy Analysis and Government Accountability or his or her authorized agent, and to the coordinator of the Office of Economic and Demographic Research or his or her authorized agent, for purposes of completing the Economic Development Programs Evaluation. Information obtained from the department pursuant to this paragraph may be shared by the director and the coordinator, or the director’s or coordinator’s authorized agent, for purposes of completing the Economic Development Programs Evaluation.
Disclosure of information under this subsection shall be pursuant to a written agreement between the executive director and the agency. Such agencies, governmental or nongovernmental, shall be bound by the same requirements of confidentiality as the Department of Revenue. Breach of confidentiality is a misdemeanor of the first degree, punishable as provided by s. 775.082 or s. 775.083.
(9) The Department of Revenue shall provide returns, reports, accounts, or declarations received by the department, including investigative reports and information, or information contained in such documents, pursuant to an order of a judge of a court of competent jurisdiction or pursuant to a subpoena duces tecum only when the subpoena is:
(a) Issued by a state attorney, a United States attorney, or a court in a criminal investigation or a criminal judicial proceeding;
(b) Issued by a state or federal grand jury; or
(c) Issued by a state attorney, the Department of Legal Affairs, the State Fire Marshal, a United States attorney, or a court in the course of a civil investigation or a civil judicial proceeding under the state or federal racketeer influenced and corrupt organization act or under chapter 896.
(10)(a) Notwithstanding other provisions of this section, the department shall, subject to paragraph (c) and to the safeguards and limitations of paragraphs (b) and (d), disclose to the governing body of a municipality, a county, or a subcounty district levying a local option tax, or any state tax that is distributed to units of local government based upon place of collection, which the department is responsible for administering, names and addresses only of the taxpayers granted a certificate of registration pursuant to s. 212.18(3) who reside within or adjacent to the taxing boundaries of such municipality, county, or subcounty district when sufficient information is supplied by the municipality, the county, or subcounty district as the department by rule may prescribe, provided such governing bodies are following s. 212.18(3) relative to the denial of an occupational license after the department cancels a dealer’s sales tax certificate of registration.
(b) Such information shall be disclosed only if the department receives an authenticated copy of a resolution adopted by the governing body requesting it.
(c) After receipt of such information, the governing body and its officers and employees are subject to the same requirements of confidentiality and the same penalties for violating confidentiality as the department and its employees.
(d) The resolution requesting such information shall provide assurance that the governing body and its officers and employees are aware of the confidentiality requirements and of the penalties for their violation of such requirements, and the resolution shall describe the measures that will be put into effect to ensure such confidentiality. The officer of the department who is authorized to receive, consider, and act upon such requests shall, if satisfied that the assurances in the resolution are adequate to assure confidentiality, grant the request.
(e) Nothing in this subsection authorizes disclosure of any information prohibited by federal law from being disclosed.
(11) Notwithstanding any other provision of this section, with respect to a request for verification of a certificate of registration issued pursuant to s. 212.18 to a specified dealer or taxpayer or with respect to a request by a law enforcement officer for verification of a certificate of registration issued pursuant to s. 538.09 to a specified secondhand dealer or pursuant to s. 538.25 to a specified secondary metals recycler, the department may disclose whether the specified person holds a valid certificate or whether a specified certificate number is valid or whether a specified certificate number has been canceled or is inactive or invalid and the name of the holder of the certificate. This subsection shall not be construed to create a duty to request verification of any certificate of registration.
(12) The department may provide to a United States Trustee, or his or her designee, for any United States Bankruptcy Court, exclusively for official purposes in connection with administering a bankruptcy estate, information relating to payment or nonpayment of taxes imposed by any revenue law of this state by a trustee, debtor, or debtor in possession, including any amount paid or due.
(13) The department may disclose certain state sales tax information relating to the cancellation or revocation of sales and use tax certificates of registration for the failure to collect and remit sales tax. This information is limited to the sales tax certificate number, trade name, owner’s name, business location address, and the reason for the cancellation or revocation.
(14) Notwithstanding the provisions of s. 896.102(2), the department may allow full access to the information and documents required to be filed with it under s. 896.102(1) to federal, state, and local law enforcement and prosecutorial agencies, and to the Office of Financial Regulation of the Financial Services Commission, and any of those agencies may use the information and documents in any civil or criminal investigation and in any court proceedings.
(15)(a) Notwithstanding any other provision of this section, the department shall, subject to the safeguards specified in paragraph (c), disclose to the Division of Corporations of the Department of State the name, address, federal employer identification number, and duration of tax filings with this state of all corporate or partnership entities which are not on file or have a dissolved status with the Division of Corporations and which have filed tax returns pursuant to chapter 220.
(b) The Division of Corporations shall use such information only in the pursuit of its official duties relative to nonqualified foreign or dissolved corporations in the recovery of fees and penalties due and owing the state.
(c) All information exchanged between the Division of Corporations and the department shall be subject to the same requirements of confidentiality as the Department of Revenue.
(16)(a) Confidential taxpayer information may be shared with the child support enforcement program, which may use the information for purposes of program administration, and with the Department of Children and Family Services for the purpose of diligent search activities pursuant to chapter 39.
(b) Nothing in this subsection authorizes the disclosure of information if such disclosure is prohibited by federal law. Employees of the child support enforcement program and of the Department of Children and Family Services are bound by the same requirements of confidentiality and the same penalties for violation of the requirements as the department.
(17) The department may provide to the person against whom transferee liability is being asserted pursuant to s. 213.758 information relating to the basis of the claim.
(18) The department may disclose to a person entitled to compensation pursuant to s. 213.30 the amount of any tax, penalty, or interest collected as a result of information furnished by such person.
(19)(a) The department may publish a list of taxpayers against whom the department has filed a warrant, notice of lien, or judgment lien certificate. The list may include the name and address of each taxpayer; the amounts and types of delinquent taxes, fees, or surcharges, penalties, or interest; and the employer identification number or other taxpayer identification number.
(b) The department shall update the list at least monthly to reflect payments for resolution of deficiencies and to otherwise add or remove taxpayers from the list.
(c) The department may adopt rules to administer this subsection.
(20) The department may disclose information relating to taxpayers against whom the department has filed a warrant, notice of lien, or judgment lien certificate. Such information includes the name and address of the taxpayer, the actions taken, the amounts and types of liabilities, and the amount of any collections made.
History.—s. 1, ch. 80-222; s. 11, ch. 81-151; s. 2, ch. 81-165; s. 4, ch. 81-179; s. 3, ch. 82-219; s. 75, ch. 83-217; s. 7, ch. 84-170; s. 14, ch. 84-338; ss. 31, 121, ch. 85-342; s. 29, ch. 86-152; s. 7, ch. 87-99; s. 10, ch. 87-102; s. 2, ch. 87-175; s. 17, ch. 87-198; s. 4, ch. 87-331; ss. 5, 31, ch. 88-119; s. 19, ch. 88-381; s. 1, ch. 89-128; s. 5, ch. 90-203; s. 4, ch. 90-290; s. 49, ch. 90-360; s. 34, ch. 91-112; s. 1, ch. 91-214; s. 242, ch. 91-224; s. 6, ch. 91-305; s. 17, ch. 92-138; s. 4, ch. 92-146; s. 8, ch. 92-319; s. 36, ch. 92-320; s. 65, ch. 93-207; ss. 3, 7, ch. 93-414; s. 15, ch. 94-124; ss. 15, 74, ch. 94-136; s. 2, ch. 94-187; s. 22, ch. 94-218; s. 14, ch. 94-353; s. 54, ch. 94-356; s. 1503, ch. 95-147; ss. 10, 24, ch. 95-272; s. 1, ch. 95-379; s. 4, ch. 96-283; s. 5, ch. 96-331; s. 34, ch. 96-397; ss. 62, 63, ch. 96-406; s. 1, ch. 96-421; s. 29, ch. 97-99; s. 39, ch. 97-170; s. 10, ch. 97-287; s. 2, ch. 98-95; ss. 5, 17, ch. 98-189; s. 1, ch. 98-299; s. 15, ch. 98-342; s. 130, ch. 98-403; s. 82, ch. 99-2; s. 5, ch. 99-5; s. 20, ch. 99-208; s. 6, ch. 99-239; s. 2, ch. 2000-152; s. 5, ch. 2000-182; ss. 8, 11, ch. 2000-312; s. 1, ch. 2000-313; s. 8, ch. 2000-355; s. 4, ch. 2001-106; s. 1, ch. 2001-139; s. 19, ch. 2001-158; s. 8, ch. 2001-225; s. 53, ch. 2001-266; s. 2, ch. 2002-68; s. 1, ch. 2002-171; s. 31, ch. 2002-218; s. 919, ch. 2002-387; s. 4, ch. 2003-36; ss. 34, 38, ch. 2003-254; s. 189, ch. 2003-261; s. 1, ch. 2005-96; s. 1, ch. 2005-140; s. 17, ch. 2005-280; s. 1, ch. 2006-85; s. 10, ch. 2006-230; s. 18, ch. 2006-312; s. 19, ch. 2007-5; s. 28, ch. 2007-106; s. 3, ch. 2008-89; s. 12, ch. 2008-240; s. 190, ch. 2008-247; s. 1, ch. 2009-50; s. 6, ch. 2009-51; s. 4, ch. 2010-24; ss. 9, 10, ch. 2010-138; s. 10, ch. 2010-147; s. 4, ch. 2010-166; ss. 3, 10, ch. 2010-280; SJR 8-A, 2010 Special Session A; s. 21, ch. 2011-3; s. 1, ch. 2011-55; s. 1, ch. 2011-63; s. 20, ch. 2011-76; s. 80, ch. 2011-142; s. 1, ch. 2011-235; s. 46, ch. 2012-30; s. 2, ch. 2012-55; s. 24, ch. 2012-96; s. 5, ch. 2012-117; s. 124, ch. 2013-18; s. 7, ch. 2013-39; s. 7, ch. 2013-42.
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.—As amended by s. 4, ch. 2010-166. For a description of multiple acts in the same session affecting a statutory provision, see preface to the Florida Statutes, “Statutory Construction.” Paragraph (8)(d) was also amended by s. 10, ch. 2010-138, and that version reads:
(d) Names, addresses, and sales tax registration information, and information relating to a hotel or restaurant having an outstanding tax warrant, notice of lien, or judgment lien certificate, to the Division of Hotels and Restaurants of the Department of Business and Professional Regulation in the conduct of its official duties.
3Note.—Section 20, ch. 2010-24, provides that “[t]he Department of Revenue is authorized and all conditions are deemed met, to adopt emergency rules pursuant to ss. 120.536(1) and 120.54, Florida Statutes, to administer the provisions of this act. The emergency rules shall remain in effect for 6 months after the rules are adopted and the rules may be renewed during the pendency of procedures to adopt permanent rules addressing the subject of the emergency rules.”
213.0532 Information-sharing agreements with financial institutions.—
(1) As used in this section, the term:
(a) “Account” means a demand deposit account, checking or negotiable withdrawal order account, savings account, time deposit account, or money market mutual fund account.
(b) “Department” means the Department of Revenue.
(c) “Financial institution” means:
1. A depository institution as defined in 12 U.S.C. s. 1813(c);
2. An institution-affiliated party as defined in 12 U.S.C. s. 1813(u);
3. A federal credit union or state credit union as defined in 12 U.S.C. s. 1752, including an institution-affiliated party of such a credit union as defined in 12 U.S.C. s. 1786(r); or
4. A benefit association, insurance company, safe-deposit company, money market mutual fund, or similar entity authorized to do business in this state.
(d) “Obligor” means any person against whose property the department has filed a warrant or judgment lien certificate.
(e) “Person” has the same meaning as provided in s. 212.02.
(2) The department shall request information and assistance from a financial institution as necessary to enforce the tax laws of this state. Pursuant to this subsection, financial institutions doing business in this state and having deposits of at least $50 million shall enter into agreements with the department to develop and operate a data match system, using an automated data exchange to the maximum extent feasible, under which the financial institution shall provide, to the extent allowable by law, for each calendar quarter the name, record address, social security number or other taxpayer identification number, average daily account balance, and other identifying information for:
(a) Each obligor who maintains an account at the financial institution as identified to the institution by the department by name and social security number or other taxpayer identification number; or
(b) At the financial institution’s option, each person who maintains an account at the institution.
(3) The department may enter into agreements to operate an automated data exchange with financial institutions having deposits that do not exceed $50 million.
(4) The department may use the information received pursuant to this section only for the purpose of enforcing the collection of taxes and fees administered by the department.
(5) To the extent possible and in compliance with state and federal law, the department shall administer this section in conjunction with s. 409.25657 in order to avoid duplication and reduce the burden on financial institutions.
(6) The department shall pay a reasonable fee to the financial institution for conducting the data match provided for in this section, which may not exceed actual costs incurred by the financial institution.
(7) A financial institution is not required to provide notice to its customers and is not liable to any person for:
(a) Disclosing to the department any information required under this section.
(b) Encumbering or surrendering any assets held by the financial institution in response to a notice of lien or levy issued by the department.
(c) Disclosing any information in connection with a data match.
(d) Taking any other action in good faith to comply with the requirements of this section.
(8) Any financial records obtained pursuant to this section may be disclosed only for the purpose of, and to the extent necessary, to administer and enforce the tax laws of this state.
(9) The department may adopt rules establishing the procedures and requirements for conducting automated data matches with financial institutions pursuant to this section.
History.—s. 11, ch. 2010-138.
213.0535 Registration Information Sharing and Exchange Program.—
(1) The Registration Information Sharing and Exchange Program, or “RISE,” is established and shall be coordinated by the Department of Revenue. Periodically, each participant in the program shall share the tax administration information specified in this section in the format prescribed by the department. To the fullest extent practicable, the information 1shall be shared in a computer-processable medium.
(2) Information that is subject to sharing includes the registrant’s, licensee’s, or taxpayer’s name, mailing address, business location, and federal employer identification number or social security number; any applicable business type code; any applicable county code; and such other tax registration information as the department prescribes.
(3) Each local government that participates in the program is responsible for transmitting its shared data to participating state agencies. Each state agency participating in the program is responsible for transmitting its shared data to the other participating state agencies and to the appropriate participating local governments. Data shall be transmitted within 20 days after the close of the reporting period.
(4) There are two levels of participation:
(a) Each unit of state or local government responsible for administering one or more of the provisions specified in subparagraphs 1.-8. is a level-one participant. Level-one participants shall exchange, monthly or quarterly, as determined jointly by each participant and the department, the data enumerated in subsection (2) for each new registrant, new filer, or initial reporter, permittee, or licensee, with respect to the following taxes, licenses, or permits:
1. The sales and use tax imposed under chapter 212.
2. The tourist development tax imposed under s. 125.0104.
3. The tourist impact tax imposed under s. 125.0108.
4. Local business taxes imposed under chapter 205.
5. Convention development taxes imposed under s. 212.0305.
6. Public lodging and food service establishment licenses issued pursuant to chapter 509.
7. Beverage law licenses issued pursuant to chapter 561.
8. A municipal resort tax as authorized under chapter 67-930, Laws of Florida.
(b) Level-two participants include the Department of Revenue and local officials responsible for collecting the tourist development tax pursuant to s. 125.0104, the tourist impact tax pursuant to s. 125.0108, or a convention development tax pursuant to s. 212.0305, or a municipal resort tax as authorized under chapter 67-930, Laws of Florida. Level-two participants shall, in addition to the data shared by level-one participants, exchange data relating to tax payment history, audit assessments, and registration cancellations of dealers engaging in transient rentals, and such data may relate only to sales and use taxes, tourist development taxes, convention development taxes, and municipal resort tax. The department shall prescribe, by rule, the data elements to be shared and the frequency of sharing; however, audit assessments must be shared at least quarterly.
(c) A level-two participant may disclose information as provided in paragraph (b) in response to a request for such information from any other level-two participant. Information relative to specific taxpayers shall be requested or disclosed under this paragraph only to the extent necessary in the administration of a tax or licensing provision as enumerated in paragraph (a). When a disclosure made under this paragraph involves confidential information provided to the participant by the Department of Revenue, the participant who provides the information shall maintain records of the disclosures, which records shall be subject to review by the Department of Revenue for a period of 5 years after the date of the disclosure.
(5) Any provision of law imposing confidentiality upon data shared under this section, including, but not limited to, any provision imposing penalties for disclosure, applies to recipients of this data and their employees. Data exchanged under this section may not be provided to any person or entity other than a person or entity administering the tax or licensing provisions of those provisions of law enumerated in paragraph (4)(a), and such data may not be used for any purpose other than for enforcing those tax or licensing provisions.
(6) In addition to data on new registrants, the information shared by level-one participants in the first month of the program shall include data for all active registrants, taxpayers, licensees, or permittees under the provisions of law enumerated in paragraph (4)(a).
History.—s. 32, ch. 92-319; s. 31, ch. 92-320; s. 1, ch. 95-362; s. 64, ch. 96-406; s. 16, ch. 98-342; s. 32, ch. 2002-218; s. 35, ch. 2003-254; s. 20, ch. 2007-5.
213.055 Declared emergency; waiver or suspension of specified revenue laws.—The following actions to waive or suspend a revenue law may be implemented only when the Governor has declared a state of emergency pursuant to s. 252.36.
(1)(a) The Governor and Cabinet may grant refunds of state and local taxes on motor and diesel fuel donated during a declared state of emergency for official emergency use in cases in which the state solicits the donation. The refunds may be implemented by a vote of the majority of the Governor and Cabinet during a public meeting or by a majority jointly signing a written order.
(b) The authorized refunds of state and local taxes on motor and diesel fuel apply to taxes imposed by chapter 206.
(2) Notwithstanding any other provision of law, the executive director of the Department of Revenue may implement the following actions during a declared state of emergency for those revenue sources over which the department is granted administrative control pursuant to s. 213.05:
(a) Extend the stipulated due date for tax returns and accompanying tax payments; and
(b) Waive interest that accrues during the period of the state of emergency on taxes due prior to and during the period of the disaster.
History.—s. 5, ch. 93-211; s. 122, ch. 95-417.
213.06 Rules of department; circumstances requiring emergency rules.—
(1) The Department of Revenue has the authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement provisions of the revenue laws.
(2) The executive director of the department may adopt emergency rules pursuant to s. 120.54 on behalf of the department when the effective date of a legislative change occurs sooner than 60 days after the close of a legislative session in which enacted and the change affects a tax rate or a collection or reporting procedure which affects a substantial number of dealers or persons subject to the tax change or procedure. The Legislature finds that such circumstances qualify as an exception to the prerequisite of a finding of immediate danger to the public health, safety, or welfare as set forth in s. 120.54(4)(a) and qualify as circumstances requiring an emergency rule.
History.—s. 6, ch. 63-253; ss. 21, 35, ch. 69-106; s. 4, ch. 82-75; s. 76, ch. 83-217; s. 13, ch. 86-152; s. 22, ch. 89-356; s. 38, ch. 96-410; s. 22, ch. 98-200.
213.071 Certification under seal of certain records by executive director.—The executive director of the Department of Revenue may certify under appropriate seal, copies of any records, papers, or documents placed in his or her custody, keeping, and care by law. Such certified copies shall have the same force and effect as evidence as would the original records, papers, or documents.
History.—s. 1, ch. 65-41; ss. 21, 35, ch. 69-106; s. 1127, ch. 95-147.
213.10 Deposit of tax moneys collected.—Any and all tax moneys collected by the Department of Revenue shall be deposited in the appropriate fund as provided by law. Except as otherwise provided, the Department of Revenue may use separate clearing trust funds to account for the collection and distribution of tax moneys.
History.—s. 10, ch. 63-253; ss. 21, 35, ch. 69-106; s. 15, ch. 93-233.
213.12 Certain state-chartered financial institutions; immunity from certain state and local taxes.—
(1) All banks, trust companies, and Morris Plan banks now or hereafter chartered under the laws of the state shall have the same immunity from state and local taxation that national banking associations have from time to time under the statutes of the United States.
(2) All credit unions now or hereafter chartered under the laws of the state shall have the same immunity from state and local taxation that federally chartered credit unions have from time to time under the statutes of the United States.
(3) No tax may be imposed by the state or any of its political subdivisions on any savings and loan association or its franchise, surplus, deposits, assets, reserves, loans, or income which is greater than the least onerous imposed by the state on any other financial institution as defined in chapter 658.
History.—s. 1, ch. 72-153.
213.13 Electronic remittance and distribution of funds collected by clerks of the court.—
(1) Notwithstanding any other provision of law, the Department of Revenue shall establish procedures requiring the electronic transmittal of funds and associated return information submitted by clerks of the court. These procedures must be developed jointly by the Department of Revenue and the Florida Association of Court Clerks representing the clerks of the court. The department shall adopt rules necessary to implement the procedures contained in this section.
(2) The funds to be remitted electronically by the clerks include proceeds from the taxes imposed by chapter 199, chapter 201, and all other fees, fines, reimbursements, court costs, or other court-related funds that the clerks must remit to the state pursuant to law. At a minimum, these electronic remittance procedures must include:
(a) The prescribed reporting frequency and time period for the clerks to remit such funds and the prescribed time period in which the department must electronically deposit the funds received to the appropriate state and local funds and accounts;
(b) The electronic format and type of debit remittance system to be used by the clerks to remit the funds to the department;
(c) The means of communication used to transmit the required information; and
(d) The information that must be submitted with such remittance.
(3) The clerks shall submit return information with the electronic payments required by this section in a manner that is initiated through electronic means.
(4) To ensure that the Department of Revenue deposits on a correct and timely basis the revenues electronically received from the clerks, the agencies that are statutorily authorized to receive such revenue deposits shall grant the department electronic access to their appropriate funds and accounts.
(5) All court-related collections, including fees, fines, reimbursements, court costs, and other court-related funds that the clerks must remit to the state pursuant to law, must be transmitted electronically by the 20th day of the month immediately following the month in which the funds are collected.
History.—s. 1, ch. 2001-122; s. 43, ch. 2005-236.
213.131 Clerks of the Court Trust Fund within the Department of Revenue.—The Clerks of the Court Trust Fund is created within the Department of Revenue.
History.—s. 1, ch. 2001-121; s. 2, ch. 2003-243; s. 7, ch. 2005-3; s. 14, ch. 2009-204; s. 13, ch. 2013-44.
213.21 Informal conferences; compromises.—
(1)(a) The Department of Revenue may adopt rules for establishing informal conference procedures within the department for resolution of disputes relating to assessment of taxes, interest, and penalties and the denial of refunds, and for informal hearings under ss. 120.569 and 120.57(2).
(b) The statute of limitations upon the issuance of final assessments shall be tolled during the period in which the taxpayer is engaged in a procedure under this section.
(c) During procedures under this section, the taxpayer has the right to be represented at the taxpayer’s cost and to record procedures electronically or manually at the taxpayer’s cost.
(2)(a) The executive director of the department or his or her designee is authorized to enter into closing agreements with any taxpayer settling or compromising the taxpayer’s liability for any tax, interest, or penalty assessed under any of the chapters specified in s. 72.011(1). Such agreements shall be in writing when the amount of tax, penalty, or interest compromised exceeds $30,000 or for lesser amounts when the department deems it appropriate or when requested by the taxpayer. When a written closing agreement has been approved by the department and signed by the executive director or his or her designee and the taxpayer, it shall be final and conclusive; and, except upon a showing of fraud or misrepresentation of material fact or except as to adjustments pursuant to ss. 198.16 and 220.23, no additional assessment may be made by the department against the taxpayer for the tax, interest, or penalty specified in the closing agreement for the time period specified in the closing agreement, and the taxpayer shall not be entitled to institute any judicial or administrative proceeding to recover any tax, interest, or penalty paid pursuant to the closing agreement. The department is authorized to delegate to the executive director the authority to approve any such closing agreement resulting in a tax reduction of $250,000 or less.
(b) Notwithstanding the provisions of paragraph (a), for the purpose of facilitating the settlement and distribution of an estate held by a personal representative, the executive director of the department may, on behalf of the state, agree upon the amount of taxes at any time due or to become due from such personal representative under the provisions of chapter 198; and payment in accordance with such agreement shall be full satisfaction of the taxes to which the agreement relates.
(c) Notwithstanding paragraph (a), for the purpose of compromising the liability of any taxpayer for tax or interest on the grounds of doubt as to liability based on the taxpayer’s reasonable reliance on a written determination issued by the department as described in paragraph (3)(b), the department may compromise the amount of such tax or interest liability resulting from such reasonable reliance.
(3)(a) A taxpayer’s liability for any tax or interest specified in s. 72.011(1) may be compromised by the department upon the grounds of doubt as to liability for or collectibility of such tax or interest. A taxpayer’s liability for interest under any of the chapters specified in s. 72.011(1) shall be settled or compromised in whole or in part whenever or to the extent that the department determines that the delay in the determination of the amount due is attributable to the action or inaction of the department. A taxpayer’s liability for penalties under any of the chapters specified in s. 72.011(1) may be settled or compromised if it is determined by the department that the noncompliance is due to reasonable cause and not to willful negligence, willful neglect, or fraud. The facts and circumstances are subject to de novo review to determine the existence of reasonable cause in any administrative proceeding or judicial action challenging an assessment of penalty under any of the chapters specified in s. 72.011(1). A taxpayer who establishes reasonable reliance on the written advice issued by the department to the taxpayer will be deemed to have shown reasonable cause for the noncompliance. In addition, a taxpayer’s liability for penalties under any of the chapters specified in s. 72.011(1) in excess of 25 percent of the tax shall be settled or compromised if the department determines that the noncompliance is due to reasonable cause and not to willful negligence, willful neglect, or fraud. The department shall maintain records of all compromises, and the records shall state the basis for the compromise. The records of compromise under this paragraph shall not be subject to disclosure pursuant to s. 119.07(1) and shall be considered confidential information governed by the provisions of s. 213.053.
(b) Doubt as to liability of a taxpayer for tax and interest exists if the taxpayer demonstrates that he or she reasonably relied on a written determination of the department in any of the following circumstances:
1. The audit workpapers clearly show that the same issue was considered in a prior audit of the taxpayer conducted by or on behalf of the department and, after consideration of the issue, the department’s auditor determined that no assessment was appropriate in regard to that issue.
2. The same issue was raised in a prior audit of the taxpayer and, during the informal protest of the proposed assessment, the department issued a notice of decision withdrawing the issue from the assessment.
3. The taxpayer received a technical assistance advisement pursuant to s. 213.22 in regard to the issue.
The circumstances listed in this paragraph are not intended to be the only circumstances in which doubt as to liability exists. Nothing contained in this section shall interfere with the state’s ability to structure a remedy to cure a judicially determined constitutional defect in a tax law.
(c) A taxpayer shall not be deemed to have reasonably relied on a written determination of the department under any of the following circumstances:
1. The taxpayer misrepresented material facts or did not fully disclose material facts at the time the written determination was issued.
2. The specific facts and circumstances have changed in such a material manner that the written determination no longer applies.
3. The statutes or regulations on which the determination was based have been materially revised or a published judicial opinion constituting precedent in the taxpayer’s jurisdiction has overruled the department’s determination on the issue.
4. The department has informed the taxpayer in writing that its previous written determination has been revised and should no longer be relied upon.
(d) A taxpayer’s liability for the service fee required by s. 215.34(2) may be settled or compromised if it is determined that the dishonored check, draft, or order was returned due to an unintentional error committed by the issuing financial institution, the taxpayer, or the department and the unintentional error is substantiated by the department. The department shall maintain records of all compromises, and the records shall state the basis for the compromise.
(4) The department is authorized to enter into agreements for scheduling payments of taxes, interest, and penalties.
(5) The department shall establish by rule guidelines and procedures for implementation of this section.
(6) The Department of Revenue may modify the reporting or filing periods required for any tax enumerated in s. 213.05, for purposes of facilitating the calculation of penalty and interest due on tax payments made as a result of a taxpayer’s voluntary self-disclosure or the department’s selection of a taxpayer for self-analysis. Interest or penalty calculations may not be based on a filing period longer than 1 year. Modified reporting periods apply only to taxpayers not previously registered for the specific tax disclosed and to registered taxpayers with annual gross receipts of less than $500,000. Annual filing periods must be based on a calendar year or the fiscal year used for federal income tax reporting by the taxpayer.
(7)(a) When a taxpayer voluntarily self-discloses a liability for tax to the department, the department may settle and compromise the tax and interest due under the voluntary self-disclosure to those amounts due for the 3 years immediately preceding the date that the taxpayer initially contacted the department concerning the voluntary self-disclosure. For purposes of this paragraph, the term “years” means tax years or calendar years, whichever is applicable to the tax that is voluntarily self-disclosed. A voluntary self-disclosure does not occur if the department has contacted or informed the taxpayer that the department is inquiring into the taxpayer’s liability for tax or whether the taxpayer is subject to tax in this state.
(b) The department may further settle and compromise the tax and interest due under a voluntary self-disclosure when the department is able to determine that such further settlement and compromise is in the best interests of this state. When making this determination the department shall consider, but is not limited to, the following:
1. The amount of tax and interest that will be collected and compromised under the voluntary self-disclosure;
2. The financial ability of the taxpayer and the future outlook of the taxpayer’s business and the industry involved;
3. Whether the taxpayer has paid or will be paying other taxes to the state;
4. The future voluntary compliance of the taxpayer; and
5. Any other factor that the department considers relevant to this determination.
(c) This subsection does not limit the department’s ability to enter into further settlement and compromise of the liability that is voluntarily self-disclosed based on any other provision of this section.
(d) This subsection does not apply to a voluntary self-disclosure when the taxpayer collected, but failed to remit, the tax to the state.
(8) In order to determine whether certified audits are an effective tool in the overall state tax collection effort, the executive director of the department or the executive director’s designee shall settle or compromise penalty liabilities of taxpayers who participate in the certified audits project. As further incentive for participating in the program, the department shall abate the first $25,000 of any interest liability and 25 percent of any interest due in excess of the first $25,000. A settlement or compromise of penalties or interest pursuant to this subsection shall not be subject to the provisions of paragraph (3)(a), except for the requirement relating to confidentiality of records. The department may consider an additional compromise of tax or interest pursuant to the provisions of paragraph (3)(a). This subsection does not apply to any liability related to taxes collected but not remitted to the department.
(9) A penalty for failing to collect a tax imposed by chapter 212 shall be settled or compromised upon payment of tax and interest if a taxpayer failed to collect the tax due to a good faith belief that tax was not due on the transaction and, because of that good faith belief, the taxpayer is now unable to charge and collect the tax from the taxpayer’s purchaser. The Department of Revenue shall adopt rules necessary to implement and administer this subsection, including rules establishing procedures and forms.
(10)(a) Notwithstanding any other provision of law and solely for the purpose of administering the taxes imposed by ss. 125.0104 and 125.0108 and chapter 212, except s. 212.0606, under the circumstances set forth in this subsection, the department shall settle or compromise a taxpayer’s liability for penalty without requiring the taxpayer to submit a written request for compromise or settlement.
(b) For taxpayers who file returns and remit tax on a monthly basis:
1. Any penalty related to a noncompliant filing event shall be settled or compromised if the taxpayer has:
a. No noncompliant filing event in the immediately preceding 12-month period and no unresolved liability under s. 125.0104, s. 125.0108, or chapter 212 resulting from a noncompliant filing event; or
b. One noncompliant filing event in the immediately preceding 12-month period, resolution of the current noncompliant filing event through payment of tax and interest and the filing of a return within 30 days after notification by the department, and no unresolved liability under s. 125.0104, s. 125.0108, or chapter 212 resulting from a noncompliant filing event.
2. If a taxpayer has two or more noncompliant filing events in the immediately preceding 12-month period, the taxpayer shall be liable, absent a showing by the taxpayer that the noncompliant filing event was due to extraordinary circumstances, for the penalties provided in s. 125.0104 or s. 125.0108 and s. 212.12, including loss of collection allowance, and shall be reported to a credit bureau.
(c) For taxpayers who file returns and remit tax on a quarterly basis, any penalty related to a noncompliant filing event shall be settled or compromised if the taxpayer has no noncompliant filing event in the immediately preceding 12-month period and no unresolved liability under s. 125.0104, s. 125.0108, or chapter 212 resulting from a noncompliant filing event.
(d) For purposes of this subsection:
1. “Noncompliant filing event” means a failure to timely file a complete and accurate return required under s. 125.0104, s. 125.0108, or chapter 212 or a failure to timely pay the amount of tax reported on a return required by s. 125.0104, s. 125.0108, or chapter 212.
2. “Extraordinary circumstances” means the occurrence of events beyond the control of the taxpayer, such as, but not limited to, the death of the taxpayer, acts of war or terrorism, natural disasters, fire, or other casualty, or the nonfeasance or misfeasance of the taxpayer’s employees or representatives responsible for compliance with s. 125.0104, s. 125.0108, or chapter 212. With respect to the acts of an employee or representative, the taxpayer must show that the principals of the business lacked actual knowledge of the noncompliance and that the noncompliance was resolved within 30 days after actual knowledge.
History.—s. 13, ch. 81-178; s. 15, ch. 83-215; s. 3, ch. 84-325; s. 32, ch. 85-80; s. 47, ch. 85-342; s. 14, ch. 86-152; s. 32, ch. 88-119; s. 12, ch. 89-171; s. 103, ch. 90-136; s. 14, ch. 90-351; s. 50, ch. 90-360; s. 3, ch. 92-315; s. 35, ch. 92-320; s. 15, ch. 94-353; s. 1504, ch. 95-147; s. 65, ch. 96-406; s. 41, ch. 96-410; s. 3, ch. 98-95; ss. 17, 26, ch. 98-342; ss. 3, 11, ch. 2000-312; s. 19, ch. 2000-355; s. 2, ch. 2002-171; s. 33, ch. 2002-218; ss. 21, 39, ch. 2003-254; s. 1, ch. 2005-96; ss. 18, 30, ch. 2005-280; s. 29, ch. 2007-106.
213.22 Technical assistance advisements.—
(1) The department may issue informal technical assistance advisements to persons, upon written request, as to the position of the department on the tax consequences of a stated transaction or event, under existing statutes, rules, or policies. After the issuance of an assessment, a technical assistance advisement may not be issued to a taxpayer who requests an advisement relating to the tax or liability for tax in respect to which the assessment has been made, except that a technical assistance advisement may be issued to a taxpayer who requests an advisement relating to the exemptions in s. 212.08(1) or (2) at any time. Technical assistance advisements shall have no precedential value except to the taxpayer who requests the advisement and then only for the specific transaction addressed in the technical assistance advisement, unless specifically stated otherwise in the advisement. Any modification of an advisement shall be prospective only. A technical assistance advisement is not an order issued pursuant to s. 120.565 or s. 120.569 or a rule or policy of general applicability under s. 120.54. The provisions of s. 120.53(1) are not applicable to technical assistance advisements.
(2) The department may not disclose pursuant to s. 119.07(1), or otherwise, a technical assistance advisement or a request for a technical assistance advisement to any person other than the person who requested the advisement, or his or her authorized representative, or for official departmental purposes, without first deleting the name, address, and other identifying details of the person to whom the technical assistance advisement was issued.
(3) The department is authorized to establish rules prescribing guidelines and procedures for submission, issuance or denial of issuance, and disclosure of technical assistance advisements.
(4) The department shall collect a fee from any person who requests disclosure of a technical assistance advisement issued under this section. A schedule of fees shall be provided by the department by rule. The fee schedule shall provide for a minimum fee of $5 for each technical assistance advisement disclosed or a maximum of 50 cents per page, whichever is greater. However, any person who uses the department’s tax information retrieval system, known as the Tax Law Library, may view or print a technical assistance advisement without paying the fee imposed under this subsection.
History.—s. 14, ch. 81-178; s. 77, ch. 83-217; s. 17, ch. 86-152; s. 33, ch. 88-119; s. 51, ch. 90-360; s. 1128, ch. 95-147; s. 18, ch. 96-395; s. 66, ch. 96-406; s. 42, ch. 96-410; s. 2, ch. 98-143; s. 2, ch. 98-408.
213.2201 Publications by the department.—The department may from time to time cause the laws under its jurisdiction, together with any rules and other publications, to be published in pamphlet form for free distribution in this state. The department may make charges for these technical and educational publications and mimeographed material of use for educational or reference purposes, except that charges may not be made for providing publications to any agency of the state. The charges shall be made at the discretion of the department. The charges may be sufficient to cover the cost of research, preparation, printing, binding, publishing, and distribution. All moneys received for publications shall be deposited into the fund from which the cost of the publication was paid. The department may also enter into agreements with persons, firms, corporations, governmental agencies, and other institutions whereby publications may be exchanged reciprocally in lieu of payments for the publications.
History.—s. 35, ch. 91-112; ss. 11, 25, ch. 95-272; s. 11, ch. 97-287.
213.23 Consent agreements extending the period subject to assessment or available for refund.—
(1) The executive director of the department or his or her designee may enter into agreements with taxpayers which extend the period during which an assessment may be issued or a claim for refund may be filed with respect of any tax, license, or fee collected by the Department of Revenue. Notwithstanding provisions of s. 95.091 or s. 215.26 to the contrary, if, before the expiration of time prescribed in a revenue law of this state for issuance of an assessment or claim of a refund, both the department and the taxpayer have consented in writing to the issuance of an assessment or claim of a refund after such time, an assessment may be issued or a claim for refund may be made at any time prior to the expiration of the period agreed upon. The period so agreed upon may be extended by subsequent agreements made before the expiration of the period previously agreed upon.
(2) Consent agreements may be made on forms prescribed by the department by rule and shall be signed by the taxpayer, or the duly authorized representative of the taxpayer, and by the executive director of the department, or his or her designee, and shall specify the date of expiration. A consent agreement under this section shall operate to extend the time for issuance of an assessment, or filing of a claim for refund, only for those taxes, licenses, or fees for the taxable periods specified in the agreement.
History.—s. 41, ch. 85-342; s. 1129, ch. 95-147.
213.235 Determination of interest on deficiencies.—
(1) Notwithstanding any other provision of law, the annual rate of interest applicable to tax payment deficiencies that arise on or after January 1, 2000, shall be the adjusted rate established by the executive director of the department under subsection (2), unless a lower rate for the particular tax is specifically provided for in law, in which case the lower rate applies. This annual rate of interest applies to all taxes enumerated in s. 213.05.
(2) If the adjusted prime rate charged by banks, rounded to the nearest full percent, plus 4 percentage points, during either:
(a) The 6-month period ending on September 30 of any calendar year, or
(b) The 6-month period ending on March 31 of any calendar year
differs from the interest rate in effect on either such date, the executive director of the department shall, within 20 days, establish an adjusted rate of interest equal to such adjusted prime rate plus 4 percentage points.
(3) An adjusted rate of interest established under this section becomes effective:
(a) On January 1 of the succeeding year, if based upon the adjusted prime rate plus 4 percentage points for the 6-month period ending on September 30; or
(b) On July 1 of the same calendar year, if based upon the adjusted prime rate plus 4 percentage points for the 6-month period ending on March 31.
(4) As used in this section, the term “adjusted prime rate charged by banks” means the average predominant prime rate quoted by commercial banks to large businesses, as determined by the Board of Governors of the Federal Reserve System.
(5) Once established, an adjusted rate of interest remains in effect until further adjusted under subsection (2).
History.—s. 7, ch. 99-239; s. 20, ch. 2000-355; s. 2, ch. 2003-395.
213.24 Accrual of penalties and interest on deficiencies; deficiency billing costs.—
(1) If notice and demand is made for the payment of any amount due under laws applicable to this chapter and if such amount is paid within 30 days after the date of such billing or notice and demand, no additional penalties or interest under this section on the amount so paid shall be imposed for the period after the date of such notice and demand.
(2)(a) Billings for deficiencies or automated refunds of tax, penalty, or interest may not be issued for an amount less than the actual costs incurred to produce a billing or automated refund.
(b) The cost of issuing billings or automated refunds for any tax or fee enumerated in s. 213.05 or chapter 443 shall be computed in a study performed by the inspector general of the department. The study shall be conducted every 3 years and at such other times as deemed necessary by the inspector general. A minimum billing and automated refund amount shall be established and adjusted in accordance with the results of such study.
(c) Any change in minimum billing or automated refund amounts is effective on July 1 following the completion of the study.
(3) An administrative collection processing fee shall be imposed to offset payment processing and administrative costs incurred by the state due to late payment of a collection event.
(a) As used in this subsection, the term:
1. “Collection event” means when a taxpayer fails to:
a. Timely file a complete return;
b. Timely pay the full amount of tax reported on a return; or
c. Timely pay the full amount due resulting from an audit after all appeal rights have expired or the result has been finally determined.
2. “Extraordinary circumstances” means events beyond the control of the taxpayer, including, but not limited to, the taxpayer’s death; acts of war or terrorism; natural disaster, fire, or other casualty; or the nonfeasance or misfeasance of the taxpayer’s employee or representative responsible for complying with the taxes and fees listed in s. 213.05 and chapter 443. With respect to acts of the taxpayer’s employee or representative, the taxpayer must show that the principals of the business lacked actual knowledge of the collection event and any notification of the collection event.
(b) The department shall collect the fee from a taxpayer who fails to pay the full amount of tax, penalty, and interest due within 90 days following initial notification of the collection event. The department may waive or reduce the fee if the taxpayer demonstrates that the failure to pay the full amount due within 90 days following the initial notification was due to extraordinary circumstances. The fee applies to those taxes and fees listed in s. 213.05 and chapter 443 and administered by the department.
(c) The fee is equal to 10 percent of the total amount of tax, penalty, and interest which remains unpaid after 90 days, or $10 for each collection event, whichever is greater. The fee shall be imposed in addition to the taxes, fees, penalties, and interest prescribed by law.
(d) Fees collected pursuant to this subsection shall be distributed each fiscal year as follows:
1. The first $6.2 million collected shall be deposited into the department’s Operating Trust Fund.
2. Any amount collected above $6.2 million shall be deposited into the General Revenue Fund.
History.—s. 42, ch. 85-342; s. 30, ch. 86-152; s. 23, ch. 89-356; s. 34, ch. 2002-218; s. 2, ch. 2009-67; s. 22, ch. 2012-5.
213.25 Refunds; credits; right of setoff.—If a tax refund or tax credit is due to a taxpayer, the department may reduce the refund or credit to the extent of any billings not subject to protest under s. 213.21 or chapter 443 for any tax owed by the taxpayer.
History.—s. 43, ch. 85-342; s. 5, ch. 2010-90; s. 12, ch. 2010-138.
213.255 Interest.—Interest shall be paid on overpayments of taxes, payment of taxes not due, or taxes paid in error, subject to the following conditions:
(1) A refund application must be filed with the department within the time specified by s. 215.26.
(2) A refund application shall not be processed until it is determined complete. A refund application is complete if it is filed on a permitted form and contains:
(a) The taxpayer’s name, address, identifying number, and signature.
(b) Sufficient information, whether on the application or attachments, to permit mathematical verification of the amount of the refund.
(c) The amount claimed.
(d) The specific grounds upon which the refund is claimed.
(e) The taxable years or periods involved.
(3) Within 30 days after receipt of the refund application, the department shall examine the application and notify the applicant of any apparent errors or omissions and request any additional information the department is permitted by law to require. An application shall be considered complete upon receipt of all requested information and correction of any error or omission for which the applicant was timely notified, or when the time for such notification has expired, whichever is later.
(4) Interest shall not commence until 90 days after a complete refund application has been filed and the amount of overpayment has not been refunded to the taxpayer or applied as a credit to the taxpayer’s account. However, if there is a prohibition against refunding a tax overpayment before the first day of the state fiscal year, interest on the tax overpayment shall not commence until August 1 of the year the tax was due. If the department and the taxpayer mutually agree that an audit or verification is necessary in order to determine the taxpayer’s entitlement to the refund, interest shall not commence until the audit or verification of the claim is final.
(5) If a tax is adjudicated unconstitutional and refunds are ordered by the court, interest shall not commence on complete applications until 90 days after the adjudication becomes final and unappealable or 90 days after a complete application has been filed, whichever is later.
(6) Interest shall be paid until a date determined by the department which shall be no more than 7 days prior to the date of the issuance of the refund warrant by the Chief Financial Officer.
(7) If the department intends to pay a refund claim prior to completion of an audit, the department may condition its payment of the refund claim upon the person filing a cash bond or surety bond in the amount of the refund claimed or making such other security arrangements satisfactory to protect the state’s interests. The department may impose this condition only when it has reasonable cause to believe that it could not recover the amount of any refund paid in error from the person claiming the refund. The cash or surety bond shall be endorsed by a surety company authorized to do business in this state and shall be conditioned upon payment in full of the amount of any refund paid in error for any reason. The department shall provide a written notice of its determination that a cash or surety bond is required as a condition of payment prior to audit, in which event interest shall not commence until the person filing the claim satisfies this requirement. Such bond shall remain in place while the department retains a right pursuant to s. 95.091(3) to audit the refund claim. Upon completion of an audit of the claim, the department shall agree to a reduction in the bond amount equal to the portion of the refund claim approved by the department.
(8) Nothing in this section is intended to alter the department’s right to audit or verify refund claims either before or after they are paid.
(9) In the event that the department pays a refund claim that is later determined to have been paid in error, the person to whom the refund was paid shall be assessed interest on the amount of the erroneous refund payment, commencing with the date of the erroneous payment and continuing until the erroneous payment amount is repaid to the department. If the department determines that the erroneous refund claim was not due to reasonable cause, there shall be added a penalty in the amount of 10 percent of the erroneously refunded tax. If the department determines that the erroneous refund claim was due to fraud, there shall be added a penalty in the amount of 100 percent of the erroneously refunded tax.
(10) The provisions of this section shall apply with regard to refund claims filed on or after January 1, 2000, and beginning July 1, 2000, shall apply with regard to any then-pending refund claims that were filed with the department prior to January 1, 2000.
(11) The department is authorized to adopt such rules, not inconsistent with the provisions of this section, as are necessary for the implementation of this section including, but not limited to, rules establishing the information necessary for a complete refund application, the procedures for denying an incomplete application, and the standards and guidelines to be applied in determining when to require a bond under the provisions of subsection (7).
1(12) The rate of interest shall be the adjusted rate established pursuant to s. 213.235, except that the annual rate of interest shall never be greater than 11 percent. This annual rate of interest shall be applied to all refunds of taxes administered by the department except for corporate income taxes governed by ss. 220.721 and 220.723.
History.—s. 9, ch. 99-239; s. 35, ch. 2002-218; s. 191, ch. 2003-261; s. 21, 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.”
213.256 Simplified Sales and Use Tax Administration Act.—
(1) As used in this section, the term:
(a) “Department” means the Department of Revenue.
(b) “Agreement” means the Streamlined Sales and Use Tax Agreement as amended and adopted on January 27, 2001, by the Executive Committee of the National Conference of State Legislatures.
(c) “Certified automated system” means software certified jointly by the states that are signatories to the agreement to calculate the tax imposed by each jurisdiction on a transaction, determine the amount of tax to remit to the appropriate state, and maintain a record of the transaction.
(d) “Certified service provider” means an agent certified jointly by the states that are signatories to the agreement to perform all of the seller’s sales tax functions.
(e) “Person” means an individual, trust, estate, fiduciary, partnership, limited liability company, limited liability partnership, corporation, or any other legal entity.
(f) “Sales tax” means the tax levied under chapter 212.
(g) “Seller” means any person making sales, leases, or rentals of personal property or services.
(h) “State” means any state of the United States and the District of Columbia.
(i) “Use tax” means the tax levied under chapter 212.
(2)(a) The executive director of the department shall enter into the Streamlined Sales and Use Tax Agreement with one or more states to simplify and modernize sales and use tax administration in order to substantially reduce the burden of tax compliance for all sellers and for all types of commerce. In furtherance of the agreement, the executive director of the department or his or her designee shall act jointly with other states that are members of the agreement to establish standards for certification of a certified service provider and certified automated system and establish performance standards for multistate sellers.
(b) The executive director of the department or his or her designee shall take other actions reasonably required to administer this section. Other actions authorized by this section include, but are not limited to, the adoption of rules and the joint procurement, with other member states, of goods and services in furtherance of the cooperative agreement.
(c) The executive director of the department or his or her designee may represent this state before the other states that are signatories to the agreement.
(3) The executive director of the department may not enter into the Streamlined Sales and Use Tax Agreement unless the agreement requires each state to abide by the following requirements:
(a) The agreement must set restrictions to limit, over time, the number of state tax rates.
(b) The agreement must establish uniform standards for:
1. The sourcing of transactions to taxing jurisdictions.
2. The administration of exempt sales.
3. Sales and use tax returns and remittances.
(c) The agreement must provide a central electronic registration system that allows a seller to register to collect and remit sales and use taxes for all signatory states.
(d) The agreement must provide that registration with the central registration system and the collection of sales and use taxes in the signatory state will not be used as a factor in determining whether the seller has nexus with a state for any tax.
(e) The agreement must provide for reduction of the burdens of complying with local sales and use taxes through:
1. Restricting variances between the state and local tax bases.
2. Requiring states to administer any sales and use taxes levied by local jurisdictions within the state so that sellers who collect and remit these taxes will not have to register or file returns with, remit funds to, or be subject to independent audits from local taxing jurisdictions.
3. Restricting the frequency of changes in the local sales and use tax rates and setting effective dates for the application of local jurisdictional boundary changes to local sales and use taxes.
4. Providing notice of changes in local sales and use tax rates and of local changes in the boundaries of local taxing jurisdictions.
(f) The agreement must outline any monetary allowances that are to be provided by the states to sellers or certified service providers. The agreement must allow for a joint study by the public and private sectors, which must be completed by July 1, 2002, of the compliance cost to sellers and certified service providers of collecting sales and use taxes for state and local governments under various levels of complexity.
(g) The agreement must require each state to certify compliance with the terms of the agreement before joining and to maintain compliance, under the laws of the member state, with all provisions of the agreement while a member.
(h) The agreement must require each state to adopt a uniform policy for certified service providers which protects the privacy of consumers and maintains the confidentiality of tax information.
(i) The agreement must provide for the appointment of an advisory council of private sector representatives and an advisory council of nonmember state representatives to consult within the administration of the agreement.
(4) For the purposes of reviewing or amending the agreement to embody the simplification requirements as set forth in subsection (3), this state shall enter into multistate discussions. For purposes of such discussions, this state shall be represented by three delegates, one appointed by the President of the Senate, one appointed by the Speaker of the House of Representatives, and the executive director of the department or his or her designee.
(5) No provision of the agreement authorized by this section in whole or in part invalidates or amends any provision of the laws of this state. Adoption of the agreement by this state does not amend or modify any law of the state. Implementation of any condition of the agreement in this state, whether adopted before, at, or after membership of this state in the agreement, must be by the action of the state.
(6) The agreement authorized by this section is an accord among individual cooperating sovereigns in furtherance of their governmental functions. The agreement provides a mechanism among the member states to establish and maintain a cooperative, simplified system for the application and administration of sales and use taxes under the duly adopted law of each member state.
(7)(a) The agreement authorized by this act binds and inures only to the benefit of this state and the other member states. No person, other than a member state, is an intended beneficiary of the agreement. Any benefit to a person other than a state is established by the laws of this state and of other member states and not by the terms of the agreement.
(b) Consistent with paragraph (a), no person has any cause of action or defense under the agreement or by virtue of this state’s approval of the agreement. No person may challenge, in any action brought under any provision of law, any action or inaction by any department, agency, or other instrumentality of this state, or of any political subdivision of this state, on the ground that the action or inaction is inconsistent with the agreement.
(c) No law of this state, or the application thereof, may be declared invalid as to any person or circumstance on the ground that the provision or application is inconsistent with the agreement.
(8)(a) A certified service provider is the agent of a seller with whom the certified service provider has contracted for the collection and remittance of sales and use taxes. As the seller’s agent, the certified service provider is liable for sales and use tax due each member state on all sales transactions it processes for the seller except as set out in this subsection.
(b) A seller that contracts with a certified service provider is not liable to the state for sales or use tax due on transactions processed by the certified service provider unless the seller has misrepresented the type of items it sells or has committed fraud. In the absence of probable cause to believe that the seller has committed fraud or made a material misrepresentation, the seller is not subject to audit on the transactions processed by the certified service provider. A seller is subject to audit for transactions that have not been processed by the certified service provider. The member states acting jointly may perform a system check of the seller and review the seller’s procedures to determine if the certified service provider’s system is functioning properly and to determine the extent to which the seller’s transactions are being processed by the certified service provider.
(c) A person that provides a certified automated system is responsible for the proper functioning of that system and is liable to the state for underpayments of tax attributable to errors in the functioning of the certified automated system. A seller that uses a certified automated system remains responsible and is liable to the state for reporting and remitting tax.
(d) A seller that has a proprietary system for determining the amount of tax due on transactions and has signed an agreement establishing a performance standard for that system is liable for the failure of the system to meet the performance standard.
(9) Disclosure of information necessary under this section must be pursuant to a written agreement between the executive director of the department or his or her designee and the certified service provider. The certified service provider is bound by the same requirements of confidentiality as the department. Breach of confidentiality is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(10) On or before January 1 annually, the department shall provide recommendations to the President of the Senate, the Senate Minority Leader, the Speaker of the House of Representatives, and the Minority Leader of the House of Representatives for provisions to be adopted for inclusion within the system which are necessary to bring it into compliance with the Streamlined Sales and Use Tax Agreement.
History.—s. 3, ch. 2001-225.
213.26 Contracts with county tax collectors.—
(1) The Department of Revenue may enter into contracts with county tax collectors for the purpose of collecting delinquent taxes, penalties, and interest, including taxes for which the department has generated a bill or notice. The department shall execute a contract with the tax collector in the manner provided in chapter 287. Before commencing litigation to recover a delinquent tax, penalty, or interest, the tax collector must provide the taxpayer, or the taxpayer’s authorized representative, with at least 30 days’ notice.
(2) The executive director of the Department of Revenue shall determine, and the contract must provide, the manner in which the tax collector shall be compensated for collection services. The department may add the tax collector’s compensation to the amount of the delinquent tax, penalty, or interest, and the tax collector shall collect that amount as a part of the delinquent tax, or the department may deduct the tax collector’s compensation from the amount of the delinquent tax, penalty, or interest which is collected.
(3) The tax collector shall remit to the department all funds collected, less the amount of compensation provided for in the contract, within 7 business days after the end of the week in which the delinquent tax, penalty, or interest is collected. The tax collector shall remit funds to the department by electronic transfer and use the forms prescribed by the department.
(4) As provided in s. 195.084, the department may share confidential information with the tax collector for the purpose of collecting delinquent taxes, penalties, and interest, including taxes for which the department has generated a bill or notice. The tax collector is bound by the same requirements of confidentiality as the Department of Revenue with respect to confidential information. A breach of confidentiality is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 2, ch. 96-299.
213.27 Contracts with debt collection agencies and certain vendors.—
(1) The Department of Revenue may, for the purpose of collecting any delinquent taxes due from a taxpayer, including taxes for which a bill or notice has been generated, contract with any debt collection agency or attorney doing business within or without this state for the collection of such delinquent taxes, including penalties and interest thereon. The department may also share confidential information pursuant to the contract necessary for the collection of delinquent taxes and taxes for which a billing or notice has been generated. Contracts will be made pursuant to chapter 287. The taxpayer must be notified by mail by the department, its employees, or its authorized representative at least 30 days prior to commencing any litigation to recover any delinquent taxes. The taxpayer must be notified by mail by the department at least 30 days prior to the initial assignment by the department of the taxpayer’s account for the collection of any taxes by the debt collection agency.
(2) Any contract may provide, in the discretion of the executive director of the Department of Revenue, the manner in which the compensation for such services will be paid. Under standards established by the department, such compensation shall be added to the amount of the tax and collected as a part thereof by the agency or deducted from the amount of tax, penalty, and interest actually collected.
(3) All funds collected under the terms of the contract, less the fees provided in the contract, shall be remitted to the department within 30 days from the date of collection from a taxpayer. Forms to be used for such purpose shall be prescribed by the department.
(4) The department shall require a bond from the debt collection agency not in excess of $100,000 guaranteeing compliance with the terms of the contract. However, a bond of $10,000 is required from a debt collection agency if the agency does not actually collect and remit delinquent funds to the department.
(5) The department may, for the purpose of ascertaining the amount of or collecting any taxes due from a person doing mail order business in this state, contract with any auditing agency doing business within or without this state for the purpose of conducting an audit of such mail order business; however, such audit agency may not conduct an audit on behalf of the department of any person domiciled in this state, person registered for sales and use tax purposes in this state, or corporation filing a Florida corporate tax return, if any such person or corporation objects to such audit in writing to the department and the auditing agency. The department shall notify the taxpayer by mail at least 30 days before the department assigns the collection of such taxes.
(6) Confidential information shared by the department with debt collection or auditing agencies is exempt from the provisions of s. 119.07(1), and debt collection or auditing agencies shall be bound by the same requirements of confidentiality as the Department of Revenue. Breach of confidentiality is a misdemeanor of the first degree, punishable as provided by ss. 775.082 and 775.083.
(7)(a) The executive director of the department may enter into contracts with private vendors to develop and implement systems to enhance tax collections where compensation to the vendors is funded through increased tax collections. The amount of compensation paid to a vendor shall be based on a percentage of increased tax collections attributable to the system after all administrative and judicial appeals are exhausted, and the total amount of compensation paid to a vendor shall not exceed the maximum amount stated in the contract.
(b) A person acting on behalf of the department under a contract authorized by this subsection does not exercise any of the powers of the department, except that the person is an agent of the department for the purposes of developing and implementing a system to enhance tax collection.
(c) Disclosure of information under this subsection shall be pursuant to a written agreement between the executive director and the private vendors. The vendors shall be bound by the same requirements of confidentiality as the department. Breach of confidentiality is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 44, ch. 85-342; s. 48, ch. 86-152; s. 34, ch. 88-119; s. 52, ch. 90-360; s. 36, ch. 91-112; s. 16, ch. 93-233; s. 67, ch. 96-406; s. 26, ch. 99-208; s. 21, ch. 2000-355; s. 2, ch. 2001-225; s. 20, ch. 2005-280; s. 20, ch. 2006-312.
213.28 Contracts with private auditors.—
(1) It is the intent of the Legislature that the Department of Revenue be allowed to enter into contracts with certified public accountants to audit taxpayer accounts. It is further the intent of the Legislature that contracts not be used to supplant existing departmental staff or as an alternative to hiring staff when that would be more efficient.
(2) Subject to appropriations by the Legislature, the Department of Revenue shall contract with certified public accountants to conduct an audit of any person who is subject to a Florida revenue law. Furthermore, the Department of Revenue may contract with a private firm to facilitate the securing of the services of certified public accountants, licensed outside this state, to conduct audits on persons who are subject to the revenue laws of this state and who are located outside the state.
(3) Contracts for more than $25,000 but less than $50,000 shall be approved by the executive director of the Department of Revenue. Contracts for $50,000 or more must be approved by the head of the department. Contracts under this section shall be interpreted under Florida law, and any action for resolution of any dispute related to any such contract shall be brought under Florida law. Contracts may contain such other terms and conditions as the department deems appropriate under the circumstances, provided, no fee or any portion of a fee for audits contracted for pursuant to this section shall be based on the amount of tax assessed or collected as a result of the audit.
(4) The department shall establish, by rule, procedures for the selection of certified public accounting firms wishing to enter into audit contracts pursuant to this section. Such procedures shall contain, but not be limited to, the development of a rating system that takes into account pertinent information, including the firms’ fee proposals, and rank such firms participating in the process, to determine which firms will receive audit contracts.
(5) The department shall establish a training, certification, and review procedure that will ensure that audits performed pursuant to this section are of the highest quality.
(6) Certified public accountants entering into such contracts must be in good standing under the laws of the state in which they are licensed. They shall be bound by the same confidentiality requirements and subject to the same penalties as the department under s. 213.053. Any return, return information, or documentation obtained from the Internal Revenue Service under an information-sharing agreement is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution and shall not be divulged or disclosed in any manner by an officer or employee of the department to any certified public accountant under a contract authorized by this section, unless the department and the Internal Revenue Service mutually agree to such disclosure.
History.—s. 7, ch. 89-529; s. 37, ch. 91-112; ss. 6, 17, ch. 93-233; s. 1, ch. 95-363; s. 68, ch. 96-406; s. 18, ch. 98-342.
213.285 Certified audits.—
(1) As used in this section, the term:
(a) “Certification program” means an instructional curriculum, examination, and process for certification, recertification, and revocation of certification of certified public accountants which is administered by an independent provider and which is officially approved by the department to ensure that a certified public accountant possesses the necessary skills and abilities to successfully perform an attestation engagement for tax compliance review in a certified audits project.
(b) “Department” means the Department of Revenue.
(c) “Participating taxpayer” means any person subject to the revenue laws administered by the department who enters into an engagement with a qualified practitioner for tax compliance review and who is approved by the department under the certified audits project.
(d) “Qualified practitioner” means a certified public accountant who is licensed to practice in Florida and who has completed the certification program.
(2)(a) The department is authorized to initiate a certified audits project to further enhance tax compliance reviews performed by qualified practitioners and to encourage taxpayers to hire qualified practitioners at their own expense to review and report on their tax compliance. The nature of certified audit work performed by qualified practitioners shall be agreed-upon procedures in which the department is the specified user of the resulting report.
(b) As an incentive for taxpayers to incur the costs of a certified audit, the department shall compromise penalties and abate interest due on any tax liabilities revealed by a certified audit as provided in s. 213.21. This authority to compromise penalties or abate interest shall not apply to any liability for taxes that were collected by the participating taxpayer but that were not remitted to the department.
(3) Any practitioner responsible for planning, directing, or conducting a certified audit or reporting on a participating taxpayer’s tax compliance in a certified audit must be a qualified practitioner. For the purposes of this subsection, a practitioner is considered responsible for:
(a) “Planning” in a certified audit when performing work that involves determining the objectives, scope, and methodology of the certified audit, when establishing criteria to evaluate matters subject to the review as part of the certified audit, when gathering information used in planning the certified audit, or when coordinating the certified audit with the department.
(b) “Directing” in a certified audit when the work involves supervising the efforts of others who are involved or when reviewing the work to determine whether it is properly accomplished and complete.
(c) “Conducting” a certified audit when performing tests and procedures or field audit work necessary to accomplish the audit objectives in accordance with applicable standards.
(d) “Reporting” on a participating taxpayer’s tax compliance in a certified audit when determining report contents and substance or reviewing reports for technical content and substance prior to issuance.
(4)(a) The qualified practitioner shall notify the department of an engagement to perform a certified audit and shall provide the department with the information the department deems necessary to identify the taxpayer, to confirm that the taxpayer is not already under audit by the department, and to establish the basic nature of the taxpayer’s business and the taxpayer’s potential exposure to Florida revenue laws. The information provided in the notification shall include the taxpayer’s name, federal employer identification number or social security number, state tax account number, mailing address, business location, and the specific taxes and period proposed to be covered by the engagement for the certified audit. In addition, the notice shall include the name, address, identification number, contact person, and telephone number of the engaged firm.
(b) If the taxpayer has not been issued a written notice of intent to conduct an audit, the taxpayer shall be a participating taxpayer and the department shall so advise the qualified practitioner in writing within 10 days after receipt of the engagement notice. However, the department may exclude a taxpayer from a certified audit or may limit the taxes or periods subject to the certified audit on the basis that the department has previously conducted an audit, that it is in the process of conducting an investigation or other examination of the taxpayer’s records, or for just cause determined solely by the department.
(c) Notice of the qualification of a taxpayer for a certified audit shall toll the statute of limitations provided in s. 95.091 with respect to the taxpayer for the tax and periods covered by the engagement.
(d) Within 30 days after receipt of the notice of qualification from the department, the qualified practitioner shall contact the department and submit a proposed audit plan and procedures for review and agreement by the department. The department may extend the time for submission of the plan and procedures for reasonable cause. The qualified practitioner shall initiate action to advise the department that amendment or modification of the plan and procedures is necessary in the event that the qualified practitioner’s inspection reveals that the taxpayer’s circumstances or exposure to the revenue laws is substantially different than as described in the engagement notice.
(5) Upon the department’s designation of the agreed-upon procedures to be followed by the practitioner in the certified audit, the qualified practitioner shall perform the engagement and shall timely submit a completed report to the department. The report shall affirm completion of the agreed-upon procedures and shall provide any required disclosures.
(6) The department shall review the report of the certified audit and shall accept it when it is determined to be complete. Once the report is accepted by the department, the department shall issue a notice of proposed assessment reflecting the determination of any additional liability reflected in the report and shall provide the taxpayer with all the normal payment, protest, and appeal rights with respect to the liability. In cases where the report indicates an overpayment has been made, the taxpayer shall submit a properly executed application for refund to the department. Otherwise, the certified audit report is a final and conclusive determination with respect to the tax and period covered. No additional assessment may be made by the department for the specific taxes and period referenced in the report, except upon a showing of fraud or misrepresentation of material facts and except for adjustments made under s. 198.16 or s. 220.23. This determination shall not prevent the department from collecting liabilities not covered by the report or from conducting an audit or investigation and making an assessment for additional tax, penalty, or interest for any tax or period not covered by the report.
(7) To implement the certified audits project, the department shall have authority to adopt rules relating to:
(a) The availability of the certification program required for participation in the project;
(b) The requirements and basis for establishing just cause for approval or rejection of participation by taxpayers;
(c) Procedures for assessment, collection, and payment of liabilities or refund of overpayments and provisions for taxpayers to obtain informal and formal review of certified audit results;
(d) The nature, frequency, and basis for the department’s review of certified audits conducted by qualified practitioners, including the requirements for documentation, work-paper retention and access, and reporting; and
(e) Requirements for conducting certified audits and for review of agreed-upon procedures.
History.—s. 1, ch. 98-95; s. 3, ch. 2002-171; s. 36, ch. 2002-218; s. 40, ch. 2003-254.
213.29 Failure to collect and pay over tax or attempt to evade or defeat tax.—Any person who is required to collect, truthfully account for, and pay over any tax enumerated in chapter 201, chapter 206, or chapter 212 and who willfully fails to collect such tax or truthfully account for and pay over such tax or willfully attempts in any manner to evade or defeat such tax or the payment thereof; or any officer or director of a corporation who has administrative control over the collection and payment of such tax and who willfully directs any employee of the corporation to fail to collect or pay over, evade, defeat, or truthfully account for such tax shall, in addition to other penalties provided by law, be liable to a penalty equal to twice the total amount of the tax evaded or not accounted for or paid over. The filing of a protest based upon doubt as to liability or collection of a tax shall not be determined to be an attempt to evade tax under this section. The penalty imposed hereunder shall be in addition to any other penalty imposed or that should have been imposed under the revenue laws of this state, but shall be abated to the extent that the tax is paid. Any penalty may be compromised by the executive director of the Department of Revenue as set forth in s. 213.21. An assessment of penalty made pursuant to this section shall be deemed prima facie correct in any judicial or quasi-judicial proceeding brought to collect this penalty.
History.—s. 46, ch. 85-342; s. 55, ch. 87-224; s. 104, ch. 90-136; s. 15, ch. 90-351; s. 21, ch. 92-320; s. 123, ch. 95-417.
213.30 Compensation for information relating to a violation of the tax laws.—
(1) The executive director of the department, pursuant to rules adopted by the department, is authorized to compensate persons providing information to the department leading to:
(a) The punishment of, or collection of taxes, penalties, or interest from, any person with respect to the taxes enumerated in s. 213.05. The amount of any payment made under this paragraph may not exceed 10 percent of any tax, penalties, or interest collected as a result of such information.
(b) The identification and registration of a taxpayer who is not in compliance with the registration requirements of any tax statute that is listed in s. 213.05. The amount of the payment made to any person who provides information to the department which results in the registration of a noncompliant taxpayer shall be $100. The reward authorized in this paragraph shall be paid only if the noncompliant taxpayer:
1. Conducts business from a permanent, fixed location;
2. Is engaged in a bona fide taxable activity; and
3. Is found by the department to have an unpaid tax liability.
(2) Any employee of the department or of any other state or federal agency who comes into possession of information relating to a violation of a revenue law while an employee of such agency may provide information to the department of the type described in subsection (1), but the employee may not be compensated under this section. Any former employee of the department or any other state or federal agency who came into possession of information relating to a violation of a revenue law while an employee of such agency may provide information to the department of the type described in subsection (1), but the former employee may not receive compensation under this section.
(3) Notwithstanding any other provision of law, this section is the sole means by which any person may seek or obtain any moneys as the result of, in relation to, or founded upon the failure by another person to comply with the tax laws of this state. A person’s use of any other law to seek or obtain moneys for such failure is in derogation of this section and conflicts with the state’s duty to administer the tax laws.
History.—s. 99, ch. 87-6; s. 38, ch. 91-112; s. 22, ch. 92-320; s. 1, ch. 96-221; s. 37, ch. 2002-218.
213.34 Authority to audit.—
(1) The Department of Revenue shall have the authority to audit and examine the accounts, books, or records of all persons who are subject to a revenue law made applicable to this chapter, or otherwise placed under the control and administration of the department, for the purpose of ascertaining the correctness of any return which has been filed or payment which has been made, or for the purpose of making a return where none has been made.
(2) The department, or its duly authorized agents, may inspect such books and records necessary to ascertain a taxpayer’s compliance with the revenue laws of this state, provided that the department’s power to make an assessment or grant a refund has not terminated under s. 95.091(3).
(3) The department may correct by credit or refund any overpayment of tax, penalty, or interest revealed by an audit and shall make assessment of any deficiency in tax, penalty, or interest determined to be due.
(4) Notwithstanding the provisions of s. 215.26, the department shall offset the overpayment of any tax during an audit period against a deficiency of any tax, penalty, or interest determined to be due during the same audit period.
History.—s. 24, ch. 89-356; s. 39, ch. 91-112; s. 5, ch. 92-315.
213.345 Tolling of periods during an audit.—The limitations in s. 95.091(3) and the period for filing a claim for refund as required by s. 215.26(2) shall be tolled for a period of 1 year if the Department of Revenue has, on or after July 1, 1999, issued a notice of intent to conduct an audit or investigation of the taxpayer’s account within the applicable period of time. The department must commence an audit within 120 days after it issues a notice of intent to conduct an audit, unless the taxpayer requests a delay. If the taxpayer does not request a delay and the department does not begin the audit within 120 days after issuing the notice, the tolling period shall terminate unless the taxpayer and the department enter into an agreement to extend the period pursuant to s. 213.23.
History.—s. 8, ch. 99-239.
213.35 Books and records.—Each person required by law to perform any act in the administration of any tax enumerated in s. 72.011 shall keep suitable books and records relating to that tax, such as invoices, bills of lading, and other pertinent records and papers, and shall preserve such books and records until expiration of the time within which the department may make an assessment with respect to that tax pursuant to s. 95.091(3).
History.—s. 6, ch. 88-119.
213.37 Authority to require sworn statements.—
(1) The Department of Revenue may require verification of exemption applications, refund applications, and tax returns relevant to administration of the revenue laws of this state.
(2) Verification shall be accomplished as provided in s. 92.525(1)(b) and subject to the provisions of s. 92.525(3).
History.—s. 40, ch. 91-112.
213.50 Failure to comply; revocation of corporate charter or license to operate a public lodging establishment or public food service establishment; refusal to reinstate charter or license.—
(1) Any corporation of this state which has an outstanding tax warrant that has existed for more than 3 consecutive months is subject to the revocation of its charter as provided in s. 607.1420.
(2) A request for reinstatement of a corporate charter may not be granted by the Division of Corporations of the Department of State if an outstanding tax warrant has existed for that corporation for more than 3 consecutive months.
(3)(a) The Division of Hotels and Restaurants of the Department of Business and Professional Regulation may suspend a license to operate a public lodging establishment or a public food service establishment if a tax warrant has been outstanding against the licenseholder for more than 3 months.
(b) The division may deny an application to renew a license to operate a public lodging establishment or a public food service establishment if a tax warrant has been outstanding against the licenseholder for more than 3 months.
History.—s. 23, ch. 92-320; s. 13, ch. 2010-138; s. 5, ch. 2010-166.
213.67 Garnishment.—
(1) If a person is delinquent in the payment of any taxes, penalties, and interest owed to the department, the executive director or his or her designee may give notice of the amount of such delinquency by registered mail, by personal service, or by electronic means, including, but not limited to, facsimile transmissions, electronic data interchange, or use of the Internet, to all persons having in their possession or under their control any credits or personal property, exclusive of wages, belonging to the delinquent taxpayer, or owing any debts to such delinquent taxpayer at the time of receipt by them of such notice. Thereafter, any person who has been notified may not transfer or make any other disposition of such credits, other personal property, or debts until the executive director or his or her designee consents to a transfer or disposition or until 60 days after the receipt of such notice. However, the credits, other personal property, or debts that exceed the delinquent amount stipulated in the notice are not subject to this section, wherever held, if the taxpayer does not have a prior history of tax delinquencies. If during the effective period of the notice to withhold, any person so notified makes any transfer or disposition of the property or debts required to be withheld under this section, he or she is liable to the state for any indebtedness owed to the department by the person with respect to whose obligation the notice was given to the extent of the value of the property or the amount of the debts thus transferred or paid if, solely by reason of such transfer or disposition, the state is unable to recover the indebtedness of the person with respect to whose obligation the notice was given. If the delinquent taxpayer contests the intended levy in circuit court or under chapter 120, the notice under this section remains effective until that final resolution of the contest. Any financial institution receiving such notice will maintain a right of setoff for any transaction involving a debit card occurring on or before the date of receipt of such notice.
(2) All persons who have been notified must, within 5 days after receipt of the notice, advise the executive director or his or her designee of the credits, other personal property, or debts in their possession, under their control, or owing them, and must advise the executive director or designee within 5 days after coming into possession or control of any subsequent credits, personal property, or debts owed during the time prescribed by the notice. Any such person coming into possession or control of such subsequent credits, personal property, or debts may not transfer or dispose of them during the time prescribed by the notice or before the department consents to a transfer.
(3) During the last 30 days of the 60-day period set forth in subsection (1), the executive director or his or her designee may levy upon such credits, other personal property, or debts. The levy must be accomplished by delivery of a notice of levy by registered mail, upon receipt of which the person possessing the credits, other personal property, or debts shall transfer them to the department or pay to the department the amount owed to the delinquent taxpayer.
(4) A notice that is delivered under this section is effective at the time of delivery against all credits, other personal property, or debts of the delinquent taxpayer which are not at the time of such notice subject to an attachment, garnishment, or execution issued through a judicial process.
(5) Any person acting in accordance with the terms of the notice or levy issued by the executive director or his or her designee is expressly discharged from any obligation or liability to the delinquent taxpayer with respect to such credits, other personal property, or debts of the delinquent taxpayer affected by compliance with the notice of freeze or levy.
(6)(a) Levy may be made under subsection (3) upon credits, other personal property, or debt of any person with respect to any unpaid tax, penalties, and interest only after the executive director or his or her designee has notified such person in writing of the intention to make such levy.
(b) No less than 30 days before the day of the levy, the notice of intent to levy required under paragraph (a) shall be given in person or sent by certified or registered mail to the person’s last known address.
(c) The notice required in paragraph (a) must include a brief statement that sets forth in simple and nontechnical terms:
1. The provisions of this section relating to levy and sale of property;
2. The procedures applicable to the levy under this section;
3. The administrative and judicial appeals available to the taxpayer with respect to such levy and sale, and the procedures relating to such appeals; and
4. The alternatives, if any, available to taxpayers which could prevent levy on the property.
(7) A taxpayer may contest the notice of intent to levy provided for under subsection (6) by filing an action in circuit court. Alternatively, the taxpayer may file a petition under the applicable provisions of chapter 120. After an action has been initiated under chapter 120 to contest the notice of intent to levy, an action relating to the same levy may not be filed by the taxpayer in circuit court, and judicial review is exclusively limited to appellate review pursuant to s. 120.68. Also, after an action has been initiated in circuit court, an action may not be brought under chapter 120.
(8) An action may not be brought to contest a notice of intent to levy under chapter 120 or in circuit court, later than 21 days after the date of receipt of the notice of intent to levy.
(9) The department shall provide notice to the Chief Financial Officer, in electronic or other form specified by the Chief Financial Officer, listing the taxpayers for which tax warrants are outstanding. Pursuant to subsection (1), the Chief Financial Officer shall, upon notice from the department, withhold all payments to any person or business, as defined in s. 212.02, which provides commodities or services to the state, leases real property to the state, or constructs a public building or public work for the state. The department may levy upon the withheld payments in accordance with subsection (3). The provisions of s. 215.422 do not apply from the date the notice is filed with the Chief Financial Officer until the date the department notifies the Chief Financial Officer of its consent to make payment to the person or 60 days after receipt of the department’s notice in accordance with subsection (1), whichever occurs earlier.
(10) The department may bring an action in circuit court for an order compelling compliance with any notice issued under this section.
History.—s. 24, ch. 92-320; s. 1, ch. 94-82; s. 1505, ch. 95-147; s. 19, ch. 98-342; s. 27, ch. 99-208; s. 192, ch. 2003-261; s. 14, ch. 2010-138; s. 8, ch. 2011-4.
213.68 Garnishment; collecting entity of counties which self-administer collection of tourist development tax.—The collecting entity of a county which self-administers the collection of the tourist development tax under s. 125.0104 shall have the same authority and use the same procedure as described in s. 213.67.
History.—s. 6, ch. 98-167.
213.69 Authority to issue warrants.—Upon a final determination of unpaid taxes, interest, or penalties due under the revenue laws of this state, the department may issue warrants for those taxes listed in s. 213.05 or placed under the control of the department by law. Such warrants may direct:
(1) The sheriff of any county within the state to levy upon and sell the goods of such person which are found within the sheriff’s jurisdiction for the payment of the amount of the delinquency, plus the penalties, interest, and cost of executing the warrant and conducting the sale, and to return the warrant and the money collected to the department. However, any surplus resulting from the sale after the costs, penalties, and delinquent taxes have been accounted for must be returned to the person in default; or
(2) A deputy, agent, or employee of the department or of the Department of Law Enforcement, after receiving written designation by the executive director, to execute that warrant in the same manner as a sheriff.
History.—s. 25, ch. 92-320.
1213.692 Integrated enforcement authority.—
(1) If the department files a warrant, notice of lien, or judgment lien certificate against the property of a taxpayer, the department may also revoke all certificates of registration, permits, or licenses issued by the department to that taxpayer.
(a) Before the department may revoke the certificates of registration, permits, or licenses, the department must schedule an informal conference that the taxpayer is required to attend. At the conference, the taxpayer may present evidence regarding the department’s intended action or enter into a compliance agreement. The department must provide written notice to the taxpayer of the department’s intended action and the time, date, and place of the conference. The department shall issue an administrative complaint to revoke the certificates of registration, permits, or licenses if the taxpayer does not attend the conference, enter into a compliance agreement, or comply with the compliance agreement.
(b) The department may not issue a certificate of registration, permit, or license to a taxpayer whose certificate of registration, permit, or license has been revoked unless:
1. The outstanding liabilities of the taxpayer have been satisfied; or
2. The department enters into a written agreement with the taxpayer regarding any outstanding liabilities and, as part of such agreement, agrees to issue a certificate of registration, permit, or license.
(c) The department shall require a cash deposit, bond, or other security as a condition of issuing a new certificate of registration pursuant to the requirements of s. 212.14(4).
(2) If the department files a warrant or a judgment lien certificate in connection with a jeopardy assessment, the department must comply with the procedures in s. 213.732 before or in conjunction with those provided in this section.
(3) The department may adopt rules to administer this section.
History.—s. 23, ch. 2010-138; s. 6, ch. 2010-166.
1Note.—Section 7, ch. 2010-166, provides that, “[e]ffective July 1, 2010, the Department of Revenue is authorized to adopt emergency rules pursuant to ss. 120.536(1) and 120.54, Florida Statutes, to administer s. 213.692, Florida Statutes. The emergency rules shall remain in effect for 6 months after adoption and may be renewed during the pendency of procedures to adopt rules addressing the subject of the emergency rules.” The provision by s. 24, ch. 2010-138, is substantially similar.
213.70 Taxpayers’ escrow requirement.—For the purpose of ensuring the continued payment of any taxes, penalties, and interest due the state, the executive director or his or her designee may require a person who is registered to remit sales tax, motor or diesel fuel tax, or any other transaction-based excise tax administered by the department and who has collected and knowingly failed, or repeatedly failed, to remit such taxes in a timely manner or has otherwise failed to comply with the requirements of such tax law to deposit such amount upon receipt into a jointly controlled escrow account, subject to conditions provided by the department.
History.—s. 26, ch. 92-320; s. 1130, ch. 95-147; s. 124, ch. 95-417.
213.73 Manner and conditions of sale of property subject of a levy by the Department of Revenue.—Whenever a levy is made as a result of an execution upon a tax warrant or lien:
(1) Before the sale, the executive director or his or her designee shall determine a minimum price for which the property shall be sold, and if no person offers at the sale the amount of the minimum price for such property, the sale may be, in the discretion of the executive director or his or her designee, rescheduled; the property may be declared to be purchased at such price for the state; or the property may be declared to be sold to the highest bidder. In determining the minimum price, the executive director or his or her designee shall take into account the expense of making the levy and sale.
(2) The department shall by rule prescribe the manner and other conditions of the sale of property seized. Such regulations shall provide:
(a) That the sale may not be conducted in any manner other than by public auction or by public sale under sealed bids.
(b) In the case of the seizure of several items of property, whether such items must be offered separately, in groups, or in the aggregate or whether such property must be offered in any combination thereof, and sold under whichever method produces the highest aggregate amount.
(c) Under what circumstances the executive director or his or her designee may adjourn the sale from time to time; however, any such adjournment may not exceed 1 month.
(3) Any person whose property has been levied upon may pay the amount due, together with the expenses of the proceeding, if any, to the department at any time prior to the sale; and upon such payment, the department shall restore such property to that person, and all further proceedings in connection with the levy on such property shall cease from the date of such payment.
History.—s. 103, ch. 87-6; s. 64, ch. 87-101; s. 1131, ch. 95-147.
213.731 Collection action; notice; taxpayer’s protest and review rights.—In the absence of jeopardy to the revenue, no warrant or other collection action shall be issued or taken until 30 days after issuance to the taxpayer of a notice informing him or her of such impending action or notifying him or her that such action is indicated or authorized in the circumstances. The department shall, by rule, provide procedures to afford the taxpayer the opportunity to pay any tax, penalty, or interest on which collection action is sought which is not based on jeopardy, or to protest the circumstances underlying billing notices on which collection action is sought, to the department within 20 days after such notice is issued. Such notice shall inform the taxpayer of these available protest and review rights. This section does not apply to final assessments for which rights to review under s. 72.011 have expired.
History.—s. 6, ch. 92-315; s. 1132, ch. 95-147.
213.732 Jeopardy findings and assessments.—
(1) The department shall generally exhaust reasonable collection efforts prior to making a jeopardy finding or assessment; however, if the exhaustion of collection efforts would create or prolong the jeopardy, the department need not exhaust collection efforts or may exhaust only those efforts consistent with the jeopardy.
(2) The department shall issue to the taxpayer, with any jeopardy assessment, a notice or finding of the facts which constitute a jeopardy to the revenue. A warrant, lien, or other detainer of property may be issued and recorded as provided by law simultaneously with the issuance of a jeopardy assessment. Such warrant, lien, or detainer may proceed to execution, levy, and seizure as provided by law. However, the department shall not hold an execution sale or other sale of the property without order of a court of competent jurisdiction until the expiration of the time provided in s. 72.011 for filing an action in circuit court or petition for administrative proceeding or, if such an action or petition is filed, until the decision rendered in such action or proceeding is final.
(3) The department shall also notify the taxpayer that the taxpayer shall have the opportunity to appear at a conference within 10 days and make an oral or written statement of why he or she believes no jeopardy to the revenue exists or why a jeopardy lien or warrant should be released, if one was recorded. Upon request of the taxpayer, the department shall meet with the taxpayer at a time set by the department within 10 days after the issuance of the assessment.
(4) The conference shall be conducted informally and shall not be in the nature of a formal evidentiary proceeding. The taxpayer may present relevant information, orally or in writing; however, discovery and cross-examination shall not be allowed. The department shall not be required to transcribe the proceedings, but the taxpayer may transcribe the proceedings at the taxpayer’s cost.
(5) If the taxpayer makes a statement under subsection (3), the department shall determine within 20 days after its receipt of such statement whether such jeopardy lien, warrant, or other detainer should be released. The department shall send written notice of such finding to the taxpayer.
(6) If the department finds that the jeopardy lien, warrant, or other detainer should be released, the department shall release the subject property within a reasonable time.
(7) If the department proceeds to seize or freeze the assets of a taxpayer upon a determination of jeopardy, the taxpayer shall have a right to a meeting with the department, as provided by subsection (3), immediately or within 24 hours after requesting such meeting. The department shall, within 24 hours after such meeting, determine whether to release the seizure or freeze. If the department does not release such seizure or freeze of property, the taxpayer shall have a right to request a hearing within 5 days before the circuit court, at which hearing the taxpayer and the department may present evidence with respect to the issue of jeopardy. Venue in such an action shall lie in the county in which the seizure was effected or, if there are multiple seizures based upon the same assessment, venue shall also lie in Leon County. Whenever an action is filed to seek review of a jeopardy finding under this subsection, the court shall set an immediate hearing and shall give the case priority over other pending cases other than those filed pursuant to s. 119.11.
History.—s. 7, ch. 92-315; s. 1133, ch. 95-147.
213.733 Satisfaction of warrant.—If a warrant is filed in the public records for any tax administered by the department and the department is satisfied that no tax liability exists or that the tax liability has been discharged or provided for or the warrant has become unenforceable or was filed in error, the department shall cancel the warrant, amend or modify any portion of it, and refile it in the public records, making specific reference to the fact that the warrant was filed in error. An amendment or modification does not affect the priority of the original warrant. At the written request of the taxpayer, the department shall furnish a credit agency specified by the taxpayer a copy of the cancellation, amendment, or modification of the warrant.
History.—s. 8, ch. 92-315.
213.74 Certificate of sale; deed of real property; legal effect.—
(1) In the case of property sold pursuant to a levy by the Department of Revenue, the executive director or his or her designee shall give to the purchaser a certificate of sale upon payment in full of the purchase price. Such certificate shall set forth a description of the property purchased, for whose taxes the same was sold, the name of the purchaser, and the price paid therefor.
(2) In the case of any real property sold pursuant to a levy by the Department of Revenue, and not redeemed in the manner and within the time provided in s. 213.73, the executive director or his or her designee shall execute, in accordance with the laws of this state pertaining to the sale of real property under execution, to the purchaser of such real property at such sale, upon his or her surrender of the certificate of sale, a deed of the real property so purchased by that person, reciting the facts set forth in the certificate.
(3) If real property is declared purchased for the state at a sale pursuant to a levy by the Department of Revenue, the executive director or his or her designee shall present a certificate of sale and execute a deed therefor to the Board of Trustees of the Internal Improvement Trust Fund, and the board of trustees shall, without delay, cause such deed to be duly recorded in the proper clerk’s office in the proper manner.
(4) In all cases of sale of tangible or intangible personal property pursuant to a levy by the Department of Revenue, the certificate of sale shall be prima facie evidence of the right of the executive director or his or her designee to make such sale, and conclusive evidence of the regularity of his or her proceedings in making the sale, and shall transfer to the purchaser all right, title, and interest of the party delinquent in and to the property sold. If such property consists of intangibles such as stock and bonds, the certificate constitutes notice, when received, to any corporation, company, or association of such transfer, and constitutes authority to such corporation, company, or association to record the transfer on its books and records in the same manner as if the intangibles were transferred or assigned by the party holding the same, in lieu of any original or prior certificate, which shall be void, whether canceled or not. If the subject of the sale is securities or other evidences of debt, the certificate constitutes a good and valid receipt to the person holding the same, as against any person holding or claiming to hold possession of such securities or other evidences of debt. If such property consists of a motor vehicle, the certificate constitutes notice when received, to any public official charged with the registration of title of motor vehicles, of such transfer and constitutes authority to such official to record the transfer on his or her books and records in the same manner as if the certificate of title to such motor vehicle were transferred or assigned by the party holding the same, in lieu of any original or prior certificate of title, which shall be void whether canceled or not.
(5) In the case of the sale of real property pursuant to a levy by the Department of Revenue, the deed of sale given pursuant to this section shall be prima facie evidence of the facts stated therein; and if the proceedings by the executive director or his or her designee have been substantially in accordance with the provisions of this chapter and the rules of the department, such deed constitutes a conveyance of all the right, title, and interest the party delinquent had in and to the real property thus sold at the time the lien of the Department of Revenue attached thereto.
History.—s. 104, ch. 87-6; s. 65, ch. 87-101; s. 1134, ch. 95-147.
213.75 Application of payments.—
(1) Except for any payment made pursuant to s. 213.21, or as otherwise specified by the taxpayer at the time he or she makes a payment, if payment is made to the department with respect to any of the revenue laws of this state, such payment shall be applied in priority order as follows:
(a) First, against the accrued interest, if any;
(b) The remaining amount, if any, shall be credited against any accrued penalty;
(c) The remaining amount, if any, shall be credited against the administrative collection processing fee; and
(d) The remaining amount, if any, shall be credited to any tax due.
(2) If a warrant or lien has been filed and recorded by the department, a payment shall be applied in priority order as follows:
(a) First, against the costs to record the warrant or lien, if any;
(b) The remaining amount, if any, shall be credited against the administrative collection processing fee;
(c) The remaining amount, if any, shall be applied to accrued interest;
(d) The remaining amount, if any, shall be credited against any accrued penalty; and
(e) The remaining amount, if any, shall be credited to any tax due.
(3) If a levy has been made by the department, a payment shall be applied in priority order as follows:
(a) First, against the costs to execute the levy, if any;
(b) The remaining amount, if any, shall be credited against the administrative collection processing fee;
(c) The remaining amount, if any, shall be applied to accrued interest;
(d) The remaining amount, if any, shall be credited against any accrued penalty; and
(e) The remaining amount, if any, shall be credited to any tax due.
(4) Any surplus proceeds remaining after the application of subsection (3) shall, upon application and satisfactory proof thereof, be refunded by the Chief Financial Officer to the person or persons legally entitled pursuant to s. 215.26.
History.—s. 105, ch. 87-6; s. 3, ch. 88-119; s. 1135, ch. 95-147; s. 193, ch. 2003-261; s. 3, ch. 2009-67.
213.755 Filing of returns and payment of taxes by electronic means.—
(1) The executive director of the Department of Revenue shall have authority to require a taxpayer to file returns and remit payments by electronic means where the taxpayer is subject to tax and has paid that tax in the prior state fiscal year in an amount of $20,000 or more. Any taxpayer who operates two or more places of business for which returns are required to be filed with the department shall combine the tax payments for all such locations in order to determine whether they are obligated under this section. This subsection does not override additional requirements in any provision of a revenue law which the department has the responsibility for regulating, controlling, and administering.
(2) As used in any revenue law administered by the department, the term:
(a) “Payment” means any payment or remittance required to be made or paid within a prescribed period or on or before a prescribed date under the authority of any provision of a revenue law which the department has the responsibility for regulating, controlling, and administering. The term does not include any remittance unless the amount of the remittance is actually received by the department.
(b) “Return” means any report, claim, statement, notice, application, affidavit, or other document required to be filed within a prescribed period or on or before a prescribed date under the authority of any provision of a revenue law which the department has the responsibility of regulating, controlling, and administering.
(c) “Electronic means” includes, but is not limited to, electronic data interchange; electronic funds transfer; or use of the Internet, telephone, or other technology specified by the department.
(3) Solely for the purposes of administering this section:
(a) Taxes levied under parts I and II of chapter 206 shall be considered a single tax.
(b) A person required to remit a tax acting as a collection agent or dealer for the state shall nonetheless be considered the taxpayer.
(4) The executive director may require a taxpayer to file by electronic means returns for which no tax is due for the specific taxing period.
(5) Beginning January 1, 2003, consolidated filers shall file returns and remit taxes by electronic means.
(6) A taxpayer required to file returns by electronic means shall also remit payments by electronic means. A taxpayer who fails to file returns pursuant to this section is liable for a penalty of $10 for each report submitted, which is in addition to any other penalty that may be applicable, unless the taxpayer has first obtained a waiver of such requirement from the department. A taxpayer who fails to remit payments pursuant to this section is liable for a penalty of $10 for each remittance submitted, which is in addition to any other penalty that may be applicable.
(7) The department shall give due regard to developing uniform standards for formats as adopted by the American National Standards Institute for encryption and taxpayer authentication to ensure that the return and payment information is kept confidential. The department shall also provide several options for filing reports and remitting payments by electronic means in order to make compliance with the requirements of this section as simple as possible for the taxpayer.
(8) The department shall prescribe by rule the format and instructions necessary for filing returns and reports and for remitting payments in accordance with this section to ensure a full collection of taxes, interest, and penalties due. The acceptable method of transfer; the method, form, and content of the electronic filing of returns or remittance of payments of tax, penalty, or interest; and the means, if any, by which the taxpayer will be provided with an acknowledgment of receipt shall be prescribed by the department.
(9) The department may waive the requirement to file a return by electronic means for taxpayers that are unable to comply despite good faith efforts or due to circumstances beyond the taxpayer’s reasonable control.
(a) As prescribed by the department, grounds for approving the waiver include, but are not limited to, circumstances in which the taxpayer, the owner, or an officer of the business, or the taxpayer’s accountant or bookkeeper, does not:
1. Currently file information or data electronically with any business or government agency; or
2. Have a compatible computer that meets or exceeds the department’s minimum standards.
(b) The department shall accept other reasons for requesting a waiver from the requirement to submit a return by electronic means, including, but not limited to:
1. That the taxpayer needs additional time to program his or her computer;
2. That complying with this requirement causes the taxpayer financial hardship; or
3. That complying with this requirement conflicts with the taxpayer’s business procedures.
(c) The department may establish by rule the length of time a waiver is valid and may determine whether subsequent waivers will be authorized, based on the provisions of this subsection.
History.—s. 1, ch. 89-153; s. 25, ch. 89-356; s. 24, ch. 90-203; s. 125, ch. 95-417; s. 20, ch. 98-342; s. 38, ch. 2002-218; s. 30, ch. 2007-106.
213.756 Funds collected are state tax funds.—
(1) Funds collected from a purchaser under the representation that they are taxes provided for under the state revenue laws are state funds from the moment of collection and are not subject to refund absent proof that such funds have been refunded previously to the purchaser.
(2)(a) In any action by a purchaser against a retailer, dealer, or vendor to obtain a refund of or to otherwise recover taxes, fees, or surcharges collected by the retailer, dealer, or vendor from the purchaser:
1. The purchaser in the action has the burden of proving all elements of its claim for a refund by clear and convincing evidence;
2. The sole remedy in the action is damages measured by the difference between what the retailer, dealer, or vendor collected as a tax, fee, or surcharge and what the retailer, dealer, or vendor paid to the taxing authority plus any discount or collection allowance authorized by law and taken by the retailer, dealer, or vendor; and
3. It is an affirmative defense to the action when the retailer, dealer, or vendor remitted the amount collected from the purchaser to the appropriate taxing authority, less any discount or collection allowance authorized by law.
(b) This subsection applies to those taxes enumerated in s. 72.011, excluding chapter 202 and that portion of chapter 203 collected thereunder, and also applies to taxes imposed under chapter 205.
(c) This subsection does not change the law regarding standing to claim a refund.
History.—s. 41, ch. 91-112; s. 1, ch. 2005-184.
213.757 Willful failure to pay over funds or destruction of records by agent.—Any person who accepts money from a taxpayer that is due to the department, for the purpose of acting as the taxpayer’s agent to make the payment to the department, but who willfully fails to remit such payment to the department when due, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Any person who has possession as a taxpayer’s agent of the taxpayer’s records that are required to be maintained under the revenue laws of this state and who intentionally destroys those records with the intent of depriving the state of tax revenues commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.—s. 17, ch. 99-208.
213.758 Transfer of tax liabilities.—
(1) As used in this section, the term:
(a) “Business” means any activity regularly engaged in by any person, or caused to be engaged in by any person, for the purpose of private or public gain, benefit, or advantage. The term does not include occasional or isolated sales or transactions involving property or services by a person who does not hold himself or herself out as engaged in business. A discrete division or portion of a business is not a separate business and must be aggregated with all other divisions or portions that constitute a business if the division or portion is not a separate legal entity.
(b) “Financial institution” means a financial institution as defined in s. 655.005 and any person who controls, is controlled by, or is under common control with a financial institution as defined in s. 655.005.
(c) “Insider” means:
1. Any person included within the meaning of insider as used in s. 726.102; or
2. A manager of, a managing member of, or a person who controls a transferor that is a limited liability company, or a relative as defined in s. 726.102 of any such persons.
(d) “Involuntary transfer” means a transfer of a business, assets of a business, or stock of goods of a business made without the consent of the transferor, including, but not limited to, a transfer:
1. That occurs due to the foreclosure of a security interest issued to a person who is not an insider;
2. That results from an eminent domain or condemnation action;
3. Pursuant to chapter 61, chapter 702, or the United States Bankruptcy Code;
4. To a financial institution if the transfer is made to satisfy the transferor’s debt to the financial institution; or
5. To a third party to the extent that the proceeds are used to satisfy the transferor’s indebtedness to a financial institution. If the third party receives assets worth more than the indebtedness, the transfer of the excess may not be deemed an involuntary transfer.
(e) “Stock of goods” means the inventory of a business held for sale to customers in the ordinary course of business.
(f) “Tax” means any tax, interest, penalty, surcharge, or fee administered by the department pursuant to chapter 443 or any of the chapters specified in s. 213.05, excluding chapter 220, the corporate income tax code.
(g) “Transfer” means every mode, direct or indirect, with or without consideration, of disposing of or parting with a business, assets of the business, or stock of goods of the business, and includes, but is not limited to, assigning, conveying, demising, gifting, granting, or selling, other than to customers in the ordinary course of business, to a transferee or to a group of transferees who are acting in concert. A business is considered transferred when there is a transfer of more than 50 percent of:
1. The business;
2. The assets of the business; or
3. The stock of goods of the business.
(2) A taxpayer engaged in a business who is liable for any tax arising from the operation of that business and who quits the business without the benefit of a purchaser, successor, or assignee, or without transferring the business, assets of the business, or stock of goods of a business to a transferee, must file a final return for the business and make full payment of all taxes arising from the operation of that business within 15 days after quitting the business. The Department of Legal Affairs may seek an injunction at the request of the department to prevent further business activity of a taxpayer who fails to file a final return and make payment of the taxes associated with the operation of the business until such taxes are paid. A temporary injunction enjoining further business activity shall be granted by a circuit court if the department has provided at least 20 days’ prior written notice to the taxpayer.
(3) A taxpayer who is liable for taxes with respect to a business who transfers the taxpayer’s business, assets of the business, or stock of goods of the business must file a final return and make full payment within 15 days after the date of transfer.
(4)(a) A transferee, or a group of transferees acting in concert, of more than 50 percent of a business, assets of a business, or stock of goods of a business is liable for any unpaid tax owed by the transferor arising from the operation of that business unless:
1.a. The transferor provides a receipt or certificate of compliance from the department to the transferee showing that the transferor has not received a notice of audit and the transferor has filed all required tax returns and has paid all tax arising from the operation of the business identified on the returns filed; and
b. There were no insiders in common between the transferor and the transferee at the time of the transfer; or
2. The department finds that the transferor is not liable for taxes, interest, or penalties after an audit of the transferor’s books and records. The audit may be requested by the transferee or the transferor and, if not done pursuant to the certified audit program under s. 213.285, must be completed by the department within 90 days after the records are made available to the department. The department may charge a fee for the cost of the audit if it has not issued a notice of intent to audit by the time the request for the audit is received.
(b) A transferee may withhold a portion of the consideration for a business, assets of the business, or stock of goods of the business to pay the tax owed to the state by the transferor taxpayer arising from the operation of the business. The transferee shall pay the withheld consideration to the state within 30 days after the date of the transfer. If the consideration withheld is less than the transferor’s liability, the transferor remains liable for the deficiency.
(c) The Department of Legal Affairs may seek an injunction at the request of the department to prevent further business activity of a transferee who is liable for unpaid tax of a transferor and who fails to pay or cause to be paid the transferee’s maximum liability for such tax due until such maximum liability for the tax is paid. A temporary injunction enjoining further business activity shall be granted by a circuit court if:
1. The assessment against the transferee is final and either:
a. The time for filing a contest under s. 72.011 has expired; or
b. Any contest filed pursuant to s. 72.011 resulted in a final and nonappealable judgment sustaining any part of the assessment; and
2. The department has provided at least 20 days’ prior written notice to the transferee of its intention to seek an injunction.
(5) The transferee, or transferees acting in concert, of more than 50 percent of a business, assets of the business, or stock of goods of a business who are liable for any tax pursuant to this section shall be jointly and severally liable with the transferor for the payment of the tax owed to the state from the operation of the business by the transferor up to the transferee’s or transferees’ maximum liability for such tax due.
(6) The maximum liability of a transferee pursuant to this section is equal to the fair market value of the business, assets of the business, or stock of goods of the business transferred to the transferee or the total purchase price paid by the transferee for the business, assets of the business, or stock of goods of the business, whichever is greater.
(a) The fair market value must be determined net of any liens or liabilities, with the exception of liens or liabilities owed to insiders.
(b) The total purchase price must be determined net of liens and liabilities against the assets, with the exception of:
1. Liens or liabilities owed to insiders.
2. Liens or liabilities assumed by the transferee that are not liens or liabilities owed to insiders.
(7) After notice by the department of transferee liability under this section, the transferee has 60 days within which to file an action as provided in chapter 72.
(8) This section does not impose liability on a transferee of a business, assets of a business, or stock of goods of a business when:
(a) The transfer is pursuant to an involuntary transfer; or
(b) The transferee is not an insider, and the asset transferred consists solely of a one- to four-family residential real property and furnishings and fixtures therein; real property that has not been improved with any building; or owner-occupied commercial real property; and, in each case, is not accompanied by a transfer of other assets of the business.
(9) The department may adopt rules necessary to administer and enforce this section.
History.—s. 8, ch. 2010-166; s. 1, ch. 2012-55; s. 3, ch. 2013-189.