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