The Florida Senate

203.01  Tax on gross receipts for utility services.--

(1)(a)  Every person that receives payment for any utility service shall report by the last day of each month to the Department of Revenue, under oath of the secretary or some other officer of such person, the total amount of gross receipts derived from business done within this state, or between points within this state, for the preceding month and, at the same time, shall pay into the State Treasury an amount equal to a percentage of such gross receipts at the rate set forth in paragraph (b). Such collections shall be certified by the Comptroller upon the request of the State Board of Education.

(b)  Beginning July 1, 1992, and thereafter, the rate shall be 2.5 percent.

(c)  Any person who purchases, installs, rents, or leases a telephone system or telecommunication system for his or her own use to provide that person with telephone service or telecommunication service which is a substitute for any telephone company switched service or a substitute for any dedicated facility by which a telephone company provides a communication path shall register with the Department of Revenue and pay into the State Treasury a yearly amount equal to a percentage of the actual cost of operating such system at the rate set forth in paragraph (b). "Actual cost" includes, but is not limited to, depreciation, interest, maintenance, repair, and other expenses directly attributable to the operation of such system. For purposes of this paragraph, the depreciation expense to be included in actual cost shall be the depreciation expense claimed for federal income tax purposes. The total amount of any payment required by a lease or rental contract or agreement shall be included within the actual cost. The provisions of this paragraph do not apply to the use by any local telephone company or any telecommunication carrier of its own telephone system or telecommunication system to conduct a telecommunication service for hire or to the use of any radio system operated by any county or municipality or by the state or any political subdivision thereof. If a system described in this paragraph is located in more than one state, the actual cost of such system for purposes of this paragraph shall be the actual cost of the system's equipment located in Florida. The term "telecommunications carrier" specifically includes cellular telephone carriers and other radio common carriers.

(d)  Electricity produced by cogeneration or by small power producers which is transmitted and distributed by a public utility between two locations of a customer of the utility pursuant to s. 366.051 is subject to the tax imposed by this section. The tax shall be applied to the cost price of such electricity as provided in s. 212.02(4) and shall be paid each month by the producer of such electricity.

(e)  Electricity produced by cogeneration or by small power producers during the 12-month period ending June 30 of each year which is in excess of nontaxable electricity produced during the 12-month period ending June 30, 1990, is subject to the tax imposed by this section. The tax shall be applied to the cost price of such electricity as provided in s. 212.02(4) and shall be paid each month, beginning with the month in which total production exceeds the production of nontaxable electricity for the 12-month period ending June 30, 1990. For purposes of this paragraph, "nontaxable electricity" means electricity produced by cogeneration or by small power producers which is not subject to tax under paragraph (d). Taxes paid pursuant to paragraph (d) may be credited against taxes due under this paragraph. Electricity generated as part of an industrial manufacturing process which manufactures products from phosphate rock, raw wood fiber, paper, citrus or any agricultural product shall not be subject to the tax imposed by this paragraph. "Industrial manufacturing process" means the entire process conducted at the location where the process takes place.

(f)  Any person other than a cogenerator or small power producer described in paragraph (e) who produces for his or her own use electrical energy which is a substitute for electrical energy produced by an electric utility as defined in s. 366.02 is subject to the tax imposed by this section. The tax shall be applied to the cost price of such electrical energy as provided in s. 212.02(4) and shall be paid each month. The provisions of this paragraph do not apply to any electrical energy produced and used by an electric utility.

(2)(a)  In addition to any other penalty provided by law, any person who fails to timely report and pay any tax imposed under this chapter shall pay a penalty equal to 10 percent of any unpaid tax, if the failure is for less than 31 days, plus an additional 10 percent of any unpaid tax for each additional 30 days or fraction thereof. However, such penalty may not be less than $10 or exceed a total of 50 percent in the aggregate of any unpaid tax.

(b)  In addition to any other penalty provided by law, any person who falsely or fraudulently reports or unlawfully attempts to evade paying any tax imposed under this chapter shall pay a penalty equal to 100 percent of any tax due and is guilty of a misdemeanor of the second degree, punishable as provided under s. 775.082 or s. 775.083.

(3)  The term "gross receipts" as used herein does not include gross receipts of any person derived from:

(a)  The sale of natural gas to a public or private utility, including a municipal corporation or rural electric cooperative association, either for resale or for use as fuel in the generation of electricity;

(b)  The sale of electricity to a public or private utility, including a municipal corporation or rural electric cooperative association, for resale within the state, or as part of an electrical interchange agreement or contract between such utilities for the purpose of transferring more economically generated power; or

(c)  The sale of telecommunication services for resale of telecommunication services wholly or partially within this state;

provided the person deriving gross receipts from such sale demonstrates that a resale in fact occurred and complies with the following requirements: A resale in this state must be in strict compliance with the rules and regulations of the Department of Revenue; and any person making a sale for resale in this state which is not in strict compliance with the rules and regulations of the Department of Revenue shall be liable for and pay the tax. Any person making a sale for resale in this state may, through an informal protest provided for in s. 213.21 and the rules of the Department of Revenue, provide the department with evidence of the exempt status of a sale. The department shall adopt rules which provide that valid proof and documentation of the resale in this state by a person making the sale for resale in this state will be accepted by the department when submitted during the protest period but will not be accepted when submitted in any proceeding under chapter 120 or any circuit court action instituted under chapter 72.

(4)  Gross receipts subject to the tax imposed by this section shall not include receipts from sales or leases of telecommunications service for use in the conduct of a telecommunications service for hire or otherwise for resale.

(5)  The tax imposed pursuant to this part relating to the provision of any utility services at the option of the person supplying the taxable services may be separately stated as Florida gross receipts tax on the total amount of any bill, invoice, or other tangible evidence of the provision of such taxable services and may be added as a component part of the total charge. Whenever a provider of taxable services elects to separately state such tax as a component of the charge for the provision of such taxable services, every person, including all governmental units, shall remit the tax to the person who provides such taxable services as a part of the total bill, and the tax is a component part of the debt of the purchaser to the person who provides such taxable services until paid and, if unpaid, is recoverable at law in the same manner as any other part of the charge for such taxable services. For a utility, the decision to separately state any increase in the rate of tax imposed by this part which is effective after December 31, 1989, and the ability to recover the increased charge from the customer shall not be subject to regulatory approval.

(6)  The tax is imposed upon every person for the privilege of conducting a utility business, and each provider of the taxable services remains fully and completely liable for the tax, even if the tax is separately stated as a line item or component of the total bill.

(7)  Any person who provides such services and who fails, neglects, or refuses to remit the tax imposed in this part, either by himself or herself, or through agents or employees, is liable for the tax and is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(8)  Gross receipts subject to the tax imposed by this section for the provision of electricity shall include receipts from monthly customer charges or monthly customer facility charges.

(9)(a)  If the sale of a taxable telecommunication service also involves the sale of commercial or cable television service exempt under the provision of s. 203.012(2)(b)2., the tax shall be applied to the value of the taxable service when it is sold separately.

(b)  If the company does not offer this service separately, the consideration paid shall be separately identified and stated with respect to the taxable and exempt portions of the transaction as a condition of the exemption.

(c)  The amounts identified as taxable in paragraph (b) shall not be less than the statewide average tariff rates set forth by the local exchange telecommunications companies in the tariffs filed with the Public Service Commission on January 1, 1995, and on January 1 of each year thereafter for the equivalent services subject to the provisions of this section. The Public Service Commission shall publish the statewide average tariff rates for commonly used services annually, beginning on January 1, 1996.

(10)  Notwithstanding the provisions of subsection (5) and s. 212.07(2), sums that were charged or billed as taxes under this section and chapter 212 and that were remitted to the state in full as taxes shall not be subject to refund by the state or by the utility which remitted the sums, when the amount remitted was not in excess of the amount of tax imposed by chapter 212 and this section.

History.--ss. 1, 2, ch. 15658, 1931; CGL 1936 Supp. 1279(108), (109); s. 7, ch. 22858, 1945; s. 1, ch. 57-819; s. 7, ch. 63-253; s. 5, ch. 65-371; s. 2, ch. 65-420; ss. 21, 35, ch. 69-106; s. 10, ch. 75-292; s. 3, ch. 80-381; s. 15, ch. 83-137; ss. 1, 4, ch. 84-342; s. 29, ch. 85-116; s. 2, ch. 85-174; s. 2, ch. 86-155; s. 68, ch. 87-6; s. 41, ch. 87-101; s. 43, ch. 87-224; s. 7, ch. 89-292; s. 12, ch. 89-356; s. 14, ch. 90-132; s. 11, ch. 91-112; s. 234, ch. 91-224; s. 8, ch. 92-320; s. 10, ch. 93-233; s. 1054, ch. 95-147; s. 2, ch. 95-403; s. 12, ch. 96-397; s. 6, ch. 97-233; s. 11, ch. 98-277.