CODING: Words stricken are deletions; words underlined are additions.House Bill 1275
Florida House of Representatives - 1997 HB 1275
By Representatives Valdes, Edwards, Lacasa, Garcia,
Villalobos, Barreiro, Morse and Meek
1 A bill to be entitled
2 An act relating to the municipal public service
3 tax; providing legislative intent; amending s.
4 166.231, F.S.; providing that specified
5 governmental bodies are exempt from the tax;
6 providing that religious institutions that
7 possess sales tax exemption certificates are
8 exempt from the tax; providing that religious
9 institutions that possess sales tax exemption
10 certificates are exempt from the tax on
11 telecommunication services; providing for the
12 liability of sellers for taxes that are not
13 remitted; requiring purchasers claiming
14 exemptions to certify that they are qualified
15 therefor; creating s. 166.233, F.S.; providing
16 requirements for levy of the tax; specifying
17 effective dates; providing duties of the
18 Department of Revenue; requiring municipalities
19 to furnish certain information relating to the
20 tax to the Department of Revenue and to other
21 persons; providing for fees; providing
22 limitations on the responsibilities of sellers
23 if information is not furnished as required;
24 providing procedures that apply when more than
25 one municipality claims an address; creating s.
26 166.234, F.S.; providing procedures for audits
27 by municipalities of sellers of services;
28 prescribing record retention requirements for
29 sellers; providing time limitations on
30 assessments of taxes and on applications for
31 refunds or credits; providing for offsets of
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1 overpayments against underpayments and for
2 refunds and credits; providing requirements
3 with respect to a determination by a
4 municipality of amounts of tax; providing
5 protest procedures and judicial remedies;
6 providing for settlement or compromise of a
7 seller's liability for taxes; providing rights
8 and duties of municipalities and sellers;
9 providing that public service tax payment dates
10 and return filing dates must conform to due
11 dates established under ch. 212, F.S.;
12 providing a schedule for application of the
13 requirements of the act; providing an
14 appropriation; providing for severability;
15 providing an effective date.
16
17 Be It Enacted by the Legislature of the State of Florida:
18
19 Section 1. The Legislature find that a taxpayer bill
20 of rights has not been prescribed for the municipal public
21 service tax in accordance with Section 25, Article I of the
22 State Constitution. It is therefore the intent of the
23 Legislature to improve the ability of municipalities and
24 sellers to administer this tax at reasonable cost, to protect
25 sellers who act in good faith, to ensure that sellers are
26 furnished the information necessary for remitting collected
27 tax proceeds to the correct municipality, and to prescribe a
28 procedural framework for the administration and auditing
29 functions. The Legislature finds that this act fulfills an
30 important state interest.
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1 Section 2. Section 166.231, Florida Statutes, 1996
2 Supplement, is amended to read:
3 166.231 Municipalities; public service tax.--
4 (1)(a) A municipality may levy a tax on the purchase
5 of electricity, metered natural gas, liquefied petroleum gas
6 either metered or bottled, manufactured gas either metered or
7 bottled, and water service. The tax shall be levied only upon
8 purchases within the municipality and shall not exceed 10
9 percent of the payments received by the seller of the taxable
10 item from the purchaser for the purchase of such service.
11 Municipalities imposing a tax on the purchase of cable
12 television service as of May 4, 1977, may continue to levy
13 such tax to the extent necessary to meet all obligations to or
14 for the benefit of holders of bonds or certificates which were
15 issued prior to May 4, 1977. Purchase of electricity means
16 the purchase of electric power by a person who will consume it
17 within the municipality.
18 (b) The tax imposed by paragraph (a) shall not be
19 applied against any fuel adjustment charge, and such charge
20 shall be separately stated on each bill. The term "fuel
21 adjustment charge" means all increases in the cost of utility
22 services to the ultimate consumer resulting from an increase
23 in the cost of fuel to the utility subsequent to October 1,
24 1973.
25 (2) Services competitive with those enumerated in
26 subsection (1) or subsection (9), as defined by ordinance,
27 shall be taxed on a comparable base at the same rates.
28 However, fuel oil shall be taxed at a rate not to exceed 4
29 cents per gallon. However, for municipalities levying less
30 than the maximum rate allowable in subsection (1), the maximum
31 tax on fuel oil shall bear the same proportion to 4 cents
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1 which the tax rate levied under subsection (1) bears to the
2 maximum rate allowable in subsection (1).
3 (3) A municipality may exempt from the tax imposed by
4 this section any amount up to, and including, the first 500
5 kilowatt hours of electricity purchased per month for
6 residential use. Such exemption shall apply to each separate
7 residential unit, regardless of whether such unit is on a
8 separate meter or a central meter, and shall be passed on to
9 each individual tenant.
10 (4)(a) The purchase of natural gas or fuel oil by a
11 public or private utility, either for resale or for use as
12 fuel in the generation of electricity, or the purchase of fuel
13 oil or kerosene for use as an aircraft engine fuel or
14 propellant or for use in internal combustion engines is exempt
15 from taxation hereunder.
16 (b) A municipality may exempt from the tax imposed by
17 this section the purchase of metered or bottled gas (natural
18 liquefied petroleum gas or manufactured) or fuel oil for
19 agricultural purposes. As used in this paragraph,
20 "agricultural purposes" means bona fide farming, pasture,
21 grove, or forestry operations, including horticulture,
22 floriculture, viticulture, dairy, livestock, poultry, bee, and
23 aquaculture.
24 (5) A purchase made by the United States Government,
25 by this state, or by any county, municipality, school
26 district, or public body that is exempted by law or court
27 order is exempt from the tax authorized by this section. A
28 municipality may exempt from the tax imposed by this section
29 taxation hereunder the purchase of the taxable items by the
30 United States Government, this state, any other public body as
31 defined in s. 1.01, or by a nonprofit corporation or
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1 cooperative association organized under chapter 617 which
2 provides water utility services to no more than 13,500
3 equivalent residential units, ownership of which will revert
4 to a political subdivision upon retirement of all outstanding
5 indebtedness, and shall exempt purchases by any recognized
6 church in this state for use exclusively for church purposes,
7 and shall exempt from the tax authorized in subsection (8)
8 purchases made by any religious institution that possesses a
9 consumer certificate of exemption issued under chapter 212.
10 (6) A municipality may exempt from the tax imposed by
11 this section any amount up to, and including, the total amount
12 of electricity, metered natural gas, liquefied petroleum gas
13 either metered or bottled, or manufactured gas either metered
14 or bottled purchased per month, or reduce the rate of taxation
15 on the purchase of such electricity or gas when purchased by
16 an industrial consumer which uses the electricity or gas
17 directly in industrial manufacturing, processing, compounding,
18 or a production process, at a fixed location in the
19 municipality, of items of tangible personal property for sale.
20 The municipality shall establish the requirements for
21 qualification for this exemption in the manner prescribed by
22 ordinance. Possession by a seller of a written certification
23 by the purchaser, certifying the purchaser's entitlement to an
24 exemption permitted by this subsection, relieves the seller
25 from the responsibility of collecting the tax on the
26 nontaxable amounts, and the municipality shall look solely to
27 the purchaser for recovery of such tax if it determines that
28 the purchaser was not entitled to the exemption. Any
29 municipality granting an exemption pursuant to this subsection
30 shall grant the exemption to all companies classified in the
31 same SIC Industry Major Group Number.
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1 (7) The tax authorized hereunder shall be collected by
2 the seller of the taxable item from the purchaser at the time
3 of the payment for such service. The seller shall remit the
4 taxes collected to the municipality in the manner prescribed
5 by ordinance.
6 (8) A municipality shall notify in writing any known
7 seller of items taxable hereunder of any change in the
8 boundaries of the municipality or in the rate of taxation.
9 (8)(9)(a) Beginning July 1, 1995, a municipality may
10 by ordinance exempt not less than 50 percent of the tax
11 imposed under this section on purchasers of electrical energy
12 who are determined to be eligible for the exemption provided
13 by s. 212.08(15) by the Department of Revenue. The exemption
14 shall be administered as provided in that section. A copy of
15 any ordinance adopted pursuant to this subsection shall be
16 provided to the Department of Revenue not less than 14 days
17 prior to its effective date.
18 (b) If In the event an area that is nominated as an
19 enterprise zone pursuant to s. 290.0055 has not yet been
20 designated pursuant to s. 290.0065, a municipality may enact
21 an ordinance for such exemption; however, the ordinance shall
22 not be effective until such area designated pursuant to s.
23 290.0065.
24 (c) This subsection shall expire and be void on
25 December 31, 2005, except that any qualified business which
26 has satisfied the requirements of this subsection prior to
27 December 31, 2005, shall be allowed the full benefit of the
28 exemption allowed under this subsection as if this subsection
29 had not expired on December 31, 2005.
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1 (9)(10) A municipality may levy a tax on the purchase
2 of telecommunication services as defined in s. 203.012 as
3 follows:
4 (a)1. Only upon purchases within the municipality of
5 local telephone service as defined in s. 203.012(3) at a rate
6 not to exceed 10 percent of the monthly recurring customer
7 service charges, excluding public telephone charges collected
8 on site, access charges, and any customer access line charges
9 paid to a local telephone company; or
10 2. Only upon purchases within the municipality of
11 telecommunications service that which originates and
12 terminates in this state at a rate not to exceed 7 percent of
13 the total amount charged for any telecommunications service
14 the source of which is ascribed to the municipality on the
15 basis of billing address or service address as used
16 consistently by the seller, provided within the municipality
17 or, if the location of the telecommunications service provided
18 cannot be determined, the total amount billed for such
19 telecommunications service to a telephone or telephone number,
20 a telecommunications number or device, or a customers' billing
21 address located within the municipality, excluding public
22 telephone charges collected on site, charges for any foreign
23 exchange service or any private line service except when such
24 services are used or sold as a substitute for any telephone
25 company switched service or dedicated facility by which a
26 telephone company provides a communication path, access
27 charges, and any customer access line charges paid to a local
28 telephone company. However, telecommunications service as
29 defined in s. 203.012(5)(b) shall be taxed only on the monthly
30 recurring customer service charges excluding variable usage
31 charges.
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1 (b) For the purpose of compensating the seller, the
2 seller shall be allowed 1 percent of the amount of the tax
3 collected and due to the municipality in the form of a
4 deduction from the amount collected for remittance. The
5 deduction shall be allowed as compensation for the keeping of
6 records and for the collection of, and the remitting of, the
7 tax.
8 (c) A municipality shall elect by ordinance the tax
9 specified in subparagraph (a)1. or subparagraph (a)2., and any
10 such election shall not be changed until after the expiration
11 of at least 12 months after the effective date of the
12 ordinance levying the tax specified in such subparagraph. A
13 municipality shall notify the companies responsible for
14 collecting such tax at least 120 days prior to such change of
15 election.
16 (d) A municipality electing by ordinance the tax
17 specified in subparagraph (a)2. shall provide to a
18 telecommunications service provider who is responsible for
19 collecting the tax, upon its request, a printed alphabetical
20 listing of all street names including block numbers and street
21 numbers for streets which cross or form municipal boundaries
22 within the municipality for use by the provider of the
23 telecommunications service in calculating the proper amount of
24 tax payable to the municipality. The municipality shall be
25 responsible for updating this listing as changes occur and for
26 providing this information to the telecommunications service
27 provider. The provider, in turn, shall be responsible for
28 charging the tax only to service and billing addresses
29 contained in this listing. The municipality shall be entitled
30 to collect a fee not to exceed the actual cost of providing
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1 the information to the telecommunications service provider
2 requesting it.
3 (c)(e) A municipality may audit the records of any
4 provider of telecommunications service taxable by the such
5 municipality under s. 166.234.; each such provider shall
6 provide to the municipality, upon 60 days' notice, access to
7 all applicable records for such telecommunications service.
8 In an audit, the telecommunications service provider shall be
9 liable only for its taxable accounts collected corresponding
10 to the information provided to it by the municipality.
11 However, any information received by the municipality or its
12 agent in connection with such audit is confidential and exempt
13 from the provisions of s. 119.07(1).
14 (d)(f)1. If the sale of a taxable telecommunication
15 service also involves the sale of an exempt cable television
16 service, the tax shall be applied to the value of the taxable
17 service when it is sold separately.
18 2. If the company does not offer this service
19 separately, the consideration paid shall be separately
20 identified and stated with respect to the taxable and exempt
21 portions of the transaction as a condition of the exemption.
22 3. The amounts identified as taxable in subparagraph
23 2. shall not be less than the statewide average tariff rates
24 set forth by the local exchange telecommunications companies
25 in the tariffs filed with the Public Service Commission on
26 January 1, 1995, and on January 1 of each year thereafter for
27 the equivalent services subject to this section. The Public
28 Service Commission shall publish the statewide average tariff
29 rates annually, beginning on January 1, 1996.
30 4. If the total amount of municipal utility tax
31 collected by a municipality or charter county from
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1 telecommunication services pursuant to this subsection for the
2 period of July 1, 1995, to June 30, 1996, is less than the
3 amount collected for the period July 1, 1994, to June 30,
4 1995, the municipality or charter county shall assess each
5 company that remits such tax a pro rata share of the
6 shortfall. The shortfall shall be prorated based on the
7 amount of tax remitted by each company for the period July 1,
8 1995, to June 30, 1996, and the total amount of tax remitted
9 for the same period. By September 1, 1996, the municipality
10 or charter county shall certify to each company the amount of
11 additional tax owed and the tax shall be remitted to the
12 municipality or charter county by October 1, 1996. Provided,
13 however, that this assessment may only be imposed if, in
14 addition to the conditions above, a municipality or charter
15 county has levied the applicable maximum tax rate allowed
16 under this paragraph during the period July 1, 1995, and June
17 30, 1996, and has not switched between the two options allowed
18 under subparagraph (f)1. or subparagraph (f)2. during the
19 period July 1, 1995, and June 30, 1996.
20 (e) Purchases of local telephone service or other
21 telecommunications service for use in the conduct of a
22 telecommunications service for hire or otherwise for resale
23 are exempt from the tax imposed by this subsection.
24 (9) A purchaser who claims an exemption under
25 subsection (4), subsection (5), or paragraph (8)(e) shall
26 certify to the seller that he or she qualifies for the
27 exemption, which certification may encompass all purchases
28 after a specified date or other multiple purchases. For
29 purchases made under paragraph (8)(e) which are exempted upon
30 the presentation of a certificate from the tax imposed by
31 chapter 212, the certification required by this subsection may
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1 be satisfied by presentation of a certificate that satisfies
2 the requirements of chapter 212. A seller accepting the
3 certification required by this subsection is relieved of the
4 obligation to collect and remit tax; however, a governmental
5 body that is exempt from the tax authorized by this section
6 may not be required to furnish such certification, and a
7 seller is not required to collect tax from such an exempt
8 governmental body.
9 Section 3. Section 166.233, Florida Statutes, is
10 created to read:
11 166.233 Public service tax; effective dates;
12 procedures for informing sellers of tax levies and related
13 information.--
14 (1) As used in this section, ss. 166.231, 166.232, and
15 166.234, the term:
16 (a) "Address database" means a database created by the
17 department from information provided by the municipalities as
18 prescribed in paragraphs (4)(a)-(c).
19 (b) "Department" means the Department of Revenue or
20 its designated agent.
21 (c) "Effective date" with respect to any levy, repeal
22 of a levy, or update to a list required under this section
23 means the effective date of the related obligation or change
24 in the obligation of sellers to collect the tax; however, with
25 respect to taxable service that is regularly billed on a
26 monthly cycle basis, each levy, repeal, or update applies to
27 any bill dated on or after the effective date of such event.
28 (d) "Levy" means and includes the imposition of a tax
29 under s. 166.231 or s. 166.232, all changes in the rate of a
30 tax imposed under either of those sections, and all changes of
31 election under s. 166.231(8)(a).
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1 (e) "Seller" means a person who sells a service that
2 is subject to a levy.
3 (2)(a) A tax levy must be adopted by ordinance, and
4 the effective date of every levy or repeal thereof must be a
5 subsequent January 1 or July 1. A municipality shall notify
6 the department of the adoption or repeal of a levy at least
7 120 days before the effective date thereof. Such notification
8 must be furnished in a manner prescribed by the department and
9 must specify the services taxed under s. 166.231 or s.
10 166.232, including any election under s. 166.231(8)(a), the
11 rate of tax applied to each service, the effective date of the
12 levy or repeal thereof, and the name, mailing address, and
13 telephone number of a person designated by the municipality to
14 respond to inquiries concerning the tax. In addition, the
15 municipality shall furnish the department address information
16 as required under subsections (4) and (5). The department
17 shall maintain this information for the purposes of seller
18 notification, database maintenance, and responses to inquiries
19 with respect thereto. Any person may request, in writing, such
20 information from the department. For purposes of this section,
21 a response to such a person is timely if in writing and dated
22 no later than 20 days after the receipt of the request. The
23 department has no liability for any loss of or decrease in
24 revenue by reason of any error, omission, or untimely action
25 that results in the nonpayment of the tax imposed by ss.
26 166.231 and 166.232. The provisions of this paragraph which
27 prescribe effective dates and require municipalities to
28 furnish notifications and address information to the
29 department do not apply to taxes levied on service, other than
30 telecommunication service, provided by the municipality
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1 levying the tax or by a separate utility authority, board, or
2 commission of the municipality.
3 (b) The department may contract with a private entity
4 to maintain and furnish to sellers the information described
5 in paragraph (a).
6 (3) A municipality shall provide to any person, within
7 10 days following receipt of the person's written request, a
8 copy of the ordinance adopting any levy and all amendments
9 thereto.
10 (4) The address database must be available to sellers
11 electronically at no charge. The address database, or portions
12 thereof, must be available in another medium, and the
13 department shall publish the types of media on which the
14 address database described in this subsection are available,
15 the charges, if any, for supplying the information in each
16 available medium, and the address to which a request for such
17 information should be transmitted. Within 20 days after its
18 receipt of a written request for such information, accompanied
19 by payment of the cost, if any, the department must transmit
20 the information to the person who has requested it.
21 (5) For each municipality, the address database must
22 contain:
23 (a) For all street addresses located within the
24 municipality, each street name, including street name aliases,
25 street address number ranges, leading or trailing
26 directionals, all city names, and zip codes associated with
27 each street name, as approved by the United States Postal
28 Service for the delivery of mail. For a range of street
29 address numbers located within a municipality which consists
30 only of odd or even street numbers, the address database must
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1 specify whether the street numbers in the range are odd or
2 even;
3 (b) Each postal zip code and all the city names
4 associated therewith, as approved by the United States Postal
5 Service for the delivery of mail, for all zip codes assigned
6 to geographic areas located entirely within the municipality,
7 including zip codes assigned to post office boxes; and
8 (c) All post office box number ranges and the city
9 names and zip codes associated therewith, as approved by the
10 United States Postal Service for the delivery of mail, for all
11 post office boxes located within the municipality, except that
12 post office boxes with postal zip codes entirely within the
13 municipality which are included on the list furnished under
14 paragraph (b) need not be duplicated.
15
16 The information required under this section must include the
17 effective date of any changes. Changes in the format of an
18 address necessitate the creation of a new address record,
19 except that, if there is a change in zip code only, the
20 original address record must be modified to include the new
21 zip code with a new effective date and, in addition, the
22 previous zip code with its corresponding effective date.
23 Historical data must be maintained in the address database for
24 a period of 7 years. The address database must separately
25 identify the additions, deletions, and other changes to the
26 preceding version of the address database. The seller is
27 responsible for charging the tax only to service and billing
28 addresses listed in the database.
29 (6) Each municipality shall provide this information
30 to the department in a format prescribed by the department.
31 The municipality shall provide updates to the address database
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1 at least 120 days before the January 1 or July 1 on which the
2 database becomes effective. The department shall update the
3 database no later than 90 days before the January 1 or July 1
4 on which the changes are effective. Any changes to the address
5 database which are made less than 90 days before January 1 or
6 July 1 become effective on the following July 1 or January 1,
7 respectively.
8 (7) The obligation of a seller to collect and remit
9 the tax for any municipality is conditioned upon the timely
10 availability to the seller of accurate information as
11 described in subsections (2)-(6) in the manner prescribed in
12 those subsections. For purposes of determining the timeliness
13 of such information, the date of a request, response, update,
14 or other transmittal is the date received. If any such
15 information is not timely furnished to a seller, any related
16 obligation to collect and remit tax is suspended during the
17 period of delay, except that:
18 (a) If a request for information described in
19 subsections (2)-(6) precedes the date on which the department
20 is required to update the address database as prescribed in
21 subsection (6), the lack of a timely response to the request
22 does not affect the seller's obligation to collect and remit
23 tax for that municipality.
24 (b) If a seller is collecting and remitting tax on a
25 taxable service from customers within a municipality as of the
26 date of any request for information under subsections (2)-(6),
27 the lack of a timely response to the request does not affect
28 the seller's obligation to continue collecting and remitting
29 the tax levied on the same service from the same customers.
30 (c) If a failure to furnish timely information under
31 subsections (2)-(6) causes a delay in a seller's receipt of a
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1 list or update required by subsections (2), (4), (5), and (6)
2 to a date less than 90 days before the effective date of a
3 levy or update, the obligation to collect and remit tax
4 pursuant to the revised levy may not commence until the next
5 subsequent January 1 or July 1.
6 (8) If it is determined from lists or updates
7 furnished under subsection (6) that more than one municipality
8 claims the same address or group of addresses, the department
9 shall notify the municipalities affected within 30 days after
10 receipt of the duplicative information. Upon resolution of the
11 competing claims, the affected municipalities shall furnish
12 the department with a signed agreement describing the
13 resolution. The department shall update the address database
14 pursuant to the agreement as of the next ensuing January 1 or
15 July 1 that is at least 120 days after its receipt of the
16 signed agreement. The seller has no liability to any affected
17 municipality for amounts not collected and remitted before the
18 agreement was implemented, except to the extent that the
19 seller's previous tax treatment was confirmed as correct in
20 the agreement.
21 (9) By submitting a written request and the relevant
22 formatting information, municipalities can elect to have the
23 address information formatted to the United States Postal
24 Service database for the delivery of mail by the department.
25 The department shall notify the municipalities within 30 days
26 of any address that cannot be matched to the postal database
27 so that the municipality may investigate the problem. The
28 department shall update the database once the address is
29 properly identified and formatted in accordance with the
30 postal database. The effective date for such addresses is the
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1 next ensuing January 1 or July 1 that is at least 90 days
2 after the department updates its database.
3 Section 4. Section 166.234, Florida Statutes, is
4 created to read:
5 166.234 Public service tax; administrative provisions;
6 rights and remedies.--
7 (1) A municipality may, during the seller's normal
8 business hours at the official location of the seller's books
9 and records, audit the records of any seller of a service that
10 is taxable by the municipality under s. 166.231 or s. 166.232,
11 for the purpose of ascertaining the correctness of any return
12 that has been filed or payment that has been made, if the
13 municipality's power to assess tax or grant a refund is not
14 barred by the applicable limitations period. Each such seller
15 must provide to the municipality, upon 60 days' written
16 notice, access to applicable records for such service, except
17 that extensions of this 60-day period must be granted if
18 reasonably requested by the seller. If either the municipality
19 or the seller requires an additional extension, it must give
20 notice to the other no less than 30 days before the existing
21 extension expires, except in cases of bona fide emergency or
22 waiver of the notice requirement by the other party. In an
23 audit, the seller is liable only for its taxable accounts
24 collected which correspond to the information provided to it
25 by the department under s. 166.233. As used in this section,
26 the term "applicable records" means records kept in the
27 ordinary course of business which establish the collection and
28 remittance of taxes due. A municipality may not charge any
29 seller for costs or expenses associated with an audit. An
30 employee or agent of a municipality may not be paid,
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1 evaluated, or promoted on the basis of the amount of taxes
2 assessed or tax proceeds collected from sellers.
3 (2) Each seller of services that are taxable under s.
4 166.231 or s. 166.232 shall preserve applicable records
5 relating to such taxes until the expiration of the time within
6 which the municipality may make an assessment with respect to
7 that tax; however, a seller is not required to retain
8 duplicative or redundant records.
9 (3) Before auditing a seller under subsection (1), the
10 municipality shall, upon request of the seller, discuss with
11 the seller the municipality's proposed audit methodology. The
12 municipality shall prepare and furnish to the seller a report
13 of each audit which identifies the nature of any deficiency or
14 overpayment, the amount thereof, and the manner in which the
15 amount was computed. In addition, the municipality, upon
16 request and no less than 45 days before issuing a
17 determination under subsection (7), shall furnish the seller
18 with all other information or material in possession of the
19 municipality or its agents which is necessary to supplement
20 the audit findings, including any computer program or software
21 that pertains to or was used in the conduct of the audit and
22 the computation of the deficiency or overpayment. However, if
23 the identical computer program or software that was used in
24 conducting the audit is nontransferrable, the municipality
25 must furnish the seller with sufficient information to enable
26 the seller to procure such program or software.
27 (4) A municipality may issue a proposed assessment of
28 tax levied under s. 166.231 or s. 166.232 within 3 years after
29 the date the tax was due. A seller may apply to a municipality
30 for refund of, or may take a credit for, any overpayment of
31 such tax thereon within 3 years following remittance by the
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1 seller, and the municipality must refund or allow the seller
2 credit for such overpayments as were remitted to the
3 municipality. Upon expiration of these 3-year periods, the
4 municipality's right to assess tax and the seller's right to
5 apply for a refund or credit expire and are barred, unless
6 fraud has occurred; however, sellers and municipalities may
7 enter into agreements to extend these periods.
8 (5) Notwithstanding subsection (4), a municipality
9 shall offset a seller's overpayment of any tax revealed by an
10 audit against any deficiency of such tax which is determined
11 to be due for the same audit period, and such offsets must be
12 reflected in any proposed assessment of tax. If the
13 overpayments by the seller exceed the deficiency, the
14 municipality must refund to the seller the amount by which the
15 aggregate overpayments exceed the total deficiency. Absent
16 proof to the contrary, the methodology that is employed in
17 computing the amount of a deficiency is presumed to yield an
18 appropriate computation of the amount of any overpayments. As
19 used in subsection (4) and this subsection, the term
20 "overpayment" to a municipality means and includes all
21 remittances of public service tax which were not owed to the
22 municipality, including amounts properly collected but
23 remitted to the incorrect municipality, except that the term
24 does not include remittances of amounts collected in error.
25 (6) Any purchaser of a service may request from a
26 seller a refund of, or credit for, taxes collected from the
27 purchaser upon the ground that the amounts collected were not
28 due to any municipality. The seller shall issue the refund or
29 allow a credit to the purchaser entitled thereto, if the
30 request is made within 3 years following collection of the tax
31 from the purchaser. In any event, a seller shall issue a
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1 refund or credit to a purchaser following the seller's
2 determination that taxes collected from that purchaser within
3 the preceding 3 years were not due to any municipality.
4 (7) Any proposed assessment or finding of amounts due
5 the seller constitutes a determination of the municipality for
6 purposes of this section. A determination must separately
7 state the amounts of tax claimed to be due or to be refunded,
8 must be accompanied by a written narrative explanation of the
9 basis for the municipality's determinations, must inform the
10 seller of the remedies available to it if it disagrees with
11 any such determination, and must state the consequences of the
12 seller's failure to comply with any demand of the municipality
13 which is stated in the determination.
14 (8) A seller may file with the municipality a written
15 protest of any determination within 60 days after the
16 determination is issued. The municipality must consider the
17 protest and must, within 60 days, issue a written notice of
18 decision to the seller. The seller may petition the
19 municipality for reconsideration of a notice of decision
20 within 30 days after the issuance of the notice, and,
21 following reconsideration of such a petition, the municipality
22 must, within 30 days, issue a written notice of
23 reconsideration to the seller.
24 (9) A determination becomes final 60 days after the
25 date of issuance, unless the seller, before the 60-day period
26 expires, has filed a protest or secured a written extension of
27 time within which to file a protest. If the seller has secured
28 a written extension of time and fails to file a protest within
29 the extended time period, the proposed assessment becomes a
30 final assessment at the expiration of the extended filing
31 period. If a protest is timely filed and the seller and the
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1 municipality are unable to resolve the disputed issues, the
2 determination becomes final as of the date of issuance of the
3 notice of decision, unless the seller timely files a petition
4 for reconsideration. If a petition for reconsideration is
5 timely filed, the determination becomes final upon issuance of
6 a notice of reconsideration.
7 (10) A notice of decision or a notice of
8 reconsideration must address each issue raised in the protest
9 or petition, must explain the reasoning underlying the
10 conclusions reached, and must advise the seller of the
11 remedies available to it if it disagrees with the
12 municipality's disposition of the issues.
13 (11) A seller may contest the legality of any
14 determination by filing an action in circuit court within 60
15 days after the date the determination becomes final. However,
16 in any action filed in circuit court to contest the legality
17 of any tax assessed under this section, the plaintiff must pay
18 the municipality the amount of the tax which is not being
19 contested by the seller. Venue lies in the county where the
20 municipality is located. The defendant in any such action is
21 the municipality.
22 (12) A seller's failure to protest a determination
23 under this section administratively or judicially does not
24 waive or impair the seller's right to seek refund of any
25 overpayment within the time allowed under subsection (4).
26 (13) A seller's liability for any tax may be settled
27 or compromised by the municipality upon the grounds of doubt
28 as to liability or doubt as to the collectibility of the tax.
29 In addition, municipalities may enter into settlements
30 prescribing the future tax treatment of specified
31 transactions. A municipality and a seller may enter into a
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1 written closing agreement that reflects the terms of any
2 settlement or compromise. When such a closing agreement has
3 been approved on behalf of the municipality and the seller, it
4 is final, conclusive, and binding on the parties with respect
5 to all matters set forth therein; and, except upon a showing
6 of fraud or misrepresentation of material fact, additional
7 assessment may not be made against the seller for the tax
8 specified in the closing agreement for the time period
9 specified in the closing agreement, and the seller may not
10 institute any judicial or administrative proceeding to recover
11 any tax paid under the closing agreement. In issuing a
12 determination, a municipality must include in its notification
13 thereof to the seller the names of the persons authorized to
14 approve compromises and to execute closing agreements. A
15 municipality may also enter into agreements for scheduling
16 payments of taxes which agreements must recognize both the
17 seller's financial condition and the best interests of the
18 municipality, if the seller gives accurate, current
19 information and meets all other tax obligations on schedule.
20 (14) All determinations, notices of decision, and
21 notices of reconsideration issued under this section must be
22 transmitted to the seller by certified mail, return receipt
23 requested, and the date of issuance is the postmark date of
24 the transmittal. All protests and petitions for
25 reconsideration are timely filed if postmarked or received by
26 the municipality within the time prescribed by this section.
27 If mailed, protests and petitions must be transmitted by
28 certified mail, return receipt requested.
29 (15) A seller may pay any contested amount, in whole
30 or in part, at any time, and the payment does not impair any
31 of the seller's remedies as provided in this section.
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1 (16) Each municipality that levies the public service
2 tax shall furnish sellers with prompt, accurate responses to
3 questions and to requests for tax assistance.
4 (17) In all matters connected with the administration
5 of the public service tax, sellers have the right:
6 (a) To be represented by counsel or other qualified
7 representatives;
8 (b) To procedural safeguards with respect to the
9 recording of interviews during tax determination processes
10 conducted by the municipality; and
11 (c) To have audits, inspections of records, and
12 interviews conducted at a reasonable time and place.
13 (18) A municipality may not require any report,
14 return, or payment of public service tax to be submitted on a
15 date other than as required under chapter 212.
16 Section 5. (1) No later than September 1, 1997, each
17 municipality levying a tax under section 166.231 or section
18 166.232, Florida Statutes, shall furnish to the Department of
19 Revenue a notification that specifies the services taxed by
20 the municipality under section 166.231 or section 166.232,
21 Florida Statutes, including any election under section
22 166.231(8)(a), Florida Statutes; the rate of tax applied to
23 each service; the effective date of the levy; and the name,
24 mailing address, and telephone number of a person designated
25 by the municipality to respond to inquires concerning the tax.
26 The notification must include such information for levies with
27 prior and future effective dates.
28 (2) Address listings and updates that conform to the
29 requirements of section 166.231(9)(d), Florida Statutes, as in
30 effect before July 1, 1997, are in compliance with this act
31 until December 31, 1998. By January 1, 1998, each municipality
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1 shall make available to the department address information
2 that conforms to the requirements of this act and, if it
3 elects to have the department format such addresses to the
4 United States Postal Service database, the municipality must
5 so specify. The department must notify municipalities of any
6 addresses that have been claimed by multiple jurisdictions and
7 those that cannot be matched to the postal database as
8 provided, respectively, in subsections 166.231(7) and (8). The
9 updated address database must be made available to
10 municipalities for review by June 1, 1998, and to sellers by
11 July 1, 1998, and is effective January 1, 1999. Updates may be
12 issued with an effective date of January 1, 1999, if the lists
13 are received by the department by September 1, 1998. The
14 department shall update the database by October 1, 1998, for
15 the revisions.
16 (3) Section 166.234, Florida Statutes, as created by
17 this act, applies to all taxes, assessments, and audits for
18 periods both before and after the effective date of this act,
19 except for provisions requiring the performance of acts prior
20 to the commencement of an audit and except for taxes and
21 assessments that have been resolved by concession of liability
22 and payment, by settlement, or by other means. In addition, in
23 the case of audits that are the subject of pending litigation
24 as of the effective date of this section, the requirements and
25 limitations of section 166.234(3), (8)-(12), and (15), Florida
26 Statutes, do not apply to determinations, as defined by
27 section 166.234(8), Florida Statutes, issued before the
28 commencement of such litigation.
29 Section 6. The sum of $100,000 is appropriated to the
30 Department of Revenue from the Administrative Trust Fund for
31 fiscal year 1997-1998, and one full-time-equivalent position
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1 is authorized, for the purpose of performing the functions
2 identified in section 166.233(2), Florida Statutes, as created
3 by this act.
4 Section 7. If any provision of this act or the
5 application thereof to any person or circumstance is held
6 invalid, the invalidity shall not affect other provisions or
7 applications of the act which can be given effect without the
8 invalid provision or application, and to this end the
9 provisions of this act are declared severable.
10 Section 8. This act shall take effect July 1, 1997.
11
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13 SENATE SUMMARY
14 Pertains to the municipal public service tax. Provides
legislative intent. Provides that specified governmental
15 bodies are exempt from the tax. Provides that religious
institutions that possess sales tax exemption
16 certificates are exempt from the municipal public service
tax and from the tax on telecommunication services.
17 Provides for the liability of sellers for taxes that are
not remitted. Requires purchasers claiming exemptions to
18 certify that they are qualified therefor. Provides
requirements for levy of the tax. Specifies effective
19 dates. Provides duties of the Department of Revenue.
Requires municipalities to furnish certain information
20 relating to the tax to the Department of Revenue and to
other persons. Provides for fees. Provides limitations on
21 the responsibilities of sellers if information is not
furnished as required. Provides procedures that apply
22 when more than one municipality claims an address.
Provides procedures for audits by municipalities of
23 sellers of services. Prescribes record retention
requirements for sellers. Provides time limitations on
24 assessments of taxes and on applications for refunds or
credits. Provides for offsets of overpayments against
25 underpayments and for refunds and credits. Provides
requirements with respect to a determination by a
26 municipality of amounts of tax. Provides protest
procedures and judicial remedies. Provides for settlement
27 or compromise of a seller's liability for taxes. Provides
rights and duties of municipalities and sellers. Provides
28 that public service tax payment and return filing dates
must conform to due dates established under ch. 212, F.S.
29 Provides a schedule for application of the requirements
of the act. Provides an appropriation. Provides for
30 severability.
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